Delhi District Court
Smt. Sushma Sharma vs Ms. Sangeeta Sharma on 15 May, 2023
IN THE COURT OF SHRI NAVJEET BUDHIRAJA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No. 8148/16
In the matter of :
1. Smt. Sushma Sharma
W/o Late Sh. Rakesh Sharma
2. Ms. Deepika Sharma
D/o Late Sh. Rakesh Sharma
Both Residents of :
House No. 198/31B, Street No.5
Shri Ram Nagar Mohalla,
Shahdara, Delhi.
..... Plaintiffs
Vs.
1. Ms. Sangeeta Sharma
D/o Late Sh. K.D. Sharma
Resident of:
TA/151/4, Anukampa, Tuglakabad Extn.
Kalkaji, New Delhi.
2. Smt. Kalpana @ Mala
W/o Sh. Narender Shrma
R/o 73 Chittarkoot Apartments,
JNU, New Delhi.
..... Defendants
Date of Institution : 29.05.2013
Date on which arguments
concluded : 11.05.2023
Date of Judgment : 15.05.2023
Result : Dismissed
1 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
SUIT FOR DECLARATION, PARTITION, POSSESSION,
PERPETUAL INJUNCTION AND MESNE PROFIT
JUDGMENT
Plaintiff filed the present suit seeking a decree for declaration, declaring the property bearing number TA/151/4 Tuglakabad Extension, New Delhi, 180 Sq yards consisting basement, one hall, one room, one kitchen, bathroom at ground floor and three rooms, kitchen, bathroom at first floor (hereinafter referred to as 'the suit property') as the self acquired property of Late Sh K D Sharma and decree of partition and possession regarding the the suit property against the defendants partitioning the same by metes and bounds giving the plaintiffs their 1/3rd share along with decree of mesne profit as the defendants are wrongful and illegal possession of the plaintiff's 1/3rd share in the the suit property.
2. Plantiff no.1 Smt. Sushma Sharma is the widow of Late Sh. Rakesh Sharma and daughter-in-law of Smt. Manjula Sharma (deceased defendant). Plaintiff no.2 is the daughter of late Sh. Rakesh Sharma, who was the son of Late Smt. Manjula Sharma.
3. Initially the suit was filed against three defendants namely Smt. Manjula Sharma, Ms. Sangeeta Sharma and Smt. Kalpana @ Mala. However, during the proceedings, Smt. Manjula Sharma got expired, which is reflected in the order dated 30.08.2016 and 08.11.2016, following which the suit continued against the other defendants, being the legal representative of Smt. Manjula Sharma and an amendment under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) was also allowed and amended memo of parties was taken on record wherein Ms. Sangeeta Sharma was arrayed as defendant no.1 and Smt. Kalpana 2 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. @ Mala was arrayed as defendant no.2.
4. Defendant no.1, who is residing in the the suit property and defendant No. 2, are daughters of Late Manjula Sharma. Defendant No. 2 is also married daughter of late Manjula Sharma and is presently residing with her husband.
5. The case of the plaintiffs is that the suit property was purchased by Late Sh. K.D. Sharma (father-in-law of the Plaintiff No. 1.) out of his own resources and, thereafter, he also constructed the same from his own funds and therefore, the suit property was self acquired property of late Sh. K D Sharma, and the said K.D. Sharma died on 03.11.2008 leaving behind his widow i.e. late Manjula sharma who died on 1-6-2016, his only son Sh. Rakesh sharma who died on 13-7-2012 leaving behind plaintiff No. 1 and plaintiff No. 2, and his two daughters i.e. Defendant No. 1& 2 who all succeeded to his estate in equal shares by operation of law being his only class -1 legal heirs of Sh. K.D. Sharma as he died intestate.
6. It is further stated that the said K.D. Sharma retired from service in the year 1982 and during his life time and after the death of late Sh. K.D. Sharma, plaintif no.1's husband Sh. Rakesh Sharma maintained the suit property and met the entire expenditure towards its repairs, constructions and other expenses out of his own resources as he was sole bread earner for the family. Late Rakesh Sharma was employed in the Central Bank of India, South Delhi with effect from 28.03.1983 till his death i.e. on 13.07.2012 and he lived in the suit property upto his death.
3 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
7. It is further averred that the said Rakesh Sharma, husband of the plaintiff No. 1 also died intestate leaving behind plaintiff No. 1 and his daughter i.e. plaintiff No. 2 as his legal heirs, who became his successors -in-interest in the the suit property.
8. It is further stated that on 01.08.2012 after the death of late Sh. Rakesh Sharma, the plaintiffs were forcibly thrown out of the suit property by deceased Manjula Sharma in collusion with Defendant No.1 & 2 despite the fact that the same was not only matrimonial home of Plaintiff No. 1 but was also owned by the plaintiffs jointly to the extent of 1/3 rd share therein as successors in interest of late Rakesh Sharma.
9. It is further submitted that plaintiff no.1 has no sufficient source of income to have a place to live in and is, therefore, forced to live in her parental house along with her daughter i.e. plaintiff No. 2 and are completely dependent upon her father for their survival.
10. It is further submitted that the plaintiffs have several times requested the defendants to partition the aforesaid property and give them their share so that they can live in their own house, but the defendants had refused to do so.
11. It is also stated that the plaintiff's husband spent a handsome amount on the renovation of the suit property all from his income and therefore, in the aforesaid circumstances, the plaintiffs have no other efficacious remedy but to approach the court to enforce their share in the said property by means of a decree of partition and hence the present suit.
4 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
12. By way of plaint, it is also stated that after the marriage of defendant No. 2 and after the death of late K.D. Sharma, Plaintiff's husband Sh. Rakesh Sharma and late Manjula Sharma, and Defendant No. 1 were the only residents in the said house. It is also stated that late husband of the plaintiff No. 1 and plaintiff were not sharing a very cordial relation during their matrimony as the late husband of the plaintiff No. 1 was very abusive and cruel upon the plaintiff No. 1.
13. It is further stated that plaintiff No. 1 also got the FIR No. 102 of 1997 registered against her husband and other Defendants, which was subsequently compromised and FIR was quashed vide order dated 08-05-2008 passed in Crl. M.C. No. 1505 of 2008 by the High Court Delhi.
14. It is further stated that there was not divorce taken or agreed to be taken by the settlement deed dated 03-05-2008 as it was not intended by the parties to dissolve the marriage for the sake of their only female child.
15. It is further stated that the late husband of the Plaintiff No. 1 became ill in the month of October 2011 having T.B. and expired on 13- 7-2012 in the T.B. Hospital Mehrauli New Delhi and because of T.B. the other members of the family started avoiding the late husband of the Plaintiff No.1 because of his disease and hence she came and joined her matrimonial home i.e. the suit property to take care of her late husband.
16. Written statement came to be filed on behalf of the defendants stating that present suit is based on concealent of true facts and suppression of material facts deliberately and malafide by the 5 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. plaintiffs and therefore is liable to be dismissed.
17. Plaintiffs by no stretch of imagination have any interest to claim partition of the suit property and have furthermore failed to produce any documentary evidence to support their fictitious claims.
18. The claims, if any as based upon the succession in favour of the plaintiffs in respect of the suit property is also not based on any lawful entitlement as late Manjula Sharma vide her last registered will dated 31.10.2010 duly executed before the office of Sub Registrar VII, INA, Vikas Sadan, New Delhi-110023 has specifically disowned her late son Sh. Rakesh Sharma as well as the present plaintiffs and had bequeathed all her movable and immovable possessions and property only in favour of her two daugthers i.e. the defendants including the present suit property which was her own and independently/self acquired property purchased by Late Manjula Sharma in the year 1980 out of her own funds earned by herself and purchased by way of execution of General Power of Attorney dated 25.07.1980 executed by Sh. Ghamsura who was the former owner of the plot along with agreement to sell dated 25.07.1980 for a total consideration of Rs.4000/- noted in receipt dated 25.07.1980 along with delivery of physical possession of the suit property at site and further a will dated 25.07.1980.
19. Later, Late Smt. Manjula Sharma had publicly disowned her son Late Rakesh Sharma as well as the plaintiffs vide public notice dated 07.06.2012 and furthermore, the plaintiffs have failed to produce any documentation challenging the exclusive ownership of the suit property by Late Manjula Sharma till the date of her demise and therefore she was free to bequeath her self acquired property to anyone.
6 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
20. Plaintiffs filed false affidavit that they have no income and means to survive and are fully dependent on Sita Ram Sharma except the family pension of Rs.9000/- received by the plaintiff no.1 wheres the truth remains that the plaintiff no.1 has been employed as Instructor at ITI, Vivek Vihar, Shahdara, New Delhi since 1997 and plaintiff no.2 has been gainfully employed wiht MoMagic Technologies Pvt Ltd at Sector 63, Noida UP since many years and drawing handsome income continuously and besides that the plaintiff no.1 has been possessed with huge funds to the tune of multiple lacs as derived from various FDRs and bank accounts left behind by Late Sh. Rakesh Sharma as well as the investments and the assets generated by the plaintiff no.1 and 2 from their salaried incomes. However, in spite of the existence of such strong financial status of plaintiff no.1 and 2, plaintiff no.1 had made a patently false statement on oath before the Tehsildar also who was directed to ascertain the financial status of the plaintiffs that she and her daughter have no means of sustenance and financial assets of any kind on 19.04.2023.
21. Plaintiffs then submitted a rejoinder to the written statement wherein they refuted the narrative of the defendants and reprised the claims made in the plaint.
22. The consummation of pleadings was followed by the framing of issues by Ld. Predecessor of this Court, which are as under:
1. Whether the suit of the plaintiff is not property valued for the purpose of court fees and jurisdiction? OPD
2. Whether the suit property is absolute property of Smt. Manjula Sharma or that the plaintiffs have any right or interest in the said 7 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
property after the death of Sh. Rakesh and his father K.D. Sharma as per HSA, 1956. Onus on the parties.
3. Whether the plaintiff is entitled for a decree of declaration as prayed? OPP
4. Whether the plaintiff is entitled for a decree of partition as prayed? OPP
5. Whether the plaintiff is entitled for recovery of possession as prayed? OPP
6. Whether the plaintiff is entitled for a decree of permanent injunction as prayed? OPP
7. Whether the plaintiff is entitled for mesne profits as prayed? OPP
23. For recording of evidence, in terms of Order 18 Rule 4 (1) CPC, Mrs. Shashi Bala Bansal, Advocate, was appointed as Ld. Local Commissioner.
24. Plaintiff no.1 got examined herself as PW-1 vide her affidavit ExPW-1/A and who also relied upon the following documents as under:
Site plan as Ex.PW-1/1.
Copy of Central Bank ID Card of Rakesh Sharma as Ex.PW-1/2 (OSR).
Copy of death information report of Rakesh Sharma issued by LRS Institute of TB and RD Hospital Mehrauli, New Delhi as Ex.PW-1/3 (OSR).
Copy of Moksha Dham Receipt of cremation of Rakesh Sharma dated 14.07.2012 as Ex. PW-1/4 (OSR).
Copy of Death Certificate of Rakesh Sharma as Ex.PW-1/5 (OSR).
8 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
Copy of Death Certificate of Kaushla Dhish Sharma as Ex.PW-1/6 (OSR).
Copy of complaint under Section 12 of Domestic Violence Act as Mark E. Copy of order dated 08.05.2008 passed in Crl M.C. No. 1505 of 2008 as Mark F. Copy of deed of settlement dated 03.05.2008 as Mark G. Photographs of Rakesh Sharma and plaintiff as Mark H to Mark O. Copy of medical certificate of Rakesh Sharma dated 1.12.2011 as Mark P. Copy of medical certificate of Rakesh Sharma dated 01.01.2012 as Mark Q. Copy of medical certificate for leave of Sh. Rakesh Sharma dated 01.02.2012 as Mark R. Copy of Medical Certificate for leave of Sh. Rakesh Sharma dated 01.05.2012 as Mark S. Copy of VRS application of Rakesh Sharma submitted in Central Bank of India dated 08.06.2012 as Mark W.
25. PW-1 was cross-examined on different occasions and was finally discharged on 31.05.2019. No further evidence was led on behalf of plaintiffs and their evidence was formally closed on 10.07.2019 before Ld. Local Commissioner.
26. Defendant no.1 got herself examined as DW-1 vide her affidavit as Ex.DW-1/1 and also relied upon following documents as under:
9 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
Copies of letters written by the plaintiff no.1 as Mark A (Colly). Copies of rent receipts of various properties in the name of Late Sh. Rakesh Sharma as Mark B (Colly).
Copies of letters dated 01.12.1997 and 09.05.1998 addressed to SHO, PS Kalkaji, New Delhi by Late Sh. Rakesh Sharma as Mark C (Colly).
Copy of settlement deed dated 03.05.2008 as Mark D. Copy of order dated 08.05.2008 passed by the Hon'ble High Court of Delhi as Mark E. Copies of medical perceptions in the name of the late Sh. Rakesh Sharma as Mark F (Colly).
Copies of letter dated 11.10.1976 from Director of Dr. Radhakrishnan International School to Late Smt. Manjula Sharma as Mark G. Copy of letter dated 12.03.1981 from Principal of Manav Bharti Institute of Child Education and Child Psychology as Mark H. Copy of letter dated 22.01.1983 from Dr. Radhakrishnan International School addressed to Late Smt. Manjula Sharma as Mark I. Original property tax bills for the year 1990 to 2002 in the name of Late Smt. Manjula Sharma as Ex.DW-1/A. Original of telephone bills of the suit property for the year 1988 to 2012 as Ex.DW-1/B (Colly).
Original electricity bills for the year 1993 to 2012 as Ex.DW-1/C (colly).
Copy of status of employment of plaintiff no.1 as Mark L. Copy of representation dated 18.05.2012 submitted by Smt. Manjula Sharma to DCP (SE) as Mark M. 10 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
Copy of complaint dated 05.06.2012 lodged with the SHO, PS Kalkaji vide DD No. 56B as Mark N. Copy of public notice dated 07.06.2012 published in newspaper Jansatta, Delhi Edition as Ex.DW-1/D. Copy of the complaint dated 21.07.2012 made by Smt. Manjula Sharma to SHO PS Govind Puri, Kalkaji, New Delhi as Mark P. Copy of complaint dated 30.07.2012 made by Smt. Manjula Sharma to the DCP (SE), New Delhi as Mark Q. Copy of complaint dated 30.07.2012 made by Smt. Manjula Sharma to the DCP (SE), New Delhi as Mark R. Copy of complaint dated 02.08.2012 made by Smt. Manjula Sharma to the SHO, PS Govind Puri, Kalkaji, New Delhi as Mark S. Copy of receipt dated 19.08.2012 signed by the father of the plaintiff no.1 after receiving all the belongings of Late Sh. Rakesh Sharma as Ex.DW-1/E. Copy of status report filed by SHO, PS Govind Puri, New Delhi in Crl. W.P. No. 1543/2012 titled Manjula Sharma Vs. State of NCT of Delhi as Ex. (objection raised by counsel for plaintiff that this document cannot be marked as Mark U as the same is true typed copy by the Ld. Counsel for the defendants and not the photocopy of the concerned document).
Copy of order dated 16.01.2013 passed by the Hon'ble High Court of Delhi in Crl. W.P. No. 1543/2012 titled Manjula Sharma Vs. State of NCT of Delhi as Mark V. Ex.DW-1 was also examined on different occasions.
27. Defendant no.2 was then examined as DW-2 vide her 11 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. affidavit Ex.DW-2/A and also relied upon following documents as under:
Copy of cross-examination of PW-1 before Ld. ADJ Tis Hazari in case no. 140/2005 dated 23.10.2007 as Mark DW-2/1 (Colly). Copy of Will dated 31.10.2010 executed by Smt. Manjula Sharma in Favor of deponent and her young sister as Mark DW-2/2. (objected - will cannot be proved by way of copy of the same and original has to be filed before the court, thus the same cannot be read as a evidence).
Original photographs of Manjula Sharma as Marked DW-2/3. Original telephone bills of the suit property (19 bills) as Ex.DW- 2/C. Copy of property tax receipt as Mark DW-2/D. Copy of property tax receipt as Mark DW-2/E. Judgment of Hon'ble Principal Bench CAT dated 29.11.2013 as Mark DW-2/I. Copy of ration card in the name of plaintiff no.1 and 2 as Mark DW-2/K. Original Will dated 31.10.2010 executed by Smt. Manjula Sharma in favor of defendant no.1&2 as Ex.DW-2/1. Originals a. Agreement to Sell as Ex.DW-2/3;
b. Affidavit as Ex.DW-2/3A;
c. GPA as Ex.DW-2/4;
d. Receipt as Ex.DW-2/5;
e. Receipt dated 25.07.1980 as Ex.DW-2/6; f. Agreement for sale as Ex.DW-2/7; g. Will as Ex.DW-2/8.
12 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
28. Ld. Counsel for the plaintiff objected to the mode and manner of proving the documents i.e. Ex.DW-2/C, Ex.DW-2/1, Ex.DW- 2/3, Ex.DW-2/3A, Ex.DW-2/4, Ex.DW-2/5, Ex.DW-2/6, Ex.DW-2/7, Ex.DW-2/8 as the witness is not entitled to prove these documents.
29. DW-2 was also cross-examined on behalf of plaintiff. Defendant's evidence was formally closed on 12.09.2022, metamorphosing the case to the stage of final arguments.
30. Ld. Counsel for plaintiff broached the case by highlighting that the suit property was belonging to the father-in-law of plaintiff no.1 and after his death and that of his wife Smt. Manjula Sharma as well as after the death of husband of plaintiff no.1, plaintiffs are entitled to seek their share in the suit property. Ld. Counsel referred to the site plan Ex.PW-1/1, which is stated to be not denied by the defendants. The suit property was stated to be self-acquired property of Late Sh. K.D. Sharma, who died intestate in 2011 and his wife died in 2016. It is further argued that after 1982, the only earning member of the family was husband of plaintiff no.1 and plaintiff no.1 was residing with him till 2012 when she was ousted from the suit property. Ld. Counsel also emphasized that documents with regard to her previous possession over the suit property have been placed on record in the form of Election I Card and other documents. Ld. Counsel further highlighted that for a brief period, plaintiff no.1 resided separately from her husband but there never was any formal divorce. Ld. Counsel for the plaintiff further sought to punch holes in the defence of the defendants that Will has not been proved by defendants as per law and most of the documents on behalf of defendants have not been properly exhibited and proved as per Evidence Act. Ld. Counsel further pointed the cuttings in the agreement 13 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. to sell in respect of the suit property and also that there is palpable differences between the different pages of the agreement to sell and the documents do not show that the suit property belongs to Manjula Sharma. It is also pointed out that the previous chain of documents have not been produced and no witness from the school is examined to prove that Manjula Sharma was employed. It is further argued that husband of the plaintiff was the only earning member of the family after the retirement of K.D. Sharma and construction in the suit property was also carried out by him as he was employed in Central Bank of India.
31. Conversely, on behalf of the defendants Ld. Counsel countered the case of the plaintiffs that they have already relinquished their rights in the suit property at the time of final settlement that took place in the year 2008 on the basis of which an FIR registered under Section 498 A of IPC was quashed. It is further argued that Manjula Sharma had left a registered Will in favor of the other defendants bequeathing the suit property, which she had bought out of her own earnings and it was admitted in the rejoinder on behalf of plaintiffs that the sale documents in respect of the suit property were in her name. Rather, it was argued that there is no documentary evidence that Late K.D. Sharma was employed or not, there is no salary slip that he was earning some amount.
32. Having heard both the Ld. Counsels, my issue wise findings are indicated below:
At the outset, the objection on behalf of plaintiffs with regard to marking of document Mark U and Mark DW-2/2 are decided in favor of the plaintiffs and these documents will not be read in evidence as the defendants have failed to prove these documents by legal and 14 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
admissible evidence.
33. Issue no.2: Whether the suit property is absolute property of Smt. Manjula Sharma or that the plaintiffs have any right or interest in the said property after the death of Sh. Rakesh and his father K.D. Sharma as per Hindu Succession Act, 1956. Onus on the parties.
33.1 The burden to prove this issue was upon both the parties. At the outset, it is highlighted that upon poring over the frame of the suit, it is manifest that the plaintiffs have asserted their share in the suit property on the underpinning of father-in-law of plaintiff no.1 Late Sh. K.D. Sharma being the absolute owner of the suit property, who had allegedly purchased the same out of his funds and the alleged sale documents in favor of Late Smt. Manjula Sharma have been proclaimed to be forged and fabricated. Thus, clearly the tenor and nature of the suit is not that the plaintiffs have acknowledged Late Smt. Manjula Sharma as the absolute owner of the suit property and the entire thrust is on the enforcement of the rights of the plaintiffs allegedly flown in their favor after the death of Sh. Rakesh, husband of the plaintiff and Sh. K.D. Sharma, father-in-law of the plaintiff.
33.2 Glancing of the amended plaint shows that the suit property has been claimed to be purchased by Late Sh. K.D. Sharma, father-in- law of plaintiff no.1, out of his own resources and, thus, it was his self- acquired property. But there is no specific averment in the entire plaint as to in whose name the suit property was purchased. Defendants, on the other hand, have assiduously asserted in the amended written statement that the suit property was purchased by their mother Late Smt. Manjula Sharma in the year 1980 out of her own funds by way of execution of 15 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. General Power of Attorney dated 25.07.1980 Ex.DW-2/4 executed by one Sh. Ghamsura, who was the former owner of the suit property, alongwith agreement to sell dated 25.07.1980 Ex.DW-2/3, Affidavit Ex.DW-2/3A for a total consideration of Rs.4,000/- noted in the receipt for Rs.4,000/- Ex.DW-2/5 alongwith delivery of a physical possession, and further a Will dated 25.07.1980 Ex.DW-2/8, which was executed by Sh. Ghamsura in favor of their mother. In the replication on behalf of the plaintiffs, it was disclaimed that Late Smt. Manjula Sharma was the owner of the suit property as there is no registered sale deed and that she was a house wife without having any funds and it was reiterated that Late Sh. K.D. Sharma was the real owner of the suit property. Then in paragraph 6 of the replication in reply on merits, strangely, it was claimed that Late Sh. K.D. Sharma got the GPA, Agreement to sell and Will in the name of Late Smt. Manjula Sharma and after his retirement he obtained a registered sale deed of the suit property in his name. But, no such alleged registered sale deed in favor of Late Sh. K.D. Sharma has been placed on record. Even, on poring over the affidavit of PW-1 Ex.PW-1/A, it is made out that the suit property was claimed to have been purchased by Late Sh. K.D. Sharma and that the GPA, in the name of Late Smt. Manjula Sharma is a forged and fabricated document and the Will made on the basis of the same cannot have any legal force as the same is also not probated. But the plaintiffs have failed to place on record any document demonstrating the ownership of Late Sh. K.D. Sharma over the suit property. Though, they have sought to declare the suit property to be the self-acquired property of Late Sh. K.D. Sharma, but they have neither filed any documentary proof of his ownership nor have shown his source of funds where from he could have purchased the suit property.
16 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. 33.3 Ld. Counsel for the plaintiffs argued that the defendants have affirmed during their cross-examination that their father Late Sh. K.D. Sharma was working as Deputy Director in DRDO and even though there is no documentary proof of his earning during that time, it can be presumed that he was earning a fairly decent amount of money from which he could have bought the suit property. To this extent, the argument of Ld. Counsel for plaintiffs has some spine, however, even if for the sake of argument, it is presumed that the suit property was purchased in the name of Late Smt. Manjula Sharmam, being the wife of Late Sh. K.D. Sharma, who had supplied the funds for purchase of the same, the case then would have to be analyzed in the light of the provisions of Benami Transaction Act, 1988 legislation and to assess whether the present case would fall within any of the exceptions cited therein. However, the frame of the present suit is not such as there is no such pleading that the suit property was purchased by Late Sh. K.D. Sharma in the name of his wife for her benefit and that in actuality, Late Sh. K.D. Sharma was owner of the same. Since, the plaintiffs have not pleaded their case on these lines, I would abstain from holding any further discussion from this angle.
33.4 Let us now have a glance at the cross-examination of PW-1. In regard to some basic details pertaining to the suit property, when PW- 1 was queried, she was ignoramus as to the exact date when the suit property was claimed to have been purchased by Late Sh. K.D. Sharma. She also could not divulge anything how the suit property was purchased by her father-in-law. She also could not reveal any consideration amount which was paid for the purchase of the suit property. Upon further query as to how she came to know that her father-in-law had purchased the suit property, she responded that other relatives used to say so. She also 17 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. acknowledged having no documentary proof to show that the suit property was purchased by Late Sh. K.D. Sharma, her father-in-law. It is, thus, clear from this extract of the cross-examination of PW-1 that she is not aware of the nuts and bolts in relation to the alleged purchase of the suit property by Late Sh. K.D. Sharma.
33.5 In regard to the claim that the suit property was constructed by the husband of PW-1, she has postulated in her cross-examination that initially the suit property comprises of only one floor and reconstruction started in the year 1997 and that her husband had paid for the entire reconstruction. But upon asking her about the details of the monies allegedly spent by her husband on the reconstruction of the suit property, again PW-1 could not divulge anything. Though, she claimed that her husband used to maintain a diary in which he used to enter the expenses incurred in the construction as well as daily household expenses, but no such diary has been produced. Even if, it is presumed that her husband had spent in the construction of the suit property, that would not have conferred any ownership rights over the same to him. At the most, he could have enforced his rights for recovery of the amount spent by him from his mother Smt. Manjula Sharma.
33.6 In so far as the case of the plaintiffs that the GPA in question Ex.DW-2/4 is a forged document, when PW-1 was questioned, she could not remember the date when she came to know that the said GPA is forged. When she was further queried as to how she could say that the GPA is a forged and fabricated document, she responded that her father- in-law had claimed that he had purchased the suit property. She also acknowledged thereafter that she has not filed any proof of ownership of the suit property in the name of her father-in-law. Thus, on the claim of 18 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. GPA in respect of the suit property in favor of Smt. Manjula Sharma being forged and fabricated, there is no material to substantiate the said allegation.
33.7 Thus, in the backdrop of the aforesaid discussion, it is concluded that the plaintiffs have failed to establish that there existed any document in favor of Late Sh. K.D. Sharma to prove his ownership over the suit property.
33.8 On the contrary, in favor of the assertions of the defendants that their mother Late Smt. Manjula Sharma was the owner of the suit property, they have placed on record the sale documents which are in the form of GPA Ex.DW-2/4, Agreement to sell Ex.DW-2/3, Affidavit Ex.DW-2/3A against the sale consideration of Rs.4,000/-. Though, plaintiffs have claimed these documents to be forged and fabricated, however, there is no material to substantiate this plea. Ld. Counsel for the plaintiffs, during arguments, forcefully pointed out that these documents cannot be relied upon as an objection was also raised at the time of tendering of these documents with regard to the manner of proving the same and that there is no counter signature of Late Smt. Manjula Sharma on these documents and at one place in the Will Ex.DW-2/8, instead of Ghamsura, the name of one Ramphal is mentioned, which discrepancies point towards the falsity of these documents. Ld. Counsel also urged that these documents do not convey any right, title and interest in the suit property in favor of Late Smt. Manjula Sharma, in violation of Section 54 of the Transfer of property Act and in the light of judgment of Supreme court in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana and Anr., (2012) 1 SCC 656, these documents cannot be relied upon.
19 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. 33.9 Before returning any finding on the validity and on the aforesaid sale documents, let me spell out the position as to the validity of these documents vis a vis the judgment of the Supreme Court in the case of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana and Anr. (supra). The High Court of Delhi in the case titled as Vikas Wadhwa Vs. Pradeep Kumar & Ors., date of decision 19.12.2018 has elaborated upon the admissibility and reliability of the sale transactions through the documents i.e. GPA, Agreement to sell, Affidavit etc. in the following paragraphs:
"7. The trial court has dismissed the suit by placing reliance upon the judgment of the Hon‟ble Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana and Anr., (2012) 1 SCC 656 that documents such as agreement to sell, power of attorney, cannot create rights in an immovable property. The trial court has also held that appellant/plaintiff failed to prove that any rent was paid by Smt. Vainkunthi Devi or that Smt. Vainkunthi Devi was a tenant.
Further, the trial court held that the rent agreement which was proved as Ex. PW1/2 was in favour of one Sh. Prabhu Dayal and therefore Smt. Vainkunthi Devi could not be a tenant, although it is noted above that Sh. Prabhu Dayal is admittedly the husband of Smt. Vainkunthi Devi. The trial court has also held that since there was a dispute with regard to the title, the appellant/plaintiff ought to have sought the relief of declaration of his title in view of the judgment of the Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs and Others, (2008) 4 SCC 594. Accordingly, the trial court dismissed the suit.
8. In my opinion, the trial court has clearly erred in dismissing the suit. Once the appellant/plaintiff led evidence and proved his rights in the suit property in terms of the Documentation dated 26.04.2001. This documentation in the entire chain was proved 20 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
and exhibited before the trial court as Ex. PW1/1 (colly) and Ex. PW1/2 (colly). These documents include the entire set of original documents of allotment to the original allottee Sh. Lachoo Ram and thereafter further transfer to Smt. Vainkunthi Devi and then transfer by Smt. Vainkunthi Devi to the present appellant/plaintiff. The rent agreement in favor of Sh. Prabhu Dayal, the husband of Smt. Vainkunthi Devi, was proved as Ex. PW1/3. I may note that since the documentation in favour of the appellant/plaintiff are prior to 24.09.2001 whereafter an amendment to Section 53A of the Transfer of Property Act, 1882 was made whereby an agreement to sell could only be looked into if it was stamped and registered, therefore in this case, the bar applicable from 24.09.2001 will not apply to the Documents dated 26.04.2001 which have been executed in favour of the appellant/plaintiff. Even the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) does not bar the case of the appellant/plaintiff, and in fact this judgment supports the case of the appellant/plaintiff and the trial court has erred in observing that the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) prevents it looking into the Documentation dated 26.04.2001 executed in favour of the appellant/plaintiff. I have considered these aspects of the applicability of the ratio of the judgment of Suraj Lamps & Industries Pvt. Ltd. (supra) in the case of Ramesh Chand v. Suresh Chand and Anr., 188 (2012) DLT 538, and the relevant paras 1 to 3 of this judgment read as under-
"1. This Regular First Appeal was dismissed by a detailed judgment on 28.2.2011. A Special Leave Petition was filed in the Supreme Court against the judgment dated 28.2.2011 and the Supreme Court has remanded the matter back for a fresh decision by its order dated 31.10.2011. The order of the Supreme Court dated 31.10.2011 is based on the issue of the Supreme Court passing the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1 (SC), and as per which judgment the Supreme Court overruled the Division Bench judgment 21 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
of this Court in the case of Asha M. Jain Vs. Canara Bank 94 (2001) DLT 841. Since the judgment of this Court dated 28.2.2011 had relied upon the Division Bench judgment in the case of Asha M. Jain (supra), and which judgment was over ruled the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd.
(supra), the matter was therefore remanded back to this Court.
2. Before I proceed to dispose of the appeal, and which would turn substantially on the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra), it is necessary to reproduce certain paras of this judgment of the Supreme Court, and which paras are paras 12, 13, 14 and 16, and which read as under:-
"12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance.
Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law.
Even an irrevocable attorney does not have the effect of transferring title to the grantee. In 22 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
State of Rajasthan v. Basant Nehata MANU/SC/0547/2005 : 2005 (12) SCC 77 this Court held:
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable.
The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
Scope of Will
14. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The 23 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales." (emphasis supplied)
3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass.
The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 24 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872.
There also takes place devolution of interest after the death of the testator in terms of a Will."
9. In my opinion, therefore, once the appellant/plaintiff has proved his rights in the suit property in terms of the Documentation dated 26.04.2001, and there is no evidence led on behalf of the respondents/defendants, there was no reason why the appellant/plaintiff should not succeed. Therefore, the trial court has erred in dismissing the suit by applying the ratio of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra)."
33.10 It is manifest from above that though the aforesaid documents are not the legal mode of conveying the title in the property as envisaged in Section 54 of the Transfer Property Act, nevertheless, there are some rights which would flow from these documents and these documents would hold good and valid against all other persons except the executor of these documents. In the instant case as well, we have already seen that the case of the plaintiff has fallen face down in so far as asserting their claim that Late Sh. K.D. Sharma was the absolute and real owner of the suit property, therefore, the purported sale documents i.e. GPA Ex.DW-2/4, Agreement to sell Ex.DW-2/3, Affidavit Ex.DW-2/3A in favor of Late Smt. Manjula Sharma are on a better footing and on the principle of preponderance of probability, can be taken into consideration.
33.11 Furthermore, the defects as pointed out by Ld. Counsel for 25 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. the plaintiffs in the aforesaid documents, those are not significant enough to question the authenticity of the same as the nature of the documents are such that there is no requirement of the signature of the purchaser of the suit property being appended on all the documents. The fact that these documents pertain to in the year 1981 and as per Section 90 of Evidence Act, 1872, there is a presumption attached to the documents which are 30 year old and since these documents are coming from the custody of the daughters of Late Smt. Manjula Sharma, they cannot be disregarded. To fortify on this, I here by rely upon the judgment of the Supreme Court in Iqbal Basith and Ors. Vs. N. Subbalakshmi & Ors., decided on 14.12.2020. The relevant extract is as under:
"12. Both the courts then proceeded to consider the title of the appellants to decide lawful possession. The respondents had themselves produced a certified copy of Ex. D- 1 dated 07.09.1946. The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor O.A. Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non- production of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a
26 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.
13. This Court in Lakhi Baruah vs. Padma Kanta Kalita, (1996) 8 SCC 357, with regard to admissibility in evidence of thirty years old documents produced from proper custody observed as follows :- "14. It will be appropriate to refer to Section 90 of the Evidence Act, 1872 which is set out hereunder:
"90. Presumption as to documents thirty years old.-- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."
15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents.
Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons."
33.12 In so far as the contention of Ld. Counsel for the plaintiffs that in the Will Ex.DW-2/8, instead of Ghamsura, the name of Ramphal is mentioned, Ex.DW-2/7 clarifies this position wherein the said 27 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. Ghamsura is also stated to be known by the name of Ramphal. Thus, this alleged lapse in the Will Ex.DW-2/8 is not significant enough to throw it out. With this discussion, the objection in regard to mode and manner of proving of Ex.DW-2/C, Ex.DW-2/1, Ex.DW-2/3, Ex.DW-2/3A, Ex.DW- 2/4, Ex.DW-2/5, Ex.DW-2/6, Ex.DW-2/7, Ex.DW-2/8 also stands decided against the plaintiffs and in favor of the defendants.
33.13 Ld. Counsel for the plaintiffs also took umbrage at the claim of the defendants that their mother Late Smt. Manjula Sharma was in a position to purchase the suit property as she has been claimed to be the house wife. In regard to this, the claim of the defendants is that their mother Late Smt. Manjula Sharma was employed at the time when the suit property was purchased, and to this effect they have relied upon the copies of the letter dated 11.10.1976 from Director of Dr. Radhakrishnan International School as Mark G, Copy of letter dated 12.03.1981 from Principal of Manav Bharti Institute of Child Education and Child Psychology as Mark H, copy of letter dated 22.01.1983 from Dr. Radhakrishnan International School addressed to Late Smt. Manjula Sharma as Mark I. Though, during arguments, Ld. Counsel for the plaintiffs emphasized that these documents cannot be read in evidence being the copies, however, it is noted that no such objection was raised as to the mode of proof of these documents at the time they were tendered in evidence. In Sidharth Kumar Vs. Alok Kumar, High Court of Delhi, date of decision 08.09.2017, it was held as under:
"7. For the purpose of disposal of this RSA the following substantial question of law is framed:-
"Whether the judgment of the first appellate court is not grossly illegal and perverse, inasmuch as, the objection under Section 65B of the Indian Evidence Act was not available to the respondent/defendant because objection 28 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.
was not taken before commencement of cross- examination and therefore such objection as to the mode of proof of statement of account and the bills stood waived in view of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752?"
8. The aforesaid question of law has to be answered in favour of the appellant/plaintiff and against the respondent/defendant, inasmuch as, it is seen that as per the ratio of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder (supra) the objection as to mode of proof of document can always be waived if the objection is not taken up at the relevant time. Since in the present case appellant/plaintiff had filed his affidavit by way of evidence and thus proved the bills and the statement of account, the respondent/defendant had to object to the proof of the statement of account and bills before his commencement of cross-
examination of PW-1, because, if this objection was taken then the appellant/plaintiff would have had an opportunity not to close his examination-in-chief and instead to lead additional evidence to prove the statement of account and the bills. Therefore, applying the ratio of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder (supra), it is held that the first appellate court has erred in placing reliance upon Section 65B of the Indian Evidence Act and for dismissing the suit on this sole ground."
33.14 The aforesaid documents, though do not demonstrate the earning of Late Smt. Manjula Sharma, but establish that she was into employment during the time the suit property was purchased and again on principle of preponderance of probability, the fact that the sale documents in respect of the suit property exist in her favor, it can be concluded that she must have pooled in some money towards the purchase of the suit property and, thus, is held to be the rightful owner of 29 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. the same.
33.15 Another issue which needs a reference herein is that Late Smt. Manjula Sharma has claimed to have further executed registered Will dated 21.10.2010, vide which she has bequeathed all her movable and immovable property including the suit property in favor of her daughters defendant no.1 and 2 and has also disowned her late Sh. Rakesh Sharma, husband of the plaintiff no.1. However, for the present discussion, the execution of the Will dated 21.10.2010 by Late Sh. Manjula Sharma is not of much significance, as the issue in hand is whether she was the exclusive owner of the suit property or whether the plaintiffs have any right in the suit property after the death of Sh. Rakesh Sharma and his father Sh. K.D. Sharma and not whether Late Smt. Manjula Sharma had executed any Will qua the suit property.
33.16 Further, on perusal of the cross-examination of DW-1 and DW-2, it is noted that the cross-examination has alluded to various issues i.e. whether husband of plaintiff no.1, Late Sh. Rakesh Sharma was residing in the suit property and for how long, whether the relationship of plaintiff no.1 and Late Sh. Rakesh Sharma was strained, for how long they have resided separately from the suit property, the employment status of Late Sh. Rakesh Sharma, previous litigation between the parties under various legislations and consequent settlement, disowning of Late Sh. Rakesh Sharma, laying of the claim in the LIC Policy of Late Sh. Rakesh Sharma etc, but all these issues do not have any bearing on the facts in issue involved herein and, therefore, not much deliberation upon these issues is warranted. Though, Ld. Counsel for the plaintiffs, during arguments, harped upon these issues with vehemence, in my opinion, these issues would not alter the obtained factual matrix that the plaintiffs 30 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. have failed to establish their right in the suit property being the legal heir of Late Sh. Rakesh Sharma, who in turn was the legal heir of Late Sh. K.D. Sharma and who was alleged to be the owner of the suit property.
33.17 At this stage, I may also note that towards the fag end of final arguments, application under Order 6 Rule 17 read with Section 151 CPC came to be moved on behalf of the plaintiffs for amendment of the plaint and for addition of the prayers that a decree of declaration that after the demise of Smt. Manjula Sharma, the plaintiffs have possessory joint 1/3rd share, right and title in the suit property and to pass a decree in alternative in favor of the plaintiffs to the extent of joint 1/3rd share, however, by way of the said application, plaintiffs are attempting to turn back the clock, which cannot be permitted, in view of the proviso to Order 6 Rule 17 CPC as there is no explanation as to why the amendment could not be sought before the commencement of the trial.
33.18 Furthermore, by way of aforesaid amendment, plaintiffs, to an extent, sought to acknowledge the right and interest of Smt. Manjula Sharma in the suit property, which is contrary to their original claim that Late Sh. K.D. Sharma was the real and absolute owner of the suit property and the sale documents in favor of Smt. Manjula Sharma are forged and fabricated. Thus, the amendment sought cannot be permitted and consequently the application is dismissed.
33.19 The judgments relied upon by Ld. Counsel for the plaintiffs in Shiv Shankara & Anr. Vs. H.P. Veda Vyasa, Supreme Court of India, date of decision 29.03.2023 and in Sopan Rao & Anr. Vs. Syed Mehmood and Anr, Supreme Court of India, date of decision 03.07.2019 have no application to the facts of the present case and are of 31 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. no help to the plaintiffs.
33.20 In the light of the aforesaid discussion, issue no.2 is decided against the plaintiffs and in favor of defendants.
34. Issue no.1. Whether the suit of the plaintiff is not property valued for the purpose of court fees and jurisdiction? OPD 34.1 As per the plaint, the valuation in respect of the suit property is reflected in paragraph 20, as per which the circle rate of the suit property at the time of the institution of the suit was approximately Rs.18,000/- per square yard and property was valued at Rs.32,40,000/- and since plaintiff has been claiming 1/3rd share therein which comes out to be Rs.10,80,000/-, on which the Court fees was calculated to be Rs.12,898/-, which was paid. However, it is noted that plaintiffs have not valued each relief separately, upon which, corresponding court fees was to be paid and on this count, the plaint is held to be defective, however, this defect can be removed by proper valuation of each relief sought on behalf of plaintiffs and consequent payment of the Court fees thereof, if the plaintiffs succeed in this case.
34.2 Since issue no.2 is decided against the plaintiffs, it would not serve any purpose to call the plaintiffs to value the each relief separately. This issue is accordingly disposed of.
35. Issue no. 3 : Whether the plaintiff is entitled for a decree of declaration as prayed? OPP Issue no. 4 : Whether the plaintiff is entitled for a decree of partition as prayed? OPP Issue no. 5 : Whether the plaintiff is entitled for recovery of 32 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors. possession as prayed? OPP Issue no. 6 : Whether the plaintiff is entitled for a decree of permanent injunction as prayed? OPP And Issue no. 7 : Whether the plaintiff is entitled for mesne profits as prayed? OPP 35.1 Issue no.3, 4, 5, 6 and 7 are taken up together, being interlinked.
35.2 In view of the finding of issue no.2 against the plaintiff, plaintiffs are not found entitled to any of the reliefs sought herein and, thus, all these issues are also decided against the plaintiffs and in favor of the defendants.
36. The net result is that the suit of the plaintiffs is found to be sans merit and is dismissed. No order as to cost. Decree sheet be drawn up.
Announced & dictated in the open court on 15.05.2023 (Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 15.05.2023 Certified that this judgment contains 33 pages and each page bears my signatures.
(Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 15.05.2023 33 CS DJ No. 8148/16 Smt. Sushma Sharma & Anr. Vs. Ms. Sangeeta Sharma & Ors.