Delhi District Court
Smt. Kamla Rani vs Smt. Sushma Kapoor on 16 May, 2019
Kamla Rani Kapoor V. Sushma Kapoor & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 339/2017
UNIQUE CASE ID NO.: 610379/2016
IN THE MATTER OF :
Smt. Kamla Rani
W/o Late Shri Bhawani Dass
R/o B33, Nehru Vihar,
Near Timarpur, Delhi. ....Plaintiff
VERSUS
1.Smt. Sushma Kapoor W/o Late Shri Awadh Kapoor
2. Sh. Abhishek Kapoor S/o Late Shri Awadh Kapoor
3. Sh. Vanshraj Kapoor S/o Late Shri Awadh Kapoor All Residents of: B33, Nehru Vihar, Near Timarpur, Delhi. ....Defendants Suit No. 339/2017 Page 1 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
SUIT FOR RECOVERY OF RS.11,48,783/ (RUPEES ELEVEN LAKHS FORTY EIGHT THOUSAND SEVEN HUNDRED EIGHTY THREE ONLY) Date of institution of the Suit : 13/02/2015 Date on which Judgment was reserved : 24/04/2019 Date of Judgment : 16/05/2019 :: J U D G M E N T ::
By way of present judgment, this court shall adjudicate upon suit for recovery of Rs.11,48,783/ (Rupees Eleven Lakhs Forty Eight Thousand Seven Hundred Eighty Three Only) filed by the plaintiff against the defendants. CASE OF THE PLAINTIFF AS PER PLAINT Succinctly, the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under:
(a) The defendants are the daughterinlaw and grandsons respectively of the plaintiff being the wife and sons of her deceased son Sh. Avadh Kapoor. The elder son of the plaintiff Sh. Avadh Kapoor expired on 04.02.2014 and after his death, the plaintiff is completely shattered and has not yet come out of the mourning state and not yet recovered from the anguish of the death of her son, the defendants started harassing the plaintiff and many a times attempted to dispossess her from the property bearing no. B33, Nehru Vihar, Near Timarpur, Delhi (hereinafter referred to as the "said property").Suit No. 339/2017 Page 2 of 30
Kamla Rani Kapoor V. Sushma Kapoor & Ors.
(b) That recently, plaintiff has undergone surgery of hip bone due to which, she is unable to walk properly. After the death of plaintiff's elder son, the defendants, instead of consoling the plaintiff, started extending threats to her and subjecting her to cruelties and atrocities to pressurize her to sell the said property and to give them share. Aggrieved by the aforesaid acts of the defendants, the plaintiff had filed a Suit No. 485/2014 for permanent injunction alongwith application under order 39 rules 1 & 2 CPC before Ms. Shama Gupta, the then Ld. Civil Judge, Central, Delhi against the defendants. Vide order dated 08.01.2015, the application under order 39 rules 1 & 2 CPC was allowed by the aforesaid court.
(c) The deceased son of the plaintiff Sh. Avadh Kapoor was employed with Pharmacy Council of India since 1985 as Lower Division Clerk and holding the post of Accountant at the time of his death. The plaintiff is the nominee of Late Sh. Avadh Kapoor nominated by him, as admissible under the service rules. Subsequent to the death of Sh. Avadh Kapoor, an amount of Rs.9,98.942/ was released by way of two cheques - (1) Rs.5,59,376/ towards General Provident Fund and (2) Rs.4,39,566/ towards Death Gratuity by Pharmacy Council of India in favour of the plaintiff towards service benefits of Late Sh. Avadh Kapoor.
(d) Without the knowledge and consent of the plaintiff, the defendants have fraudulently and clandestinely transferred Suit No. 339/2017 Page 3 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
the entire amount of Rs.9,98,942/ to the account of defendant no.1 on 25.04.2014, which is also reflected in the Pass Book. The said act of the defendants manifestly reflects their fraudulent and dishonest intention to cheat the plaintiff and to cause wrongful loss to her and cause wrongful gain to themselves.
(e) The plaintiff was/is dependent upon her both the sons for her food, clothing, medical expenses and her daytoday expenses as she has no source of income as she is 75 years old as she is unable to do any work and earn her livelihood. She was dependent on her elder son and hence, she was availing the CGHS facility. The assistance provided by the younger son of the plaintiff is not sufficient to meet her expenses. The above amount received by her towards the service benefits of her elder son is the only support in her old age, which arrangement was duly made by her deceased son during his life time as he was aware that plaintiff is dependent on him and after his death, the defendants will not take care of her.
(f) The plaintiff had various times requested the defendants to return her money but all the requests of the plaintiff fell on deaf ears. The plaintiff also gave a complaint regarding the fraudulent transfer of money from her account to the account of Smt.Sushma Kapoor (defendant no.1) to the concerned police station vide complaint dated 27.12.2014 and also to the Manager, Bank of Maharashtra, Mukherjee Nagar Branch, Suit No. 339/2017 Page 4 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
Delhi vide complaint dated 27.12.2014. The plaintiff has also filed a criminal complaint vide complaint no. 6/1/15 before the Court of Sh. Ravinder Kumar Pandey, the then Ld. MM, Delhi.
(g) The plaintiff has also got issued a Legal Notice dated 12/01/2015 to the defendants through her counsel, to which defendants have replied vide vague reply dated 18/01/2015. The acts of the defendants are unlawful, illegal, unwarranted, unconstitutional and against the cannons of law and against equity and principles of natural justice. The acts of the defendants reflect the fraudulent and dishonest intentions of the defendants to cheat the plaintiff and deprive her of her lawful entitlement. The defendants have misappropriated the money of the plaintiff thereby causing wrongful loss to the plaintiff and wrongful gain to themselves. The plaintiff has no other equitable and efficacious remedy except to file the present suit against the defendants.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT Summons for settlement of issues were issued to the defendants and the defendants have filed their joint written statement in the present case. Succinctly, the case of the defendants is as under:
(a) The present suit is abuse of process of law. The sole motive is to harass the defendants and pressurize to Suit No. 339/2017 Page 5 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
leave the house and it is being done by plaintiff in conspiracy with her younger son.
(b) The suit, as framed and filed, fails to disclose as to how the plaintiff filed the suit for a sum of Rs.11,48,783/ when the plaintiff herself has valued it for Rs.9,98,942/ in the plaint. The suit even otherwise is not maintainable as the nominee is not entitled to the amount on the death, as per her own rights but get it as a trustee and supposed to return the amount to the persons entitled to it. The suit is false on the face of it as in para 7, it has been alleged that the defendants transferred the amount to the account of defendant no.1 whereas, the same was duly transferred by the plaintiff to defendant no.1, out of her bank account and duly signed the cheques for the same and there is nothing wrong in it as it was her legal obligation.
(c) The suit is bad for misjoinder of parties ad defendants no. 2 and 3 have been wrongly joined as no case is made out against defendants no. 2 and 3.
(d) On merits, the contents of the plaint have been denied and it has been submitted that it is the plaintiff, who is harassing the defendants by filing false and concocted suits through Legal Aid. The plaintiff even did not manage the last rites of the deceased and defendants had to borrow money from friends and relatives to Suit No. 339/2017 Page 6 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
perform last rites of Sh. Avadh Kapoor. Sh. Avadh Kapoor was ill since 2007 and had taken loan from various people and defendants had to repay the same as plaintiff had refused to help and did not do anything.
(e) The spouse of deceased was entitled to the amount of GPF and Gratuity and plaintiff was not entitled to it but she was released the amount as a nominee. The plaintiff has to seek declaration before seeking recovery as the plaintiff is not entitled to that amount under any circumstances and cannot seek recovery simplicitor. It has been prayed to dismiss the suit.
REPLICATION AND ISSUES Plaintiff has filed the replication controverting the allegations/ contentions in the written statement of the defendants and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were framed vide order dated 29.07.2015: ISSUES
1) Whether the amount of Rs.9,98,942/ was released in favour of plaintiff as a nominee of deceased Awadh Kapoor or she was entitled to receive whole of the amount in her personal capacity? (OPP)
2) Whether the defendant no.1 not transferred the said amount fraudulently and clandestine in her account on 25.04.2014? If so, its effect? (OPP) Suit No. 339/2017 Page 7 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
The issue No.2 was recasted vide order dated 16.07.2018 and the same is read as under: "Whether the defendant no.1 transferred the said amount fraudulently and clandestine in her account on 25.04.2014? If so, its effect? OP Parties)"
3) Whether the suit is bad for misjoinder of defendants no. 2 & 3? (OPD)
4) Whether the plaintiff is entitled to decree of Rs.11,48,783/ as claimed? (OPP)
5) Whether the plaintiff is entitled to any interest? If so at what rate? (OPP)
6) Relief.
EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND DOCUMENTS RELIED UPON BY THEM:
Plaintiff, in order to prove her case, led plaintiff's evidence and examined herself as PW1. PW1 has filed her evidence by way of affidavit, wherein, she reiterated and reaffirmed the contents of the plaint. PW1 in her testimony has relied upon the following documents:
(i) Complaint dated 27/12/2014 to SHO, P.S. Timarpur as Ex.PW1/1.
(ii) Complaint/ letter dated 27.12.2014 to Manager of Bank of Maharashtra, Dr. Mukherjee Nagar, Delhi as Ex.PW1/2.Suit No. 339/2017 Page 8 of 30
Kamla Rani Kapoor V. Sushma Kapoor & Ors.
(iii) Duplicate pass book of savings account no. 60163333027, Bank of Maharashtra, Dr. Mukherjee Nagar as Ex.PW1/3.
(iv) CGHS receipts dated 10.08.2013 and 29.11.2013 are Ex.PW1/4 and MarkA.
(v) Certified copy of order dated 08.01.2015 in C.S. No. 485/14 by the Court of Ms. Shama Gupta, the then Ld. CJ03, Central, Delhi as Ex.PW1/6.
(vi) Office copy of legal notice dated 12.01.2015 alongwith postal receipts as Ex.PW1/7 to Ex.PW1/10.
(vii) Reply to legal notice dated 12.01.2015 alongwith its envelope as Ex.PW1/11 and Ex.PW1/12.
(viii) Complaint dated 20.07.2015 to SHO, P.S. Timarpur, Delhi by the plaintiff against defendants regarding forged election identity card as MarkB. The plaintiff also examined the following summoned witness:
(i) Sh. Milind Gautam (Manager), UCO Bank, Mukherjee Nagar Branch, Delhi as PW2, who filed on record the attested copy of account opening form running in two pages as Ex.PW2/1 (Colly.), attested copy of Ration Card of Smt. Kamla Rani filed at the time of opening the said account as MarkA and attested copy of Statement of Account pertaining to the said saving account for the period from 31.08.2007 to 24.08.2018 running into three pages as Ex.PW2/2 (Colly.). He had deposed that the said Suit No. 339/2017 Page 9 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
account was opened by Smt. Kamla Rani on 04.01.2005 and the same was still existing till the date of his deposition in the Court.
(ii) Sh. Ashmeet Singh Marwah (Clerical) from Bank of Maharashtra, Mukherjee Nagar Branch, Delhi as PW3, who filed on record the attested copy of signature slip as Ex.PW3/1 and attested copy of Statement of Account pertaining to the said saving account for the period from 04.06.2007 to 30.06.2018 running into two pages as Ex.PW3/2 (Colly.). He had deposed that the said account was opened by Smt. Kamla Rani and Sh. Ram Gopal Kapoor on 27.06.1997 and the same was still existing and operative till the date of his deposition in the Court.
(iii) Ms. Harvinder Kaur, Accounts Officer, Pharmacy Council of India, New Delhi as PW4, who filed on record copy of FormA Nomination for deathcumretirement gratuity dated 28.08.1989 as Ex.PW4/1 and photocopy of Form of Nomination (First Schedule) dated 28.08.1989 as Ex.PW4/2.
(iv) The plaintiff also got examined the summoned witness Sh.
Ram Niwas, ASI from P.S. Timarpur, Delhi as PW5, who filed on record DD entry no. 26B, dated 28.12.2014 as Ex.PW5/1.
(v) Sh. Dharmendra Sah, Manager, Bank of Maharashtra, Mukherjee Nagar, Delhi as PW6, who filed on record copy Suit No. 339/2017 Page 10 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
of complaint dated 27.12.2014 as MarkA, attested copy of Statement of Account of Smt. Kamla Rani Kapoor of account no. 60163333027 as Ex.PW6/1, attested copy of two cheques bearing nos. 519303 and 519302, both dated 24.04.2014 as Ex.PW6/2 and attested copies of two deposit slips as Ex.PW6/3.
On the other hand, the defendant no.1, in order to prove her case, led defendants' evidence and examined herself as DW1. DW1 has filed her evidence by way of affidavit, wherein, she reiterated and reaffirmed certain contents of the Written Statement.
This Court heard final arguments, as advanced by Ld. Counsels for the parties. I have perused the material available on record.
ISSUE WISE FINDINGS ISSUE NO.3
1) Whether the suit is bad for misjoinder of defendants no. 2 & 3? (OPD) FINDINGS AND CONCLUSIONS OF THE COURT The defendants have raised the issue in the Written Statement that suit is bad for misjoinder of defendants No.2 and 3, however, the Ld. Counsel for defendants has not addressed any arguments on the aforesaid issue. The defendants have also not led any evidence on this issue. The categorical case of the defendants is that the entire death cum retiral service benefits i.e. emoluments, which were received by the Plaintiff from Pharmacy Council of India Suit No. 339/2017 Page 11 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
(hereinafter referred to as Council) was, in fact, received by the Plaintiff in the capacity of nominee i.e. trustee and she does not have any right, title and interest in the said amount and she was holding the said amount in the Trust for the exclusive benefit of the defendant No.1. As per the Judgment cited by the defendants, it is held that ClassI legal heirs are entitled to Death Cum Retirement benefits. Although, defendant No.1 is laying her claim towards the emoluments/terminal/death benefits, which were received by the Plaintiff from the said Council, however, in terms of the Judgment, as relied upon by the defendants, all the defendants are entitled to such benefits with the plaintiff, as they are also ClassI legal heirs. As per the Judgments relied upon by the defendants, the defendants are necessary and proper parties for adjudication for the present case. It is also apt to reproduce Order I Rule 9 CPC, which is as follows: "9. Misjoinder and nonjoinder.--No suit shall be defeated by reason of the misjoinder or non joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to nonjoinder of a necessary party"
The aforesaid provision vividly disseminates that no suit can be defeated on the ground of misjoinder of party and there is no dispute that present case is the case of misjoinder of Suit No. 339/2017 Page 12 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
the parties and not of the nonjoinder of parties. The suit cannot be bad for misjoinder of parties in any circumstances. However, this Court has already held that defendants No.2 and 3 are also proper and necessary party for just adjudication of the present case.
Considered from any view point, issue No.3 is decided against the defendants and in favour of the Plaintiff.ISSUES NO.1, 2, 4 AND 5
1) Whether the amount of Rs.9,98,942/ was released in favour of plaintiff as a nominee of deceased Awadh Kapoor or she was entitled to receive whole of the amount in her personal capacity? (OPP)
2) Whether the defendant no.1 transferred the said amount fraudulently and clandestine in her account on 25.04.2014?
If so, its effect? OP Parties
4) Whether the plaintiff is entitled to decree of Rs.11,48,783/ as claimed? (OPP)
5) Whether the plaintiff is entitled to any interest? If so at what rate? (OPP) The aforesaid issues no.1, 2, 4 and 5 are interrelated and interconnected to each other and accordingly, they are decided together.
ADMITTED CASE OF THE PARTIES BY WAY OF PLEADINGS OR EVIDENCE
1. The Plaintiff was the nominee of Late Avadh Kapoor (hereinafter referred to as the deceased) in the records of Council. The Suit No. 339/2017 Page 13 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
Plaintiff is the mother of the deceased and defendants are widow and sons respectively of the deceased.
2. The nomination was done by the deceased prior to marriage with defendant No. 1, however, after the marriage with defendant No.1, the nomination was never changed by the deceased.
3. An amount of Rs.9,98,942/ was released by way of two cheques
- (1) Rs.5,59,376/ towards General Provident Fund and (2) Rs.4,39,566/ towards Death Gratuity by Council in favour of the plaintiff towards service benefits of Late Sh. Avadh Kapoor.
4. The entire amount of Rs.9,98,942/ was transferred to the account of defendant no.1 on 25.04.2014.
The aforesaid facts are totally undisputed facts. The entire controversy hinges upon the fact (1) Whether the transfer of the aforesaid amount to the account of defendant No.1 was made fraudulently and clandestinely by defendants No.1 and (2) Whether the Plaintiff alone was entitled to the said amount or defendant No.1 was alone entitled to the said amount or the Plaintiff and defendants being the ClassI legal heirs in equal proportion are entitled to the said amount. ARGUMENTS OF THE PLAINTIFF AND DEFENDANTS The Ld. Counsel for the Plaintiff has strenuously argued as under:
(a) that defendant No.1 in clandestine manner got opened the Saving Bank Account No.60163333027 in the name of the Suit No. 339/2017 Page 14 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
Plaintiff in the Bank of Maharashtra, Mukherjee Nagar Branch, Delhi only for the purpose of receiving the amount from Council and in the said account, she had clandestinely got her name recorded as nominee of the Plaintiff i.e. Kamla Rani. The said account was opened sometime on 27.02.2014, immediately about 23 days of the death of the deceased. The said account was opened with minimum amount of Rs.1,000/. There was no transaction in the said account except (i) the deposit of Rs.1,000/ minimum amount for maintaining the said saving account and (ii)the transactions of receiving the amount from the Council and onward transfer in the account of defendant no.1.
(b) The cheques received from the Council were cleared on 23.04.2014 and immediately, defendant No.1 got transferred the amount in her account by means of the two cheques of the said saving bank account. The bare look of the said account clearly shows that the said account was opened only for the purpose of collecting the amount from the Council and onward transferring the same to the account of defendant No.1 and the same was done within the span of two days i.e. 23.04.2014 and 24.04.2014.
(c) The Plaintiff was possessed of two other accounts and one of the accounts was possessed jointly with her son Shri Ram Gopal Kapoor in the same bank i.e. Bank of Maharashtra, Mukherjee Nagar Branch, Delhi since 1997. The aforesaid fact Suit No. 339/2017 Page 15 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
was vividly proved through the testimony of PW3, who had categorically stated that the account in Mukherjee Nagar Branch was opened in the year 1997 and the same is still operational. The other account is in the UCO Bank, Mukherjee Nagar Branch, Delhi, which was also opened on 04.01.2015 and the same is still in operation. The aforesaid fact is also proved by PW2.
(d) The provision of Section 5 of the Provident Funds Act, 1925 clearly provides the Right of nominees to collect the amount "Nonwithstanding anything contained in any law for the time being in force" and in view of the said provision, the entire amount received by the Plaintiff will be only for the benefit of plaintiff and none else will be entitled to the said amount.
Per Contra, the Ld. Counsel for the defendants has assiduously argued and relied upon the Judgments, which are as under:
(i) The Plaintiff has failed to prove her case as there are various contradictions in the case of the Plaintiff and in the cross examination. During the crossexamination, the Plaintiff has disowned her signatures on the vital documents, which she had filed in the Court Record. The witnesses examined by the Plaintiff, including the plaintiff herself, have not supported the case of the Plaintiff.
Suit No. 339/2017 Page 16 of 30Kamla Rani Kapoor V. Sushma Kapoor & Ors.
(ii) The Plaintiff has miserably failed to prove on record the fraud, as alleged in the Plaint. The Plaintiff has basically filed the present case against the defendants i.e. daughterinlaw and grandsons only at the behest of his younger son and daughterinlaw, as she has no personal right at such an advancing age of about 80 years and the same is sufficiently demonstrated by the defendants by means of crossexamination of the Plaintiff.
(iii) The amount paid by the Council, was paid to the Plaintiff only for the benefit of defendant No.1 and the Plaintiff had only received the said amount as nominee being the trustee of the amount for further disbursal to defendant No.1.
(iv) The cheques were voluntarily signed by the Plaintiff and given to defendant No.1 and the defendants or for that matter defendant No.1 has not played any fraud upon the plaintiff.
(v) In the Judgment of Shipra SenGupta Versus Mridul Sengupta and Ors. (2009) 10 SCC 680, the Hon'ble Apex Court had categorically held that the nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession and similarly, in S. Sandhya Vs. The Chief Manager in WP No.29894 of 2002 decided on 09.04.2012, the Suit No. 339/2017 Page 17 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
Hon'ble Madras High Court has also relied upon the aforesaid Judgment of Shipra Sen Gupta and the findings of the same are incorporated in Para Nos.50 to 54 of the Judgment of the Hon'ble High Court. FINDINGS AND CONCLUSIONS OF THE COURT The Plaintiff in her crossexamination clearly stated that she is illiterate and the same was not disputed by the defendants by giving any suggestion. Moreover, the entire records reveal that the Plaintiff used to sign only in Hindi and she is not conversant with the English Language as her signatures also speak the volume about the aforesaid fact. There is no dispute that the Plaintiff only acquainted how to sign, however, she is illiterate and there is also no dispute that the Plaintiff, who is old aged lady, was about 74 years in the year 2014. There is also no dispute that various litigations are pending interse between the Plaintiff and defendants and even the Plaintiff has filed the suit for injunction.
I have profit to following judgments regarding the illiterate and old aged lady: (1) AIR 1994 Orissa 113 The relevant para is as under: "The rule evolved for the protection of pardanasin ladies in relation of execution of document should not be confused with the other doctrines such as fraud, duress and actual undue influence, which apply to all persons whether they be pardanasin Suit No. 339/2017 Page 18 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
ladies or not. This being the position of law, if the plaintiff alleges fraud, then plaintiff must establish the same but if plaintiff is an illiterate or paradanasin lady and alleges fraud and fails to establish fraud, yet the defendant must establish the fact that the plaintiff executed the document after the document was read over and explained to her and after she understood the contents thereof. This protection which law affords to a paradanasin or illiterate lady must be borne in mind by the Court."
(2) AIR 1986 Orissa 53 The relevant para is as under: "........ but was explained to and really understood by the grantor. Ordinarily, the Courts insist on proof that the lady had independent legal advice although this may not be an absolute and invariable rule and there may be exceptions....................... Why a rule applicable to pardanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not also apply to the case of a poor lady who is equally ignorant and illiterate, but is not pardanashin, simply because she does not belong to that class, the object of the rule of law being to protect the weak and the helpless, the distressed and the downtrodden and it should not be restricted to a particular class or community. Even in the case of a lady who Suit No. 339/2017 Page 19 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
is outside the pardanashin class, it is for those who deal with her to establish that she had the capacity of understanding that she had been entering into the transactions voluntarily and with full knowledge and import of what the transactions actually meant."
(3) AIR 1973 Mys. 338 The relevant para is as under: "(A) Evidence Act (1872). Section 114 Regularity of registration proceedings That a document is registered does not raise presumption that Registrar must have read it out to the executant. AIR 1962 SC 567, Foll.
Gift of unconscionable nature Burden lies upon done to prove absence of undue influence.
Brief Note: (B) Where an old and uneducated woman who knew only to sign her name and was suffering from cancer executed a gift of whole of her estate in favour of a society so that she had to depend upon the society for her maintenance and medical treatment till she died, held that the transaction of gift was an unconscionable nature and came under Section 16(2)(b). Hence the burden to prove that the transaction was not induced by undue influence lay upon the donee. AIR 1963 SC 1279 and AIR 1970 SC 1367, Foll"
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(4) AIR 1990 Orissa 70 The relevant para is as under: "(B) Transfer of property Act (1882), S.3 Execution of saledeed Claim to title of property conveyed under Sale Deed Proof of execution Evidence of attesting witness not sufficient to prove due execution of sale deed when he fails to mention that purchaser (an illiterate lady) understood contents of documents before she touched the pen of scribing signifying execution of document Claim rejected for absence of proper execution of sale deed."
(5) AIR 1963 SC 1203 The relevant para is as under: "(a) Evidence Act (1872), Ss. 101103 Execution of document by pardanashin lady Burden to establish that she executed it after understanding, is on him who relies on it. S. A. No. 791 of 1953, D/ 2121957 (Pat.), Reversed.
In India pardahnashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as by the pardah system they are particularly excluded from social intercourses and communion with the outside world. AIR 1925 PC 204, Rel. on.
(Para 5) Suit No. 339/2017 Page 21 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
As regards documents taken from pardanashin women the court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardahnashin woman. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. It should be established that it was not her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it but also by other evidence, direct and circumstantial. 13 Moo Ind App 419".
(6) AIR 1937 PC 274 The relevant para is as under : "... (a) Deed Validity Onus Person ignorant of English affixing mark to document written in English Onus to prove that document was explained and interpreted to him is upon party relying upon it.
Where a person not knowing English has affixed his mark to a document written in English language, the onus to prove that Suit No. 339/2017 Page 22 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
the document was properly explained and interpreted to the person affixing his mark so as to make him understand its true import is on the party relying on the document. "
(7) 1961 (3) SCR 195 The relevant para is as under: "The mere fact that the will was registered was not by itself sufficient to dispel the suspicions without scrutiny of the evidence of registration. Registration would dispel the doubt as to the genuineness of the will only if it was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and the testator thereafter admitted its execution and signed in token thereof. In the present case, the registration was done in a perfunctory manner and the evidence did not establish that the testator knew that the document the execution of which he admitted before the sub registrar's clerk was his will. The witnesses produced to prove registration, even if they are treated as attesting witnesses, failed to prove due execution and attestation of the Will."
(Portions bolded in order to highlight) The principles laiddown in the above judgments are that in case of an illiterate old lady, the onus of proving that she Suit No. 339/2017 Page 23 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
executed the document after understanding the same, was on the person who relies upon the same and not on the illiterate lady. Irrespective of the fact that the said illiterate lady has failed to prove fraud, undue influence or coercion. The Hon'ble Courts have held that before the illiterate lady is asked to prove fraud, undue influence or coercion, the person who is relying upon the Deed, must prove that the Deed was (i) read over to the illiterate lady and
(ii) she understood the contents and implication of the same. In the absence of such testimony or proof of above fact, the Deed is not valid and cannot be set to be executed by an illiterate lady. Non proving of fraud, undue influence and coercion by an illiterate lady is immaterial, if it is not proved that the document was read over to her and she understood its contents. In the light of the aforesaid principles, even if the Plaintiff is not able to prove fraud, undue influence or coercion but the defendants were required to prove that the plaintiff had executed the document after understanding its nature.
The aforesaid principles are germane out of the proposition, as canvassed and encompassed under Section 13 of the Indian Contract Act i.e. consensus ad idem. The provision of Section 13 of the Indian Contract Act is reproduced herein for apt understanding: "13. "Consent" defined "Two or more person are said to consent when they agree upon the same thing in the same sense."
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There are various suspicious circumstances, which arise for consideration and interalia the same are as under:
(i) Why the Plaintiff had opened a totally new Saving Bank Account No.60163333027 and when she was having two Saving Bank Accounts and one of the account was already existing in Bank of Maharasthra, Mukherjee Nagar, Delhi, where the said new account was opened and that too in the span of 23 days of the death of his son?
(ii) Why the nomination of defendant No.1 was recorded in new Saving Bank Account, when admittedly, the Plaintiff's younger son was alive and she was having joint Saving Bank account with his younger son?
(iii) Why the amount, which was cleared in the Saving Bank Account, was immediately transferred in the account of defendant No.1 within a span of two days?
The aforesaid suspicious circumstances were required to be dispelled by the defendants. However, there is not even iota or scintilla of evidence adduced by defendant No.1 that the Saving Bank Account No.60163333027 in the name of the Plaintiff in the Bank of Maharashtra, Mukherjee Nagar Branch, Delhi was opened at the request of the Plaintiff and on the request of the Plaintiff, the defendant No.1 was nominated as nominee in the said account. The defendant No.1, during her crossexamination, had Suit No. 339/2017 Page 25 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
categorically admitted that defendant No.1 had accompanied with the Plaintiff to the office of Council to collect the cheques in respect of service benefits of the deceased Shri Avadh Kapoor. The defendant no.1 was in the knowledge of the fact regarding receiving of death cum retirement terminal benefits by the Plaintiff from the Council. The defendant No.1 had submitted during the cross examination that Plaintiff had delivered the cheques duly signed and filled by her for transfer of the said amount. The Plaintiff used to sign in Hindi and as already held above, there is categorical admission during the crossexamination of the Plaintiff by the defendants that the Plaintiff is an illiterate lady. The perusal of the record reveals that the cheque Nos.519302 and 519303 (Exhibit PW6/2), by which the amount was transferred in the account of defendant No.1, were filled with English Language and frequency of the strokes of the alphabets of English also shows that the person, who had filled the said cheques, has good knowledge about the English Language. The signatures on the said cheques were clearly in Hindi Language. The Plaintiff does not know the English Language. Moreover, the handwriting on the deposit slips Exhibit PW6/3, whereby the cheques Exhibit PW6/2 were deposited by defendant no.1 in her account for transfer of amount in her account and filledup portion in Cheques Exhibit PW6/2 appear to be in one and the same handwriting. The defendant No.1 has also failed to lead any evidence that the Plaintiff was told about the said Saving Bank Account or about the transaction of the cheques by which the Suit No. 339/2017 Page 26 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
defendant No.1 got transferred the amount in her account. There is no evidence on the record that the Plaintiff knew that the amount, which the Plaintiff had received from Council, was given by the Plaintiff to defendant No.1 voluntarily and out of her own free will and accord by the said cheques Exhibit PW6/2. It is clearly borne out of the records that the Plaintiff at that relevant time was having no knowledge about the transaction which was carried on by defendant No.1 and amount was got transferred in her account. The principles of consensus ad idem were clearly absent in the present case and the same were required to be proved by defendants but defendants have failed to do so.
The next question, which requires consideration is, whether the Plaintiff will be entitled to whole of the amount which got transferred by defendant No.1 in her account. The Ld. Counsel for defendants has, although, argued that only defendant No.1 will be entitled to the entire amount being death cum retiral benefits of her deceased husband but the Ld. Counsel for the defendants has relied upon the judgment of Shipra SenGupta Versus Mridul Sengupta and Ors. (2009) 10 SCC 680 and S. Sandhya Vs. The Chief Manager in WP No.29894 of 2002 decided on 09.04.2012, wherein the Hon'ble Madras High Court has also relied upon the aforesaid Judgment of Shipra Sen Gupta. The said dictums clearly lay down and postulate that the nominee is entitled to receive the death cum Retirement benefits, but the amount so received is to be distributed according to the law of succession. The Suit No. 339/2017 Page 27 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
nominee will hold the said amount in trust for the beneficiaries. The arguments of the defendants regarding entitlement solely of defendant No.1 are negated by the aforesaid dictums, as relied upon by them. There is no dispute that the Plaintiff and defendants are the only Legal heirs of the deceased Shri Avadh Kapoor and in terms of Section 8 of Hindu Succession Act, 1956, they are entitled to 1/4th share each in the estate of the deceased by law of inheritance. The defendants have failed to bring anything on record that the defendants or any of the defendants were solely entitled to the death cum retiral service benefits of the deceased on the basis of testamentary succession. The defendants have also failed to bring anything on record that the Plaintiff, out of natural love and affection, has gifted her share of the amount to defendant No.1 or for that matter any of the defendants. The defendants No.2 and 3 have not raised any objection qua receiving of the amount in the account of defendant No.1. The natural corollary arises out of that situation is that the amount of share of defendants No.2 and 3 was also held by defendant no.1 in her account and the defendants no. 2 and 3 have no objection for the same. The methodology, which was adopted by defendant No.1 for taking the entire amount in her account, does not appear to be sound but definitely the threefourth share in the said amount legally belongs to the defendants in view of the aforesaid dictums including the dictum of the Hon'ble Apex Court.
Suit No. 339/2017 Page 28 of 30Kamla Rani Kapoor V. Sushma Kapoor & Ors.
The Ld. Counsel for the defendants has assiduously argued that defendants have incurred the expenses in the nature of Income Tax etc. and also paid the loan amount of the deceased, out of the said amount but the defendants have failed to bring anything on record by way of evidence to substantiate the said arguments.
The Plaintiff is entitled to 1/4th of the said amount i.e. Rs.9,98,942/ in terms of Section 8 of Hindu Succession Act, which comes out to Rs.2,49,735.50 (Rupees Two Lakhs forty Nine thousand Seven hundred thirty five and fifty paise only). Section 34 CPC postulates and envisages the pendentelite interest at any rate not exceeding 6% and future interest at any rate not exceeding the rate at which nationalized banks advanced loan. Keeping in mind the mandate of the said proposition, interest of justice would be served if plaintiff is granted simple rate of interest @ 9% per annum from 25.04.2014 till its realization on the Rs.2,49,735.50 (Rupees Two Lakh forty Nine thousand Seven hundred thirty five and paise fifty only).
In view of discussions made hereinabove, Issues No.1, 2, 4 and 5 are decided in favour of the Plaintiff and against the defendants in aforesaid terms.
RELIEF Accordingly, in view of the discussions, as adumbrated above, I hereby pass the following FINAL ORDER Suit No. 339/2017 Page 29 of 30 Kamla Rani Kapoor V. Sushma Kapoor & Ors.
(i) The suit of the plaintiff is partly decreed in favour of the plaintiff and against the defendants for a sum of Rs.2,49,735.50 (Rupees Two Lakh forty Nine thousand Seven hundred thirty five and fifty paise only) along with simple interest @ 9% per annum from 25.04.2014 till its realization on the said amount.
(ii) The cost of suit of the Plaintiff is also awarded in favour of the plaintiff and against defendants.
Decreesheet be prepared accordingly in terms of this decision.
File of the suit be consigned to Record Room after due compliance.
Announced in the open court on this 16th Day of May, 2019.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 339/2017 Page 30 of 30