Delhi District Court
Smt. Uma Kapoor vs Sh. Brij Lal Bedi (Since Deceased - Died ... on 8 May, 2017
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGEII (CENTRAL):TIS HAZARI COURTS, DELHI
CS No. No. 320/2015
New No.: 11061/16
1. Smt. Uma Kapoor
W/o Sh. Vijay Kr. Kapoor
D/o Sh. Brij Lal Bedi
R/o 169, PartII, Gujarawalan Town,
Delhi110009
2. Smt. Shama Manchanda
W/o Sh. Yashpal Manchanda
D/o Sh. Brij Lal Bedi
R/o B126, Ground Floor,
Derawalan Nagar, Delhi110009
........ Plaintiffs
Versus
1. Sh. Brij Lal Bedi (since deceased - died on 15.06.2015)
Through his LRs, the plaintiffs herein
2. Smt. Radha Rani
W/o Late Sh. Shyam Sunder Bedi
3. Pardeep Kumar Bedi
S/o Late Sh. Shyam Sunder Bedi
4. Parveen Kumar Bedi
S/o Late Sh. Shyam Sunder Bedi
All R/o B104, Gujranwala Town,
PartI, Delhi110009.
5. Sh. Balraj Bedi
S/o Sh. Brij Lal Bedi,
R/o B90, Gujranwala Town,
PartI, Delhi110009.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 1 of 56
6. Smt. Urvasi Vahi
W/o Sh. Vijay Kumar Wahi
R/o 5, Vaishali/ V.P. Road,
Santa Cruze (W), Mumbai (Exparte on 12.04.2010)
7. Delhi Development Authority
INA, Vikas Sadan,
New Delhi
Through Vice Chairman
............ Defendants
Date of Institution: 22.09.2008
Judgment Reserved on: 01.05.2017
Judgment Pronounced on: 08.05.2017
JUDGMENT:
(1) This suit has been filed by the plaintiffs against the defendants seeking a Decree of Declaration thereby declaring the Will dated 08.09.1994 and Gift Deed dated 05.01.2007 (executed by the defendant no.1 in favour of the defendant no.2) as null and void; Decree of Partition by metes and bounds in respect of the property bearing No. B104, Gujranwala Town, Delhi - 110009 with 1/6th share in favour of each plaintiff; Decree of Permanent Injunction with directions to the defendants no.1 to 4 to restrain them, their heirs, successors, assignees, agents etc. from creating any third party interest in the suit property by transferring, conveying, mortgaging, inducting tenants etc. and a Decree of Mandatory Injunction with directions to the defendant no.7 to initiate proper legal actions against the defendants qua the suit property.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 2 of 56 Plaintiff's Case :
(2) The case of the plaintiffs is that plaintiffs and the defendant no.6 namely Smt. Urvashi Vahi are the daughters of the defendant no.1 Brij Lal Bedi whereas the defendant no.2 Smt. Radha Rani is the wife of the predeceased son (Sh. Shyam Sunder Bedi) of the defendant no.1; the defendants no.3 and 4 are the grandsons of the defendant no.1 and the defendant no.5 is the younger son of the defendant no.1. It is pleaded that the defendant no. 6 is a performa party as the plaintiffs are not seeking any relief against her but she is a necessary and proper party. It is further pleaded that due to the unscrupulous act of commission and omission of the staffs and officials of the defendant no.7 DDA, the defendants no. 1 to 5 succeeded in getting the suit property converted into freehold on the basis of forged will and other fabricated documents.
(3) According to the plaintiffs, their mother Smt. Sudarshan Kumari was the absolute owner and occupant of the suit property i.e. House No. B104, Gujranwala Town, Delhi and she died intestate on 03.12.1994 and survived by her husband, two sons and three daughters.
It is pleaded that she had left no Will for any of her movable and immovable properties but she always wanted that the suit property should be equally divided among all her sons and daughters. It is also pleaded that the suit property was the dwelling unit of the family for a long time and later on the defendant no.5 moved with his family to his new residence and the defendant no. 1 to 4 still reside in the suit property. According to the plaintiffs, later on they came to know that the family members entered into a family settlement on 16.06.2006 in Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 3 of 56 which it was decided that the suit property would be given to the defendant no. 2 by the defendant no.1. It is further pleaded that later on some dispute arose between the parties of the settlement and the defendant no. 5 filed a case against the other parties to the settlement which is pending in the Hon'ble Delhi High Court and thereafter it came to the knowledge of the plaintiffs that the suit property was being illegally subjected to transfer from one to other. It is also pleaded that the defendant no.1 to 4 filed their reply to the petition filed by the defendant no.5 in which replies they have alleged that mother of the plaintiffs left a Will qua the suit property by way of which she bequeathed the suit property in favour of the defendant no.1 copy of which has been produced in the Court. According to the plaintiffs, the will produced by the defendant no. 1 to 4 is the forged one and the defendants in collusion with each other have fabricated and forged the alleged will for the purpose of misappropriating the suit property. It is further pleaded that the plaintiffs have been told that the alleged Will is an unregistered Will and the original Will is in possession of the defendant no.1 to 4 original will is in possession of the defendant no.1 to 4. It is also pleaded that the defendant no.1 is an old man suffering from senile dementia with mood swings and the defendants no. 2, 3 and 4 are the persons who are using the defendant no.1 for their greed and caprices.
(4) It is further pleaded that the defendants no.1 to 5 are in collusion with each other in forging the said will dated 08.09.1994 and in fact sign of the mother of the plaintiffs are forged which fact can be verified from the sale documents of the property where she signed as Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 4 of 56 purchaser. According to the plaintiffs, the defendants had apprehension from the very beginning and hence they did not go for probate of the Will and in collusion of the staff and officials of the defendant no.7, the defendant no. 1 got the conveyance deed executed in his favour. It is further pleaded that later the defendants no. 1 to 4 in collusion got the suit property transferred and the defendant no.1 executed a gift deed in favour of the defendant no. 2 despite the fact that the defendant no.1 has no right, title and interest to transfer the suit property through a gift deed to the defendant no.2. It is also pleaded that defendants no.2 to 4 have committed an offence of forgery of Will as the defendant no. 2 to 4 are the beneficiaries of the said offence and the alleged gift deed is abinitio void as the defendant no.1 has no right, title to execute the said gift deed. It is pleaded that the mother of the plaintiffs was survived by her husband, two sons and three daughters and hence each of the plaintiff is entitled for onesixth share in the suit property.
Defendant's Case:
(5) The defendants no. 1 to 4 filed their joint written statement wherein they have raised preliminary objections that the present suit is barred by law of limitation. It is pleaded that the plaintiffs have categorically admitted, acknowledged the signing and execution of Will dated 08.09.1994 of late Smt. Sudarshan Kumari by way of which she bequeathed immovable property bearing No. B104, Guhrawala Town, PartI, Delhi in favour of defendants no.1. According to the defendants, the Will dated 08.09.1994 of late Smt. Sudarshan Kumari was witnessed by the defendant no.5 Sh. Balraj Bedi and the plaintiffs have admitted of Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 5 of 56 having no objection case of rights, titles or interest in immovable property which is transferred in the name of Sh. Brij Lal Bedi on the basis of the Will dated 08.09.1994 of late Smt. Sudarshan Kumari and further admitted the said will to be genuine. It is further pleaded that the said admissions were made in writing in affidavits dated 31.12.1999 duly signed on each page of the affidavits by both the plaintiffs acknowledging and admitting the factum of existence of Will dated 08.09.1994 of late Smt. Sudershan Kumari. According to the defendants, the said two affidavits of the plaintiffs were submitted before the DDA along with the affidavits of Sh. Brij Lal Bedi, Sh.
Balraj Kumar Bedi, Smt. Daha Rani, Sh. Pradeep Kumar, Sh. Praveen Kumar, Smt. Pooja Beri and Smt. Urvashi Wahi. It is further submitted on the basis of the said affidavits of the plaintiffs and the other persons, the DDA conveyed the property bearing no. B104, Gujrwalan Town PartI, Delhi vide registered Conveyance Deed dated 08.03.2001 in favour of defendant no.1 and got the grant of revisionary interest of the vendor in his favour in consideration for a sum of Rs.39,295/ and became the registered purchaser of all the revisionary interest of the said property from the DDA. According to the defendants, the above the vital facts have been suppressed and concealed by the plaintiffs from this Court.
(6) It is further pleaded that the suit is barred under Section 17 to 21 of the Evidence Act, 1872 and is also barred under Order 12 Rule 6 CPC read with Order 7 Rule 11 CPC. It is also pleaded that the suit of the plaintiff is barred under Article 58 of the Limitation Act, 1963. It is further submitted that the plaintiffs are precluded and illegally Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 6 of 56 estopped from claiming themselves to have any right, title or interest in the suit property in view of the two affidavits dated 31.12.1999. It is further pleaded that the suit is barred under Section 80 of CPC, 1908, since no notice as mandatory under Section 80 of CPC has been served upon the defendant Delhi Development Authority. It is also pleaded that the suit is barred by resjudicate as the plaintiffs have filed two affidavits dated 31.12.1999 before Delhi Development Authority affirming, confirming, acknowledging, admitting the Will dated 08.09.1994 to be the last and genuine will of late Smt Sudarshan Kumari and by further admitting of having no objection to the transfer of the suit property in favour of defendant no. 1 and by further admitting of having no right, title or right of any nature in the suit property. On merits, the defendants no.1 to 4 have denied all the averments made by the plaintiffs in their plaint.
(7) The defendant no.5 Balraj Bedi has filed his written statement wherein he has raised a preliminary objection that the plaintiffs have not approached this Court with clean hands and several important facts either have been concealed or have not been produced in the correct form. It is further submitted that the suit has not been valued properly and the suit has been filed in collusion with the other defendants particularly defendants no. 14 who are in occupation and possession of the said property.
(8) On merits, it is pleaded that in the year 1999, the defendants no. 1 & 2 approached the defendant no.5 with the alleged Will and claimed that the said Will was required for the purpose of mutation in the DDA and requested for appending signature as witness.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 7 of 56 According to the defendant no.5, his mother was all along her life with him but she never mentioned about the alleged Will and his father and Bhabhi came with the said Will after such a long period after the death of his mother. It is further pleaded that at the time when the defendant no.5 signed as witness it was having one signature which was allegedly signed by his mother and the defendant no.5 came to know about the property being made freehold much later. (9) In so far as the defendant no.6 Smt. Urvashi Vahi is concerned, she has not appeared before the Court despite valid service and hence vide order dated 12.04.2010 she was proceeded exparte. (10) The defendant no.7 DDA has filed its written statement wherein a preliminary objection has been raised that the present suit is not maintainable against it because the defendant no.7 DDA has acted in accordance with law and the transfer of property was allowed as per law on the basis of policies of defendant no.7. It is further pleaded that the plaintiffs have concealed the fact that the plaintiff no. 1 & 2 alongwith other legal heirs of Smt. Sudershan Kumari W/o Shri. Brij Lal Bedi have submitted affidavits dated 31.12.1999 regarding the genuineness of Will and NOC for transferring the property in favour of defendant no.1 and on the basis of those documents furnished by the defendant no.1 for conversion of the property in question into freehold in favour of defendant no.1 was allowed by the Competent Authority i.e. Dir (RL) on 03.12.2000 and the Conveyance Deed was executed on 08.03.2001 in favour of Brij Lal Bedi i.e. the defendant no.1. It is also pleaded that the suit is bad for non service of mandatory and statutory notice under Section 53B of the DD Act and hence the suit is liable to be dismissed.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 8 of 56 ISSUES FRAMED:
(11) The plaintiffs have filed their replications to the written statements of the respective defendants, wherein they have reaffirmed what they have earlier stated in the main plaint. Thereafter, on the basis of the pleadings of the parties, vide order dated 29.05.2010 the Ld. Predecessor of this Court has framed the following issues:
1. Whether the suit is barred under the provisions of Section 17 to 21 of Indian Evidence Act, 1872? (OPD)
2. Whether the present suit is barred under the provisions of the Limitation Act? (OPD)
3. Whether the present suit is not maintainable in its present form? (OPD)
4. Whether Late Smt. Sudarshan Kumari had executed the Will dated 08.09.1994 in favour of the defendant no. 1, if so, its effect? (OPD)
5. Whether the present suit is barred under the provisions of Section 53B of DDA Act? (OPD)
6. Whether the present suit is barred by principles of resjudicata? (OPD)
7. Whether the plaintiff is entitled for a decree of declaration in respect of Will dated 08.09.1994 and Gift Deed dated 05.01.2007, as prayed in the plaint? (OPP)
8. Whether the plaintiff is entitled for a decree of partition of property bearing no. B104, Gujranwala Town Delhi09 as claimed in the plaint? (OPP) Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 9 of 56
9. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed in the plaint? (OPP)
10. Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed in the plaint? (OPP)
11. Relief EVIDENCE:
(12) In order to prove their case the plaintiffs have examined three witnesses i.e. plaintiff no.2 Shama Manchanda has examined herself as PW1; Vijay Kapoor (husband of the plaintiff no.1) as PW2 and plaintiff no.1 Uma Kapoor as PW3. On the other hand the defendants no.1 to 4 have examined the defendant no.3 Pradeep Kumar Bedi as their sole witness as D14/2 and the defendant no.7 DDA has examined its Assistant Director Raj Pal Sharma as D7W1 as their sole witness.
(13) Here, I may note that initially the affidavit of evidence of defendant no.1 Brij Lal Bedi was filed and the witness had also submitted himself for examination on 20.12.2014 but later on he was dropped by the Ld. Counsel for the defendants no.1 to 4 vide his statement dated 05.02.2015. Thereafter, on 15.06.2015 the defendant no.1 Brij Lal Bedi had expired.
(14) For the sake of convenience, the details of the witnesses examined by the parties and their deposition are put in a tabulated form as under:
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 10 of 56 Sr. Details of the Deposition of the witness No. witness Plaintiff's Witnesses:
1. Ms. Shama PW1 Ms. Shama Manchanda is the plaintiff no.2 who Manchanda (PW1) in her examination in chief by way of affidavit Ex.PW1/A has corroborated what has been earlier stated in the main plaint. She has placed her reliance on the carbon copy of the complaint dated 26.10.2009 to the Commissioner of Police which is Ex.PW1/1 and to the SHO Police Station Model Town which is Ex.PW1/2.
In her crossexamination by the Ld. Counsel for the defendants the witness has deposed on the following aspects:
That her affidavit Ex.PW1/A has been prepared by his counsel as per her instructions. That in the year 1994, her mother used to reside at B104, Gujrawala Town, Delhi along with her family members and at that time her elder brother Sh. Shyam Sunder and his family members and Sh. Balraj and his wife Achla and their three children along with her parents were residing in the said house.
That the House No. B104 was purchased by her mother Smt. Sudarshan Kumari Bedi from the DDA.
That she is not aware whether the property No. B104 was purchased by her mother from Sh. Balwant Singh and Joginder Singh.
That the document Ex.PW1/DA bears the signatures of her mother Smt. Sudershan Bedi at point A. That her mother Smt. Sudershan Kumari Bedi had expired on 03.12.1994.
That her mother was having very little knowledge of English but she used to sign in Hindi and was unable to understand English language.
That prior to shifting at property No. B41, Derawlan, Model Town, Delhi she along with her family was residing at Lal Quarter, Krishna Nagar, Delhi.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 11 of 56 That her father was aged about 78 years in the year 2008 and she was not aware about his mental state since she has not met him for the last about twothree years.
That her mother was having high blood pressure and was also a diabetic prior to her death but she was not having serious ailments.
That the documents Ex.PW1/D1 to Ex.PW1/D 5 bear the signatures of Smt. Sudershan Kumari Bedi at point A. That she visited the house of her parents on the date of death of her mother on 03.12.1994 itself but she does not remember when she lastly visited her parental house.
That she came to know in the year 2008 about some family settlement between the defendants and filing of some suit before the Hon'ble Delhi High Court on the basis of the said family settlement.
That she has never seen the written family settlement dated 16.06.2006 Ex.PW1/D6 . That she has cordial relations with her father, brother Shyam Sunder Bedi and the defendant no.5.
That the entire jewellery was distributed amongst all the children (among all the five sons and daughters).
That lastly she demanded her share from her father in the year 2007 but she does not remember the exact date.
That no document was executed by her father in her favour in respect of the suit property. That she has not submitted any affidavit to DDA regarding mutation of the suit property in favour of the defendant no.1.
That she is not aware whether the defendant no.1, 5, 6 and the LRs of Late Shyam Sunder Bedi had submitted any affidavit to DDA for mutation of the suit property.
That she came to know in the year 2008 that some documents have been prepared by the defendants of their own and have been filed in DDA for mutation of the property.
That she has not seen Sh. Vijay Kapoor, the husband of the plaintiff no.1 signing or writing Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 12 of 56 and therefore, she cannot identify his signatures.
That she came to know about the family settlements (one executed in the year 2006 and the other executed in the year 2007) in the year 2008 only.
That she cannot identify the signatures of Sh.
Vijay Kapoor on the second family settlement Ex.PW1/D7 at point A. That she is not aware if her mother Smt. Sudershan Kumari Bedi had left any Will bequeathing all her property in the name of her father.
That the photocopy of her affidavit dated 31.12.1999 Ex.PW1/DX does not bear her signatures.
That she is not aware if all the legal heirs of her mother Smt. Sudershan Kumari Bedi filed affidavits before DDA to get the property freehold from leasehold.
That she is not aware if DDA had executed any conveyance deed in favour of her father, after scrutiny of all the documents.
That after coming to know that the property No. B104, Gujranwala Town stand mutated in the name of she father, she moved an application with the DDA wherein it was mentioned that her father got the property mutated in his name without the consent of her daughter.
That she did not serve any notice to the DDA before filing the present suit.
2. Vijay Kumar PW2 Vijay Kumar Kapoor is the husband of the Kapoor (PW2) plaintiff no.1 who in his examination in chief by way of affidavit Ex.PW2/A has corroborated what has been earlier stated in the main plaint. He has placed his reliance on the copy of the complaint dated 26.10.2009 to the Commissioner of Police which is Ex.PW1/1 and to the SHO Police Station Model Town which is Ex.PW1/2.
In his crossexamination by the Ld. Counsel for the defendants the witness has deposed on the following aspects:
That the plaintiff no.1 Smt. Uma Kapoor is his wife and he got married to her on 04.03.1967.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 13 of 56 That the document Ex.PW2/D1 bear the signatures of Smt. Uma Kapoor at point A and the document Ex.PW2/D2 which is the copy of account of Sh. Balraj Kumar Bedi also bear her signatures at point A. That his firm S.K. Enterprises was not having any business dealing with Sh. Balraj Bedi in any manner whatsoever but some commission might have been paid to him.
That Smt. Sudershan Kumari Bedi was survived by her husband Sh. Brij Lal Bedi, two sons namely Shyam Sunder Bedi and Balraj Bedi and three married daughters Uma Kapoor, Shama Manchanda and Urvashi Wahi.
That Smt. Sudershan Kumari Bedi was the owner of House No. B104, Gujrawala Town but he is not aware by virtue of which documents she became the owner of the said property. That Smt. Uma, Shama and Urvashi and their husbands were having good relations with their mother Smt. Sudershan Kumari Bedi.
That since 1994, his family and the family of Balraj Bedi were residing at Gujrawala Town and after the death of Smt. Sudershan Kumari uptil 2008, Uma, Shama and Urvashi along with their husbands used to visit H. No. B104, Gujrawala Town, Delhi.
That Sh. Balraj Bedi had never informed him that the disputes between him, Brij Lal Bedi and LRs of Shyam Sunder Bedi had been settled. That he is not aware whether any settlement was arrived at between Balraj Bedi on the one side and Sh. Brijlal Bedi and LRs of Shyam Sunder Bedi on one side in January 2007.
That no settlement was got registered in the office of Sub Registrar in January 2007. That he can identify the signatures of Sh. Balraj Bedi and Sh. Brij Lal Bedi.
That the affidavit dated 31.12.1999 of Balraj Bedi which is Ex.PW2/DX bear the signatures of Balraj Bedi at points A and B and another affidavit Ex.PW2/DX1 also bear the signatures of Balraj Bedi at points A and B. That the affidavit dated 31.12.1999 of Brij Lal Bedi which is Ex.PW2/DX2 bear the signatures Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 14 of 56 of Brij Lal Bedi at points A, B, and C. That the Indemnity Bond dated 31.12.1999 of Brij Lal Bedi which is Ex.PW2/DX3 bear the signatures of Brij Lal Bedi at points A & B. That the affidavit of Uma Kapoor dated 31.12.1999 which is Ex.PW2/DX4 does not bear the signatures of Uma Kapoor.
That the Memorandum of Family settlement dated 19.01.2007 which is Ex.PW2/DX5 bear the signatures of Sh. Brij Lal Bedi at points A, B, C, D, E and F; signatures of Sh. Balraj Bedi at point G, H. I, J and K and his own signatures at point L and also bear his thumb impression. That he signed Ex.PW2/DX5 as there was some exchange/ LenDen and he signed it on the asking of his father in law but he did not mention this fact in his affidavit.
That he never signed any documents without going through the contents but since her father in law asked him to sign and told him that they had done some LenDen, he signed it.
That he and his wife Uma Kapoor do not know anything about Ex.PW2/DX5.
That he is not aware if any family settlement was arrived at between the LRs of Shyam Sunder Bedi, Brij Lal Bedi on one side and family members of Balraj Bedi on one side vide family settlement on 16.06.2006 or that the document Ex.PW2/DX5 was executed pursuant to that family settlement.
That Praveen Bedi, Brij Lal Bedi, Bobby Babu (Pradeep Bedi), Radha Rani, brother of Radha Rani, Balraj Bedi, Achala Rani and Vipin Bedi came to his house on 19.01.2007 and they put their signatures and thumb impressions and he also put his signature and thumb impression at the office of Sub Registrar behind Ritz Theater. That all the persons put their signature and thumb impressions on each page in his presence.
That the document Ex.PW1/D6 bear the signatures are Balraj Bedi at point A and of Brij Lal Bedi at point B. Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 15 of 56 That the registered gift deed dated 05.01.2007 does not bear the signature of Brij Lal Bedi at point A. That the Relinquishment dated 19.01.2007 which is Ex.PW2/DX by Sh. Brij Lal Bedi bear the signatures and thumb impressions at point A. That the Relinquishment Deed dated 19.01.2007 of Smt. Radha Rani bear the signatures of Balraj Bedi on each page and also on the back side at point A and also bear his signatures and thumb impression at point B, which is Ex.PW2/DX2. That on the back side of the last page there are photographs of Smt. Radha Rani, Balraj, himself and Praveen as witnesses.
That the Will of Smt. Sudershan Kumari which is Mark X bear the signature of Balraj Bedi at point A. That he is not aware of the litigation between the parties since he has no concern with their litigation in between.
That Smt. Sudershan Kumari Bedi was the sole absolute owner of the suit property and she was in possession of the suit property.
That he put his signatures on the document Ex.PW2/DX5 without going through the contents thereof and he has also not gone through the contents of the Relinquishment Deed before he signed the same as witness.
That the certified copy of the Conveyance Deed Ex.PW2/DX3 bear the signature of Brij Lal Bedi at point A and B and the affidavit of Balraj Bedi dated 19.01.2007 which is Ex.PW2/DX4 bear the signatures of Balraj Bedi at point C, A and B. That no Will was executed by Smt. Sudershan Kumari Bedi in his presence.
That neither he nor his wife inspected the record of DDA with respect of the suit property and he has no knowledge about the records of the DDA with respect to the suit property.
That his mother in law never told him about the execution of the said Will and he came to know about the existence of the said Will by the present suit only.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 16 of 56
3. Smt. Uma Kapoor PW3 Smt. Uma Kapoor is the plaintiff no.1 who in her (PW3) examination in chief by way of affidavit Ex.PW3/A has corroborated what has been earlier stated in the main plaint. She has placed her reliance on the copy of the complaint dated 26.10.2009 to the Commissioner of Police which is Ex.PW1/1 and to the SHO Police Station Model Town which is Ex.PW1/2.
In her crossexamination by the Ld. Counsel for the defendants the witness has deposed on the following aspects:
That till her mother was alive all her children had very cordial relations with her.
That even after the death of her mother, she had cordial relations with her brothers and sisters. That her mother was the owner and in possession of property no. B104, Gujranwala Town, Part1, Delhi.
That she is not aware if the DDA had executed a registered conveyance deed in respect of the property no. B104 in favour of her mother. That when she lastly met her father, he was in a sound mental state, he could walk and also recognized her.
That she cannot identify the signatures of her father nor she has seen her mother, sister Smt. Shama Manchanda and her brother Balraj Bedi while signing and writing.
That there were disputes between Sh. Balraj Bedi and the children of Shyam Sunder bedi and Sh. Vijay Kumar Wahi had acted as a Mediator/ Arbitrator to settle the disputes between them. That the relinquishment deeds were to be executed and exchanged between Sh. Balraj Bedi and the children of late Sh. Shyam Sunder Bedi in pursuance of the settlement dated 16.06.2006 and her husband Sh. Vijay Kumar Kapoor had signed as witness no.1 on the MOU of family settlement dated 19.01.2007.
That Ex.PW2/D2 which is the account of her brother Balraj Bedi, bear her signatures. That she came to know about the family settlement dated 16.06.2006 and 19.01.2007 from the Delhi High Court litigation between Balraj Bedi, Brij Lal Bedi and the children of Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 17 of 56 late Sh. Shyam Sunder Bedi.
She is not aware where she had sent a notice under Section 53B of the DD Act before filing the present suit.
That in the year 2007 she came to know that the property had been transferred in the name of her father.
That the affidavit mark PW3/D71 was not submitted by her with the DDA in support of her application of her father for mutation of the suit property in his name.
That she has not signed the affidavit dated 31.12.1999 which is Ex.PW2/DXG.
That when the LRs of Sh. Shyam Sunder Bedi refused to make the payment under the settlement, her father and LRs of Sh. Shyam Sunder Bedi started defaming her husband, then the sisters met their brother Sh. Balraj Bedi and decided that the sisters would also ask for their share in the suit property and hence she filed the suit.
That initially the dispute between Sh. Balraj Bedi and the LRs of Sh. Shyam Sunder Bedi was regarding division of the business but subsequently the dispute regarding the properties also arose.
That Smt. Urvashi Wahi and her husband Sh.
Vijay Kumar Wahi were also made mediators by Sh. Balraj Bedi and the LRs of Shyam Sunder Bedi and initially they were successful in getting the dispute resolved but the LRs of Sh. Shyam Sunder did not abide by the same.
That she is not aware of the date month or the exact year when the settlement was reduced in writing but it must have been done after the year 2006.
That the relinquishment deeds dated 18.01.2007 (registered on 19.01.2007) which are Ex.PW2/DX1 and Ex.PW2/DX bear the photograph of her husband but she cannot identify the signatures of her husband. That her husband had effected a settlement but she cannot identify the signatures of her husband and signature of other parties on the Memorandum of Settlement Ex.PW2/DX5.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 18 of 56 That before filing of the suit she never demanded share in the suit property since her father told her that he would give her share to her in the suit property but he did not give any written assurance to her in this regard.
She is not aware whether in the year 2001 DDA executed a registered conveyance deed in favour of her father Sh. Brij Lal Bedi in respect of suit property.
Defendant's Witness :
4. Pradeep Bedi D14/D2 Pradeep Bedi is the defendant no.3 who in his (D14/D2) examination in chief by way of affidavit Ex.D14/D2/A wherein he has corroborated what has been earlier stated in the written statement. He has placed his reliance on the following documents:
1. The original perpetual lease deed which is Ex.DW2/1.
2. Copy of the affidavit dated 31.12.199 9 filed by Ms. Urvashi Wahi before the DDA which is Ex.DW2/2.
3. Affidavit of Smt. Radha Rani which is Ex.DW2/3.
4. Affidavit of Pradeep Kumar Bedi (i.e. the witness himself) which is Ex.DW2/4.
5. Affidavit of Praveen Kumar Bedi which is Ex.DW2/5.
6. Affidavit of Ms. Pooja Bedi which is Ex.DW2/6.
7. Application for conversion from leasehold to freehold which is Ex.DW2/7.
8. Challan and the receipt which are Ex.DW2/8.
9. Affidavit of Sh. Brij Lal Bedi which is Ex.DW2/9.
10. Gift Deed executed by Sh. Brij Lal Bedi which is Ex.DW2/10.
11. Certified copy of OMP No. 321/08 which is Ex.DW2/12.
12. Certified copy of reply of the respondent no.1 to 6 in OMP No. 321/2008 which is Ex.DW1/13.
13. Replication filed by the petitioners which is Ex.DW2/14.
14. Certified copy of the judgment dated 08.04.2009 which is Ex.DW2/15.
15. Certified copy of the order passed by Hon'ble Division Bench in FAO (OS) No. 235/209 which Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 19 of 56 is Ex.DW2/16.
16. Original Will dated 08.09.1994 which is Ex.DW2/17 In his crossexamination by the Ld. Counsel for the plaintiff, the witness has deposed on the following aspects:
That he is doing the business of textiles in the name of B.R. Textiles at premises No. 1580 1581, Nai Sarak, Delhi.
That the sub lease Ex.DW2/1 was not registered in his presence and his grandmother had informed him about the execution of the same. That the Agreement to Sell Ex.PW1/DA was also not executed in his presence and it was his grandmother who informed him about the same. That Ex.PW2/DX2 was signed by Sh. Brij Lal Bedi in his presence and on the same date all the persons i.e. Smt. Shama Manchanda, Uma Kapoor, Urvashi Wahi, Praveen Bedi, Radha Rani, Pooja Beri and Sh. Balraj Bedi executed their personal affidavits in his presence. That Sh. Brij Lal Bedi had called all the aforesaid persons in his presence and informed them that the property is required to be converted to freehold.
That on the instruction of Sh. Brij Lal Bedi all the aforesaid persons had come and signed their respective affidavits in the presence of each other.
That they all had gone to Tis Hazari Courts for attestation of the affidavits but he does not remember the name of the Oath Commissioner. That these affidavits were not submitted by the individual persons themselves to the DDA and were submitted by Sh. Brij Lal Bedi and everyone, whose affidavits were filed, was called by the DDA.
That he does not remember whether they received any notice from DDA to appear before them or they went on their own.
That he does not remember the name and designation of the officer of DDA before whom they appears.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 20 of 56 That their statements were not recorded by the DDA.
That he was not present when the Conveyance Deed Ex.PW2/DX3 was executed on 08.03.2001 by the DDA in favour of Sh. Brij Lal Bedi. That the Indemnity Bond Ex.PW2/DX3 was not prepared and executed in his presence. That in the family settlement deed dated 16.06.2006 it was mentioned that the said gift deed could be executed.
That all senior members of Bedi family were present at the time of family settlement and husbands of Smt. Uma Kapoor and Smt. Urvashi Wahi also played a role in the family settlement in the year 2006 and Ms. Shama Manchanda was also aware of the family settlement. That the three sisters of his father were not called to participate in the family settlement since the family settlement dated 16.06.2006 was arrived at under the Chairmanship of Sh. Vijay Kumar Wahi who is the husband of Ms. Urvashi Wahi.
That he got the Will Ex.DW2/17 prepared in the first week of September 1994 on the instructions of his grandmother.
That the contents of the Will were not typed verbatim as narrated by his grandmother because she had not come to Tis Hazari Courts. That the Will was drafted by the Advocate/ Deed Writer in his own language after understanding the matter from him.
That Sh. Brij lal Bedi did not know that he (witness) had come to Tis Hazari Courts to get the Will typed nor he told him about the same since his grandmother had instructed him not to disclose this fact to anybody.
That he is not aware of the educational qualification of her grandmother but she was educated and was working as a teacher at Lahore.
That on the day when his grandmother signed the Will, she was well and was suffering with various ailments.
That firstly his grandmother signed the Will, thereafter Sh. Brij Lal Bedi signed the same and Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 21 of 56 then he (witness) signed.
That the contents of the Will were read over and explained to his grandmother in Hindi by Sh., Balraj Bedi and also by him.
That he knew that a Will can be got registered with subregistrar.
That he did not tell his grandmother that there was option of getting the Will registered but she did not want to spread the news about the Will. That no probate of the Will was filed or obtained.
That he informed his family members and his relatives about the Will few days after the death of his grandmother when they all assembled for the ceremonies.
That when the property bearing No. B104,
Gujranwalan Town was purchased, two
families were residing there i.e. two sons of Smt. Sudershan Kumari Bedi namely Sh. Shyam Sunder Bedi and his family and Sh. Balraj Bedi and his family used to reside there.
That he was very small i.e. around five years of age when the transactions relating to the sale purchase of the property took place and hence he is not aware of anything.
That personally he is not aware about the details of the payment made in respect of the purchase of the suit property.
That they had good relations with their neighbourers.
That in September 1994 when his grandmother Smt. Sudershan Kumari Bedi called him to prepare a will, he noted down whatever she was dictating to him.
That all the details of the family members whom she wanted to exclude and include were given and he noted down the same.
That he had not retained the paper on which he had noted down the details since it was long time back.
That when his grandmother had dictated the will, no other person was present there. That it was first week of September around 7th of September 1994 at about 11.00 to 12.00 Noon when he was called and at that time he was 21 Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 22 of 56 years of age, married and a part of his father's business at Chandni Chowk.
That on that day he had not gone to the shop as his grandmother stopped him.
That prior to 7th September 1994, his grandmother had never discussed the issue of the Will or the house with any other family member including his parents or paternal uncle / aunt.
That he is not very sure but he thinks she had an account in a bank but he never went to operate her account with her at any point of time. That she also had a locker in the bank and she never disclosed the details of the contents of the locker to him.
That he used to go with her to the bank when she wanted to operate the locker and hence he is aware that there was some jewellery but he cannot give the details of the same nor can he tell the details of the bank but it was a nationalized bank at Chandni Chowk, main road.
That he cannot tell what happened to the bank account or the locker after the death of his grandmother since Sh. Brij Lal Bedi used to take care of all these affairs and he must have taken care of the same.
That he was not the nominee of his grandmother with regard to the bank locker.
That between 15 to 20 days of the death of his grandmother, his grandfather got all the family members together after which her jewellery and clothes were distributed by him to his three buas, his mother and his chachis .
That his grandmother used to keep some jewellery at the home also be he cannot give the details of the jewellery of his grandmother i.e. both of locker and what she kept at home. That apart from the suit property and the jewellery, his grandmother had no other assets. That he cannot give the details of what was distributed to his buas, mother, chachi etc. That nothing was given by his grandfather to him or his wife from amongst the jewellery left by his grandmother and whatever he got from Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 23 of 56 her was during his marriage.
That he cannot produce any bill etc. relating to the jewellery of his grand mother as they are not in his knowledge.
That when his grandmother expired, she was around 60 plus but he cannot tell her exact age. That at that time she was suffering from high blood pressure and sugar but he cannot tell as to whether she was having any heart problem also.
That his grandmother expired due to heart failure.
That during her life time she was under the treatment of Dr. Sethi from Tirath Ram Hospital who used to reside near their house but he cannot produce any of his prescriptions relating to his grandmother.
That they did not obtain any probate with regard to the will of his grandmother.
That the Will of his grandmother was typed in Tis Hazari Court but he cannot tell whether it was by deed writer or by a typist.
That it took them about 45 minutes to one hour to type the will of his grandmother and they reached back home at around 4:00 PM.
That his grandmother was not very fluent in English but could only read or write little English.
That he had read the typed will to his grandmother and explained the same to her in Hindi and at that time Sh. Balraj Bedi was also present.
That the spelling mistakes and corrections in the will were made by him and after the corrections fresh typing of Will was made and the Will in question which was first typed and corrected by him, was destroyed when it was retyped. That he had gone to the deed writer / typist again on 08.09.1994 and at that time he alone went to deed writer / typist and did not attend his shop on that day.
That he did not instruct Sh. Balraj Bedi to remain at home for the purpose of Will and his grandmother might would have given the instructions to Sh. Balraj Bedi to remain at Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 24 of 56 home.
That at that time only Sh. Balraj Bedi, he himself and his grandmother were at home and there was nobody else.
That he again read out the corrected will to her grandmother first in English and then translated the same to her in Hindi.
That when his grandmother signed the will, they did not call any neighbour or independent person to witness her signatures.
That at that time both his father and grandfather were in the shop.
That his grandmother did not disclose this fact of will to his father or grandfather and only he and Sh. Balraj Bedi his chacha knew about it. That first his grandmother signed the will on two pages and then his chacha signed as witness no.1 and then he (witness) signed the will as witness no.2.
That the will was not notarized at that time and it was at the time when the same was admitted to DDA that the copy was notarized and the will remained with him.
That the will of his grandmother was opened and read after 15 to 20 days of her death and at that time his bua Smt. Uma Kapoor used to reside at Gujrawalan Town, Delhi; his bua Smt. Urvashi Wahi used to reside at Bombay and his third bua Smt. Shama Manchanda used to reside at Derawal Nagar, Delhi.
That at the time of reading of will, all his three buas and their husbands, his father, his chacha were present but there were no neighbours or friends and only family members were there. That the will was read out during the family gathering after the death of his grandmother but on that day there was no ceremony / ritual relating to her death.
That he did not distribute the copy of will to anybody.
That they had applied for conversion of the property to free hold on account of the scheme announced by the DDA.
That first the property was got converted to free hold but he cannot tell about the mutation part.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 25 of 56 That the affidavits of No objections relating to his buas and other legal heirs were got prepared by them at Tis Hazari Court but the details of the affidavits were present in the booklet of the DDA and after getting the drafts from the said booklet they got the affidavits prepared from Tis Hazari Courts.
That he alongwith his grandfather got these affidavits prepared and all of them came to Tis Hazari Courts when the same were to be notarized.
That he cannot give the details of the Notary as of now but he remember that signatures were taken on the register of the Notary.
That it was on 31.12.1999 at around 11.00 12.00 Noon when they came to Tis Hazari Courts to get the affidavits attested from Notary. That it took them five years to get the mutation done after the death of his grandmother because prior to 1999 the elders of the family had never thought about it.
That it was on the directions and consent of the elders of the family that the mutation was got done.
That the mutation was got done after five years because it was the requirement of the DDA and it was Sh. Brij Lal Bedi who had advised for mutation.
That at the time of submitting of the affidavit of No objection to the DDA, only Sh. Brij Lal Bedi had gone to DDA office.
That he does not remember whether he had also accompanied Sh. Brij Lal Bedi on that day when the affidavits/ NOC were submitted though he accompanied him on one or two occasions. That he cannot tell how many times his grandfather must have gone to the DDA office and in his presence no proceedings of the DDA had taken place.
That the affidavit of Sh. Brij Lal Bedi was already prepared when they reached the office of DDA but it was signed in the presence of DDA officials.
That all the LRs, whose affidavit / NOCs were filed, were called to the DDA Office and they Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 26 of 56 had all gone to the office of the DDA including himself because he was one of the LRs.
That the DDA officials had only asked the names of all the Legal Heirs and seen their identity proof.
That he cannot tell the date, month and year when they all went to the office of DDA.
That after the conversion of the property to free hold, Sh. Brij Lal Bedi was depositing the house tax of the suit property.
That from the year 2001 to 2007, Sh. Brij Lal Bedi, Smt. Radha Rani Bedi (widow daughter in law of Sh. Brij Lal Bedi) and her sons Sh. Pradeep Bedi i.e. himself and Sh. Praveen Bedi with their families used to reside in the suit premises.
That his mother is still alive and is residing in the suit property.
That the gift deed was executed in favour of his mother by his grandfather Late Sh. Brij Lal Bedi pursuant to a family settlement dated 16.06.2006.
That the said family settlement was between Sh.
Brij Lal Bedi, Smt. Radha Rani Bedi, Sh. Balraj Bedi, Sh. Pradeep Bedi i.e. himself, Sh. Praveen Bedi, Smt. Achla Rani Bedi (chachi), his wife Smt. Sneha Bedi, Ms. Nitika Rani Bedi W/o Sh. Praveen Kumar Bedi and Sh. Bipin Bedi S/o Sh. Balraj Bedi, but the said settlement was not got registered.
That the said family settlement was initiated on the asking of his chachaji Sh. Balraj Bedi. That their buas were not included in the family settlement.
That Sh. Vijay Wahi, husband of his bua Smt. Urvashi Wahi was the arbitrator in the said first family settlement which is Ex.PW1/D6 (now Ex.DW2/14) and Sh. Vijay Kumar Kapoor husband of his bua Smt. Uma Kapoor was the arbitrator in the second family settlement vide Ex.PW2/DX5 (now Ex.PW1/7) which took place in January 2007.
5. Rajpal Sharma D7W1 Sh. Raj Pal Sharma is the Assistant Director, (D7W1) (Cooperative Societies), DDA who has in his examination in chief by way of affidavit has Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 27 of 56 corroborated what has been earlier stated in the written statement. He has placed his reliance on the following documents:
1. Copy of Perpetual Sub Lease which is Ex.D7W1/1.
2. Copies of NOC filed by Sh. Brij Lal Bedi which are Ex.D7W1/2 to Ex.D7W1/11.
3. Copy of Conveyance Deed whichi s Ex.D7W1/12.
In his crossexamination by the Ld. Counsel for the plaintiff, the witness has deposed as under:
That he has not been involved in processing of the applications of the defendants for conversion and has only produced the office record. That he cannot tell who had filed the affidavit / NOC on behalf of Sh. Bal Raj Kumar Bedi, Ms. Uma Kapoor, Ms. Urvashi, Ms. Shyama, Ms. Radha, Sh. Pradeep, Sh. Praveen and Ms. Pooja.
That the said affidavits/ NOCs were attached with the application filed by Sh. Brij Lal Bedi for conversion from lease hold to free hold. That as per the challan present on record, the conversion charges were deposited by Sh. Brij Lal Bedi.
That as per the record, no dispute with regard to the will of Smt. Sudershan Kumari Bedi was raised by the DDA and hence they did not ask the parties to file the probate.
OBSERVATIONS AND FINDINGS:
(15) I have heard the arguments advanced before me by the Ld. Counsels for both the parties and considered the written memorandum of arguments filed by them. I have also gone through the various authorities relied upon by the parties which are as under:
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 28 of 56 Judgments relied upon by the Ld. Counsel for the plaintiffs:
1. Prataprai Trumbaklal Mehta Vs. Jayant Nemchand Shah & Anr. reported in AIR 1992 Bom. 149: 1991 (4) BomCR 89.
2. H.K. Taneja & Ors. Vs. Mr. Kezar Kharawala in CS No. 1094 decided on 17.12.2008
3. K.S. Srinivasan Vs. Union of India, reported in AIR 1958 SC 419.
4. Nagubai Ammal & ors. Vs. B. Shama Rao & Ors. reported in AIR 1956 SC 593.
5. Basant Singh Vs. Janki Singh reported in AIR 1967 SC 341.
6. Surinder Kaur Vs. Ram Narula & ors. reported in 2016 (5) AD (Delhi)
299.
7. Emco Limited Vs. Malvika Steel Limited, CS (OS) No. 258 of 2000 (DHC).
8. State of Punjab Vs. M/s. Geeta Iron and Brass Works Ltd. Reported in AIR 1978 SC 1608.
9. DDA Vs. Nehru Place Hotels Ltd. reported in 1993 (49) DLT 711.
10. Moonlight Electronics Industries Vs. DDA reported in 1994 RLR 71.
11. Yashod Kumari & Anr. Vs. MCD & Ors., reported in 111 (2004) DLT 33 (DB).
12. Satyadhan Ghosal & ors. Vs. Smt. Deorajin Debi & Anr. reported in 1960 AIR 941.
13. State of Uttar Pradesh Vs. Nawab Hussasin reported in 1977 AIR 1680.
14. Appavu Chettiar Vs. Nanjappa Goundan & Ors. reported in 1913 (25) MLJ 329.
15. Meghna Singh & Ors. Vs. Gurdial Singh reported in AIR 2004 P & H 93
16. Narender Kante Vs. Anuradha kante reported in 2010 (86) AIC 149.
17. Kale Vs. Deputy Commissioner of Consolidation reported in AIR 1976 SC 807.
18. A.C. Muthaiah Vs. BCCI & Anr. reported in 2011 (6) SCC 617.
19. Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors. reported in 2012 (11) SCC 341.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 29 of 56
20. Union of India & Ors. Vs. Casavi Coop GHS Ltd. Reported in AIR 2014 SC 937
21. Madhvi Amma Vs. Joseph Nadar reported in AIR 1972 Ker. 133.
22. Nank Chand Vs. Chander Kishore reported in AIR 1982 Del. 520.
23. Hankari Devi Vs. Rajbhawani Devi reported in 2007 (58) AIC 850 (Pat).
Judgment relied upon by the Ld. Counsel for the defendants no.1 to 4:
1. Mohinder Kaur Versus Sardar Sarwan Singh Banda & Ors., reported in ILR (2009) II Delhi 631
2. Lata Chauhan Versus L.S. Bisht, reported in 181 (2011) DLT 101
3. Prem Nath Chopra Vs. Arun Chopra & Ors. reported in 207 (2014) Delhi Law Times 787
4. Ranganayakamma & Anr. Vs. K.S. Prakash (D) By Lrs And Ors. reported in JT 2008 (8) SC 510
5. Seema Thakur Versus Union Of India & Ors. reported in 223 (2015) Delhi Law Times 132
6. Surinder Kaur Vs. Ram Narula & Ors. reported in 205 (2013) Delhi Law Times 179
7. Bharat Bhushan Maggon Vs. Joginder Lal & Ors. reported in 2012 IX AD (DELHI) 241
8. Gulab Chaudhary Vs. Govinder Singh Dahiya & Anr. reported in 189 (2012) Delhi Law Times 236
9. J.D.Jain & Ors Vs. Sharma Associates & Ors. reported in 2010 (V) AD (DELHI) 166
10. Lata Chauhan Vs. L.S. Bisht & Ors. reported in 2010 (117) DRJ 715
11. Anil Kumar V/S. Seema Thakur & Ors., reported in 166 (2010) Delhi Law Times 619
12. Amrit Kaur Versus Sarabjeet Singh & Ors. reported in 153 (2008) Delhi Law Times 392
13. Adarsh Kaur Gill & Ors. Versus Ajit Singh (DEAD) Thru Surjit Kaur Gill & Anr. reported in 157 (2009) Delhi Law Times 137 (DB).
14. Razia Begum Versus Delhi Development Authority & Ors., 204 (2013) Delhi Law Times 295 Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 30 of 56
15. Maha Singh Vs. Anand Singh Mann, reported in 116 (2005) Delhi Law Times 378
16. Md. Noorul Hoda Vs. Bibi Raifunnisa & Ors. reported in (1996) 7 Supreme Court Cases 767.
17. Ramti Devi Vs. Union Of India, reported in (1995) 1 Supreme Court Cases 198 .
18. Prem Nath Chopra Vs. Arun Chopra & Ors. reported in 207 (2014) Delhi Law Times 787.
19. Madhur Bhargava & Ors. Vs. Arati Bhargava & Ors. reported in 2013 (135) DRJ 62 (DB)
20. State Of Punjab & Ors. Vs. Gurdev Singh, Ashok Kumar, reported in AIR 1991 Supreme Court 2219
21. R. Ravindra Reddy And Others Vs. H. Hamaiah Reddy And Others.
reported in (2010) 3 Supreme Court Cases 214
22. Prem Singh & Ors. Vs. Birbal & Ors. reported in AIR 2006 Supreme Court 3608
23. Om Prakash Kohli Vs. Ravi Prakash Kohli & Ors., reported in 2002 III (AD) (DELHI) 1083
24. Swaran Singh Banda Versus Manpreet Singh Chhatwal & Ors. reported in 2009 (109)DRJ 482 (DB)
25. Dr. Kamal Gupta Versus Smt. Uma Gupta & Ors. reported in 123 (2005) Delhi Law Times 146
26. Manmohan Verma Versus Sheela Sharma & Ors. reported in 2007 (99) DRJ 538
27. Church Of Christ Charitable Trust & Education Charitable Society Vs. Ponniamman Educational Trust, reported in (2012) 8 Supreme Court Cases 706
28. N.V. `SRINIVASA Murthy & Ors. Vs. Mariyamma (DEAD) By Proposed Lrs & Ors. reported in (2005) 5 Supreme Court Cases 548.
29. Sri Sri Kishore Chandra Singh Deo Versus Babu Ganesh Prasad Bhagat And Ors. reported in AIR 1954 SC 316.
30. Narbada Devi Gupta Versus Birendra Kumar Jaiswal & Anr. reported in JT 2003 (8) SC 267
31. Meenakshiammal (Dead) Through Lrs & Ors. Versus Chandrasekaran & Anr. reported in (2005) 1 Supreme Court Cases 280 Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 31 of 56
32. Daulat Ram & Ors. Vs. Sodha & Ors .reported in AIR 2005 Supreme Court 233
33. Preet Inder Singh Versus Gursharna Kaur, Rfa No. 747/2010 Decided On 19.10.2011
34. Avtar Singh & Ors. V/S. Gurdial Singh & Ors. reported in (2006) 12 SCC 552
35. Broadway Centre Versus Gopaldas Bagri, reported in AIR 2002 Calcutta 78
36. United India Insurance Co. Ltd. & Anr. Versus Samir Chandra Chaudhary reported in (2005) 5 Supreme Court Cases 784.
37. Narayan Bhagwantro Gosavi Balaji Versus Gopal Vinayak Gosavi & Ors. reported in AIR 1960 SC 100
38. Seema Thakur Versus Union Of India & Ors. reported in 223 (2015) Delhi Law Times 132
39. Minu Sharma Vs. Neelam Varshney, reported in 2014 (142) DRJ 644
40. Vijayai Myne Versus Satya Bhushan Kaur, reported in 142 (2007) DLT 483 (DB)
41. Association For Voluntary Action Versus The Child Trust & Anr. in I.A. No. 2258 / 2009 in CS (OS) 1025/2008, decided on 24.09.2013
42. S.P. Chengalvaraya (D) Versus Jaganath (D), reported in 1994 Rajdhani Law Reporter (SC) 102
43. Hope Plantation Ltd. Vs. Taluk Land Board, Permade & Anr., reported in (1999) 5 Supreme Court Cases 590
44. Amarendra Komalam & Anr. Versus Usha Sinha & Anr. reported in (2005) 11 Supreme Court Cases 251
45. Ishwar Dutt Versus Land Acquisition Collector And Anr., reported in (2005) 7 SCC 190
46. Bhanu Kumar Jain Versus Archana Kumar & Anr. reported in (2005) 1 Supreme Court Cases 787.
(16) I have also gone through the testimonies of the various witnesses and the documents on record. My findings on the various issues are as under:
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 32 of 56 Issue No.1: Whether the suit is barred under the provisions of Section 17 to 21 of Indian Evidence Act, 1872? (OPD) Issue No.2: Whether the present suit is barred under the provisions of the Limitation Act? (OPD) Issue No.4: Whether Late Smt. Sudarshan Kumari had executed the Will dated 08.09.1994 in favour of the defendant no. 1, if so, its effect? (OPD) Issue No.7: Whether the plaintiff is entitled for a decree of declaration in respect of Will dated 08.09.1994 and Gift Deed dated 05.01.2007, as prayed in the plaint? (OPP) Issue No.8: Whether the plaintiff is entitled for a decree of partition of property bearing no. B104, Gujranwala Town Delhi09 as claimed in the plaint? (OPP) Issue No.9: Whether the plaintiff is entitled for a decree of permanent injunction, as prayed in the plaint? (OPP) Issue No.10: Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed in the plaint? (OPP) (17) All the above issues are clubbed together for the sake of convenience involving common discussion and being interlinked. Onus of proving the issues no.1, 2 and 4 was upon the defendants whereas that of the issues no. 7, 8, 9 and 10 was upon the plaintiffs. In their written statement the defendants have raised a preliminary objection that the suit filed by the plaintiffs is barred under the provisions of Section 17 to 21 of Evidence Act. According to the defendants, certain admissions had been made by the plaintiffs in their pleadings and hence the suit is barred. Ld. Counsel for the defendants no.1 to 4 has argued Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 33 of 56 that the plaintiffs have specifically in their evidence admitted the fact regarding their mother having purchased the suit property and being deliberately evasive with regard to the mutation of the suit property in favour of their father Sh. Brij Lal Bedi despite having signed the documents.
(18) In this regard it is submitted by the Ld. Counsel for the plaintiffs that there has been no admission on behalf of the plaintiffs and there has been a categorical denial on the family settlement as they were never called to sign the same nor they have signed the said family settlement and hence, the question of admission does not arise. (19) Before coming to the rival contentions raised before me, at the very Outset, for the sake of convenience, the list of relevant dates and events are culled out as under:
Sr. Date Event
No.
1. 23.04.1971 Original sublease deed the property bearing no.
B104, Gujrawala Town, Part1, Delhi - 110009 was subleased in the name of Mr. Preetpal Singh Uppal.
2. 12.05.1971 Sublease deed was registered with SubRegistrar, Delhi
3. 04.10.1978 Sh. Preetpal Singh Uppal sold the suit property as per the Agreement to Sell to Smt. Sudarshan Kumari Bedi and the suit property no. B104, Gujrawala Town, Part1, Delhi - 110009 was owned and possessed by Smt. Sudarshan Kumari Bedi.
4. 08.09.1994 Will was executed and signed by Smt. Sudershan Kumari Bedi.
5. 03.12.1994 Smt. Sudarshan Kumari Bedi expired and survived by following Legal Heirs:
1. Sh. Brij Lal Bedi (Husband)
2. Sh. Balraj Kumar Bedi (Son)
3. Smt. Uma Kapoor (Daughter) Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 34 of 56
4. Smt. UrvashiWahi (Daughter)
5. Smt. Shama Manchanda (Daughter)
6. Sh. Shyam Sunder Bedi (Son) leaving the following legal heirs :
a) Smt. Radha Rani (Wife)
b) Sh. Pradeep Kumar (Son)
c) Sh. Parveen Kumar (Son)
d) Smt. Pooja Beri (Daughter)
6. 31.12.1999 Plaintiffs along with all Legal Heirs of late Smt. Sudershan Kumari Bedi namely Sh. Brij Lal Bedi (Husband), Sh. Balraj Kumar Bedi (Son), Smt. Uma Kapoor (Daughter), Smt. Urvashi Wahi (Daughter), Smt. Shama Manchanda (Daughter), Sh. Shyam Sunder Bedi (Son) leaving his legal heirs namely Smt. Radha Rani (Wife), Pradeep Kumar (Son), Sh. Parveen Kumar (Son), Smt. Pooja Beri (Daughter) alleged to have signed and executed respective affidavits confirming and admitting the factum of existence of last Will dated 08.09.1994 of late Smt. Sudarshan Kumari Bedi by further admitting the said Will to be last and genuine Will and that they have no objection if the right, title and interest in property no. B 104, Gujrawala Town, Part1, Delhi - 110009 be transferred in favour of defendant no.1, pursuant to and in furtherance of the Will dated 08.09.1994.
7. 03.01.2000 Sh. Brij Lal Bedi submitted an application along with a challan of Rs.34,652/ towards commission charges along with nine affidavits of all the Legal Heirs of Smt. Sudarshan Kumari Bedi in the first week of January, 2000 to DDA for conversion from lease hold to free hold of the property bearing no. B104, Gujrawala Town, Part1, Delhi - 110009.
8. 08.03.2001 DDA registered the Conveyance Deed and the suit property was mutated and transferred in the name of Sh. Brij Lal Bedi, defendant no.1 on 08.03.2001 pursuant to the execution of the registered Conveyance Deed by Delhi Development Authority.
9. 16.06.2006 A family settlement was allegedly signed and executed between all the Legal Heirs of late Sh. Shyam Sunder Bedi namely Smt. Radha Rani Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 35 of 56 Bedi (Wife), Pradeep Kumar Bedi (Son), Smt. Neha Bedi and Praveen Kumar Bedi (Son) and his wife Ms. Nitika Bedi with Sh. Balraj Kumar Bedi and his wife Ms. Achla Rani Bedi and his son Mr. Bipin Kumar Bedi.
10. 19.01.2007 Pursuant to the Family Settlement dated 16.06.2006, a Memorandum of Family Settlement was arrived at between the Defendant nos. 3 & 4, Legal Heirs of late Sh. Shyam Sunder Bedi with defendant no.5 Sh. Balraj Kumar Bedi and his son Sh. Bipin Kumar Bedi relating to the properties no. 15801581, Nai Sarak, Delhi and properties bearing no. 4410 - 4415, Katara Bagla, Nai Sarak, Delhi-110006, which was witnessed by Sh. Vijay Kumar Kapoor husband of plaintiff no.1 Smt. Uma Kapoor.
11. 05.01.2007 Sh. Brij Lal Bedi gifted the suit property in favour of his daughter in law Smt. Radha Rani Bedi, vide registered Gift Deed.
12. 22.09.2008 The plaintiffs filed the present Suit for declaration, partition and mandatory injunction.
13. 2008 Sh. Brij Lal Bedi, defendant no.1 filed a suit bearing no.1895 of 2008 titled Brij Lal Bedi V/s. Sh. Balraj Kumar Bedi for injunction before the Court of Ld. Sr. Civil Judge, Tis Hazari Courts, Delhi, wherein, Sh. Balraj Kumar Bedi, Son of Sh. Brij Lal Bedi, defendant no.5 herein has made a categorical admission on 29.10.2009 that his signatures as attesting witness no.1 at Point 'X' on the notarized photocopy of the Will dated 08.09.1994 bears his signatures.
14. 2008 Sh. Balraj Kumar Bedi filed an OMP bearing no.
321 of 2008 titled as Balraj Kumar Bedi & Ors. V/s. Brij Lal Bedi & Ors. before the Hon'ble High Court of Delhi.
15. 13.01.2009 Statements of Smt. Shama Manchanda Order 10 CPC recorded by this Court.
16. 08.04.2009 OMP No. 321 of 2008 was dismissed by the Hon'ble Mr. Justice Manmohan Singh holding that the Family Settlement 16.06.2006 was duly signed by all the parties and substantially acted upon.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 36 of 56
17. 29.05.2009 Sh. Balraj Kumar Bedi, his wife and son aggrieved by the order dated 08.04.2009 preferred an appeal [FAO (OS) No. 235 of 2009] before the Division Bench of Hon'ble High Court of Delhi, which was also dismissed.
18. 15.10.2009 Sh. Balraj Kumar Bedi defendant no.5 filed an Arbitration Petition no. 77 of 2009 under the title Sh. Balraj Kumar Bedi & Ors. V/s. Brij Lal Bedi & Ors before the Hon'ble High Court of Delhi and Hon'ble Mr. Justice Manmohan dismissed the aforesaid petition.
(20) Secondly, coming to the testimonies of the various witnesses examined by the plaintiff and the relevant portions of their examination/ crossexamination. It is writ large that the plaintiffs have been most evasive when the Relinquishment Deed, Mutation of the property in favour of their father Sh. Brij Lal Bedi (defendant no.1 - now deceased) and the family settlement, were put to them. The relevant portion of the crossexaminations of the various witnesses of the plaintiffs is reproduced as under:
Sr. Name of the Relevant portion of the crossexamination of witness No. witness:
1. PW1 Ms. Shama It is correct that the house No. B104 was purchased by Manchanda my mother Smt. Sudarshan Kumari Bedi from DDA.
Exhibit PW1/DA Agreement dated 04.10.1978 bears the signatures of Smt. Sudarshan Bedi at Point 'A'. I can identify the signatures of my mother.
I came to know about the purchase of this property by her in the year 1978 itself. In the year 1975 my father was doing cloth business. Even, in the year 2003, he was doing the cloth business. I cannot admit or deny the fact that my father is still doing the cloth business Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 37 of 56 from Shop No. 1580, Nai Sarak, Delhi. It is correct that in the year 2003, I along with my parentinlaws as well as my brotherinlaw and his family had resided for 23 months at A135, Gujrawalan Town, Delhi.
My mother died in my vehicle in the year 1994. It is correct that my mother was having high blood pressure and was also a diabetic prior to her death. Vol. She was having a serious ailments. It is wrong to suggest that my mother was got admitted at Tirathram Hospital in the month of June - July, 1994. It is correct that she was admitted to Tirathram Hospital on 23 occasions prior to her death. I had also visited her in the hospital.
Court Observation: The witness is deliberately denying the suggestions of the Ld. Counsel for the defendants and is giving vague replies to his queries. The questions have been repeatedly explained by the court to witness but she is still giving vague replies.
Court Question: Whether you have seen your mother Smt. Sudarshan Devi reading, writing or signing.
Ans.: Yes, I have seen her reading, writing and signing.
The witness has been asked to see the documents Exhibits PW1/D1 to Ex.PW1/D5 and has been asked to identify the signatures of Smt. Sudarshan Kumari. The witness admits that all these documents bears the signatures of Smt. Sudarshan Kumari Bedi at Point 'A'.
I visited the house of my parents on the date of death of my mother on 03.12.1994 itself. I do not remember the date when I lastly visited my parental house. I had even visited my parental house even after the year 2000. At that time, my father was in good health.
I came to know in the year 2008 about some family settlement between the defendants and filing of some suit before the Hon'ble High Court on the basis of the said family settlement.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 38 of 56 The entire jewellery was distributed among all the children (Among all the five sons and daughters). Lastly, I demanded my share from my father in the year 2007 I do not know about the mutation entry. I came to know in 2008 that the property no. B 104, Gujrawala Town stands mutated in the name of my father.
I moved an application to DDA, perhaps in 2008 or 2009;
It was mentioned that my father got the property mutated in his name without the consent of her daughter.
I am not in possession of that application. Only my counsel can produce the same.
The complete file is shown to the witness and asked whether the application moved by her to DDA is available. The witness states that she does not know how to read English language. I have never given my signatures on any blank paper to my father.
2. PW2 Sh. Vijay I do not know if DDA executed a perpetual sub Kumar lease deed in favor of Prith Pal Singh Uppal on 23.04.1971 registered on 12.05.1971 of property B104, Gujrawala Town. I do not know if Sh. Prit Pal Singh Uppal entered into an agreement to sell with Sudarshan Kumari Bedi on 04.10.1978 with respect to property no. B104, Gujrawala Town. It is correct that Smt. Sudarshan Kumari Bedi was owner of H.No. B 104, Gujrawala Town.
It is correct that since 1994, my family and family of Balraj Bedi are residing at Gujrawala Town. It is correct that after the death of Smt. Sudarshan Kumari Bedi uptil 2008, Uma, Shama and Urvashi along with their husbands used to visit H.No. B104, Gujrawala Town.
It is correct that I and my wife Uma Kapoor visited H.No. B104, Gujrawala Town in December, 1999. At the time of my visit, Radha Bedi wife of Sh. Shyam Sunder Bedi and two Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 39 of 56 daughters in laws of Radha Bedi were present. I was accompanied by Shama Manchanda and my wife.
I do not know if any disputes arose between Balraj Bedi and LRs of Shyam Sunder Bedi and Brij Lal Bedi.
Balraj Bedi never informed me about any dispute with Brij Lal Bedi and LRs of Shyam Sunder Bedi. It is correct that Balraj Bedi never informed me that the disputes between him and Brij Lal Bedi and LRs of Shyam Sunder Bedi had been settled.
I am conversant with the signatures of Brij Lal Bedi also and can identify the same.
Photocopy of Affidavit dated 31.12.1999 of Balraj Bedi shown to the witness on which he identified the signature of Balraj Bedi at point A & B. The documents for the purposes of identification is exhibited as Ex.PW2/DX. Another affidavit which is attested copy by one Sh. V.K. Chopra, AD (CS) DDA shown to the witness who identified the signature of Sh. Balraj Bedi at point A & B and also at front page at point C, the same is exhibited as Ex. PW2/DX.1. Attested copy of affidavit of Sh. Brijlal Bedi dated 31.12.1999 shown to the witness and he identified the signature of Brij Lal Bedi on the affidavit at point A, B & C, the document is Ex. PW2/DX2. Attested copy of the indemnity bond dated 31.12.1999 shown to witness on which he identifies the signature of Sh. Brij Lal Bedi at point A & B, the bond is Ex. PW2/DX3.
I am conversant with the signature of Sh. Urvashi Wahi. I am conversant with the signatures of Uma Kapoor, my wife. Attested copy of affidavit dated 31.12.1999 shown to the witness and asked whether it bears signature of Uma Kapoor and the witness stated that it does not bear signature of Uma Kapoor, the document is Ex.PW2/DX4 for the purposes of identification. I am not conversant with the signature of Smt. Sudarshan Kumari Bedi.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 40 of 56 Memorandum of Family Settlement dated 19.01.2007 shown to the witness. On this document he identifies the signature of Sh. Brij Lal Bedi at point A, B, C, D, E & F and signatures of Sh. Balraj Bedi at point G, H, I, J, K and his own signatures at point L, the document is Ex. PW2/DX5.
Again said after seeing the document that my thumb impression is also there on Ex.
PW2/DX.5 against the witness no.1.
My wife Uma Kapoor also does not know anything about this document.
My wife also did not know anything about the family settlement dated 19.01.2007 till date. I also put my signature and thumb impression at the office of SubRegistrar behind Ritz Theater. I do not remember if any document was got registered in the office of SubRegistrar. Document Ex. PW1/D6 shown to the witness on which he identified the signature of Balraj Bedi at point A and of Brij Lal Bedi at point B. Relinquishment dated 19.01.2007 by Sh. Brij Lal Bedi shown to the witness on which he identified the signatures of Sh. Brij Lal Bedi at point A on each page along with thumb impression. The witness has also identified his signature at point B. He has also identified signature of Balraj Bedi along with thumb impression on each page at point C. The document is Ex. PW2/DX.
Relinquishment deed dated 19.01.2007 of Smt. Radha Rani is shown to the witness and he identified the signature of Balraj Bedi on each page and also on the back side of first page at point 'A'. He has also identified his signature and thumb impression at point B on the document Ex.PW2/DX2.
It is correct that on the back side of the last page there is photograph of Smt. Radha Rani, Balraj, myself and also Praveen as witness. Will of Smt. Sudershan Kumari is shown to the witness on which witness identified the signature of Balraj Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 41 of 56 Bedi at point A. The Will is mark X. The certified copy of the registered conveyance deed shown to the witness and he identified the signature of Sh. Brij Lal Bedi at point A & B. Conveyance Deed is now exhibited as PW2/DX3.
Affidavit of Sh. Balraj Bedi dated 19.01.2007 shown to the witness on which he identified the signature of Balraj Bedi at point 'C', 'A' and 'B', same is Ex. PW2/DX4.
I can identify the signature of Sh. Balraj Bedi on Will dated 08.09.1994 at mark 'A'.
3. PW3 Smt. Uma It is correct that my mother was the owner and in Kapoor possession of property no. B104, Gujrawala Town, PartI, Delhi.
When I lastly met my father, he was in a sound mental state, he could walk and he also recognized me. He was in a fit mental condition. During their visit to Delhi, Sh. Vijay Kumar Wahi and my sister Smt. Urvashi Wahi used to live with their daughter and they used to visit my brothers and sisters including myself.
I have not seen the documents of ownership of suit property in favour of my mother. I have not inspected the documents of the property with any government department and I also did not had any correspondence with the government departments regarding the suit property. I am not aware of any litigation between Sh.
Balraj Bedi and the children of late Sh. Shyam Sunder Bedi. It is correct that there were dispute between Sh. Balraj Bedi and the children of Sh. Shyam Sunder Bedi. It is correct that Sh. Vijay Kumar Wahi acted as mediator / arbitrator to settle the disputes between them. Vol. After long time of the dispute, I came to know about the same and that Sh.Vijay Kumar Wahi had acted as Mediator / Arbitrator. I do not know whether any written statement deed was prepared by the efforts of Sh. Vijay Kumar Wahi on 16.06.2006. Question: I put it to you that relinquishment deeds were to be executed and exchanged Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 42 of 56 between Sh. Balraj Bedi and the children of late Sh. Shyam Sunder Bedi in pursuance of the settlement dated 16.06.2006. I further put it to you that your husband Sh. Vijay Kapoor has signed as a witness no.1 on the MOU of family settlement dated 19.01.2007.
Ans: It is correct.
Question: Whether you have signed at Point A on the document shown to you from the Court file? Court Observation: Ld. Counsel has shown the application of the plaintiff under Order 39 Rules 1 & 2 CPC dated 22.09.2008 to the witness. The witness has initially denied the signature but her husband has whispered in her ears and thereafter she admits the signature.
Question: When was the first time you asked the defendants for your share in the suit property? Ans. There was a dispute between my brother Sh. Balraj and the LRs of my other brother Sh. Shyam Sunder Bedi. Sh. Balraj, my father and the LRs. Of Sh. Shyam Sunder Bedi started coming to my house in the year 2006 to get the dispute resolved. With the intervention of my husband, they had agreed to resolve the disputes, however LRs of Sh. Shyam Sunder Bedi backed out from the settlement. Later on I was told by my sister Urvashi Wahi that the said parties had called her and her husband Sh. Vijay Kumar also several times for settlement.
From the year 2006 onwards (do not remember the date and the month) they started coming to my house regularly for the settlement and the settlement talks when on for 1-1½ years. When the LRs of Sh. Shyam Sunder Bedi refused to make the payment under the settlement and they as well as my father started defaming my husband, we the sisters met our brother Sh. Balraj and we decided that the sisters will also ask for their share in the suit property and therefore I filed this suit.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 43 of 56 The settlement was to take place between Sh. Balraj and the LRs of Sh. Shyam Sunder Bedi. My father was with the LRs of Sh. Shyam Sunder Bedi and my brother Sh. Balraj was in the opposite side. Initially the dispute between Sh. Balraj and the LRs of Sh. Shyam Sunder Bedi was regarding division of the business. Subsequently, the dispute regarding the properties also arose. (Vol. There were number of properties held by them in the name of each other). Smt. Urvashi Wahi and her husband Sh. Vijay Kumar Wahi were also made mediators by Sh. Balraj and the LRs of Sh. Shyam Sunder Bedi. Initially, they were successful in getting the dispute resolved but LRs of Sh. Shyam Sunder did not not abide by the settlement. I do not know however, I was told by my sister Smt. Urvashi Wahi that the settlement effected through her and her husband had also been reduced in writing. I do not know the date, month or the exact year when the settlement was reduced in writing however, it is correct that it must have been done after the year 2006. Before filing of the suit when I talked to my sister Smt. Urvashi Wahi, she did not agree to join as a party in the suit, however, she told me all facts including the fact that there was a written settlement. I have never seen the said written settlement till date. I did not try to look for the written settlement as the same had already failed and they had approached me and my husband again for the settlement.
Relinquishment Deeds dated 18.01.2007 (registered on 19.01.2007) Ex.PW2/DX1 and Ex.PW2/DX bear the photograph of my husband but I cannot identify the signature of my husband on these documents. The photographs of my husband appear on the back page of the document at page 527 of the Court file and 553 of the Court file.
My husband had effected a settlement between the persons mentioned above but I cannot identify the signatures of my husband and signature of other parties on the memorandum of Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 44 of 56 family settlement Ex.PW2/DX5. I do not know whether in the plaint, I have mentioned any petition filed by Sh. Balraj in the Hon'ble High Court of Delhi. I do not know anything and I cannot say how averment regarding the case filed by Sh. Balraj Bedi in Hon'ble High Court has been mentioned in para 7 of my affidavit. I do not know how the date of 16.06.2006 i.e. date of settlement has been mentioned in my affidavit. Question: Regarding many of the questions you have stated that your husband is aware of the same, however all those details are found in the plaint as well as in your affidavit towards examination in chief. Can you tell on whose narration the plaint and our affidavit towards examination in chief were prepared?
Court Observation: The witness is not able to understand the question and the same has been explained to her in Hindi by me and she answers as hereunder:
Ans. My husband told the facts. (Vol. I am not aware about any Will executed by my mother and I had not given any no objection to DDA as stated above).
It is correct that before filing of the suit, I never demanded share in the suit property (Vol. my father used to say that he would give my share to me in the suit property). My father never gave any written assurance to me that he would give me share in the suit property.
Question: When did you come to know that the suit property had been mutated in the name of your father?
Ans. I am not sure about the year and I do not remember the date however in the year 199899 my father told me that he had got the power of attorney of the suit property in his favour. Court Question: The witness has been asked to explain what she means by power of attorney and she states as hereunder:
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 45 of 56 Ans: At that time there was a policy that the holders of the power of attorney would get the property transferred in their name. I do not know when the registered conveyance deed dated 08.03.2001 was executed by DDA in favour of my father. I am still not aware of the said conveyance deed.
Question: Have you seen the affidavit dated 31.12.1999 submitted before DDA, the registered conveyance deed executed by DDA in favour of your father, settlement deed dated 16.06.2006, Will dated 08.09.1994 and the record of the litigation before Hon'ble High Court as mentioned above?
Ans: No, I do not know.
(21) It is writ large from the above that despite having claimed that the signatures on the Will belongs to her mother, Smt. Uma Kapoor (PW3) was not able to identify the signatures of her mother after many years. She claimed that she was not aware of the earlier litigations but stated that there was a dispute between her brother Balraj Bedi and the LRs of her other brother Sh. Shyam Sunder Bedi. She has admitted that her husband Sh. Vijay Kumar Kapoor had signed the MOU of family settlement dated 19.01.2007 as a witness to the same. She stated that she had not signed the affidavit Mark PW3/D71 which was allegedly submitted by her with the DDA in support of the application her father and has denied her signatures at points A.B and C but did not examine any handwriting expert to substantiate this aspect and she was then asked to identify her signatures on the application under Order 39 Rule 1 and 2 CPC filed by her which signatures were similar to the signatures put on Ex.PW3/D71, which she initially denied but later on being Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 46 of 56 pushed by her husband, she admitted the same. This demeanor of the plaintiff no.1 Smt. Uma Kapoor (PW3) has been specifically observed and noted by the Ld. Predecessor Court. She was also put the Relinquishment Deeds dated 18.01.2007 registered on 19.01.2007 vide Ex.PW2/DX1 and Ex.PW2/DX2 bearing the photographs of her husband and despite having identified the photograph of her husband, she did not admit the signatures of her husband on the documents. Further, she did not identify the signatures of her husband and other parties on the Memorandum of Family Settlement Ex.PW2/DX5. (22) In so far as Sh. Vijay Kapoor (PW2) who is the husband of the plaintiff no.1 Smt. Uma Kapoor is concerned, he has admitted that his family as well as the family of Brij Lal Bedi were residing in the suit property. He has admitted the signatures of Balraj Bedi on the affidavit dated 31.12.1999 which is Ex.PW2/DX; signatures of Sh. Brij Lal Bedi on affidavit dated 31.12.1999 which is Ex.PW2/DX2 and on Indemnity Bond which is Ex.PW2/DX3. He has claimed that he is conversant with the signatures of Smt. Urvashi Wahi and that of Smt. Uma Kapoor and denied the signatures of his wife on Ex.PW2/DX4. He has identified his own signatures and the signatures of Sh. Brij Lal Bedi and Sh. Balraj Bedi on the Family Settlement dated 19.01.2007 which is Ex.PW2/DX5 and also his thumb impressions on the said document as witness no.1. According to him, his wife does not know anything about the family settlement, which, of course, does not appear to be possible. He has also identified the signatures of Smt. Radha Rani on the Relinquishment Deed dated 19.01.2007 which is Ex.PW2/DX2 along with his photograph and of Radha Rani, Balraj and Praveen as Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 47 of 56 witnesses. He has further identified the signatures of Brij lal Bedi on the Conveyance Deed Ex.PW2/DX3 and of Brij Lal Bedi on PW2/DX4 but pleaded his ignorance if Smt. Sudershan Kumari Bedi vide Will dated 20.08.1994 bequeathed the suit property in favour of her husband Sh. Brij Lal Bedi. According to him, he had never seen the Will dated 08.09.1994 and the family settlement dated 16.06.2006. (23) Thirdly, the case of the plaintiffs is that the Will of late Smt. Sudershan Kumari Bedi is shrouded by mystery and suspicious circumstances since the same was created by defendants no.1 to 5 after her death. It is argued that the Will in question is an unregistered document and the only witness to the Will is the beneficiary to the same being the grandson of the testator and the defendants having failed to prove the signatures of the testator, the plaintiffs are entitled to the share in the property of late Smt. Sudershan Kumari. In this regard, I may observe that the plaintiffs were aware of the Will dated 08.09.1994 of late Smt. Sudershan Kumari Bedi by way of which she bequeathed the property in question to her husband Sh. Brij Lal Bedi i.e. the defendant no.1 (the father of the plaintiffs and the defendants no.1 to 6) and as per the documentary evidence on record all the legal heirs of late Smt. Sudershan Kumari Bedi had signed the No Objection Certificates in favour of their father Sh. Brij Lal Bedi pursuant to which the DDA had mutated and transferred the property in question in favour of the defendant no.1 vide Conveyance Deed which is Ex.D7W1/12. Now the plaintiffs have taken a different stand claiming that they were not aware of the execution of the aforesaid Conveyance Deed. This is unbelievable since their sustained crossexamination confirms that not only they were Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 48 of 56 in knowledge of the same but also it stands established that Sh. Vijay Kapoor (PW2), the husband of plaintiff no.1 Uma Kapoor had in fact mediated the Family Settlement between the various siblings. (24) Fourthly, I observe that the suit property was a part of the Family Settlement dated 16.06.2006 which was disputed by Balraj Bedi (defendant no.5) in OMP No. 32/2008 as apparent from the orders dated 08.04.2009 passed by Hon'ble Mr. Justice Manmohan which is Ex.DW2/15. In the said Family Settlement Ex.PW1/D6 it has been agreed between the parties that they shall appoint Sh. Vijay Kumar Wahi, the husband of Smt. Urvashi Wahi (i.e. the defendant no.6) and it is not disputed that both Sh. Vijay Kumar Wahi the husband of Smt. Urvashi Wahi (defendant no.6) and Sh. Vijay Kapoor (PW2) had actively participated in the family settlement which fact has been admitted by Ms. Shama Manchanda (PW1), Sh. Vijay Kapoor (PW2) and Smt. Uma Kapoor (PW3).
(25) Fifthly, in so far as Smt. Shama Manchanda (PW1) is concerned, she neither admitted nor denied whether the affidavit filed before the DDA for mutation of the suit property bears her signatures or not but she has categorically stated that the entire jewellery left behind by her mother Smt. Sudershan Kumari Bedi was distributed amongst all the sons and daughters and it was in the year 2008 that she came to know that the property has been mutated in the name of his father, which on the face of it does not appear to be correct since prior to the same there was a dispute between the family members in the husbands of two of the sisters including Uma Kapoor (plaintiff no.1) and Urvashi Wahi (defendant no.6) had participated and the family settlement which Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 49 of 56 was duly acted upon. I note that the Will of Smt. Sudershan Kumar Bedi is of the year 1994 and when after her death, the property was transferred to her husband Brij Lal Bedi, all the legal heirs gave their No Objections. Therefore, under these circumstances, they are deemed to be aware of the same since at no point of time any challenge had been raised by the plaintiffs to the mutation and the Will. Though there is a denial with regard to their signatures on the Affidavits/ No Objection Certificates allegedly filed with the DDA, yet none of the plaintiffs have bothered to call the handwriting expert to confirm this aspect that the signatures on the said NOCs by way of which the said NOCs by way of which the property was mutated in favour of the defendant no.1, did not belong to them or that they had no intent for relinquish and give up their rights in the property. Though it is alleged that that the said Family Settlement had been prepared by the defendant for filing the same in the present litigation, yet I may observe that at no point of time the plaintiff challenged the said settlement which had already been acted upon. In this regard, the Ld. Counsel for the plaintiffs had raised an argument that the defendants did not examine any handwriting expert to prove the signatures of the plaintiffs on the same, but I may note that the plaintiffs having challenged the said Family Settlement and also their signatures on the same, the onus of disproving the family Settlement Ex.PW1/D6 was upon the plaintiffs and could not have been upon the defendants.
(26) Lastly, the plaintiffs have failed to place on record that medical record of the Brij Lal Bedi to confirm that he had been medically unfit and not competent to execute any document. I may further observe that in fact the witness of the DDA namely Rajpal Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 50 of 56 Sharma (D7W1) has confirmed that as per the record of the DDA, the Will of Smt. Sudershan Kumari Bedi has never been disputed by any of the LRs before the DDA. It is writ large from the evidence on record that the affidavit dated 31.12.1999 executed by the plaintiffs as well as other LRs unequivocally intended the suit property to be transferred in the name of Sh. Brij Lal Bedi as per the Will and intention of the testator late Smt. Sudershan Kumari Bedi and by way of their affidavits filed before the DDA, which they have not been able to controvert and not challenged before the DDA till date, the plaintiffs had given their No Objection to the mutation of the suit property in favour of Sh. Brij Lal Bedi and hence the plaintiffs are estopped from representing to the contrary. Since the plaintiffs were in full knowledge of their legal rights and entitlement and by way of execution of the documents i.e. affidavits and No objections before the DDA by way of which they had given affect to the Will of their mother and there was a transfer of the property in favour of their father, they cannot be permitted to get the issue reopened.
(27) Hence, in view of my aforesaid discussion, I hereby hold that the suit of the plaintiffs cannot be stated to be barred by the provisions of Limitation Act since the Conveyance Deed was executed in the year 2007 pursuant to the NOCs and affidavits filed by the various LRs of late Smt. Sudershan Kumari Bedi, yet the declaration with regard to the Will dated 08.09.1994 is beyond the period of limitation the plaintiff being aware of the same and having filed the affidavits for transfer of the property in favour of their father in the year 1999 the limitation for challenging the same started to run since they Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 51 of 56 came to know of the same and the evidence on record confirms that in the year 1999 when they filed their affidavits before the DDA, they were aware of the Will executed by their mother Smt. Sudershan Kumari Bedi in favour of their father Sh. Brij Lal Bedi. The plaintiffs, despite being informed about the existence of registered perpetual lease deed, which conveys rights and interest in favour of the defendant no.1 Sh. Brij Lal Bedi (effected by DDA in 2001 pursuant to the affidavits filed by all the legal representatives including the plaintiffs), the plaintiffs and the defendant no.5 took no steps to assert their right at any point of time.
(28) This being the background, I hereby hold that Smt. Sudershan Kumari Bedi had executed a Will dated 08.09.1994 in favour of the defendant no.1, pursuant to which the all the LRs of late Smt. Sudershan Kumari Bedi, including the plaintiffs, themselves gave their No Objections and now they are estopped from raising the said issue. I further hold that the Conveyance Deed has been legally executed by the DDA and the relief with regard to the challenge to the Will, if any, should have been within the period of three years from the knowledge which has not been done.
(29) I, therefore, hold that the plaintiffs are not entitled to the decree of Declaration, Partition, Permanent and Mandatory Injunction as asked for in the plaint.
(30) All the issues are accordingly decided in favour of the defendants and against the plaintiffs.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 52 of 56
Issue No.4: Whether the present suit is not maintainable in its
present form? (OPD)
(31) Onus of proving this issue was upon the defendants.
However, I may observe that the defendants have failed to discharge the onus upon them and no evidence has been lead by the defendants in this regard. No suggestion has been put to the witnesses of the plaintiffs that the suit is not maintainable in the present form and the objection raised in the written statement is vague and non specific. The defendants have failed to show or suggest any other form where the plaintiffs could have claimed their share, partition and declaration and other reliefs claimed before this Court.
(32) Issue is accordingly decided in favour of the plaintiffs and against the defendants.
Issue No.5: Whether the present suit is barred under the provisions of Section 53B of DDA Act? (OPD) (33) Onus of proving this issue was upon the defendants. The case of the defendants is that the plaintiffs have not served any prior notice upon the defendant and hence the suit of the plaintiffs is barred. It is an admitted case of the plaintiffs that they have not served any notice to the DDA prior to the filing of the present suit. However, I may observe that in the case of Col. A.B. Singh Through LRs Vs. Sh. Chunnilal Sawhney and Ors. reported in MANU/DE/4066/2011 the Hon'ble Delhi High Court has referred the judgment in the case of Yashoda Kumari Vs. MCD reported in AIR 2004 Del 225 and held that Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 53 of 56 once there is a contest to the suit, the suit cannot be held to be barred for not giving notice under Section 53B in as much as the basic object of Section 53B, like Section 80 Code of Civil Procedure is to prevent the matters from coming to court and once the matter reach the court and are contested, the suit should not be dismissed on such technical grounds. The Hon'ble Court observed as under:
"......14. But this apart, taking in regard that this Court had registered the suit and granted the stay order and that respondents had contested it all through, even notice under Section 53B should be deemed waived in the facts and circumstances of the case. After all the purpose of notice under Section 53B of DDA Act is the same as that of Section 80, Code of Civil procedure i.e. to bring the claim to the authority's notice so that it may concede or contest it. Once the authority had contested it on merits even at preliminary stage, it could not complain of non service of notice under Section 53B now. Nor could it be held fatal to justify the dismissal of the suit.
Viewed this, we allow this appeal and set aside the impugned dismissal order. Technically this would revive Appellant's suit for consideration of Appellant's application for grant of refusal of leave but we fell that much water had flowed down since and doing so would be an exercise in futility because parties have already contested the suit on merit all through and all these years. It would be ridiculous and hypertechnical to take them back to square one for a fresh debate on service of two months' notice under Section 80, Code of Civil Procedure or Section 53B of DDA Act. Both notices shall, therefore, be deemed waived in the facts and circumstances of the case and Appellant's suit No. 316 shall be revived and disposed of under law on merit of the case....."
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 54 of 56 (34) Applying the settled principles of law to the facts of the present case, I may observe that it is writ large that there is an active contest of the suit by the defendant for almost more than 8 years. Once the claim of the plaintiff has been brought to the notice of the defendant authority and once they have contested the same on merits at the preliminary stage they cannot complain of non service of the notice under Section 53B of the DD Act and hence I hereby hold that the suit of the plaintiff is not barred under Section 53B of the DD Act.
Issue No.6: Whether the present suit is barred by principles of
resjudicata? (OPD)
(35) Onus of proving this upon this issue was upon the
defendants. Though the defendants have raised this issue with regard to the resjudicate, yet I may observe that the principles of resjudicate relates to the suits between the same parties on the same subject matter but in the present case it is evident that the defendants have failed to bring on record any prior litigation between the parties on the same subject matter and the decision thereof. (36) Issue is decided in favour of the plaintiffs and against the defendants.
Relief:
(37) In view of my above discussion, I hereby hold that the plaintiffs are not entitled to the decree of Declaration, Partition, Permanent and Mandatory Injunction as asked for in the plaint.
Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 55 of 56 FINAL CONCLUSIONS:
(38) In view of my findings on the various issues, I hereby hold that the plaintiffs are not entitled to the decree of Declaration, Partition, Permanent and Mandatory Injunction as asked for in the plaint. (39) Suit of the plaintiffs is hereby Dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
(40) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 08.05.2017 ADJII(CENTRAL)/ DELHI Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 56 of 56
Smt. Uma Kapoor & Ors. Vs. Brij Lal Bedi & Ors.CS No. 320/2015
08.05.2017 Present: Sh. Kartik Khanna Advocate for the plaintiffs.
Sh. Mahender Rana Advocate for the defendants no.1 to 4. None for defendant no.5.
Defendant No.6 is exparte.
Ms. Rashmi Srivastav Advocate for defendant no. 7 DDA. Vide my separate detail order dictated and announced in the open court, the suit of the plaintiffs is Dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Kamini Lau) ADJII(Central)/ 08.05.2017 Smt. Uma Kapoor & ors. Vs. Brij Lal Bedi & Ors., CS No. 320/2015 Page No. 57 of 56