Document Fragment View

Matching Fragments

24. Since, there is no proved Will in favor of plaintiff bequeathing suit property or share in the property upon the plaintiff, plaintiff has no cause of action to file the present suit. Hence, issue no.1 is decided against the plaintiff and in favor of defendants.

ISSUE NO. 2:- Whether the suit is bad for misjoinder of defendant nos. 1 and 3? OPD

25. Onus to prove this issue is upon the defendants. If one proceeds according to the case set up by the plaintiff both defendants no.1 and 3 are necessary party. It has been pleaded by the plaintiff that by virtue of Will Ex PW1/6 1/6th share of the property has been devolved upon the defendant No.1. So in a suit for partition he is definitely a necessary party and his joinder in the suit cannot be said to be misjoinder in the background of the case set up by the plaintiff.

"29. Failure of heirs.- If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject."

34. It has already been held herein before that plaintiff has failed to prove Will dt 19.09.1985 Ex PW1/6.

35. Defendants have taken conflicting stand as to how the Conveyance deed Ex DW1/2 dt 3.07.2003 in their favour came to be executed. In written statement they have pleaded that they were residing in the suit property and were taking care of Smt. Chanda Bai. Plaintiff has not disputed Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 15 of 21 defendants stay with the plaintiff but stated that it was joint decision of all as Smt Chanda Devi who was "Moohboli" (disclosed in evidence) sister of his father was alone and no one was there to take care of her. Defendants have pleaded in written statement that survey was conducted by JJ and Slum Department of MCD and on the basis of long and continuous possession Conveyance Deed Ex DW1/2 was executed. Whereas perusal of the Conveyance Deed shows that the same was got executed by Defendant No.2 and 3 as an attorney of Smt Chanda Devi in favor of purchaser who are none other than defendants No. 2 and 3 themselves. It means that defendants must have approached the JJ and Slum Department representing that Smt Chand Devi has sold the property and has executed power of attorney in their favor to get the Conveyance Deed executed in their own favor as purchaser. This fact was not disclosed to the court nor such stand was taken. In a spree of defending the case they forgot to read the negative effect of the Conveyance Deed that it would bring to their stand.

41. The lady deceased Smt Chand Devi was illiterate, old and alone and therefore possibility of getting her signature or thumb impression on documents without disclosing true nature/contents or forging thumb impression/signature cannot be ruled out. It is also possible that being known to her somehow or other, defendants might be staying with her as tenant or licensee and taking advantage of her closeness, old age, illiteracy and ignorance conspired among themselves to usurp the property which was otherwise going to Government. It was the greed versus greed that exposed the conspiracy to usurp the property which as per law devolved upon the government and thus both plaintiff and defendants are apparently guilty of cheating the government and has committed offense punishable under IPC.

Copy of this judgment be also sent to concerned Sub Registrar for making necessary entry in the light of this judgment in its record with Suit No. 297/2016 Satya Narain Mathur Vs Rai Saheb Mathur Page No. 20 of 21 regard to aforesaid Conveyance Deed.

Copy of this judgment be also sent to concerned SHO of the area with direction to ensure that status quo is maintained with respect to possession, title and construction in respect of property bearing No. A-250, Jhilmil Colony, Near Vivek Vihar, Shadara, Delhi till government takes suitable action commensurate with its ownership. It shall be within his discretion to notify to public the fact of property having devolved on the Government, if and only if it helps in maintaining status quo as aforesaid. He shall also ensure that parties to the litigation do not arrive at compromise so as to deprive the Government of its property having hereby devolved on it by law of escheat.