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CS no.791/07 and 792/07 Page No: 2/ 31

2. Briefly stated the facts in the suit for recovery are that plaintiff filed this suit alleging that defendant no. 1 is her mother and defendant no. 2 is her brother. Sh. Mela Ram Sood was father of the plaintiff, who died on 05/09/1975 and left behind him property bearing no. I­13, Jangpura Extension, New Delhi. This property is under joint possession of plaintiff and defendants. Plaintiff and defendants alongwith Smt. Devi Kumari Sood have one­fourth share each in the aforesaid property. Plaintiff is occupying a portion of this property since June 1978. Defendant no. 1 being 85 years old, could not live alone and defendant no. 2 was residing in Germany for last 20 years. Therefore, in February 1981 they expressed their desire to transfer their shares in this property in favour of the plaintiff. It was agreed that defendants shall transfer their share for a consideration of Rs.43,000/­. This was an oral agreement. Plaintiff being daughter of defendant no. 1 and sister of defendant no. 2, believed upon their words and gave a cheque bearing no. 276341 for the amount of Rs.43,000/­ on 27/02/1981 in the joint name of the defendants. The cheque was duly encashed by the defendants, however, they did not transfer their share in the aforesaid property despite repeated demands made by the plaintiff. Plaintiff wants her money back from the defendants as they have failed to transfer their share in this property. Plaintiff served a notice dated 01/09/1983 upon the defendants thereby calling upon them to return this amount but defendant no. 1 vide her reply dated 13/09/1983, falsely asserted that this cheque was issued on account of expenses incurred on the plaintiff for the period between July 1979 to February 1981 and further to meet some expenses CS no.791/07 and 792/07 Page No: 3/ 31 which would have been incurred on account of Air passage and visit of Miss Abha Sood, daughter of the plaintiff to Frankfurt. Defendant no. 2 vide his reply dated 01/12/1981 falsely asserted that the aforesaid amount was given as a possible expenditure to be incurred by the plaintiff's said daughter, who was to visit him at Frankfurt. The stand taken by the defendants was false as defendant no.1 has not spent any amount on the plaintiff nor defendant no. 2 has spent any amount on the visit of Miss Abha Sood to Frankfurt. They are liable to return amount of Rs.43,000/­ and to pay interest @ 12% p.a. for period w.e.f. 27/02/1981 upto 03/02/1984 for the sum of Rs.15,265/­. Hence, the present suit for recovery of Rs.58,265/­.

3. Plaintiff has prayed for recovery of Rs.58,265/­. Plaintiff has prayed for recovery of aforesaid amount alongwith interest @ 12% p.a. from the date of filing of the suit till realization of the amount.

4. Initially, both defendants filed common written statement dated 14/04/1984. Apart from this written statement, two more amended written statements are found on the record, which are dated 09/04/1990 and 11/01/1991. However, I did not find any order passed by this court so as to allow any amendment in the written statement filed by the defendants. In his first written statement, defendants admitted the relationship between the parties and the factum of death of their father Sh. Mela Ram Sood. They pleaded that after death of Sh. Mela Ram Sood, there was an oral family settlement arrived on 09/09/1975 between the parties. This family settlement was reduced into writing on 09/02/1976 and Schedule A, B and CS no.791/07 and 792/07 Page No: 4/ 31 C were formulated and executed whereby plaintiff and Smt. Devi Kumari Sood agreed to transfer their rights and interest in the estate of late Mela Ram Sood against consideration of Rs.40,000/­. Both of them received amount of Rs.40,000/­. They executed relinquishment deed dated 06/04/1979, Form VII application, affidavits and no objection letter. In furtherance of said contract, defendant no. 1 was in possession as exclusive owner of the property. Plaintiff has no right or interest in this property. She had quarrel with her husband and had left the house of her husband. Therefore, she was accommodated purely as licensee in a room of this property. It is not disputed by them that all the parties to the suit including Smt. Devi Kumari Sood are the legal heirs of late Mela Ram Sood. They denied that they ever intended to transfer their share in this property to the plaintiff. They further pleaded that defendant no. 2 also relinquished his rights and interest in this property vide relinquishment deed dated 06/04/1979 without charging any consideration and therefore, defendant no. 1 was the exclusive owner in possession of this property. They further pleaded that daughter of plaintiff was to go to Frankfurt where defendant no. 2 is residing. The cheque of Rs.43,000/­ was given to meet the expenses of the daughter of the plaintiff and it had nothing to do with the property. The daughter of plaintiff was provided with all the expenses for her visit and stay at Frankfurt. They admitted receipt of notice dated 01/09/1983 and submitted that this notice was replied vide reply dated 01/12/1983. They denied the claim of the plaintiff to be sustainable.

5. In replication, plaintiff reiterated the contents of the plaint and further CS no.791/07 and 792/07 Page No: 5/ 31 denied that any oral family statement was arrived between the parties on 09/09/1975. She further denied that it was reduced into writing on 09/02/1976 and Schedule A, B and C were formulated and executed. She further denied that said settlement and Schedules were acted upon. She further denied the execution of relinquishment deed dated 06/04/1979 and further applications, affidavit as well as no objection letter. She pleaded that after death of Sh. Mela Ram Sood, some proposals were made between the legal heirs for distribution of the assets left by him. He had left about a sum of Rs.1,70,684/­ as cash in banks besides jewelery worth Rs.12,600/­ and house no. I­13. The Income Tax department refunded Rs.166,527/­ in cash and plaintiff was paid her share of Rs.40,000/­ by cheque by defendant no. 2. She further pleaded that dispute regarding portion of the house is yet to be decided. Defendant no. 2 had been obtaining signatures of the plaintiff from time to time on one or the other documents under duress and pressure as the plaintiff was a lady deserted by her husband. At one stage, a memorandum of family settlement was drafted in February 1976, but the parties did not agree on the terms of the same and therefore, it was torn by defendant no. 2. At another stage a deed of relinquishment was signed by the plaintiff but the same was also not acted upon and plaintiff refused to get it registered as required under law. Later on in August 1979, plaintiff, defendant no. 1 and Smt. Devi Kumari Sood executed will in respect of said house in favour of defendant no. 2 but this will executed by plaintiff was also later on canceled. The house in question was still assessed for the purpose of House Tax, electricity and water CS no.791/07 and 792/07 Page No: 6/ 31 installation in the name of Sh. Mela Ram Sood, therefore, no family settlement was acted upon by the parties and plaintiff never relinquished her share in this property. Plaintiff denied the legality and admissibility as well as validity of alleged family settlement and relinquishment deed. She further denied that the cheque was given to meet the expenses of daughter of plaintiff and pleaded that in February 1981 defendant no. 2 had even no knowledge that the daughter of plaintiff was about to go to Frankfurt. She referred to letter dated 21/06/1981 written by defendant no. 2 to Miss Abha Sood in support of such plea. She further pleaded that Miss Abha Sood stayed with one Doctor Rohr in Bockholt upto 31/03/1983. She had left Delhi on 31/08/1981. She visited Frankfurt for a short period only i.e. After 31.03.1983 upto 19/05/1983. 

       i) Plaintiff             :        1/4th

       ii) Deen Dayal Sood :             1/2th 

       iii) Devi Kumari Sood :           1/4th 

  Issue is decided accordingly.

Issue no.5: Whether the sum of Rs.43,000/­ had been received by Tulsan Devi and Din Dayal towards the expenses of the plaintiff's daughter as alleged? OPD

44. In my finding on issue no.2, I have already observed that the alleged family settlement had not taken place and therefore there was very natural th reason even for Tulsan Devi to claim her share to be 1/4 in the suit property in the will dated 01/08/1979. In this case it is worth to be seen that defendant Deen Dayal did not enter into witness box. DW­3, attorney of defendant Deen Dayal could not have deposed in respect of facts which were within personal knowledge of Deen Dayal and were beyond personal knowledge of this witness. This witness i.e. DW­3 in his cross examination admitted that except Ex. DW­3/1 and DW­3/2A no other documents were executed in his presence. He could not establish on the record that he had personal knowledge of all the facts. Infact, he deposed in cross examination that he did not have personal knowledge of the facts stat ed in his affidavit except about ownership of suit property. In respect of ownership of suit property he deposed that he had knowledge on the basis CS no.791/07 and 792/07 Page No: 28/ 31 of document viz Ex. DA/ DB and DC and will dated 25.01.1984. He has further deposed that he did not have any friendly or family relation with Deen Dayal Sood. In these circumstances, I have no hesitation to say that his evidence is useless evidence on the record. When Defendant Deen Dayal himself has not entered into the witness box, an adverse assumption is to be raised in respect of plea taken by him that the cheque in question were given for expenses incurred by him on the travel of Abha Sood. The documents proved by DW­3 cannot be treated to be proved documents. Further more no one has disputed the statement of PW­1 that Ex. PW­1/5 bears signature of Tulsan Devi. This document is the reply which was allegedly given by Tulsan Devi in response to notice given by plaintiff. In this reply it is stated that the cheques was issued for expenses incurred by plaintiff and whatever expenses were to be incurred on visit of Ms. Abha to Frankfurt. In absence of any concrete evidence on the record to show that what expenses were incurred on the plaintiff as well as on the visit of Ms. Abha Sood to Frankfurt, such plea of defendants cannot be sustained. Therefore, I come to conclusion that such amount was not received by Tulsan Devi and Deen Dayal Sood towards expenses of plaintiff's daughter.