Pamela V. Sabharwal vs Dayal S. Bhatia And Ors.
2001 Latest Caselaw 1654 Del

JUDGMENT

V.S. Aggarwal, J.

1. Mrs. Pamela Sabharwal is the plaintiff. Defendants 1 to 6 are the brothers and sisters of the plaintiff. Shri S D Bhatia was the father of the plaintiff and defendants 1 to 5. He died on 17th January, 1969. Before his death Shri S D Bhatia is alleged to have retired as an Executive Engineer with Western Command and had acquired plot No. 36/27 East Patel Nagar, New Delhi on 99 years lease by a registered document. When S D Bhatia died defendants 1 to 4 and 5 were married. After the death of S D Bhatia his widow and plaintiff were living together and plaintiff was looking after her mother. Plaintiff was married on 28th September, 1987. After marriage the plaintiff's mother started living abroad.

2. It is asserted by the plaintiff that it was represented to her that the father had died intestate and relinquishement deed was obtained from the plaintiff and other heirs. The same had been executed on the said misrepresentation that deceased father of the plaintiff had not left behind any will. In the year 1992 while going through the files, the plaintiff came across a will of 12th July, 1965 duly executed by Shri S D Bhatia, father of the plaintiff. She contacted defendant No. 1 who informed the plaintiff that at the time of the death since the plaintiff was unmarried, therefore, she was not informed of the will. By virtue of the said will half of the property has been bequeathed to the plaintiff and the other half to defendant No. 1. Plaintiff claims that the relinquishement deed has been obtained by misrepresentation and accordingly the civil suit has been filed for partition of the house No. 36/26 East Patel Nagar and for a declaration declaring the relinquishement of 5th February, 1969 to have been obtained by fraud and misrepresentation to restrain the defendants from dispossessing the plaintiff without due process of law.

3. Detailed written statement had been filed by defendant No. 1 and by defendant No. 2. They denied that there was any misrepresentation or will. It becomes unnecessary to mention the other details because subsequently defendants 1 and 2 had been proceeded ex parte. Ex parte evidence had been led by filing of the affidavits of the plaintiff and the witnesses.

4. The first and foremost question that comes up for consideration is as to whether the deceased had executed any will set up by the plaintiff. The plaintiff in her affidavit has referred to the said fact that she discovered the will of her father in 1992. In addition to that Dr. Ram Uttamchandani had been examined who has filed an affidavit that his father was neighbour of Shri S D Bhatia and he is the attesting witness to the will Ex. PW 2/1. The attesting witness was reported to have since died. This fact clearly show that the will had been executed by Shri S D Bhatia who as per the Conveyance Deed Ex. PW 1/1 must be taken to the owner of the property.

5. The only other contention is as to whether the relinquishement deed was executed by the plaintiff by misrepresentation practiced by defendant No. 1 or not. The relinquishement deed indicates that the plaintiff along with other sister had relinquished their right in the suit property but when the fact had not been disclosed that there is a will in favor of the plaintiff giving her 1/2 share in the property, obviously there was a mistake of fact. Once there is a mistake of fact and the facts were not to the knowledge of the plaintiff, it is obvious that it was without the true facts being brought to the knowledge of the plaintiff. Therefore, the relinquishement cannot be stated to have been executed in a proper manner because there is a total mistake of facts that were not to the knowledge of the plaintiff. There could not thus be a conscious abandonment of a right or relinquishement of a share when full facts were not to the knowledge of the plaintiff. It must therefore be held that relinquishement deed in the peculiar facts will not bind the plaintiff.

6. On 3rd October, 2001 the plaintiff's learned counsel had made a statement withdrawing her relief qua the partition of the property, that the plaintiff is in exclusive possession of the property qua that as for present therefore the suit must fail.

7. Since the relinquishement deed in the peculiar facts does not bind the plaintiff and plaintiff is in possession of the property, therefore, a decree for declaration is passed that relinquishement deed dated 5th February, 1969 is null and void and does not bind the plaintiff. The suit for permanent injunction is decreed that defendants are restrained from dispossessing the plaintiff from the suit property except in due process of law.