Pushpa Kumari vs Jai Gopal And Ors.
2001 Latest Caselaw 1676 Del

JUDGMENT

V.S. Aggarwal, J.

1. Property No. 366 Ward No. 8, Katra Sheikh Ranjha, Hauz Qasi, Delhi is stated to be a self-acquired property of Smt. Savitri Devi daughter of Shri Loku Ram. Savitri Devi died on 11th November, 1988. She had let out the first and the second floor of the property referred to above to Ashok Kumar Gupta, defendant No. 9 and mrs. Bina Gupta, defendant No. 10. A shop having two doors on the ground floor on the said building has been let to Mishri Devi, defendant No. 11 and Jag Niwas, defendant No. 12. The plaintiff is the daughter of Savitri Devi and is stated to be handicapped. Defendants 1 to 8 are the relations of Savitri Devi, namely defendants 1 and 2 are the sons of Savitri Devi, defendants 3 and 4 are the wife and son of Tirath Dass, the pre-deceased son of Savitri Devi and defendants 5 to 8 are the daughters of Savitri Devi. By virtue of the will of 4th April, 1977 Savitri Devi had bequeathed the property to the plaintiff. It was registered on 6th December, 1990. On the death of Savitri Devi thus the plaintiff became the sole owner of the property.

2. After the death of Savitri Devi defendants 11 and 12 attorney to the plaintiff as landlord of the premises in their possession as tenants and so did defendants 9 and 10. However, Jai Gopal, defendant No. 1 informed the tenants that plaintiff has no concern with the property and he had set up a forged will before the Municipal Corporation of Delhi purported to have been executed by Savitri Devi on 22nd August, 1988. The plaintiff informed the Municipal Corporation of Delhi that the said will has no effect. The present civil suit has been filed for a declaration that plaintiff is the sole and absolute owner of the property bearing No. 366 Ward No. 8, Katra Sheikh Ranjha, Hauz Qazi, Delhi.

3. Notice of the civil suit had been issued and defendant No. 1 had contested the same by filing the written statement. he took up the plea that the will dated 4th April, 1977 purported to have been executed by Savitri Devi was revoked and cancelled by her by virtue of subsequent will of 22nd August, 1988 thereby the property was bequeathed by her in favor of defendant No. 1 On the death of Savitri Devi by virtue of the said will defendant No. 1 became the owner of the property. It is therefore denied that the plaintiff is the owner of the property or is entitled to the declaration claimed.

4. In their separate written statements defendants 3 to 8 supported the version of the plaintiff.

5. From these pleadings of the parties this court had framed the following issues on 1st October, 1997:

1. Whether the plaintiff has any locus standi to file the present suit as alleged? OPP

2. Whether Mrs. Savitri Devi executed any will dated 4.4.77 as alleged by the plaintiff? If so, to what effect? OPP

3. Whether Mrs. Savitri Devi executed any will dated 22.8.1988 as alleged by the defendant? If so, to what effect OPD

4. Whether the plaintiff is entitled to the declaration prayed for? OPP

5. Whether the plaintiff is in possession of the property in suit or any part thereof either physically or through tenants? If not, its effect? OPP

6. Whether the suit is properly valued for the purposes of jurisdiction and court fee and correct court fee has been paid on the plaint? If not, what should be the correct valuation? OPP

7. Relief.

6. Subsequently the defendant had not appeared nor cross-examined the witnesses of the plaintiff and on 17th May, 2000 this court had passed the following order:-

Learned counsel for defendant No. 1 states that he has not received any instructions from the defendant. Costs imposed on 17.1.2000 have also not been paid. Learned counsel for defendant No. 1 seek discharge. No application in this regard has been filed. Even on last date of hearing the matter was adjourned on the request of defendant No. 1. I see no reason to further adjourn the matter.

Statement of Ms. Pushpa Kumar, PW 1, Shri Rajinder Kumar, PW 2 and Mr. S.K. Taneja, Sr. advocate and PW3, who are present in court, have been recorded.

Ms. Vandna Khurana, learned counsel for the plaintiff closes this evidence in affirmative.

As the witnesses produced on behalf of plaintiff are not being cross-examined and there is no representation on behalf of defendants, the case be listed in the category of 'Short Causes' on 12.7.2000.

7. In this backdrop the evidence of the plaintiff has to be considered.

8. Issue No. 3: Defendant No. 1 had set up the will purported to have been executed by deceased Savitri Devi dated 22nd August, 1988. There is no evidence on the record to show that any such validly executed will had been executed. Therefore, for these reasons it must be held that issue is not proved and is decided against the defendant No. 1.

9. Issue Nos. 1, 2 and 4: All these issues are inter connected because if the plaintiff succeeds in proving the will purported to have been executed by deceased Savitri Devi, the plaintiff will have locus standi to file the suit and even claim the declaration that she is the owner of the said property.

10. Ms. Pushpa Kumar, plaintiff appeared as PW-1. She deposed that at the time when deceased had executed the will in the favor of the plaintiff the entire family was present. Shri S.K. Taneja, Advocate had prepared the will. The witnesses of the will were Hakim Rai Nanda and Rajender Kumar. Her mother had signed the will in the presence of the witnesses. The will was proved as PW 1/1. In addition to that the plaintiff further produced Rajinder Kumar, PW-2. He deposed that he knew deceased Savitri Devi and she had executed will PW 1/1 to which he is a witness. At that time Savitri Devi was in good health. She signed in the presence of the witness and he in turn signed in her presence. Dr. Bhim Sain Bansal was also present at that time. Shri S.K. Taneja, PW-3, Advocate had also told the court that he had drafted the will of Mrs. Savitri Devi though he was not present at the time when it was signed. Statement of these witnesses clearly show that Mrs. Savitri Devi had executed the will which had ben proved as per the evidence on the record particularly of the attesting witness Rajinder Kumar, PW-2. There is no reason to dis-credit or dis-belief his statement.

11. Otherwise also the will appeared to be natural because plaintiff is a handicapped daughter of Savitri Devi, which was living with the deceased and necessarily the preference would be given to such a handicapped child. Accordingly these issues are decided in favor of the plaintiff.

12. Issue Nos. 5 and 6: The property as already mentioned above is in possession of some of the tenants. Since the tenants are in possession, it must be taken that plaintiff is in possession through the tenants and thus the suit is property valued for purposes of the court fees. Issues are decided accordingly.

13. For these reasons given above a decree for declaration is passed that plaintiff is the sole and absolute owner of the property bearing No. 366 Ward No. 8, Katra Sheikh Ranjha, Hauz Qazi, Delhi, as detailed in the plaint with no order as to cost.