Samriti Bhasin vs Uoi & Ors.
2008 Latest Caselaw 2031 Del

*                 IN THE HIGH COURT OF DELHI

                   Judgment reserved on : November 11, 2008
%                  Judgment delivered on : November 19, 2008


+                     RFA 334/2008

SAMRITI BHASIN                             ..... Appellant
          Through:    Mr.D.S.Sidhu, Advocate

                      VERSUS

UOI & ORS.                                  ..... Respondents
         Through:     Mr.Baldev Malik, Adv. for Respondents
                      No.1 & 2
                      Mr.J.P. Sengh, Sr. Advocate with
                      Ms.Sonia Arora for respondents
                      No.3 to 5

CORAM:

Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?              Yes.

3. Whether judgment should be reported in Digest?      Yes.


: PRADEEP NANDRAJOG, J.

1. Samriti Bhasin, daughter of late Mulkh Raj Sawhney,

is in litigation with her sister-in-law (brother's wife) Meera

Sawhney and her two daughters, Meenakshi and Asha Deep.

She filed a suit under Section 31 of the Specific Relief Act,

1963 praying that the relinquishment deed dated 14.8.1981,

Ex.P-1, be cancelled and directions be issued to L&DO to

mutate the subject property i.e. 55/8, Old Rajinder Nagar, New

Delhi in her name and in the names of her sister-in-law and her

daughters by recording that she had 50% share in the property

and that her sister-in-law and her nieces had the remaining

50% share therein.

2. Samriti Bhasin has lost at the trial.

3. The impugned judgment and decree dated

26.3.2008 is fairly prolix, running into 87 pages. In our opinion

the learned Trial Judge could have penned a short and a crisp

judgment not exceeding 15 pages. Thus, we would be briefly

noting the relevant evidence and would be dealing with the

contentions urged by learned counsel for the appellant at the

hearing held on 11.11.2008.

4. For the guidance of the learned Judges at the

district level we wish to record that there is no relevance of

extracting in detail the testimony of the witnesses in the

judgment if the same is not to be referred to or relied for the

purposes of the decision. In such situation it would be useful to

briefly note that a particular witness has deposed on the issue

but nothing turns on the testimony of the witness. Indeed, in

the instant case nothing much turned on the testimony of the

witnesses of Samriti Bhasin who merely reiterated her version

and that for said reason while discussing the evidence in the

operative part of the judgment, we do not find any discussion

by the leaned Trial Judge vis-à-vis the testimony of the

witnesses of Samriti Bhasin.

5. Samriti Bhasin had examined as many as eight

witnesses who were family members, neighbours and friends.

They deposed that they had never heard about Samriti Bhasin

relinquishing her share in the subject property. Only relevance

is to the testimony of PW-3 and that too as would be noticed

hereinafter, in favour of the sister-in-law and nieces of Samriti

Bhasin.

6. Needless to state, on the basis of a registered

relinquishment deed dated 14.8.1981, Ex.P-1, executed by

Smt.Vedwati, mother of Samriti Bhasin and by Samriti Bhasin

herself, L&DO mutated the subject property in the name of

Arvind Sawhney, the brother of Samriti Bhasin. The mutation

was effected after Mulkh Raj Sawhney, the perpetual lessee of

the land under L&DO, expired on 4.6.1981 leaving behind his

wife Vedwati, his son Arvind Sawhney and his daughter Samriti

Bhasin as his legal heirs. The relinquishment deed in question

was submitted along with the necessary application for

mutation of the perpetual lease hold rights in favour of Arvind

Sawhney and processing the same, L&DO mutated the

property in the name of Arvind Sawhney.

7. Samriti Bhasin denied her signatures on the

relinquishment deed and in the plaint alleged that after the

death of her father she came to Delhi in the year 1982 and

resided with her brother on the ground floor and in the year

1991 contributed money for raising further constructions on

the property. She stated that under a mutual understanding

with her brother she occupied the second floor of the property

and had been residing there since the same was constructed in

the year 1991. She stated that after her brother died on

28.10.2002, claims were made to the entire property by her

sister-in-law. This led her into an inquiry which revealed that a

fraud had been played upon her by submitting the

relinquishment deed in question to L&DO and mutation being

obtained in his name by her brother.

8. Meera Sawhney and her two daughters opposed the

claim in the suit and reaffirmed that Samriti Bhasin had duly

executed the relinquishment deed as did her mother Vedwati.

They relied upon the contemporaneous conduct of Samriti

Bhasin to evidence that Samriti Bhasin was all throughout

aware that she had no interest in the property and that her

brother Arvind Sawhney was the sole owner thereof. For this

purpose they relied upon the sale of the first floor of the

property by Arvind Sawhney who executed various documents

on 16.11.1988 in favour of one Kunti Rani Dureja transferring

to her the rights in the first floor of the property. Said

documents, being an Agreement to Sell dated 16.11.1981, Ex.

PW-1/D-1, a General Power of Attorney of even date Ex.PW-

1/D-2, and a Will dated 18.11.1988 Ex.PW-1/D-3 were relied

upon. All documents were alleged to bear the signatures of

Samriti Bhasin as an attesting witness. Plea urged by Meera

Sawhney and her daughters was that having witnessed the

execution of the afore-noted document i.e. the usual sale

documents executed in Delhi, Samriti Bhasin was fully aware

that her brother was selling the first floor of the subject

property, meaning thereby, was conscious of the fact that her

brother was the owner of the entire property. They also relied

upon an affidavit executed by Samriti Bhasin on 16.11.1988,

Ex.PW-1/D-4 wherein following was recorded:

"AFFIDAVIT

Affidavit of Smt. Samriti Bhasin D/o late Shri Mulkh Raj W/o Shri Anand Bhasin R/o 488, Ranjeet Street, Yamuna Nagar, Distt. Ambala, Haryana and presently resident of 55/8, Old Rajinder Nagar, New Delhi-110060, do hereby solemnly affirm and declare as under:-

1. That my brother Shri A.K. Sawhney S/o late Shri Mulkh Raj, is the exclusive owner of property No.55/8, Old Rajinder Nagar, New Delhi-110060.

2. That my brother has entered into an agreement to sell with Smt. Kunti Rani Dureja, for the sale of First Floor Flat for which I do not have any objection.

3. That he has given the General Power of Attorney, will and receipt in respect of sale of First Floor Flat, for which I do not have any objection.

4. That he has handed over the fully vacant peaceful possession to Smt. Kunti Rani Dureja, the intending purchaser.

5. That my legal heirs, nor myself, successors, successors- in-interest do not have any objection, claim or interest in the aforesaid flat under sale and if any objection is raised by them or by any legal heirs the same shall be deemed null and void and ineffective.

      Verification:                              Sd/-
      Date: November 1988                      DEPONENT

I Smt. Samriti Bhasin the above named deponent do hereby verify and confirm that the contents of the above affidavit are true to my personal knowledge and belief by me to be true.

Signed dated and verified at New Delhi on 16th November, 1988.

Sd/-

DEPONENT"

9. Meera Sawhney and her daughters also relied upon

the loan obtained by Arvind Sawhney from his provident fund

account when he raised construction on the first floor and

above of the subject property. The application submitted by

him seeking loan was proved as Ex.DW-3/PX and the statement

of disbursement of loan was proved by them Ex.DW-3/PY.

10. On a fairly complex and rolled over process of

reasoning, with the same point being reiterated and discussed

at different places, the learned Trial Judge has held against

Samriti Bhasin holding that the denial by her of her signatures

on Ex.PW-1/D-1 to Ex.PW-1/D-4 was false. Learned Trial Judge

has accepted the testimony of DW-3, T.R. Nehra, a handwriting

expert, who opined that the disputed signatures of Samriti

Bhasin on the said four documents as also on the

relinquishment deed were of Samriti Bhasin.

11. From the fact that Samriti Bhasin had witnessed the

execution of the Agreement to Sell, had witnesses the

execution of the registered Power of Attorney executed by her

brother in favour of the purchaser of the first floor as also

witnesses the execution of the registered Will Ex.PW-1/D-3

executed by the brother of Samriti Bhasin in favour of the

purchaser, it has been held that the same established consent

of Samriti Bhasin for her brother to act as the owner of the first

floor, meaning thereby, Samriti Bhasin consented that her

brother was the owner of the entire property. According to the

learned Trial Judge this could have only happened if Samriti

Bhasin had relinquished her share in the subject property on

the death of her father.

12. A three fold contention was urged at the hearing of

the appeal by learned counsel for the appellant. It was firstly

urged that the fact that Samriti Bhasin was occupying the

second floor of the house without payment of any rent which

fact evidenced that her brother was acknowledging Samriti

Bhasin as having some right in the property. The second

contention urged was that merely because a person witnesses

the execution of a document does not mean that he or she has

knowledge of the contents of the document. Thus, it was

urged that merely because Samriti Bhasin had witnessed the

execution of the Agreement to Sell of the first floor by her

brother as also the Will and the General Power of Attorney

executed by her brother, was of no consequence and that the

finding returned by the learned Trial judge on the reasoning

that having witnessed the execution of the said three

documents, Samriti Bhasin consented to her brother being the

owner of the property. Lastly it was urged that the stamp

paper on which the relinquishment deed was drawn was

purchased by one R.K.Tyagi Advocate and there was no

evidence that the same was purchased by Samriti Bhasin or

Vedvati. Thus, it was urged that this casts a doubt on the due

execution of the relinquishment deed as its origin is clouded.

13. Neither submission has impressed us.

14. Pertaining to the first contention urged, suffice

would it be to state that where, out of love and affection, a

brother permits his sister to occupy some property without

paying any money to him does not mean that the said fact

constitutes good evidence where from a presumption of an

interest in immovable property can be inferred in favour of a

party. In this connection, though there is no evidence on

record, it was informed to the Court at the hearing by counsel

for Meera Sawhney and her daughter that they and late Arvind

Sawhney i.e. husband of Meera Sawhney never had any

problems with Samriti Bhasin residing on the second floor

because she had no house of her own. But with the passage of

time she acquired a flat where her son is residing and that as

Meenakshi and Asha Deep grew and became young maidens,

they required space and once Samriti Bhasin was requested to

vacate the second floor, she turned around to question the

relinquishment deed.

15. It is true that a person who witnesses the execution

of a document is not presumed to know the contents of the

document, execution whereof is witnessed by him/her. To

that extent, the appellant may be right that merely because

she witnessed the execution of Ex.PW-1/D-1 to PW-1/D-3 does

not mean that she knew the contents of the documents much

less acquiesced in her brother selling the first floor of the

disputed property. But, Samriti Bhasin cannot escape the

consequences of her having deposed to the affidavit Dx.PW-

1/D-4.

16. Not only that, during cross-examination, Samriti

Bhasin admitted that "Kunti Rani told that she had purchased

the first floor." She further admitted that since 1983 till 1986

the barsati floor had been let out by her brother and that she

had never partaken a share in the rent.

17. If Samriti Bhasin was told by Kunti Rani that she had

purchased the first floor of the property in the year 1988 and

had there been no relinquishment deed executed by Samriti

Bhasin, the natural conduct would have been for her to

question her brother as to how has he sold the first floor of the

property in dispute.

18. We had noted hereinabove that the witnesses of the

plaintiff went about parroting her version, simultaneously

noting that testimony of PW-3 went against the case of Samriti

Bhasin.

19. PW-3 Raman Kumar Sawhney, son of Om Prakash

Sawhney, though deposed in favour of Samriti Bhasin, on

cross-examination stated that he was familiar with the

signatures of his father and pertaining to Ex.PW-1/D-1 to

Ex.PW-1/D-3 admitted that at point 'A' on each document, the

signatures appended were those of his father.

20. It is apparent that late Shri Om Prakash, father of

PW-3, a relation of the parties, was also involved in the affairs

of the family and when all was fine, joined in being a witness to

documents executed by Arvind Sawhney as also Samriti

Bhasin.

21. The claim of Samriti Bhasin that she contributed

funds in the year 1991 to raise constructions has remained a

mere claim. No documentary evidence has been led by

Samriti Bhasin to prove that she spent any money in the

construction of the house.

22. On the contrary, Ex.DW-3/PX and Ex.DW-3/PY

establish that Arvind Sawhney obtained non-refundable loan

from his provident fund account to raise further constructions

on the property way back in the year 1983.

23. The last plea urged is frivolous and without

application of mind. The original relinquishment deed is in the

record of DDA and a certified copy thereof has been brought

on record as Ex.P-1. The same has been obtained by the

appellant evidenced by the fact that she has filed the same as

plaintiff as per list of documents dated 18.11.2003. R.K.Tyagi

is the counsel whose services have been utilized to obtain the

certified copy of the relinquishment deed evidenced by the

fact that on 28.3.2003 R.K.Tyagi Advocate purchased a stamp

paper in sum of Rs.10 and filed the same with the Sub-

Registrar concerned for issuance of a certified copy of the

relinquishment deed. This stamp paper has been utilized by

the Sub-Registrar to issue thereon the certified copy of the

relinquishment deed in question. In any case, there is no

evidence on record as to who purchased the stamp paper on

which the original relinquishment deed was drawn up. Samriti

Bhasin cannot thus urge any submission pertaining to: who

purchased the stamp paper on which the original

relinquishment deed was drawn.

24. Before concluding we note that the learned Trial

judge has noted a fact which we have perused ourselves, that

Samriti Bhasin, conscious of the fact that her signatures on the

disputed documents were under a scanner was taking care to

cloud her signatures, forgetting that the plaint and the

vakalatnama signed by her in favour of the counsel engaged

by her contained her signatures, and when compared with

signatures of Samriti Bhasin on the disputed documents, even

to the naked eye show that the same are by one person.

25. Instant litigation is yet another case where the

phenomenal rise in prices of urban property is fouling family

relationships.

26. The plot of land ad-measuring 85.9 sq. yards,

bearing No.55/8, Old Rajinder Nagar, New Delhi, had hardly a

value of about Rs.20,000/- in the year 1981 when Mulkh Raj

Sawhney died. Samriti Bhasin's petty share, valued at

Rs.7,000/- was not worthy of a fight with her brother. It being

the only family house she readily relinquished her share in

favour of her brother. Today, we were told that the house has

a value of nearly Rs.2 crores. Today, it is no longer profitable

to live in peace and hence the claim for half share in the

property.

27. We fully concur with the conclusion arrived at by

the learned Trial Judge.

28. We find no merit in the appeal. The appeal is

dismissed.

29. Keeping in view the relationship between the

parties, we refrain from imposing any costs.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

November 19, 2008 rk