Sh. Anil Kumar Gupta vs Sh. Raj Kumar Gupta
2011 Latest Caselaw 1481 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.420/2001

%                                                 15th March, 2011

SH. ANIL KUMAR GUPTA                             ...... Appellant
                          Through:    Mr. Dinesh Kumar Gupta, Adv.

                          VERSUS


SH. RAJ KUMAR GUPTA                               ...... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

2. To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1. This RFA came up for hearing on 10.3.2011, on which date no one

appeared for the respondent. Though, the appeal could have been decided

on the said date however, counsel for the appellant volunteered to send

notices both to the respondent and his counsel for today. The counsel for

the appellant has filed before this court an affidavit showing that notices

have been sent both by speed post and by courier to the respondent and his

counsel. However, even today, no one appears for the respondent. I have

therefore, heard the counsel for the appellant and am proceeding to dispose

of the appeal.

2. The challenge by means of this regular first appeal under Section 96 of

the Code of Civil Procedure, 1908, is to the impugned judgment dated

24.3.2001 of the trial court which dismissed the suit of the appellant/plaintiff

for possession of one shop in the property bearing no.B-12, Shopping Centre,

Commercial Market, Phase-I, Vivek Vihar, Delhi, which was shown in red in

the site plan Ex.PW1/1 in the trial court record. The grandfather of the

appellant Sh. Mittar Sain Gupta had executed a Will dated 19.12.1983 in

favour of the appellant bequeathing to him the suit shop.

3. The appellant/plaintiff claimed ownership of the property stating that

the Will was a registered Will in his favour executed by his grandfather Sh.

Mittar Sain Gupta. In fact, pursuant to the Will, the appellant has started

realizing rent from the other tenants in the property bearing no.B-12,

Shopping Centre, Commercial Market, Phase-I, Vivek Vihar, Delhi, inasmuch

as Sh Mittar Sain Gupta was owner not only of the suit shop, but also other

shops falling in B-12, Shopping Centre, Commercial Market, Phase-I, Vivek

Vihar, Delhi. Since, the respondent/defendant failed to vacate, the

appellant/plaintiff terminated his license vide legal notice dated 19.7.1994

and to which, a reply was sent by the respondent/defendant dated

29.7.1994. The suit for possession ultimately came to be filed, in which,

there was additionally claimed the relief of mesne profits.

4. The respondent/defendant contested the suit by claiming that the suit

property was given to the defendant by Sh. Mittar Sain Gupta out of love and

affection. It was also alleged that the suit was not maintainable as the

appellant/plaintiff had not obtained probate of the Will dated 19.12.1983.

The trial court, after pleadings were complete, framed the following issues:-

I Whether the plaintiff is entitled to a decree of possession of the suit property? OPP

II Whether the plaintiff is entitled to a decree in the sum of Rs.5,900/- on account of damages/mesne profits, as prayed for? OPP III Whether the plaintiff is entitled to future mesne profits and damages and at what rate and for which period? OPD

IV Whether the suit is liable to be stayed in view of Section 10 of CPC?

V Whether this suit has not been properly valued for the purposes of Court Fees and this court has no pecuniary jurisdiction to try the present suit? OPD

VI Whether the suit is not maintainable as the plaintiff has not obtained probate of the alleged Will dated 19.12.1983.

VII Relief."

5. While dealing with issue no.1 as to whether the appellant/plaintiff was

entitled to possession, the trial court disbelieved the evidence led for proving

of the Will. The Will was not exhibited but only marked as 'X'. It is however

noted by the trial court that the signatures of the deceased as also the

attesting witnesses were duly identified by the appellant/plaintiff. It was also

noted by the trial court that the attesting witness, Mr. Sukhbir Singh could

not be called as the relations of the appellant with him were strained.

Another important aspect is that the trial court has quite clearly noticed the

admission in the cross-examination of the respondent/defendant that the

signatures on the Will were of the deceased Sh. Mittar Sain Gupta. There

was therefore a categorical admission on behalf of the respondent that the

Will contained the signatures of Sh. Mittar Sain Gupta. Further,

respondent/defendant in his deposition also agreed that Sh. Mittar Sain

Gupta was in a sound disposing mind at the time of making of the Will. I

may note that no doubt the best way to prove a Will is to call an attesting

witness, however, this aspect would not have too much bearing in the

present case inasmuch as the respondent/defendant himself has admitted

the signatures of Sh. Mittar Sain Gupta on the Will and also admitted that Sh.

Mittar Sain Gupta was in a sound disposing mind when the Will was

executed. Another important aspect which I must note is that with the

present appeal an application under Order 41 Rule 27 being CM

No.4808/2011 has been filed by the appellant along with which a certified

copy of a judgment dated 10.2.2010 in suit no. 92/2009 titled as Jado

Prakash Gupta Vs. Bindo Devi and others has been filed. I allow this

application as the documents are unimpeachable documents being certified

copies of judgments and depositions in the other litigation between the

parties and is required for clarification/elucidation of the evidence in the case

as also for interest of justice. The appellant was defendant no.3 in the said

other suit. In the said suit 92/2009 between the parties to that suit and in

which parties are also parties to the present appeal, there was an issue with

regard to the existence of the will dated 19.12.1983 of Sh. Mittar Sain Gupta

and which is also the issue in the present appeal and suit. The court dealing

with the said other suit in its judgment dated 10.2.2010 has held that the will

was duly proved while dealing with issue no.2 and the relevant finding in this

regard reads as under:-

7. ISSUE NO.2 The defendant no.3 had filed a suit for possession against plaintiff no.2 which was dismissed vide judgment dated 24.03.2001 in suit no.261/98 (418/94) by the court of Sh. Sunil Gaur Ld. ADJ, Delhi (as his lordship then was). The defendant no.3 has filed RFA before Hon'ble High Court and the same is pending. In the same suit the defendant no.3 who was plaintiff therein had prayed for decree of possession against the plaintiff no.2 herein on the basis of the will dated 19.12.1983. It was held that the defendant no.3 failed to prove the will in his favour and therefore the suit was dismissed. The question of the genuineness of the will was directly and substantially in issue in the said suit as well as in the present suit. This court had put a query to the Ld counsel for the parties whether the decision on the issue of genuineness of the will in the said would operate as res judicata. Both Ld counsel argued that section 11 CPC would not apply. Ld counsel for the plaintiffs fairly admitted that in view of the fact that RFA against the judgment dated 24.03.2001 in suit no.261/98 (418/94) is pending, the decision in the said suit on the point of Will, will not operate as res judicata in the present suit. Submission made by Ld. counsel for the plaintiff is correct and it is also supported by the commentary on this point by Mulla in his book CPC (abridged) 13th edition page 103 and 104. Therefore I proceed to decide the issue and the present suit. The Will dated 19.12.1983 in favour of the defendant no.3 is DW1/1. His contention is that on the same day Sh. Mitra Sain Gupta executed another registered will Ex.PW1/2 in favour of his daughter in law Smt. Yashoda W/o Sh. Ved Prakash in respect of property no. B 250, Vivek Vihar, Delhi. The defendant no.3 has also examined the witness from DDA as DW10 to show that the plaintiffs had the knowledge of Will Ex.DW1/2 and that plaintiff no.1 had also filed his affidavit Ex.DW10/3 in support of the said will. This evidence has been produced by the defendant no.3 to

show that Sh. Mitra Sain Gupta was in a fit mental condition on 19.12.1983 and that it is improbable for the plaintiff no.1 not to have knowledge of the other will i.e. Ex.DW1/1 when it was executed on the same day as Ex.DW1/2. Ld. counsel for the plaintiffs has argued that the evidence led in respect of property no.B 250 is beyond pleadings and is liable to be rejected. In this regard, Ld counsel has relied upon (2003) 4 SCC 161, (2006) 1 SCC 530, (1999) 4 SCC 403 and (2009) 2 SCC 613. I do not agree with the arguments of Ld counsel for the plaintiffs. The evidence produced by the defendant no.3 is to discredit the plaintiffs and it was not mandatory for him to incorporate these facts in his WS. Further whatever has come on record is not disputed except on the ground of being beyond pleadings. A party is supposed to approach the court with clean hands and the court would not reject an evidence on the ground of being beyond pleadings if it brings out the truth.

7. The Will Ex.DW1/1 was witnessed by Sh. Iqbal Bahadur Mathur Advocate and by Sh. Sukhbir Singh. As per section 68 the plaintiff had to examine one attesting witness. Sh. Iqbal Bahadur Mathur has expired and the defendant no.3 examined the other witness to will as DW6. DW6 has stated in his examination in chief that he signed on the will on the instruction of Sh. Mitra Sain Gupta. He has further stated that he had not seen whether Sh. Mitra Sain Gupta had already signed the will or not when his signatures was taken. There is no evidence to dispute the signature of Sh. Mitra Sain Gupta and the statement of PW6 shows that Sh. Mitra Sain Gupta desired to execute the will Ex.DW1/2. DW2 is Sh. Sadhu Ram Gupta. DW6 has stated that DW2 is the maternal uncle of the defendant no.3 and that he used to visit Sh. Mitra Sain Gupta. DW2 has stated that the will was executed and signed in his presence and he has identified the signatures on the will. Nothing has emerged in this cross examination to discredit him. The plaintiff no.2 has admitted in the other suit i.e. suit RBT no.91/09 titled Raj Kumar Gupta v. Bindo Devi in his cross examination as PW5 and DW6 in the present case is not having cordial relation with the family of defendant no.3. He also admitted while deposing on 21.05.05 that Sh. Sukhbir Singh (DW6) is hail and hearty. DW6 was examined in this case on 30.11.06. The ignorance shown by him in respect of the questions relating to will Ex.DW1/1 and the evasive answers given by him appear to be actuated due to the sour relation between him and the family of defendant

no.3. It is to be noted that DW6 has not categorically denied the suggestion that he visited the office of the sub Registrar IV for attestation and registration of the Will. It is not disputed that Sh. Mitra Sain Gupta was the owner of property no.B 12 Vivek Vihar, Delhi. Sh. Mitra Sain Gupta executed another will Ex.DW1/2 on the same day and the same has been acted upon with the help of plaintiff no.1. Therefore it can be inferred that Sh. Mitra Sain Gupta was in a fit mental condition to execute the will Ex.DW1/1 and there is no suggestion by the plaintiffs to the contrary. No other will of Late Sh. Mitra Sain Gupta in respect of the suit property has been produced or proved. No circumstances have been brought forward by the plaintiffs which can invalidate the will Ex.DW1/2 under the provision of Indian Succession Act. Therefore in view of the above discussion it is held that Sh. Mitra Sain Gupta executed a valid will Ex.DW1/1 in favour of defendant no.3 in respect of the property no.B 12,Vivek Vihar, Delhi and by virtue of the said will the defendant no.3 has become the owner of the said property after the death of Sh. Mitra Sain Gupta. The issue is accordingly decided in favour of defendant no.3."

Learned counsel for the appellant states that the appellant has

not received any notice of any appeal filed by the respondent herein (and

who was the plaintiff in the said suit no.92/2009) challenging the judgment

dated 10.2.2010.

6. In view of the above, I hold that the trial court has committed a clear

cut illegality and perversity in holding that the Will dated 19.12.1983 of Sh.

Mittar Sain Gupta was not proved. I, therefore, hold that the Will dated

19.12.1983 of Sh. Mittar Sain Gupta is proved and the same be now read in

evidence and be marked as Ex.PX-1. The reason for holding that the Will

stands duly proved besides the admission of the respondent/defendant is

also that the appellant/plaintiff had acted upon this Will and was realizing

rents from the other tenants of the property and which was not objected to

by anyone. Further, the decision in the said suit dated 10.2.2010 will

operate as res judicata against the respondent/defendant.

7. I also note that the stand of the respondent/defendant that he had

become the owner of the property as Sh. Mittar Sain Gupta had given the

property to him out of natural love and affection would not give right title

and interest to the respondent/defendant of the suit shop inasmuch as an

immovable property as per Section 17 (1) (b) of the Registration Act, 1908

could only be transferred by means of a registered document, and it was not

the case of the respondent/defendant that the suit shop was transferred to

him by a registered instrument executed by Sh. Mittar Sain Gupta.

8. Another reason for decree of the suit for possession and mesne profits

against the respondent/defendant would be that the appellant/plaintiff would

be at least a co-owner of the suit property. The respondent/defendant would

not be a co-owner because his father is very much alive and till his father is

alive, the respondent/defendant cannot claim any ownership interest in the

property. The only ownership interest claimed by him in the suit shop was

by way of transfer of property in his favour by Sh. Mittar Sain Gupta out of

natural love and affection and which argument I have held rejected in view of

Section 17 (1) (b) of the Registration Act,1908.

9. The appellant/plaintiff has also claimed mesne profits at Rs.50 per day

i.e. Rs.1,500/- per month. This aspect has been deposed to by the

appellant/plaintiff when he appeared in the witness box as PW-1. I note that

in the cross-examination of PW-1, a suggestion has been given that the shop

in question could fetch a rent of Rs.5000/- per month, showing that the

respondent/defendant himself seemed to suggest that the monthly rent of

the suit shop would be Rs.5000/- per month.

10. In view of the above, I accept the appeal. The suit for possession of

the appellant/plaintiff with respect to shop shown in red in Ex.PW1/1 forming

part of the premises B-12, Shopping Centre, Commercial Market, Phase-I,

Vivek Vihar, Delhi, is decreed against the respondent/defendant. Taking all

aspects into consideration, I also award a sum of Rs.1500/- per month as

mesne profits to the appellant/plaintiff and against the respondent/defendant

pendente lite and future till possession is delivered to the appellant/plaintiff

of the suit shop. Decree sheet be prepared. Trial court record be sent back.

MARCH 15, 2011                                         VALMIKI J. MEHTA, J.
ib