Dewan Chand Batra & Anr. vs Harish Tandon
2012 Latest Caselaw 3472 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.468/2010

%                                                          24th May, 2012

         DEWAN CHAND BATRA & ANR.                ...... Appellants
                 Through: Mr. P.S.Bindra with
                          Mr. Ketan Madan, Advs.


                            VERSUS


         HARISH TANDON                                      ...... Respondent

                  Through:         Mr. J.K.Seth, Sr. Adv. with
                                   Ms. Shalini Kapoor, Ms. Promil Seth Mago
                                   & Ms. Kriti Arora, Advs.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal filed

under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial Court dated 23.2.2010 decreeing the suit for

possession and mesne profits filed by the respondent/plaintiff qua the half

portion (front) of property being D-3, Green Park Extension, New Delhi

(hereinafter referred as 'suit property').

2. The admitted facts of the case are that the suit property was

owned by Sh. Rang Behari Lal Tandon. Sh. Rang Behari Lal Tandon had a

real brother namely Sh. Ratan Chand Tandon. Sh. Ratan Chand Tandon

had two sons namely Sh. Vijay Kumar Tandon/defendant no.1 and Sh.

Harish Chand Tandon/respondent/plaintiff. Respondent/plaintiff-Sh.Harish

Chand Tandon was given in adoption by his natural father-Sh. Ratan Chand

Tandon to his brother-Sh. Rang Behari Lal Tandon. The wife of Sh.Ratan

Chand Tandon is Smt. Kashmiri Devi Tandon and the wife of Sh. Rang

Behari Lal Tandon is Smt. Kamla Devi Tandon. There is no dispute before

me that Sh. Rang Behari Lal Tandon was the owner of the suit property and

Sh. Harish Chand Tandon was adopted by Sh. Rang Behari Lal Tandon and

Smt. Kamla Devi Tandon.

3. The subject suit for possession came to be filed by the

respondent/plaintiff/Sh.Harish Chand Tandon claiming that the defendant

no.1/Sh.Vijay Kumar Tandon, his natural brother, and after adoption his

cousin brother, was allowed as a licensee to stay in the suit property

alongwith his mother-Smt. Kashmiri Devi Tandon, and who was also the

natural mother of the respondent/plaintiff-Harish Chand Tandon. It was

pleaded that the defendant no.1/Sh.Vijay Kumar Tandon was allowed to

stay in the suit property alongwith his mother inasmuch as the defendant

no.1 had to vacate the government flat allotted to him at Gol Market, New

Delhi.

4. The appellants/defendant Nos.3 and 4 are the subsequent

purchasers of the suit property from the defendant no.1/Sh.Vijay Kumar

Tandon. In their written statement the plea of the defendant Nos.3 and 4

was that the entire property D-3 was actually owned jointly by Smt. Kamla

Devi Tandon (wife of Sh. Rang Behari Lal Tandon) and Smt. Kashmiri

Devi Tandon (wife of Sh. Ratan Chand Tandon) by virtue of a Will dated

23.1.1979 which is said to have been executed by Sh.Rang Behari Lal

Tandon. It was pleaded that on account of this Will dated 23.1.1979

executed by Sh. Rang Behari Lal Tandon, Smt. Kashmiri Devi Tandon

became half owner of the entire property i.e. the suit property. After the

death of Smt. Kashmiri Devi Tandon her son the defendant no.1/Sh.Vijay

Kumar Tandon is pleaded to have become owner of her half portion. These

rights in the suit property were transferred by defendant No.1 to defendants

no. 3 and 4 under an Agreement to Sell dated 11.6.1995 after receiving

consideration. Defendant No.1 did not appear in the suit and was

proceeded exparte.

5. The only issue which is argued before this Court is as to

whether Smt. Kashmiri Devi Tandon, wife of Sh. Ratan Chand Tandon and

the mother of Sh. Vijay Kumar Tandon/defendant no.1, was the owner of

the suit property i.e. half of the property no. D-3, Green Park Extension,

New Delhi pursuant to the Will dated 23.1.1979 of Sh. Rang Behari Lal

Tandon or in terms of a subsequent document dated 3.11.1980 executed by

the executor to the Will dated 23.1.1979 and said to have been signed by

the respondent no.1/plaintiff-Sh.Harish Chand Tandon as also his adoptive

mother-Smt. Kamla Devi Tandon, allegedly giving the suit property to Smt.

Kashmiri Devi Tandon.

6. So far as the claiming of title to the suit property on the basis

of the Will dated 23.1.1979 is concerned, trial Court disbelieved this stand

inasmuch as neither the original Will dated 23.1.1979 was filed nor were

any of the attesting witnesses to this Will examined to prove the due

execution of this Will. Thus, in my opinion, no fault can be found with the

finding and conclusion of the trial Court that the Will dated 23.1.1979

cannot be said to have been proved in the absence of original and in the

absence of having proved the same through the attesting witnesses.

7. The only other issue which remains is as to whether the

ownership of the suit property, being approximately half portion of the

property being D-3, Green Park Extension New Delhi, came to be vested

with Smt. Kashmiri Devi Tandon in terms of the document dated

3.11.1980. Firstly, I must note that this document has not been proved

before the trial Court and hence no reliance can be placed on the same.

When the respondent no.1/plaintiff-Sh.Harish Chand Tandon was

confronted with this document, he denied the execution of this document.

In the affidavit by way of evidence which was filed on behalf of the

defendant no.3/appellant no.1, it is simply stated that this document dated

3.11.1980 be exhibited as Ex.DW1/2, however, there is no deposition as to

identification of the signatures of the executants of this document namely

the plaintiff/respondent no.1-Sh.Harish Chand Tandon and his adoptive

mother-Smt. Kamla Devi Tandon. The minimum requirement before a

document can be proved in terms of Section 47 of the Indian Evidence Act,

1872 is that it must be stated if the document is executed in presence of the

person who is deposing or whether the witness is conversant with the

signatures of the executants, or whether the witness has otherwise received

correspondence of the executants under their signatures. None of these

essential ingredients as required under Section 47 of the Indian Evidence

Act, 1872 have been averred in the affidavit by way of evidence filed by

appellant no.1/defendant no.3. In fact, the appellant no.1/defendant no.3

could not even have made this averment because he is not in any way

related or connected to any of the original parties to the suit and he was

simply a purchaser claiming through the defendant no.1. Surprisingly, and

without any reason, the appellants/defendants no.3 and 4 have chosen not

to make the defendant no.1 as a party to the present appeal.

I therefore hold that this document which is referred to in the

affidavit by way of evidence of the appellant no.1/defendant no.3 as

Ex.DW1/2 cannot be said to have been proved on record.

8. Learned counsel for the appellants very strenuously argued

that Smt. Kamla Devi Tandon should have stepped into the witness box to

deny her signatures inasmuch as the document dated 3.11.1980 bears Smt.

Kamla Devi Tandon's signatures, however, I do not find any provision in

law which mandates that a person must step into the witness box merely

because signatures are denied. Admittedly, denial of signatures have taken

place through the pleadings, and which is in law sufficient, and if the

appellants/defendant Nos.3 and 4 or the defendant no.1 wanted to establish

that the signatures on the document dated 3.11.1980 were of Smt. Kamla

Devi Tandon, then, they ought to have either summoned other admitted

signatures of Smt. Kamla Devi Tandon or filed a handwriting expert's

report to prove that the document dated 3.11.1980 bore the signatures of

Smt. Kamla Devi Tandon. Admittedly, the appellants did not take any

steps to get the signatures on the document dated 3.11.1980 proved to be of

Smt. Kamla Devi Tandon. In my opinion, in fact since this document dated

3.11.1980 bears the signatures of as many as four executants and three

witnesses, at least one of the executants, or one of the witnesses could

surely have been summoned, however, not a single of the four executants

or even a single of the three witnesses were summoned to prove this

document dated 3.11.1980. Of course, it was not at all difficult for the

appellants to have summoned at least two of the executants and witnesses

to the document, namely Smt. Kashmiri Devi Tandon and Sh. Vijay Kumar

Tandon/defendant no.1, inasmuch as these persons would have surely

deposed in favour of the appellants, however, appellants have failed to do

the needful and consequently, this document dated 3.11.1980 is not proved.

Learned counsel for the appellants argues that the trial Court

vide its order dated 3.9.2009 has wrongly dismissed an application filed

under Section 73 of the Indian Evidence Act, 1872, (assuming this

provision applies when it does not) and which application was filed to send

document dated 3.11.1980 to CFSL, however, I do not find any error in the

order dated 3.9.2009 inasmuch as appellants had complete opportunity

during leading of the evidence to do the needful, however, they failed to get

the signatures on the document dated 3.11.1980 proved to be those of Smt.

Kamla Devi Tandon or the respondent no.1/plaintiff-Sh. Harish Chand

Tandon. Also, the least which the appellants could have done was to at

least summon their own handwriting expert and file his report, and which

would have given some help, though trial Court need not have attached too

much weight to private expert's report, however, even this minimum

requirement of leading evidence of a handwriting expert has not been

complied with on behalf of the appellants. Since the appellants/defendants

no. 3 and 4 failed to lead evidence when they were required to do so during

trial to prove the document dated 3.11.1980, I refuse to exercise my

discretionary power under Order 41 Rule 27 CPC to set the clock back

almost by 14 odd years. The object of Order 41 Rule 27 CPC is not to

allow a party to fill up lacuna in his case although he was not in any

manner handicapped to do so during the trial.

9. In my opinion, there is another very important reason to doubt

that the document dated 3.11.1980 was executed or that rights were created

by the said document. This reason is that this document is of the year

1980, and if really the same was executed and rights under the same were

created, then at the very least defendant no.1 or Smt. Kashmiri Devi

Tandon ought to have applied for mutation of the property in the House

Tax Record and would have also thereafter paid their share of house tax of

the property i.e. 50% of the house tax. Counsel for the appellants on a

query put by the Court admits that neither the defendant no.1 nor Smt.

Kashmiri Devi Tandon ever applied for mutation of the property till the

disputes arose between the parties in around the year 1995, i.e. for a period

of not less than 15 years. If the document dated 3.11.1980 was really

executed, rights were created thereby, and the said document acted upon,

surely, the minimum which would be expected if such document dated

3.11.1980 created rights in favour of Smt. Kashmiri Devi Tandon was that

she would have applied for mutation and paid 50% of the house tax for the

property. Admittedly, not only was mutation not applied for, no payment

towards property taxes has also been made by Smt. Kashmiri Devi Tandon

even after allegedly becoming owner of the suit property and which is

approximately half of the property bearing no.D-3. Green Park Extension,

New Delhi. I may further state that neither Smt. Kashmiri Devi Tandon

nor the defendant no.1/Sh.Vijay Kumar Tandon even filed any Income Tax

Returns to show ownership of the suit property in their name pursuant to

the alleged document dated 3.11.1980.

10. I must also take on record the statement of the counsel for the

respondent/plaintiff that the appellants were not living in the suit property

and have kept it simply locked i.e. the appellants are speculating by this

litigation.

11. A civil case is decided on balance of probabilities.

Indubitably, the onus to prove alleged Will dated 23.11.1979 and the

document dated 3.11.1980 was on the appellants, and which they have

miserably failed to do. I may also state that the document dated 3.11.1980

is neither a partition deed nor a family settlement and once the Will dated

23.11.1979 itself was not proved, I fail to understand as to what would be

the legal validity or effect to this so-called document dated 3.11.1980.

Merely because two views are possible, an Appellate Court will not

interfere in the findings of the Court below unless such findings are illegal

or perverse. I do not find any illegality or perversity in the impugned

judgment which calls for interference in this appeal.

12. In view of the above, appeal is therefore dismissed leaving the

parties to bear their own costs.

13. Amount deposited in this Court by the appellants towards

mesne profits decreed by the trial Court, be released to the respondent

no.1/plaintiff-Sh.Harish Chand Tandon in appropriate satisfaction of the

impugned judgment and decree.

VALMIKI J. MEHTA, J MAY 24, 2012 ak