Sh. Naresh Kumar Chopra vs Smt. Sunita Khanna And Anr.
2014 Latest Caselaw 1875 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No.100/2014

%                                                     15th April, 2014

SH. NARESH KUMAR CHOPRA                                    ..... Appellant
                 Through:                 Mr. Vinay Gupta, Advocate.

                           Versus

SMT. SUNITA KHANNA AND ANR.                                 ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.6430/2014 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

+ RSA No.100/2014

2. This Second Appeal under Section 100 of Code of Civil

Procedure, 1908 (CPC) is filed against the concurrent judgments of the

courts below; of the trial court dated 14.3.2011 and the first appellate court

dated 3.2.2014; by which the appellant's/plaintiff's suit for declaration and

cancellation has been dismissed. Appellant/plaintiff in the suit prayed for

declaration as illegal and void and cancellation of the documents executed

by the mother of the parties Smt. Kaushalya Devi dated 10.12.2004 of the

suit property bearing No.E-70 (first floor), Jhilmil Colony, Delhi-110095 on

a plot of 45 sq mtrs. By the said documents dated 10.12.2004, the mother

Smt.Kaushalya Devi had transferred rights in the suit property in favour of

the defendant no.1/respondent no.1/daughter (sister of the

appellant/plaintiff).

3. The facts of the case are that admittedly the documents by

which the suit property was purchased were in the name of the mother Smt.

Kaushalya Devi. The suit property was a plot when the same was purchased

by the mother and thereafter construction on the same was raised. During

her lifetime, Smt. Kaushalya Devi had executed documents being the

registered general power of attorney, registered Will, special power of

attorney, agreement to sell, receipt, possession letter etc all dated 10.12.2004

by which the rights in the suit property were transferred to the defendant

no.1/respondent no.1. The case of the appellant/plaintiff is that the said

documentation is void not only because consideration did not flow under the

same because inadequate consideration flowed under the same, but also

because the documentation was got executed by the defendant

no.1/respondent no.1 by exercising undue influence on her parents i.e the

mother Smt. Kaushalya Devi and the father Sh. Baldev Raj Chopra. One

another reason for seeking declaration with regard to invalidity of the

documents is also that possession under the same was not delivered.

4. On behalf of the respondent no.1/defendant no.1, it was stated

that the appellant/son had strained relations with his parents and in fact the

father Sh. Baldev Raj Chopra on 20.10.1991 by means of public notice in

the newspaper Veer Arjun had severed all ties with the appellant/plaintiff.

Due to the behavior of the appellant/plaintiff the parents had also filed a

complaint against him in the local police station in the year 1991. The

respondent no.1/defendant no.1 pleaded validity of the documentation dated

10.12.2004 besides also stating that the father Sh. Baldev Raj Chopra had

borrowed moneys of Rs.4 lacs from the defendant no.1/respondent no.1 and

from which amount the suit property was constructed and which loan was

not repaid. It was therefore pleaded by the respondent no.1/defendant no.1

that there was sufficient reason for existence and execution of the

documentation dated 10.12.2004 by the mother Smt. Kaushalya Devi in

favour of the respondent no.1/defendant no.1. The documentation dated

10.12.2004 executed by the mother Smt. Kaushalya Devi in favour of the

defendant no.1/respondent no.1 are as under:-

"i) Registered General Power of Attorney dated 10.12.2004 (Ex.DW1/A)

ii) Agreement to Sell dated 10.12.2004 (Ex.DW1/B)

iii) Registered Will dated 10.12.2004 (Ex.DW1/C)

iv) Receipt dated 10.12.2004 (Ex.DW1/D)

v) Possession letter dated 10.12.2004 (Ex.DW1/E)

vi) Affidavit dated 10.12.2004 (Ex.DW1/F)

vii) Special Power of Attorney dated 10.12.2004 (Ex.DW1/G)

viii) Undertaking dated 10.12.2004 (Ex.DW1/H)

ix) Indemnity bond dated 10.12.2004 (Ex.DW1/I)"

As already stated above, out of the above documents, the

general power of attorney and Will, which are Ex.DW1/A and Ex.DW1/C

respectively, were registered with sub-Registrar.

5. Both the courts below have held that there is no substance in

the case as set up by the appellant/plaintiff with regard to alleged inadequacy

of consideration because the plot was earlier purchased by Smt. Kaushalya

Devi for Rs.1.75 lacs but the consideration as mentioned in the subject

documents is only a sum of Rs.1.50 lacs. The courts below have also held

that the appellant/plaintiff failed to prove lack of soundness of mind of the

mother for establishing the invalidity of the documentation dated

10.12.2004. The courts below have also disregarded the document dated

25.3.2005, Ex.PW2/6, which was relied upon by the appellant/plaintiff to

contend that by virtue of this document, and which is pleaded to be a family

settlement, appellant/plaintiff would be 1/4th owner of the suit property. It

may be noted that whereas the trial court gave the reason that the document

Ex.PW2/6 is not a valid document because the father was not the owner of

the suit property and therefore his executing this document cannot in any

manner confer on the four children of the parties equal shares, the first

appellate court has however taken a different line of reasoning by observing

that since the condition of repayment of loan contained in the document

Ex.PW2/6 was not fulfilled by the appellant/plaintiff, consequently the

appellant/plaintiff could not claim any rights under the document Ex.PW2/6

dated 25.3.2005.

6(i) I completely agree with the conclusions given in the concurrent

judgments of the courts below except the conclusion of the first appellate

court that the document Ex.PW2/6 cannot be relied upon by the

appellant/plaintiff because the appellant/plaintiff failed to discharge his

liability under the document Ex.PW2/6 of payment of his share of loan of

Rs.1 lakh. In this regard, the correct reasoning is given by the trial court and

to which I am also hereafter giving additional reasoning of my own.

(ii) Firstly, it may by noted that the documents in question contain

two registered documents i.e the general power of attorney and the Will.

The father of the parties Sh. Baldev Raj Chopra was a witness to these

documents and he appeared in the witness box and deposed in favour of the

respondent no.1/defendant no.1 as DW-2. The father-DW2 denied the case

of the appellant/plaintiff that no consideration had passed for execution of

the documents dated 10.12.2004 in favour of his wife Smt. Kaushalya Devi

(mother of the parties) from the daughter/defendant no.1/respondent no.1.

The father as DW-2 has also denied that his wife Smt. Kaushalya Devi was

suffering from unsoundness of mind.

(iii) The deposition of the father Sh. Baldev Raj Chopra is in my

opinion a crucial deposition in favour of the respondent no.1/defendant no.1.

This deposition of the father clearly proves not only passing of the

consideration (leaving apart some contradiction of the entire amount being

in cash or partly in cash and partly in cheque) but also the soundness of mind

of Smt. Kaushalya Devi at the time of execution of the subject documents.

It is extremely relevant to note that the document relied upon by the

appellant/plaintiff Ex.PW2/6 dated 25.3.2005 goes against the plaintiff for

various reasons and one important reason is that this document Ex.PW2/6

shows that the defendant no.1/respondent no.1 had given a loan of Rs.4 lacs

to the father and from which the construction was made on the suit property,

and admittedly this loan was not repaid back by the father to the respondent

no.1/defendant no.1 till the time of execution of the subject documentation.

Therefore, there was a valid and sufficient ground for execution of the said

documents dated 10.12.2004 in favour of the defendant no.1/respondent no.1

and to whom loan was owed by the father of the parties and from which loan

construction was raised on the plot. There would be thus nothing unusual

for the mother in such circumstances to have transferred rights in the suit

property to the daughter/defendant no.1/respondent no.1 by the said

documentation. In fact, this aspect will also take care of the argument urged

on behalf of the appellant/plaintiff of lack of consideration or lack of

adequacy of consideration, because, once the suit property was constructed

upon from the funds of the respondent no.1/defendant no.1, and which funds

in the form of loan was given to the father Sh. Baldev Raj Chopra was not

repaid, the mother-Smt. Kaushalya Devi had sufficient reasons to transfer

the rights in the suit property in favour of the defendant no.1 for an amount

of Rs.1.5 lacs.

(iv) Also, evidence has been led on behalf of the respondent

no.1/defendant no.1, including of the father, of the strained relations

between the appellant/plaintiff/son with the parents.

(v) Further, in my opinion, the appellant/plaintiff has no locus

standi to question the existence of consideration or adequacy of

consideration because this is really an issue which could have only been an

issue between the parties to the documents i.e the mother Smt. Kaushalya

Devi and the daughter/defendant no.1/respondent no.1. Never any dispute

was raised at any point of time by the mother to challenge the documentation

in the defendant no.1's favour on the ground that consideration had not

passed or inadequate consideration had passed. In fact, as already stated

above, the father Sh. Baldev Raj Chopra deposed in favour of the respondent

no.1/defendant no.1, and disputed the aspect of non-passing of the

consideration or alleged inadequacy of consideration. Therefore, in addition

to the reasoning given by the courts below, I am of the opinion that the

appellant/plaintiff really has no locus to challenge execution of the

documents, except of course on the ground of soundness of mind and on

which aspect the appellant/plaintiff has miserably failed because no medical

evidence whatsoever was led of the mother Smt. Kaushalya Devi suffering

from unsoundness of mind at the time of execution of the documents dated

10.12.2004.

7. Learned counsel for the appellant argued before this Court the

following aspects:-

(i) Consideration did not flow to the mother Smt. Kaushalya Devi

from the defendant no.1/respondent no.1 under the documentation dated

10.12.2004, and if consideration did flow the same was inadequate, thus

showing undue influence upon the parents by the defendant no.1/respondent

no.1 in having got the subject documentation dated 10.12.2004 executed.

(ii) The Will in question Ex.DW1/C cannot be said to have been

proved because no attesting witness was called.

(iii) The mother was suffering from unsoundness of mind and hence

the documentation dated 10.12.2004 are void and of no effect.

(iv) The admitted document being the settlement dated 25.3.2005,

Ex.PW2/6 is sufficient for decreeing the suit and holding that the

appellant/plaintiff is 1/4th owner of the suit property.

(v) Lastly, it was urged that since there is contradiction with regard

to handing over of possession under the subject documentation in the

testimonies of the defendant no.1/respondent no.1 and the father Sh. Baldev

Raj Chopra, such contradiction belied the case of the respondent

no.1/defendant no.1.

8. So far as the aspect of adequacy of consideration or passing of

consideration is concerned, I have already dealt with this aspect above and

that part of discussion is not repeated herein to avoid prolixity but the same

is adopted for rejecting the first argument urged on behalf of the

appellant/plaintiff.

9. So far as the aspect that the Will dated 10.12.2004, Ex.DW1/C

cannot be relied upon by the defendant no.1/respondent no.1 is concerned, I

may note that on a specific query being put to the counsel for the

appellant/plaintiff, it had to be conceded that before beginning of the cross-

examination of the witness, no objection was raised to the exhibit marking of

the Will. Therefore, once there is no objection at the relevant time,

subsequently no objection can be taken with regard to exhibition of the

documents in view of the ratio of the judgment of the Supreme Court in the

case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami &

V.P. Temple and Anr. AIR 2003 SC 4548. Not only that, I would like to

add that this is not a typical Indian Succession Act case i.e it is not a case of

probate or letters of administration case based upon a Will. Really in the

facts of this case the Will in question is one of the documents in the set of

documents by which rights were transferred in the suit property. I have had

an occasion to examine this aspect as to whether a Will which is part of the

documentation for transfer of rights in the suit property has to be proved in a

classical manner as in a probate petition or it is sufficiently proved like any

other document in any other case, in the case reported as Sh. Ramesh Chand

Vs. Suresh Chand and Anr. 188 (2012) DLT 538. The relevant para of this

judgment is para 8 and the same reads as under:-

"8. Great stress was laid on behalf of the appellant to the fact that the respondent No.1/plaintiff had failed to prove the Will, Ex.PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance is placed on behalf of the appellant on the judgment of the Supreme Court in the case of

Kashibai & Anr. Vs. Parwatibai & Ors. 1995 IV AD S.C. (C) 41 to argue that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, the same cannot be said to be proved.

In my opinion, the judgment of the Supreme Court in the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to the facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No.1/plaintiff as PW-1. Once there is no cross-examination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent No.1/plaintiff under a Will will not be a judgment in rem but only a judgment inter se the parties. Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant No.1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e. the

brother of the parties to the present suit, Sh. Ram Swaroop deposed in favour of respondent No.1/plaintiff as PW-2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant No.1 as DW-2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation."

I therefore reject the second argument urged on behalf of the

appellant/plaintiff and hold that the Will of the mother Smt. Kaushalya Devi

stands otherwise proved and since the mother Smt. Kaushalya Devi is no

longer alive this is another reason for holding that the respondent

no.1/defendant no.1/ has ownership rights in the suit property.

10. So far as the aspect of soundness of mind is concerned, learned

counsel for the appellant drew the attention of this Court to certain

admissions made by the father-Sh. Baldev Raj Chopra/DW-2 where it is

stated that Smt. Kaushalya Devi was more than 50 years of age and was

suffering from respiratory ailments as also that she remained ill for 15 to 20

years, however, in my opinion, these aspects only show illness and not lack

of soundness of mind. As already stated hereinabove, lack of soundness of

mind has to be proved to the satisfaction of the Court by clear cut medical

evidence otherwise it would not amount to declaring a person lacking in

soundness of mind merely on the oral deposition and self-serving statement

of a party. This I cannot do, and so has also not rightly been done by the

courts below. This argument therefore urged on behalf of the

appellant/plaintiff is rejected.

11(i). So far as the fourth argument that the settlement Ex.PW2/6

dated 25.3.2005 gives rights to the appellant/plaintiff as co-owner in the suit

property is concerned, even this argument is misconceived and I would give

the reasons hereinafter, however, at this stage, this document is reproduced

as under:-

"I Baldev Raj Chopra son of Shri Gyan Chand Chopra, am resident of E-70, First Floor, back side Jhilmil Colony, Delhi. Till today i.e. 25.03.2005, I am under loan of Rs.4,00,000/- which I have to repay to my daughter Smt. Sunita Khanna. (This loan was taken for construction of the house). This loan is divided amongst all my four children by Rs.1,00,000 each. Leaving aside share of Rs.1,00,000/- of Smt. Sunita Khanna, the remaining loan amount of Rs.3,00,000/- will be paid by all the three brothers and sister (Naresh Kumar, Nand Kishore and Shobha) to their sister Sunita Khanna by raising money from Committees. Till such time, I Baldev Raj Chopra, am alive, I alone will have rights to the house and rent of the house will be received only by me. After me, this house will be divided into four portions by my four children.

Sd/-

Baldev Raj Chopra Dated: 25.03.2005

1. Naresh Chopra-Sd/-

2. Nand Kishore Chopra-Sd/-

3. Shobha Chopra-Sd/-

4. Sunita Khanna-Sd/-

    Exhibit PW-2/6
    SCJ/Karkardooma
    03.11.2008                               Mark-K
                                             SCJ/Karkardooma
                                             03.11.2008"

 (ii)           Firstly, this document is not a family settlement as is sought to

be urged on behalf of the appellant/plaintiff. For this document to be relied

upon as a family settlement, it must be a document entered into as an

agreement between the parties but this document is not a document entered

into between the parties but it is a document which is executed only by the

father Sh. Baldev Raj Chopra and to which the four children of Sh. Baldev

Raj Chopra and Smt. Kaushalya Devi are only witnesses so to say.

Witnesses to a document cannot be an executant of the document. In any

case, even if this aspect is not considered admittedly the suit property stood

in the name of mother Smt. Kaushalya Devi and therefore it is not

understood as to how the father can call himself as an owner and execute the

document Ex.PW2/6 dated 25.3.2005 taking himself to be the owner of the

suit property. In fact, this stand that the father is the owner, would be barred

by the provision of Section 4 of the Benami Transactions (Prohibition) Act,

1988. Also the fact that the father took a loan of Rs.4 lacs to construct on

the suit plot from the defendant no.1/respondent no.1, and from which

amount the house was constructed, would at best make the amount received

by the father for construction on the plot as a gift of moneys to the mother

because admittedly the property remained in the name of mother-Smt.

Kaushalya Devi during her entire lifetime. Therefore, looking at it in any

manner, the document Ex.PW2/6 cannot confer ownership rights upon the

appellant/plaintiff as a co-owner, though of course the reasoning given by

the first appellate court is incorrect that since the appellant/plaintiff had not

paid his share of the loan he cannot get ownership of the suit property

however this reasoning is overlooked because there are sufficient reasons as

stated in this judgment that the document Ex.PW2/6 cannot be a family

settlement, much less so as to confer rights upon the father-Sh. Baldev Raj

Chopra and for him to give co-ownership ritghts in the suit property to the

appellant/plaintiff.

12. So far as the issue of contradictions with regard to handing over

possession is concerned, in my opinion, certain contradictions are bound to

exist in each and every case, however, a case is decided on the basis of

conclusions to be derived at from the complete evidence led, and therefore

some contradictions with regard to delivering of possession, in my opinion,

cannot take away the substance of the case which is quite clearly in favour

of the respondent no.1/defendant no.1.

13. I may again reiterate that the document Ex.PW2/6 will go

against the appellant because it showed that the respondent no.1/defendant

no.1 had paid the huge amount of Rs.4 lacs to the father and from which

amount the suit property was constructed and which amount admittedly was

not repaid to the respondent no.1/defendant no.1 and hence there is a valid

reason for the suit property for being transferred by the mother Smt.

Kaushalya Devi to the defendant no.1.

14. In view of the above, no substantial question of law arises for

this appeal to be entertained, and which is therefore dismissed, leaving the

parties to bear their own costs.

APRIL 15, 2014                                VALMIKI J. MEHTA, J.
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