Anil Swami vs Nirmal Kumar Swami
2014 Latest Caselaw 2278 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.28/2014
%                                                         6th May, 2014

ANIL SWAMI                                                 ......Appellant
                          Through:       Sh. Ved Prakash Sharma, Ms. Amrit
                                         Kaur Oberoi, Ms. Pooja Yadav and
                                         Mr. Aman Singh, Advocates.


                          VERSUS

NIRMAL KUMAR SWAMI                                        ...... Respondent

                Through:                 None.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. No one appears for the respondent in spite of the matter being passed

over. I have therefore heard the counsel for the appellant and after perusing

the record am proceeding to decide the case.

2. This second appeal is filed impugning the judgment of the first

appellate court dated 28.9.2013 by which the first appellate court accepted

the appeal filed by the defendant no.1 and set aside the judgment of the trial

court dated 16.11.2010. Trial court by the judgment dated 16.11.2010 had

decreed the suit for possession qua the suit property being a Janta Flat

bearing no.74, Ground Floor, Pocket 10, Block C, Sector-5, Rohini, Delhi-

10085.

3(i) The facts of the case are that the suit property was owned by the father

of the parties namely Sh. Kundan Lal. The suit property was allotted by the

Delhi Development Authority to Sh. Kundan Lal under Janta Category

Residential Scheme. Respondent/defendant no.1 requested the father Sh.

Kundan Lal that he should be permitted to live in the suit property as he was

living in a tenanted premises, and was going through a financial crisis, and

consequently, respondent/defendant no.1 was permitted by the father Sh.

Kundan Lal to reside in the suit property. Respondent/defendant no.1

however thereafter refused to vacate the suit property and consequently, the

father Sh. Kundan Lal served a notice dated 16.12.1999 upon the

respondent/defendant no.1 terminating his licence and asking him to vacate.

Sh. Kundan Lal, however, expired soon thereafter on 9.6.2000. Before his

death Sh. Kundan Lal executed a Will dated 9.7.1999 Ex.PW1/6 with

respect to the suit property in favour of the appellant-plaintiff. The Will was

registered before the sub-Registrar on 12.07.1999.

(ii) The case of the respondent/defendant no.1 before the trial court was

that he should be taken as owner because he was in adverse possession of

the property for more than 14 years. Respondent/defendant no.1 also

contended that the father Sh. Kundan Lal had taken from him a sum of

Rs.30,000/- and accordingly father had executed an undertaking, Ex.DW1/1,

dated 11.2.1994 giving the suit property to respondent/defendant no.1.

I may state that defendant nos. 2 to 4 in the suit were the daughters of

Sh. Kundan Lal and were proforma parties as no relief was sought against

them.

4. Trial court by a very thorough and exhaustive judgment disbelieved

the stand of the respondent/defendant no.1 for adverse possession and also

held that the Will dated 9.7.1999 Ex.PW1/6 was validly proved. Trial court

notes that both the attesting witnesses Sh. H.M.Sharma and Sh. V.K.Gautam

deposed in support of the Will and duly proved the execution and attestation

of the Will. The attesting witnesses also deposed with respect to registration

of the Will and the presence of Sh. Kundan Lal in the office of the sub-

Registrar at the time of execution and attestation of the Will. The trial court

also notes that no doubt certain medical records were filed by the

respondent/defendant no.1 and a doctor namely Sh. R.P.Arora was examined

as DW-2 who proved the medical record as Ex.DW 2/1 to Ex.DW2/5,

however, the medical records did not pertain for the period between

5.7.1999 to 20.7.1999 when the Will in question was executed and

registered. The medical record also did not show lack of soundness of mind

of the father Sh. Kundan Lal. There was only a temperature chart in the

medical record pertaining to the period from 16.7.1999 to 20.7.1999. Also

the medical record basically shows that the father Sh. Kundan Lal was

suffering from Enlarged Prostrate and which is held not to be a serious

ailment to affect the soundness of mind of the deceased

testator/father/Kundan Lal. Trial court has also disbelieved the stand of the

respondent/defendant no.1 that he gave a sum of Rs.30,000/- to the father in

terms of the undertaking dated 11.2.1994 Ex.DW1/1 inasmuch as,

respondent/defendant no.1 himself was not in a good financial condition

because he was living in a rented accommodation where the monthly rent

was of Rs.350 and the monthly income of respondent/defendant no.1 was

only Rs. 2000/-. Accordingly, the trial court held that in such a position it is

beyond comprehension as to how the respondent/defendant no.1 could have

given a sum of Rs.30,000/-to the father. Trial court also notes that in the

undertaking dated 11.2.1994 signatures of Sh. Kundan Lal are there but

there is no thumb impression of Kundal Lal whereas in the Will Ex.PW1/6

there exists both the signatures as also the thumb impression of the deceased

Sh. Kundan Lal. The relevant observations of the trial court for decreeing

the suit for possession are as under:-

"ISSUE NO.5 AND 6"

Whether the plaintiff has locus standi to file the present suit? OPP Whether the plaintiff is entitled to relief of possession as claimed?

The onus of proving these issues was on the plaintiff. For deciding these issues it would be pertinent to analyse the Will dated 09.07.1999 Ex.PW1/6 relied upon by the plaintiff as well as the undertaking dated 11.02.1994 Ex.DW1/1 relied upon by the defendant no.1.

The Will dated 09.07.1999 Ex.PW1/8 executed by Sh. Kundan Lal states that Sh. Kundan Lal is executing the Will without any pressure, duress, undue influence or coercion from any side and out of his own free will. The document further states that Sh. Kundan Lal is the owner/allottee of a DDA built up flat no.74, Pocket no.10, Block C, Sector 5, Janta Flat situated at Rohini under the residential scheme of DDA vide file no.J027 (3565)89/RO/NP dated 24.10.1999 with the leasehold rights of the land. The executant has two married sons and three married daughters. It is further stated in Ex.PW1/6 that executant had spent on the marriage of his daughters whatever he had and had married them according to his status and the said daughters were now living happily with their families. Therefore, no benefit has been granted to the daughters vide the Will dated 09.07.1999. It is further stated in Ex.PW1/6 that Sh. Anil Swami i.e. the plaintiff is looking after the executants very well and maintaining him therefore executants has great love and affection for him. Where Sh. Nirmal Swami i.e defendant no.1 had not care for the executants and had not been obedient and sincere towards the executants and therefore the executants had debarred him from inheriting any of the executant's properties. Vide the said Will Sh. Kundan Lal had in express terms bequeathed the suit property in favour of the plaintiff.

The said Will Ex.PW1/6 has been signed by two witnesses i.e. Sh. H.M.Sharma and Sh. V.K.Gautam. The said will running into three pages is a registered document and bears the thumb impression of Kundal Lal on each page.

To prove the said will, plaintiff examined Sh. H.M.Sharma as PW2 and Sh. V.K.Gautam as PW3 in his deposition had stated that Sh. Kundan Lal was his neighbour and was having sound health. The witness had identified signature and thumb impression to Sh. Kundan Lal on the said will i.e Ex.PW1/6. PW2 further deposed that the Ex.PW1/6 was prepared in his presence though not drafted in his presence and he had signed the will as a witness on 12 th day of the month. It has been further deposed by PW2 that Sh. Kundan Lal was present in the office of Sub-Registrar at the time of execution of the will. The witness did not get a leave from his office on the day of execution of the said will and he went for registration during lunch hours. The witness as per his deposition appeared before Sub- Registrar at 01.00 p.m. The statement that the will was prepared but not drafted in the presence of the witness, probably means that the will was executed in his presence thought not drafted. In any case, it is the execution of the will which is more important and not the drafting of the will. So far as the execution and registration of the Will Ex.PW1/6 is concerned, the testimony of the witness has been consistent and cogent. The fact that witness went to the registrar during his lunch hours is supported by his statement that he appeared before Sub-Registrar at 01.00 p.m. in the afternoon. Thus, the statement of the witness has been consistent and supports the case of the plaintiff. PW3 who is the second attesting witness to the will had stated that he had drafted the will Ex.PW1/6 on 09.07.1999 and got it registered on 12.07.1999. The witness had also identified the thumb impression of Sh. Kundan Lal in the Will. As per the witness the executant of will was in sound state of health and mind. One witness Sh. H.M.Sharma was also present at the time of execution of will and at time of registration. Thus, PW 3 had supported the testimony of the PW2. The deposition had been cogent and consistent and nothing to the contrary had been elucidated by the defendant no.1 from the witness. Thus, the execution of the will had been established by the plaintiff.

The counsel for the defendant no.1 had challenged the will on the ground that the father of the parties Sh. Kundan Lal was not in a sound state of health and mind when the Will Ex.PW1/6 was executed by him. To prove his contention, defendant no.1 had examined Dr. R.P.Arora as DW2 who had placed on record certain medical records Ex.DW2/1 to Ex.DW2/5. The said witness was objected to by the counsel for the plaintiff on the ground that the said witness was summoned without informing the plaintiff of the said witness and without supplying the advance copy of documents produced by the witness.

Be that as it may, by bringing the said witness on record defendant no.1 has further strengthened the case of the plaintiff. In his deposition DW2 states that as per the medical records patient was conscious at the time of examination in the ward. Further in the medical records there are no records pertaining to Sh. Kundan Lal for the period between 05.07.1999 to 20.07.1999 i.e. the period during which the Will in question was executed. There was only temperature chart in the medical records pertaining to the period 16.07.1999 to 20.07.1999. Further there was no document in the medical record to show that Sh. Kundan Lal was present in the hospital between 06.07.1999 to 15.07.1999 whereas the hospital maintains day to day examination sheet of every prostrate but was in a speaking position since it was mentioned in the records that patient was conscious and cooperative. The deposition which finally clinches the deal in favour of the plaintiff is the last statement made by the witness wherein he states that by the history of the patient he was mentally fit. Thus, the claim of the defendant no.1 that Sh. Kundan Lal was not in a sound mental health at the time of the execution of the will stands disproved by his own witness. Moreover, in Delhi to claim the benefit under a will requires no probate (vide Hans Raj Vs. Jeet Kaur, 2002(RLR

121). Thus the contention of the defendant No.1 that no probate has been obtained by the plaintiff is found without any force. So far as the undertaking dated 11.02.1994, Ex.DW1/1 is concerned, as per the defendant no.1 he had helped Sh. Kundan Lal in purchasing the suit property and had paid all the installments due towards the said property and had further given a sum of Rs.30,000/- to Sh. Kundan Lal, in lieu of which he had given an undertaking to the defendant

no.1 to execute the documents pertaining to the suit property in his favour.

The said Ex.DW1/1 unlike the will Ex.PW1/6 merely bears signatures of Sh. Kundan Lal but not the thumb impressions. DW1 in his deposition had stated that on the date of cross examination he was not in any job for last two years. It is further stated that in the year 1994, besides himself his wife was also doing certain household work such as fixing the falls on the sarees and to stitch the blouses etc. Same was his position in the year 1991. It is further stated by the defendant no.1 that prior to 1991 he was living in a rented accommodation where his monthly rent was Rs.350/- p.m. and his monthly income was Rs.2000/-. Thus, in such circumstances it is beyond comprehension as to how DW1 could have helped his father Sh. Kundan Lal financially. The defendant no.1 and his wife were doing odd jobs in the year 1991 and the year 1994. It has not been explained by the defendant noi.1 as to from where they had arranged so much money so as to help Sh. Kundan Lal in purchasing the suit property or to given an amount of Rs.30,000/- to him in the year 1994. As for the contention of the defendant no.1 that he had taken Sh. Kundan Lal to the hospital, it is observed that in his own deposition recorded on 09.05.2006 he had stated that Sh. Kundan Lal living with the plaintiff after his retirement and admittedly Sh. Kundan Lal retired in the year 1978. If Sh. Kundan Lal was living with the plaintiff, then it is inexplicable as to how and why defendant no.1 would take him to the hospital. Further DW2 had stated in his deposition that patient was brought by one of the relative but the name of the relative has not been mentioned. Thus, the claim of the defendant no.1 remains unproved. Further, defendant no.1 has mentioned in his examination that the said undertaking was executed by Sh. Kundan Lal in the present of plaintiff, wife of the plaintiff and brother in law of defendant no.1, however, none of the said persons have been examined by the defendant no.1 to prove the due execution of the document Ex.Dw1/1.

Thus, in view of the observations made, the will Ex.PW1/6 stands duly proved. With regard to the termination of the license of the defendant no.1 vide notice dated 16.12.1999 Ex.PW1/2, the plaintiff has placed on record the postal receipt as Ex.PW1/3 and UPC receipt

as Ex.PW1/4. The envelope received back has been exhibited as Ex.PW1/5. In his cross-examination DW1 has stated that his address mentioned in Ex.PW1/2, Ex.PW1/4 and Ex.PW1/5 is correct. The said notice is duly supported with postal receipts. In these circumstances, the presumption of due service of the notice arises and the notice is deemed to have been duly served upon defendant no.1. Thus the license of the defendant no.1 stood terminated vide the said notice Ex.PW1/2. In view of the observations made, the present issues are decided in the favour of plaintiff and against defendant no.1."

(underlining added)

5. For the purpose of disposal of the second appeal, the following

substantial question of law is framed:-

"Whether the first appellate court has committed a gross illegality and

perversity in setting aside the exhaustive and thorough judgment of

the trial court by ignoring the crucial findings and conclusions?"

6. The following are the conclusions given by the first appellate court for

setting aside the judgment of the trial court:-

"77. Reference to the Highlights of PW1cross-examination:-

1. Will Ex. PW1/6 was executed in my presence.

2. The Will Ex. PW1/6 was registered on 12.07.1999.

3. My father had appeared before the Registrar.

4. Sh. V.K. Gautam who drafted the Will read over the same to my father at the time of its execution. (no mention of Mr. V.K Gautam having also attested the Will - silence)

5. Original documents of suit property are at home in my possession. I have filed photocopy of the same only.

78. PW2 cross-examination:

1. I do not know his age. I do not know whether he knew writing/reading. The Will bears the thumb impressions and the signatures of Late Sh. Kundan Lal. He signed and put the thumb impressions in my presence in the office of Sub-Registrar Complex, Seelampur, Delhi.

2. I have no knowledge on which date the said Will was written.

3. I signed the Will as a witness on 12th day of the month.

4. It is correct that the Will was not drafted in my presence.

5. I do not get leave from my office on the date of execution of the said Will. I went to the office of Sub-Registrar in lunch hours. Again said I do not know whether I took leave on that day or not.

6. I appeared before the Sub-Registrar at 1.00 PM.

79. PW3 Cross-examination:-

1. I drafted the Will on 09.07.1999.

2. I got it registered also on 12.07.1999.

3. One witness Sh. H.M.Sharma was also present at the time of execution of the Will and at the time of registration(witness has himself nowhere stated that he signed as an attesting witness).

80. PW4-Oral Testimony:

1. Mr. Kundan Lal Swami was admitted in Ward No.31 in Safdarjung hospital since 05.07.1999 till 20.07.1999. He was not discharged.

2. XXX nil.

3. DW2 Mr. R.P.Arora working as CMO-evidence totally ignored by Ld. Trial Court.

4. I have brought the summoned record in original pertaining to Sh. Kundan Lal Swami. He was admitted in Ward No.31 in Safdarjung hospital since 05.07.1999 till he was discharged. (He left against medical advise on 20.07.1999.)

81. Cross-examination:

1. None of the documents are in my hand writing. It is impossible to say whether documents were written in my presence.

2. It is mentioned that the patient was conscious at the time of examination the ward.

3. This remarks have been mentioned at point A on Ex.DW2/1 is a front sheet of the case file mentioned as Admission and Discharge Department. Upper portion of the same is written by the staff of the hospital i.e. Medical Record Department.

4. Mentioning LAMA and signatures and are written by the Doctor and these both things were written on 20.07.1999.

5. Ex.DW2/2 was also written at the time of admission of the patient. Ex.DW2/3 was written on 20.07.1999.

6. LAMA means Left Against Medical Advice. In the summoned, there is no records between 05.07.1999 to 20.07.1999. In our record, there is only a temperature chart from 16.07.1999 to 20.07.1999.

7. It is correct that there is no document in our record to show that the plaintiff was present in our hospital from 06.07.1999 to 15.07.1999.

82. Much mileage has been tried to be given to certain replies by the concerned said witness forgetting that he was a CMO and normally documents not be written in his hand. It was ignored that the documents pertained to a Government hospital.

83. Further the very fact that the documents show that the patient left against the medical advice on 20.07.1999 and the fact that he had been admitted on 05.07.1999 could not be brushed aside or so lightly as has been done. Normally in many hospitals when a patient is discharged or he insists on leaving against the

medical advice, he is asked to clear his bills and he is handed over the original discharge summary and the record. The said record would normally be with that patient or his family members accompanying him. The said record would not remain with the hospital. Even otherwise, the temperature chart being maintained daily also could not have been ignored. If the patient was not in the hospital, it would not have been possible to maintain and retain a daily temperature chart.

84. Further no motive has been ascribed to the DW2 as to why he being a government doctor would be deposing falsely. In fact no suggestion of this kind has even been put to him that he was deposing falsely. As such, his examination in chief cannot be ignored.

85. A bare look at the original Will makes the picture quite clear i.e para 7 of the contradictions between the witnesses of the plaintiff, the signatures of Mr. H.M.Sharma clearly appearing under the column witnesses and there is only one serial number under the column of witnesses. The scribe Mr. V.K.Gautam at one point shows that that document was drafted by him and at point H, his thumb impression to have been brought in as an after thought. They are not in continuity.

86. If Mr. V.K.Gautam was also going to be the attesting witness and he himself was also scribe, nothing prevented him to include his name at serial number no.2 in the column of witnesses. His signatures are isolated and cut off from the rest of document. It does not show at all that he signed the documents as an attesting witness.

87. As against this, the undertaking Ex.DW1/1 also bearing signatures of Sh. Kundan Lal Swami and the purported signatures of the defendant and of the plaintiff as a witness. When plaintiff denied the signatures as being his, the defendant sought the examination of the signatures from CFSL. His prayer for the same was rejected by Ld. Trial Court by an order dated 31.03.2008.

88. It is most unfortunate that an examination by the CFSL, which could have only added and assisted the Trial Court to arrive at

the truth of the controversy in a more effective and accurate manner, was denied simply on the ground of delay. The delay could have been compensated but it could not become a ground for rejection of the prayer. But even so, since defendant never challenged the said order, same attained finality.

89. Apart from this, plaintiff miserably failed to prove the valid execution of the Will and thus his own right to ownership. It is plaintiff who came to court and the burden was solely upon him to prove his ownership rights. He rested solely on the Will but which on account of not one or two but numerable contradictions has become a highly doubtful document. In fact on the face of it, same seems to be a manipulated and fabricated document.

90. There was no explanation forthcoming from PW2 as to why when on one hand he was stating that he had signed Will after the signatures of the testator and on the other hand the executant of the Will signed it on 09.07.1999, but PW2 signed it 3 days thereafter as per his own statement. The three days gap has remained unexplained and version is contradicted by his own statement.

91. Ex.DW2/1 is clearly showing a date of admission of Sh.

Kundan Lal Swami deceased as from 05.07.1999 till 20.07.1999. DW2/7 is showing his history of ailment. There could be no motive on the part of government doctors and officials to manufacture this entire record. It is clear that it is a public record and the presumption is that it is authentic.

92. Further DW2/3 is showing that there is a date and time of discharge on the discharge summary slip as 20.07.1999.

93. It is then evident that since the deceased was already admitted in hospital, all this while, he could not have been present before Sub-Registrar on 12.07.1999 and with such kind of material evidence coming up on record from the side of the defendant, it is surprising that the case of the plaintiff has been believed unilaterally without taking note of the said witness."

7. A reference to the aforesaid paras shows that the first appellate court

has given very limited reasoning and has relied upon so called

inconsistencies of contradiction or improbabilities although both the

attesting witnesses appeared in the witness box and proved the execution,

attestation and registration of the Will. The first appellate court also notes

that the only ailment which the deceased father Sh. Kundan Lal was

suffering from Enlarged Prostrate and therefore the first appellate court

should not have given the finding to set aside the findings of the trial court

with regard to the execution and attestation of the Will inasmuch as the

unsoundness of mind was not proved by respondent/defendant no.1. Even if

public record is taken as authentic as held by the first appellate court, the

medical record of the history of ailment did not show any unsoundness of

mind. The aforesaid paras of the judgment of the first appellate court do not

show any valid conclusion arrived at on relevant evidence/basis to disbelieve

the Will because there is no categorical finding of lack of soundness of mind

of the deceased father Sh. Kundan Lal on the basis of the medical record.

Clearly, the findings and conclusions of the first appellate court are wholly

perverse and there is no valid basis to discard the exhaustive conclusions and

findings of the trial court.

8. In view of the above, the substantial question of law is answered in

favour of the appellant-plaintiff and against the respondent-defendant and

consequently, the impugned judgment of the first appellate court dated

28.9.2013 is set aside and the judgment of the trial court dated 16.11.2010 is

restored and thereby the appellant-plaintiff will be entitled to possession of

the suit property being a Janta Flat bearing no.74, Ground Floor, Pocket 10,

Block C, Sector-5, Rohini, Delhi-10085 shown in red in the site plan as

Ex.PW1/1. Parties are left to bear their own costs.

MAY 06, 2014                                 VALMIKI J. MEHTA, J.
ib