Sumita @ Lamta & Anr. vs Devki
2017 Latest Caselaw 5386 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA No.234/2017 and CM Nos. 34672-75/2017

%                               Reserved on: 20th September, 2017
                              Pronounced on: 25th September, 2017
SUMITA @ LAMTA & ANR.                                    ..... Appellant
                 Through:                Mr. Atul Agarwal, Advs.

                          Versus
DEVKI                                                   ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J

CM No. 34674/2017 (Exemption)

Exemption allowed, subject to just exceptions.

CM stands disposed of.

CM Nos. 34675/2017, 34673/2017 (for condonation of delay in filing and re-filing the appeal) For the reasons stated in the applications, the delay in filing and

re-filing the appeal is condoned.

CMs stand disposed of.

RSA No. 234/2017 and CM No. 34672/2017 (stay)

1. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the defendants in the

suit, impugning the concurrent judgments of the courts below; of the

trial court dated 7.12.2016 and the first appellate court dated

23.3.2017; by which the courts below have decreed the suit of the

respondent/plaintiff/mother against the daughter/appellant no. 1 and

appellant no. 2 who is the second husband of the appellant no. 1.

2. The facts of the case are that the subject suit was filed by

the respondent/plaintiff claiming ownership of the suit property being

House no. 20/68, Second Floor, Trilok Puri, Delhi.

Respondent/plaintiff/mother claims ownership of the suit property by

virtue of the Will dated 28.8.2003 duly registered with Sub-Registrar,

and executed by her husband Sh. Parshu Ram in her favour. Sh.

Parshu Ram has also simultaneously executed other documents being

the General Power of Attorney, Gift Deed etc. on the same date in

favour of the respondent/plaintiff/wife Smt. Devki. It was pleaded in

the plaint by the respondent/plaintiff that appellant no. 1/daughter who

was guilty of bad behavior due to which she had to take divorce from

the first husband on 30.11.2009 and whereafter the appellant no. 1

started living with the respondent/plaintiff. Appellant no. 1 thereafter

said to have got married on 24.6.2010, with the appellant no. 2, the

second husband and who was a tenant in the suit property. The

appellant no. 2 is alleged to be a habitual drinker who used to

misbehave with the respondent/plaintiff and other family members in

drunken condition and also used to create scenes. It was also pleaded

that the appellant no. 1/defendant no.1/daughter had also started

quarrelling and had misbehaved with the respondent/plaintiff/mother

and other family members without any rhyme and reason. It is pleaded

that appellants/defendants refused to vacate the suit property being the

second floor of the suit property in spite of the request of the

respondent/plaintiff, and therefore, the subject suit for permanent and

mandatory injunction was filed.

3. The suit of the respondent/plaintiff was contested by the

appellants/defendants and who pleaded that the suit property was not

owned by the respondent/plaintiff but was owned by

respondent/plaintiff's husband, i.e the father of the appellant no.

1/defendant no.1, namely Sh. Parshu Ram. It was pleaded that after

the death of the father all the legal heirs including appellant no.

1/defendant no. 1 became owner of the suit property. Ownership of

the respondent/plaintiff in terms of Will dated 28.8.2003 was denied.

4. After pleadings were complete, trial court framed the

issues and parties led evidence and which aspects are noted in paras 5

to 9 of the judgment of the trial court, and these paras read as under:-

"5. On the basis of the pleadings of the parties, following issues were framed vide order dated 10.09.2014.

(1) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP (2) Whether the plaintiff is entitled for the relief of permanent injuction as prayed for? OPP (3) Relief, if any.

6. Thereafter, the evidence was led on behalf of the plaintiff who examined herself as PW1. She has reiterated the facts of plaint in his affidavit Ex. PW1A/A. She also relied upon the documents i.e. site plan Ex. PW1/A, copy of ration card Ex. PW1/B, electricity bill Ex. PW1/C, copy voter I card ex. PW1/D, copy of death certificate of husband of plaintiff Ex. PW1/E, copy of legal notice Ex. PW1/f, postal receipts Ex. PW1/G, copy of publication Ex. PW1/H, copy of property documents Mark A, mortgaged deed Mark B, affidavit of publication Mark C, copy of complaint dated 19.11.2012 Mark D and complaint to SHO mark E.

PW2 has supported the entire case of plaintiff in his affidavit Ex. P2. He is the neighbor of both parties and thus claimed to be aware about the facts of present case. He also is one of the witnesses to the Will and Gift Deed Mark A dated 28.08.2003.

PW3 is the official from Sub Registrar IV who proved GPA executed by late Parshu Ram in favour of plaintiff on 28.08.2003.

7. No other evidence was led on behalf of plaintiff.

8. Thereafter defendants led their evidence and got examined themselves as D1W1 and D2W1 respectively. Both of them reiterated their defence in their affidavit Ex. D1 and Ex. D2 respectively. The D1W1 again reiterated her claim regarding she being co-owner of the suit property by virtue of LR of the owner late Parshu Ram.

9. No other defence evidence was led on behalf of the other defendants."

5. Courts below have held, and rightly so, that

respondent/plaintiff/mother is the owner of the suit property. It was

held by the courts below that the respondent/plaintiff had pleaded that

original documents dated 28.8.2003, being the GPA, Gift Deed and

Will were taken away by the appellants/defendants for creating

mortgage and hence original of these documents could not be

produced by the respondent/plaintiff. It is rightly held by the trial

court that Will dated 28.8.2003 stood duly proved by the deposition of

the attesting witness PW-2, namely, Sh. Kishore Chand. The trial

court has also rightly observed that the admissibility of the Will dated

28.8.2003 was never questioned in the cross-examination of PW-1 on

behalf of the appellants/defendants. This court would also like to note

that in the cross-examination of the attesting witness PW-2, there is no

suggestion that the Will is forged and fabricated or that the Will is not

duly executed. The trial court has also rightly observed that the

appellants/defendants took up a case in cross-examination that Sh.

Parshu Ram, husband of the respondent/plaintiff, was not in a fit state

of mind at the time of execution of Will, but this was not a defence in

the written statement of the appellants/defendants. Trial court has

noted that the appellants/defendants have taken three different

defences at three different stages with respect to authenticity and

validity of the Will i.e firstly at the time of the filing of the written

statement when in para 3 of the reply to the Will on merits there was

only vague denial of the execution of the Will without pleading

anything further with respect to alleged lack of authenticity of the

Will. The second stage where a different defence was taken was in the

cross-examination of PW-1/respondent/plaintiff wherein it was

claimed that the signatures of Sh. Parshu Ram are forged i.e the

document is forged and fabricated. The third defence was in the cross-

examination of PW-2 where the case was that Sh. Parshu Ram was not

in a fit state of mind in the year 2003 for execution of the Will.

6. Most importantly, the trial court has relied upon the

mortgage deed executed by respondent/plaintiff in favour of one Sh.

Narender Kumar, and this document was admitted by the appellant no.

1/defendant no. 1 as the appellant no. 1/defendant no. 1 had signed the

mortgage deed as an attesting witness, and accordingly the trial court

has rightly held that since mortgage can only be done by an owner of

the property, therefore, once appellant no.1/defendant no. 1 admits her

signatures on the mortgage deed as a witness, then this aspect clinches

the issue of ownership of the suit property in favour of the

respondent/plaintiff.

7. In my opinion the reasoning, findings and conclusions of

the courts below do not suffer from any gross illegality or perversity

for this Court to entertain this second appeal under Section 100 CPC.

8.(i) Learned counsel for the appellants/defendants argued that

there was only a photocopy of the Will which was filed in the case and

not the original Will and therefore it is argued that the Will dated

28.8.2003 of Sh. Parshu Ram in favour of the respondent/plaintiff

should not have been relied upon by the courts below. This argument

is misconceived because it is conceded by the counsel for the

appellants/defendants that before commencement of cross-

examination of PW-1 and PW-2 there was no objection raised that the

Will cannot be proved inasmuch as the Will only is a photocopy.

Once no objection is raised to the mode of proof on account of lack of

original, then now the objection cannot be raised to the mode of proof

as the objection to the mode of proof stands waived in view of the

ratio as laid down in the judgment of the Supreme Court in the case of

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

V.P. Temple and Another, (2003) 8 SCC 752.

(ii) More importantly there cannot be any quarrel with respect to

lack of production of the original Will, inasmuch as, the

respondent/plaintiff had already deposed in her affidavit by way of

evidence that she was not in possession of the original documents

dated 28.8.2003 executed by her husband Sh. Parshu Ram in her

favour as these original documents, including the Will, were taken

away by the appellants/defendants for taking of the loan by

mortgaging of the property and when the respondent/plaintiff

demanded the original documents then the appellants/defendants

refused to hand over all the original documents on one pretext or the

other. In law, once explanation is given for non-production of the

original documents being the primary evidence, then a person is

entitled to produce secondary evidence with respect to the documents

and which secondary evidence was the photocopy of the Will in the

present case. It is also to be noted that in the entire cross-examination

of PW-1/respondent/plaintiff no suggestion was put by the

appellants/defendants that they have not taken away all the original

documents dated 28.8.2003 and which was the case of the

respondent/plaintiff both as per her plaint as also her affidavit by way

evidence. I would like to note that the counsel for the

appellants/defendants have no answer to the admission made in the

cross-examination of appellant no.1/defendant no. 1 wherein she

admitted that the mother/respondent/plaintiff had executed a mortgage

deed of the suit property and that appellant no. 1/defendant no. 1 was a

witness to this mortgage deed, and therefore, it cannot be doubted,

much less by filing of the second appeal, that it was not the

respondent/plaintiff who was the owner of the suit property, and in

fact she was.

9. In my opinion, therefore, the courts below have rightly

held the respondent/plaintiff to be the owner of the suit property.

10. No substantial question of law arises. Dismissed.

SEPTEMBER 25, 2017                           VALMIKI J. MEHTA, J
godara