Kalpana & Anr. vs Maya Devi Sharma & Anr.
2018 Latest Caselaw 1383 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 205/2018

%                                                  27th February, 2018

KALPANA & ANR.                                          ..... Appellants
                          Through:       Mr. D.S. Paweriya and Mr.
                                         Amrish Kumar, Advocates.

                          versus

MAYA DEVI SHARMA & ANR.                                ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CAVEAT No. 159/2018

1. Since no one appears for the caveators, the caveat stands discharged.

C.M. Appl. No. 7474/2018 (for exemption)

2. Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RFA No. 205/2018 and C.M. Appl. No. 7473/2018 (for stay)

3. This Regular First Appeal under Section 96 of the Code

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

impugning the judgment of the trial court dated 24.10.2017 by which

the trial court has decreed the suit for possession and recovery of

damages with respect to the suit property being two rooms, one tin

shed kitchen and common latrine bathroom situated in the rear portion

at ground floor of property bearing no. 141, Deepali, Pitampura,

Delhi.

4. There were three plaintiffs in the suit. Plaintiff no. 1 was

the father Sh. Shiam Behari Lal Sharma. Plaintiff no. 2 was Smt.

Maya Devi Sharma, the wife of Sh. Shiam Behari Lal Sharma, and

plaintiff no. 3 was Sh. Vivek Sharma who was the son of plaintiff

nos.1 and 2. The defendants in the suit, and who are the appellants

herein, are the daughter (appellant no.1/defendant no.1) and son-in-

law (appellant no.2/defendant no.2) of the plaintiff nos. 1 and 2 in the

suit.

5. The case of the plaintiffs was that the suit property was

owned by the father/plaintiff no. 1 and in the year 1992 appellant

no.1/daughter requested the father/plaintiff no. 1 to give a temporary

accommodation in the suit property which was given, however it was

found that the appellants/defendants picked up unnecessary quarrels

and gave beatings and threats to life to the parents/plaintiff nos.1 and

2. Initially, the license of the appellants/defendants was terminated by

legal notice dated 12.4.2006 and the father/plaintiff no. 1 also

disowned the appellant no.1/defendant no.1 in terms of public notice

dated 22.4.2006 besides executing a registered Will dated 10.7.2006 in

favour of the respondents/plaintiff nos.2 and 3 being the wife and son

of plaintiff no.1, but since in September, 2006 the

appellants/defendants apologized for their mistakes and sought further

time to stay, therefore, appellants/defendants were permitted to stay

till the end of August, 2007. Even after the expiry of the extended

period, since the appellants/defendants failed to vacate the suit

property therefore another legal notice dated 11.7.2009 was sent to the

appellants/defendants revoking their license and thereafter the subject

suit for possession and mesne profits was filed.

6. Appellants/defendants filed their joint written statement.

They also filed a connected suit which has been dismissed by the self-

same impugned judgment whereby the appellant no.1/defendant

no.1/daughter had sought specific performance that the suit property

be transferred by the father/plaintiff no. 1 to the appellant

no.1/defendant no. 1 on account of the fact that when the plot was

purchased by the father/plaintiff no. 1 in his name at that time the

appellant no. 1/defendant no. 1 had paid a sum of Rs.20,000/- by

cheque and also that appellants/defendants after moving in the semi-

constructed suit property had completed the construction work and for

which had incurred an expenditure of Rs.50,000/-. Shifting in the suit

property by the appellants/defendants was in the year 1995. Appellant

no. 1/defendant no.1 also claims right in the suit property as per

Section 14 of the Hindu Succession Act, 1956.

7. After pleadings were complete in both the suits, the

following issues were framed:-

"5. As per the pleading following issues were framed in the first suit on 22.07.2010:

1. Whether the plaintiff is entitled to a decree of possession of the suit premises as prayed in prayer clause (a) of the plaint? OPP

2. Whether the plaintiff is entitled to damages/user charges of the suit premises, if any, for what period and what rate? OPP

3. Whether the defendants are the owners of 60 sq. Yards situated on the back portion of the suit property as alleged in the preliminary objection no. 1 of the WS? OPD

4. Whether defendant no. 1 has become owner of suit property as per „Ghoshan Patra dated 02.08.95‟ executed by plaintiff no.2? OPD

5. Whether the suit is not properly valued for the purposes of court fees and jurisdiction as per PO no. 3 of WS?

6. Whether the suit is bad on account of mis-joinder of defendant no. 2? OPD

7. Relief.

6. In the second suit following issues were framed on 03.04.2012:

i. Whether the suit of the plaintiff is barred by limitation? OPD ii. Whether the suit of the plaintiff is without cause of action?

OPD

iii. Whether the plaintiff is entitled to decree of permanent injunction in her favour and against the defendants as prayed? OPP iv. Whether the plaintiff is entitled to decree of mandatory injunction in her favour and against the defendant as prayed? OPP v. Whether the plaintiff is entitled to specific performance of agreement to sell as prayed/OPP vi. Whether the plaintiff is entitled to recovery of Rs. 03,001,00/-

on account of damages? OPP vii. Whether the plaintiff is entitled to any interest, if so at what rate and for which period? OPP viii. Whether the plaintiff is entitled to any future damages, if so at what rate and for which period? OPP ix. Relief."

8. At the outset, it be noted that appellants/defendants

inspite of repeated opportunities did not lead evidence and therefore

evidence of the appellants/defendants was closed. Therefore, there is

no evidence on record of the appellants/defendants whereas the

respondents/plaintiffs proved their case by leading evidence. The

relevant issues were issue nos. 3 and 4 in the suit filed by the father,

mother and son/plaintiffs against the appellant no. 1/defendant

no.1/daughter, and the connected issues were issue nos. (iii), (iv) and

(v) in the suit for specific performance filed by the

appellants/defendants. These issues were taken up for discussion

together and the trial court has held that not only no evidence has been

led by the appellants/defendants to substantiate their case of their

becoming owners of the suit property allegedly on account of paying

Rs.20,000/- to the father/plaintiff no. 1 and by further incurring

expenditure of Rs.50,000/- towards construction, in any case such a

plea would be a plea barred by law because a transfer of right in an

immovable property can only be by means of a registered instrument.

Though, the trial court has not mentioned Section 17(1)(b) of the

Registration Act, 1908, obviously it is this provision which would

apply besides the provision of Section 54 of the Transfer of Property

Act, 1882 which is mentioned by the trial court and which provides

that transfer of an immovable property can only be by means of a

registered sale deed.

9. Once appellants/defendants led no evidence and

respondents/plaintiffs led evidence, trial court has rightly decreed the

suit because respondents/plaintiffs proved their case and

appellants/defendants failed to substantiate their case by leading

evidence.

10. It was then argued on behalf of the appellants/defendants

that appellant no. 1/defendant no.1/daughter had right under Section

14 of the Hindu Succession Act, however trial court has rightly

rejected this argument noting that Section 14 of the Hindu Succession

Act would only apply if the property is inherited by a person as an

ancestral property and which is not the case of the

appellants/defendants as per their stand/defence/contention. I may also

add that entitlement under Section 14 of the Hindu Succession Act is

for converting a life estate into a full estate but appellant no.

1/defendant no.1 who is a married daughter has no right in the suit

property by virtue of Section 14 of the Hindu Succession Act because

there is no document transferring title of a life estate in the suit

property to her on account of her alleged right of maintenance. For

this reason also, the appellants/defendants could not have succeeded

on a case under Section 14 of the Hindu Succession Act.

11. I may note that after conclusion of the final arguments in

the suit and fixing the suit for final orders and clarifications on

29.9.2012, the father/plaintiff no.1 expired on 6.9.2014. An

application was moved by the respondents/plaintiff nos. 2 and 3 being

the widow and the son of the deceased plaintiff no. 1/father/husband to

bring them on record and this application was allowed by the trial

court because there were averments in the application that the

father/plaintiff no. 1 died leaving behind a registered Will dated

10.7.2006 in favour of the respondents/plaintiff nos. 2 and 3. It is also

important to note that in the suit plaint itself the father/plaintiff no. 1

when he was alive, he had mentioned the execution of his registered

Will dated 10.7.2006 in favour of his wife and son being the plaintiff

nos. 2 and 3 in the suit. Trial court by its order dated 17.8.2017

allowed the application by observing that Order XXII Rule 6 CPC will

apply once the stage of final arguments had been completed and the

case was only reserved for judgment/clarification on 29.9.2012 and

that the father/plaintiff no. 1 expired only thereafter on 6.9.2014.

Though, in my opinion, possibly the order dated 17.8.2017

substituting the plaintiff nos. 2 and 3 in place of plaintiff no. 1 may not

be correct, however, it is seen that there is no prayer clause urged by

the appellants/defendants in this appeal directing that the order dated

17.8.2017 be set aside though there is a ground urged with respect to

the same. Also, there is no specific ground urged by the

appellants/defendants that the order dated 17.8.2017 has to be set aside

because by the same order the suit was fixed for final arguments

again on 16.9.2017. In any case, in my opinion, once the existing

defence of the suit for possession had to be rejected and suit had to be

decreed then the defence had to be substituted by pleading existence

of subsequent events of appellant no. 1/defendant no.1 being a legal

heir of the father/plaintiff no. 1 and so as to be entitled to succeed to

the estate of the father/plaintiff no. 1 and for this purpose the

appellants/defendants should have after the death of the father/plaintiff

no. 1 moved an application to amend the written statement for

dismissing the suit for possession on the ground that the deceased

father/plaintiff no. 1 died without the Will and did not leave behind his

registered Will dated 10.7.2006 (which in any case was even

mentioned in the plaint), and only if such a cause of action was

pleaded for dismissal of the suit, the Court had to consider such a

defence as a defence to the suit for possession on account of change of

circumstances. Even in equity I do not find that this Court should

consider the plea of the suit for possession filed by the father, mother

and the brother of the appellant no. 1/defendant no.1 should be

dismissed because the plaintiffs in the suit were forced to file the suit

on account of harassment by the appellants/defendants in not vacating

the property of the father/plaintiff no.1 and the father/plaintiff no.1 in

fact had very much mentioned about his registered Will executed in

favour of the respondents/plaintiff nos. 2 and 3 being the wife and son

in the plaint itself, and therefore except a convenient stand of the

father/plaintiff no.1 dying intestate really in law and equity appellant

no. 1/defendant no.1 may not have any legal and factual validity.

12. After arguments, I put it to counsel for the

appellants/defendants as to whether appellants/defendants would like

to file a suit to seek rights in the suit property on the ground that there

is no determination on merits of the issue yet as to whether the

father/plaintiff no. 1 died intestate or died leaving behind the Will,

inasmuch as, the order dated 17.8.2017 passed by the trial court only

allows the application by applying Order XXII Rule 6 CPC and not on

the ground that the deceased father had died leaving behind a

registered Will dated 10.7.2006, however the counsel for the

appellants/defendants seeks that a judgment be passed by this Court.

13. In view of the aforesaid discussion, there is no merit in

the appeal, and the same is hereby dismissed.

FEBRUARY 27, 2018                             VALMIKI J. MEHTA, J
AK