Punjab-Haryana High Court

Rakesh Kumar Mehtani vs Mohini Mehtani & Ors on 2 June, 2023

                                      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                     CHANDIGARH

                        (1)                            RSA-75-2008 (O&M)
                                                       Reserved on: 26.05.2023
                                                       Date of pronouncement: 02.06.2023

                        Rakesh Kumar Mehtani
                                                                                   ...Appellant
                                              Versus

                        Mohni Mehtani and others

                                                                                ...Respondents

                        (2)                            RSA-76-2008 (O&M)

                        Rakesh Kumar Mehtani
                                                                                   ...Appellant
                                              Versus

                        Mohni Mehtani and others

                                                                                ...Respondents

                        (3)                            RSA-467-2008 (O&M)

                        Hawa Singh and others
                                                                                  ...Appellants
                                              Versus

                        Mohni Mehtani and others

                                                                                ...Respondents


                        CORAM: HON'BLE MR.JUSTICE H.S. MADAAN




                                                       *****
SUMIT KUMAR
2023.06.06 11:43
I attest to the accuracy and
authenticity of this order/judgment
                         H.S. MADAAN, J.

1. By this judgment, I intend to dispose of above mentioned

appeals between the same parties, having identical facts, arising out of

the same judgments and decrees.

2. Briefly stated facts of the case are that plaintiff Surender

Kumar Mehtani (since dead) now represented by his legal representatives

i.e. Smt. Mohni Mehtani-widow, Anurag son, Anupama Kohli and Anju

Mehta daughters, all residents of House No.89, GF Road No.7, East

Punjabi Bagh, Delhi had brought a suit for grant of declaration and

permanent injunction against defendants Rakesh Kumar Mehtani and 08

others.

3. As per case of the plaintiff, land measuring 78K-1M

comprised in khewat No.282, khatoni No.404, situated within the revenue

estate of Village Jamalpur, Tehsil Bawani Khera, District Bhiwani was

ancestral property of the plaintiff and defendant No.1 Rakesh Kumar

Mehtani and defendant No.2 Hari Singh Mehtani; they had inherited the

same from their father Sh. Vikram Singh Mehtani (mentioned as Bikram

Singh Mehtani in earlier litigation), who in turn had got this property by

way of inheritance from his fore-fathers; the property had nature of joint

Hindu family property in which plaintiff and defendants No.1 and 2 had

acquired interest by birth in the family and similarly constructed house

bearing No.89, Road No.7, East Punjabi Bagh, New Delhi measuring 280

sq. yards, is also joint Hindu Family Ancestral property of plaintiff and

defendants No.1 & 2 because it was purchased by their father Vikram

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment Singh Mehtani with joint Hindu family funds; the plaintiff has been

residing in half portion of the ground floor of that house whereas the

remaining portion is in possession of defendants No.1 and 2; initially, Sh.

Vikram Singh Mehtani, father of plaintiff and defendants No.1 & 2 was

married with Smt. Charan Devi @ Gian Devi who was mother of the

plaintiff and defendant No.2 and after her death, he contracted a second

marriage with Smt.Shanti Devi who had given birth to defendant No.1

Rakesh Kumar Mehtani from loins of Sh. Vikram Singh Mehtani; after

getting married with Shanti Devi, Sh. Vikram Singh Mehtani came under

her influence and started ignoring the plaintiff; Sh. Vikram Singh

Mehtani had no right to alienate the suit property; Sh. Vikram Singh

Mehtani died on 22.04.1970, leaving behind his wife Shanti Devi, sons

plaintiff and defendants No.1 & 2 as his legal heirs and they became joint

owners in possession of the suit property in equal shares.

4. Sh. Vikram Singh Mehtani had no right to execute any Will

in respect of the suit property, nevertheless, he executed a Will in favour

of Shanti Devi on 16.04.1970 ignoring the plaintiff and defendants No.1

& 2; that Will was got registered in the office of Sub Registrar,

Muradabad on 18.04.1970 and on the basis of that Will, mutation

No.2533 was sanctioned in favour of Shanti Devi on 06.02.1976; all

these proceedings were conducted on the back of plaintiff and he had no

knowledge regarding the same; in the civil suit filed by him, the plaintiff

had challenged Will dated 18.04.1970, mutation No.2533 and the

subsequent revenue record; as the case of the plaintiff goes, Shanti Devi

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment had alienated agricultural land by executing different sale deeds in favour

of defendants No.3 to 9; according to the plaintiff, all these sale deeds are

illegal, null and void, not binding upon his rights; Shanti Devi had died

on 22.01.1993 and after her death, the plaintiff and defendants No.1 & 2

are joint owners in possession of the entire property to the extent of 1/3rd

share each; defendants No.1 & 2 are not absolute owners of the house in

suit situated at Delhi and the Will executed by Shanti Devi in favour of

defendants No.1 & 2 with respect to the house in suit is also wrong,

illegal, null and void, not binding upon the rights of plaintiff; when the

defendants refused to concede the claim of the plaintiff, feeling

aggrieved, he brought the suit in question.

5. On being put to notice, defendants appeared and filed written

statements. Defendants No.1 and 2 filed a joint written statement whereas

defendants No.3 to 9 had submitted a separate written statement. In the

written statement filed by defendants No.1 & 2, they had raised various

legal objections challenging locus standi of the plaintiff to file the suit;

the suit being not maintainable; no cause of action having arisen to the

plaintiff to bring the suit; the plaintiff being estopped by his own act and

conduct to file the suit; the suit being barred by limitation etc.

On merits, the answering defendants admitted their

relationship with the plaintiff and with Sh. Vikram Singh Mehtani. The

assertions in the plaint with regard to Sh. Vikram Singh Mehtani being

earlier married with Charan Devi @ Gian Devi and plaintiff and

defendant No.2 having been born from that wedlock, Charan Devi @

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment Gian Devi having expired and Sh. Vikram Singh Mehtani contracted

second marriage with Shanti Devi and being blessed with a son namely

Rakesh Kumar Mehtani defendant No.1 from that wedlock stood

admitted, however, it was denied that Sh. Vikram Singh Mehtani along

with his wife and sons formed any joint family or that the agricultural

land and the house in suit at Delhi were joint Hindu Family Ancestral

Property. According to such defendants, those were self acquired

properties of Sh. Vikram Singh Mehtani. The plaintiff had been working

at Bhillai (MP) during life of Sh. Vikram Singh Mehtani and he was not

joint with his father in any manner.

With regard to Will executed by Sh. Vikram Singh Mehtani

in favour of Shanti Devi, the same was defended as legal and valid,

contending that on the basis of that Will, Shanti Devi became absolute

owner of the properties inherited by her from her husband and she could

deal with such property in any manner she felt like. Shanti Devi had

debarred the plaintiff from inheritance of her property, since the plaintiff

and his family members had turned hostile towards her and had been

misbehaving with her. Shanti Devi had permitted the plaintiff to put his

household articles in a portion of her house purely on humanitarian

ground for some time. The plaintiff had put his articles in a portion of the

ground floor of the house in the year 1987. Earlier the plaintiff was

working in Bhillai Steel Plant (MP). He got pre-mature retirement in the

year 1987 and shifted to Delhi. He requested Shanti Devi to permit him to

put his belongings temporarily in the house in suit and Shanti Devi had

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment allowed him to do so. The status of plaintiff in the house was that of a

licensee without payment of any license fee, however, plaintiff started

misbehaving with Shanti Devi and pressurized her to give the house to

him. He threatened to kill Shanti Devi, as such, Shanti served a legal

notice dated 09.02.1990 upon the plaintiff asking him to remove his

belongings from the house in question as his activities were harmful to

her. Further Shanti Devi had got published a public notice in the

newspaper to the effect that he had disowned her son Surender Kumar

Mehtani and his family from moveable and immovable properties. Shanti

Devi during her life time had executed a registered Will dated

06.04.1991 in favour of defendants No.1 & 2. She had died on

22.01.1993 and after her death, the answering defendants have become

owners of the entire property by operation of law. Shanti Devi during her

life time had already sold the agricultural land situated at Village

Jamalpur, vide various sale deeds to defendants No.3 to 9. Refuting the

remaining assertions, such defendants prayed for dismissal of the suit.

6. In the written statement submitted by defendants No.3 to 9,

they contended that they are bona fide purchasers for consideration

without notice. Prior to purchase of the land, they had made enquiries

from the village as well as from the record and after satisfying

themselves, they had purchased the suit land from Shanti Devi after

paying full consideration amount. At the time of purchase or thereafter,

the plaintiff or defendants No.1 & 2 did not raise any type of objection

regarding those sale deeds. The mutation have already been sanctioned in

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment favour of such defendants, who are in possession over the same since the

time of purchase. Those defendants also craved for dismissal of the suit.

7. Plaintiff filed replications controverting the allegations in the

written statements whereas reiterating the averments in the plaint.

8. From the pleadings of the parties, following issues were

framed:-

Whether the plaintiff is the owner in possession of the suit land of 1/3rd share and defendants No. 1 and 2 were the owners in possession of 2/3rd share as alleged?OPP

2. Whether the will registered on dated 18.4.1970 executed by Vikram Singh in favour of Smt. Shanti Devi is null and void and not binding on the rights of the plaintiff and the mutation no. 2533 sanctioned on the basis of the Will is also null and void?OPP

3. Whether the sale deed dated 24.6.1977 executed by Shanti Devi in favour of defendants no. 3 to 5 and the mutation no. 2627 sanctioned on the basis of the sale deed and the sale deed dated 8.1.1979 executed by Smt. Shanti Devi in favour of defendants No. 4 to 7 and the mutation no. 2801 sanctioned on the basis of the sale deed and sale deed dated 22.7.1982 executed by Smt. Shanti in favour of defendant No. 8 and mutation No. 2891 sanctioned on the basis of sale deed and further sale deed dated 22.7.1982 executed by Smt. Shanti Devi in favour of defendant No. 9 and mutation no. 2870 and sale deed dated 11.8.1985 executed by Smt. Shanti in favour of defendant no. 5 and mutation no. 2972 on the basis of the sale deed are all wrong. illegal, null and void and not binding on the rights of the plaintiff? OPP

4. Whether the Will executed by Smt. Shanti Devi in favour of defendants no. 1 and 2 regarding the house no. 89 road SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment No. 7, East Punjabi Bagh, Delhi is null and void and not binding on the rights of the plaintiff?OPP

5. Whether Vikram Singh executed a valid will in favour of his wife Smt. Shanti Devi if so to what effect? OPD (1&2)

6. Whether Smt. Shanti executed a valid will in favour of defendants No. 1 and 2. If so to what effect? OPD (1&2).

7. Whether the plaintiff had no locus standi or cause of action to file the present suit ?OPD

8. Whether Smt. Shanti was the absolute owner of the suit property?OPD (1&2)

9. Whether the civil suit No. 828 of 1990 titled as Surender Kumar Versus Shanti Devi Mehtani in the Civil Court at Delhi, if so to what effect?OPD

10.Whether the suit is not maintainable in the present form?OPD.

11.Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD.

12. Whether the suit is time barred?OPD

13.Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD

14.Whether the suit is false, frivolous and vexatious to the knowledge of the plaintiff?OPD

15.Whether the defendants No. 3 to 9 are bona fide purchaser for consideration? OPD

16.Whether the civil court Bhiwani has no jurisdiction to try and entertain the present suit?OPD.

17.Whether the defendants are entitled for the special costs u/s 35-A CPC?

18.Relief.

9. The parties were afforded sufficient opportunities to lead

evidence in support of their respective claims. SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment

10. After hearing arguments, the trial Court of Addl. Civil Judge

(Sr. Divn.), Bhiwani by giving issue-wise findings decreed the suit of the

plaintiff partly to the effect that Will dated 18.04.1970 is not proved and

the same is not binding on the rights of the plaintiff. It was set aside and

the plaintiff was declared to be joint owner in possession of the house

situated at Delhi to the extent of 1/4th share whereas the remaining share

in the house belonging to the defendants. The remaining relief claimed by

the plaintiff was declined. This was so done, vide judgment and decree

dated 06.10.2004.

11. Feeling aggrieved by the judgment and decree passed by the

trial Court, defendant No.1 Rakesh Kumar Mehtani and legal

representatives of Surender Kumar Mehtani, plaintiff had filed two

separate appeals before District Judge, Bhiwani. Those were assigned to

Addl. District Judge, Bhiwani and disposed of, vide a single judgment

dated 13.09.2007 inasmuch as the appeal filed by defendants was

dismissed whereas the appeal filed by the legal representatives of the

deceased plaintiff was accepted and the suit was decreed in toto declaring

the plaintiff Surender Kumar Mehtani (since dead) and now represented

by his legal representatives to be entitled to 1/4th share in the suit

property.

12. The judgment and decree passed by Addl. District Judge,

Bhiwani left defendant Rakesh Kumar Mehtani dissatisfied and he has

filed Regular Second Appeals No.75 and 76 of 2008 whereas defendants

No.3 to 9 namely Hawa Singh, Musadi, Prithi, Ved Parkash, Dalbir,

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment Mohinder Kumar and Ram Nath have filed RSA No.467-2008.

Notices in the three appeals were issued to the respective

respondents, who have put in appearance through counsel.

13. I have heard learned counsel for the parties besides going

through the record.

14. In this case, the relationship between the parties inter se as

well as with Sh. Vikram Singh Mehtani, the earlier owner of the property

and Smt. Shanti Devi is not disputed so is the fact that Sh. Vikram Singh

Mehtani was the original owner of the property. As per the case set up by

the plaintiff, Surender Kumar Mehtani (since dead) now represented by

his legal representatives, the suit property in the form of residential house

bearing No.89, GF Road No.7, East Punjabi Bagh, New Delhi, measuring

280 sq. yards and land having area of 78K-1M situated at Village

Jamalpur, Tehsil Bawani Khera, District Bhiwani had nature of joint

Hindu family ancestral property, in which he being son of Sh. Vikram

Singh Mehtani had acquired interest by reason of his birth and Sh.

Vikram Singh Mehtani had no right to execute any Will in favour of his

wife Smt. Shanti Devi and Will set up by defendants No.1 and 2 dated

16.04.1970 is not a legal and valid document and is ineffective qua his

rights.

15. Now the question to be seen is as to whether the plaintiff has

been able to prove such assertions, the answer is in negative.

A perusal of the judgment passed by the trial Court of Addl.

Civil Judge (Sr. Divn.) Bhiwani goes to show that the trial Court relied

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment upon statement of PW-1 Bhima Ram, Patwari, who had produced

certified copies of jamabandies had deposed that Sh. Vikram Singh

Mehtani son of Girdhari Lal had become owner of land measuring 209K-

8M, vide mutation No.1624 which was sanctioned on the basis of a Court

decree suffered by Girdhari Lal in favour of Sh. Vikram Singh Mehtani

thereby showing that Sh. Vikram Singh Mehtani had not inherited that

property from his forefathers but had got it by way of decree suffered by

his father in his favour. That clearly goes to show that the landed property

so acquired by Sh. Vikram Singh Mehtani cannot be said to have nature

of ancestral property. Furthermore, there is no evidence to show that Sh.

Vikram Singh Mehtani along with his three sons formed a joint Hindu

family of which he was a karta and family used to reside together and

pool the income with which the assets including the residential house at

Punjabi Bagh were created rather the evidence shows that Surender

Kumar Mehtani had been working in a Steel Plant at Bhillai and residing

there along with his family and on his retirement, they had shifted to

Delhi, which was after the death of Sh. Vikram Singh Mehtani. Therefore,

it was not established that the suit property in the name of Sh. Vikram

Singh Mehtani was joint Hindu family ancestral property in which the

plaintiff or other sons of Sh. Vikram Singh Mehtani namely Rakesh

Kumar Mehtani and Hari Singh Mehtani might have acquired any right

by reason of their birth in the family. It being so, Sh. Vikram Singh

Mehtani is to be taken as absolute owner of the suit property with which

he could deal in any manner he felt like.

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment

16. The trial Court has rightly come to the conclusion with

regard to Sh. Vikram Singh Mehtani being absolute owner of the suit

property and fully competent to execute the Will. However, with regard to

registered Will dated 16.04.1970 executed by Sh. Vikram Singh Mehtani

in favour of Shanti, the trial Court dealt with that aspect in a very strange

and unusual manner, on one hand observing that the defendants had not

placed on record the original Will and had not examined the scribe or

attesting witness thereof, therefore, requirement of Section 68 of the

Indian Evidence Act (for short 'the Act') were not fulfilled and the Will

was not proved. The plea taken up by the defendants that since the Will

was a document more than 30 years old in terms of Section 63 of the Act,

therefore, Will is per se admissible was rejected for the reason that in the

presence of specific provision under Section 68 of the Act requiring

examination of at least one attesting witness to prove the execution of

Will, no presumption with regard to due execution and attestation of Will

could be drawn in terms of Section 63 of the Act. It was taken notice of

that certified copy of the Will which was available on the record was not

per se admissible and since the Will is dated 16.04.1970 and the suit in

hand was filed in the year 1996 before expiry of 30 years, no such

presumption could be.

17. After saying so, the trial Court started scrutinizing the Will

on merits observing that Will is surrounded by suspicious circumstances.

If the trial Court was of the view that Will had not been proved on the

record, there was no reason to start finding faults with the same, however,

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment the circumstances allegedly found to be suspicious can definitely be

explained in a satisfactory manner as per explanation given by counsel

for the defendants.

18. The first suspicious circumstance noticed was that the

testator had not bequeathed any part of his property to any of his sons and

in the absence of evidence that relations between the testator and his sons

were strained, there was no reason for him to disinherit his sons and to

bequeath the entire property to his wife. The explanation rendered on

behalf of the defendants in the trial Court as well before this Court is that

Sh. Vikram Singh Mehtani had not granted any share in his estate to any

of his sons and rather desired that his residential house and landed

property should go to his second wife to ensure financial security to her.

The testator had not disinherited his son Surender Kumar Mehtani alone

but all the three sons, who were well placed in life, whereas it was not so

with regard to Shanti Devi and the endeavour of the testator was to

ensure that Shanti Devi did not face any problem in maintaining herself

and getting her financial needs met in future. This is certainly a valid

explanation and does not constitute any suspicious circumstance.

19. Another reason given is that at the time of his death, Sh.

Vikram Singh Mehtani was in grip or under influence of Shanti Devi and

Sh. Vikram Singh Mehtani had died six days after executing the Will.

Again the trial Court had jumped to this conclusion without any

justification. The fact cannot be lost sight of that Will is a registered

document which gives presumption of due execution. As it comes out

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment from the record, the Sub Registrar had gone to the house of testator to

his official duties would certainly not have registered the Will, if he had

any iota of doubt that the Will was being executed by the testator under

influence of the beneficiary or some other interested person. Death of Sh.

Vikram Singh Mehtani after about six days of execution of Will can also

be not taken to be a suspicious circumstance because as it appears that

Sh. Vikram Singh Mehtani realized that he might not survive his illness,

then he executed the Will and to add authenticity got it registered. The

observation by the trial Court that Sh. Vikram Singh Mehtani was not in

sound disposing mind has also has been made without there being any

such evidence on record or circumstance pointing out towards that.

20. It may be mentioned here that plaintiff Surender Kumar

Mehtani alone is disputing the Will when he himself had acquiesced in

the matter.

Testamentary succession is deviation from the normal

succession. The owner of a property has got every right to give property

to any person after his death by making a Will. Sh. Vikram Singh Mehtani

had died on 22.04.1970. Plaintiff Surender Kumar Mehtani did not

challenge the Will in favour of Shanti Devi despite having knowledge

regarding the same till he filed the civil suit in question which was on

21.05.1996. He had rather kept quiet for such a long period. The matter

would have been different if Surender Kumar Mehtani was not aware of

the Will executed by Sh. Vikram Singh Mehtani in favour of Shanti Devi.

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment Since Surender Kumar Mehtani had died during pendency of the suit filed

by him, his widow Smt. Mohini Mehtani, one of his legal representatives

had got her statement recorded as PW2 submitting her affidavit

Ex.PW2/A. Though in her affidavit, she had repeated on oath the case of

plaintiff as given in the plaint but then in her cross-examination, she has

made certain admissions which are quite damaging to the case of the

plaintiff. She had admitted in her cross-examination that in terms of the

Will, Shanti Devi had become owner of the suit property after death of

Sh. Vikram Singh Mehtani and they had come to know about the Will in

the year 1987, when they had shifted to house at Delhi. She stated that

they had filed a suit in Court at Delhi challenging the Will when as a

matter of fact that suit was for grant of mandatory and permanent

injunction and Will had not been challenged at all. On getting notice, the

defendants had put in appearance in that suit pleading the Will in

question. Issues on merits were framed. Plaintiff Surender Kumar

Mehtani had not adduced any evidence in that regard. Resultantly, his suit

had been dismissed. She further admitted that Shanti Devi had sold of

63K-7M of land on 24.06.1977 to respondents No.3 to 5 stating that they

had come to know about the sale in the year 1987. She further admitted

that 31K-7M of area had been sold by Shanti Devi to defendants No.4 to

7 on 08.01.1979 and they had come to know about it in the year 1987

when they had gone to Village Jamalpur. They had come to know about

sale deeds also at that time, then they had met Shanti Devi enquiring as to

why she had sold the land to which she stated that as she was owner, they

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment were nobody to ask her for accounts.

21. She stated that the civil suit with regard to house at Delhi

was filed in the year 1990. She admitted that the vendees of the

agricultural land are in possession of the land purchased by them at the

spot. Will is a registered document. Registration of a document is notice

to the entire world regarding its existence. When Sh. Vikram Singh

Mehtani had died on 22.04.1970 and the plaintiff was desirous of getting

a share in estate of his father, he should have taken immediate action, in

getting mutation entered and sanctioned in his name and that of other

legal heirs of Sh. Vikram Singh Mehtani by natural succession with

regard to the landed property as well as the residential house. He should

have approached the municipal authorities for change of ownership from

that of Sh. Vikram Singh Mehtani in the name of his sons and widow but

he kept quiet.

22. Even if for a moment, it is taken that Surender Kumar

Mehtani came to know about existence of Will in favour of Shanti Devi

in the year 1987, he should have taken prompt action in challenging that

Will and getting it set aside, since by that time, Shanti Devi had stepped

into shoes of Sh. Vikram Singh Mehtani by testamentary succession and

was alive, but then Surender Kumar Mehtani had not taken any action at

that time also, rather he had filed a civil suit in the Court at Delhi in the

year 1990.

23. A perusal of the judgment passed in that civil suit bearing

No.828 of 1990 titled as 'Surender Kumar Mehtani Vs. Smt. Shanti Devi

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment Mehtani & Ors.', copy Ex.D1 goes to show that Surender Kumar Mehtani

had filed a suit against defendants on 26.10.1990 seeking a decree for

permanent injunction for restraining the defendants Shanti Devi Mehtani,

Hari Singh Mehtani and Rakesh Kumar Mehtani from interfering in his

possession and from alienating the suit property in any manner. In that

suit, he had claimed himself to be owner in possession in respect of

portion of suit property shown in red colour in the site plan, as a result of

mutual settlement arrived at between the parties after death of Sh. Vikram

Singh Mehtani on 22.04.1970. Therein, the plaintiff had alleged that the

plot No.89/7 East Punjabi Bagh, Delhi was purchased by his father out of

sale proceeds of their agricultural land of Village Jamalpur District

Bhiwani and the house was constructed in the year 1965-67 when

plaintiff was not in Delhi as he was serving in Steel Authority of India

Ltd., posted at Bhillai (MP). In the year 1987, when plaintiff came to

Delhi, he was given possession of portion in the house where he along

with his family are residing. Defendant No.1 had served a legal notice

dated 09.02.1990 upon him directing him to vacate the possession of the

portion being occupied by him and had got published public notice in the

newspapers. The defendants had contested that suit taking a specific plea

that defendant No.1 was exclusive owner of the entire suit property on

the basis of the Will registered with Sub Registrar Muradabad executed

by Sh. Vikram Singh Mehtani and mutation had also been sanctioned in

her favour on the basis of Will. The plot underneath the house was

purchased by Sh. Vikram Singh Mehtani out of his earnings as an

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment employee with Delhi Administration and construction was raised with his

savings from salary, LIC policies. The plaintiff had not contributed

anything towards that. Issues on merits were framed. Plaintiff was

afforded several opportunities but he did not lead any evidence. Vide

judgment dated 13.09.1999, the suit had been dismissed. In that suit,

despite having knowledge of the Will in favour of Shanti Devi as

admitted by Mohini Mehtani in her cross-examination way-back in the

year 1987, the Will was not challenged. The plaintiff had based his claim

with regard to residential house only and not with regard to agricultural

land being owned by Sh. Vikram Singh Mehtani.

24. According to the plaintiff, he had acquired interest in the

house since the plot underneath the house was purchased with the money

received by sale of the landed property at Village Jamalpur and

construction was also raised with those funds. That contention of plaintiff

was obviously wrong, since as discussed above, such land in hands of Sh.

Vikram Singh Mehtani is not proved to be ancestral coparcenary property,

rather, that comes out to be his absolute property. If that was so, the

plaintiff and other sons of Sh. Vikram Singh Mehtani did not acquire any

interest in the agricultural land or residential house by reason of their

birth in the family. Interestingly in that suit, the plaintiff wanted to get a

declaration that he is owner of the portion of the house in his possession

in the garb of injunction which is not permissible under law. He was

talking of some arrangement said to have been arrived at between the

parties after death of Vikram Singh Mehtani but he did not bring on

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment record any evidence to prove that assertion, rather, version set up by the

defendants that the plaintiff had been allowed to reside in portion of the

residential house as a licensee, comes out to be much more plausible and

convincing. The plaintiff having not sought a specific declaration that he

is in possession of portion shown in red colour attached with the plaint as

absolute owner on the basis of natural succession from Sh. Vikram Singh

Mehtani or that the Will dated 16.04.1970 executed by Sh. Vikram Singh

Mehtani in favour of Shanti Devi which was registered in the office of

Sub Registrar, Muradabad on 18.04.1970 is illegal, null and void despite

having specific knowledge in that regard not challenging the sale deeds

executed by Shanti Devi in favour of defendants No.3 to 9, the present

suit is obviously barred under Order 2 Rule 2 CPC as well as constructive

res judicata.

25. Learned counsel for the appellant has referred to various

judgments in that regard. First being Life Insurance Company of India

Vs. Sanjeev Builders Private Ltd. & Anr. in Civil Appeal No.5909-

2022 arising out of SLP (C) No.22443-2019. In that judgment, it was

observed that the Legislature thought it fit to debar a plaintiff. Paras

No.45 and 46 of this judgment are quite relevant and are being

reproduced for ready reference:-

"45. The expressions "omits to sue" and "intentionally relinquish any portion of his claim" give an indication as to the intention of the legislature in framing the said rule. The term 'sue' can mean both the filing of the suit and prosecuting the suit to its culmination, depending on the context of the provision. In the present case, the legislature SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment thought it fit to debar a plaintiff from suing afterwards for any relief which he/she has omitted without the leave of the court or from suing in respect of any portion of his claim which he intentionally relinquishes. Order II Rule 2(1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.

46. The provision of Order II Rule 2 of the CPC has been well discussed by the Privy Council in the case of Mohd. Khalil Khan & Ors. v. Mahbub Ali Mian & Ors., AIR 1949 PC 78, held as under:

"The principles laid down in the cases thus far discussed may be thus summarized :

(1.) the correct test in cases falling under Or. 2, r. 2, is "whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation for the former suit." (Moonshee Buzloor Ruheem v. Shumsoonnissa Begum.) (2.) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. (Read v. Brown.) (3.) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey.) (4.) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden v. Humphrey.) (5.) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. It refers "to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." (Muss.

Chand Kour v. Partab Singh.) This observation was

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment made by Lord Watson in a case under s. 43 of the Act of 1882 (corresponding to Or. 2, r. 2), where plaintiff made various claims in the same suit."

26. Learned counsel for the appellant had further referred to

judgment Vurimi Pullarao Vs. Vemari Vyankata Radharani, (2020) 14

SCC 110. As per the facts of that judgment, earlier a suit for injunction

was instituted which contained recital of agreement to sell, price fixed for

the bargain between the parties, payment of earnest money, handing over

of possession, demand for performance and the failure of defendant to

perform the contract and cause of action for suit for specific performance

had arisen. The plaintiff was entitled to suit for specific performance,

however, plaintiff omitted to do so. No leave of the Court was obtained

and second suit was filed for specific performance which was found to be

barred under Order 2 Rule 2 CPC. It had been observed that a plaintiff

who has omitted to sue or has intentionally relinquished any portion of

the claim within the meaning of Order 2 Rule 2 (2) CPC was not

afterwards be entitled to sue in respect of the portion so omitted or

relinquished.

27. In support of his contention that principle underlining Order

2 Rule 2 CPC is that no should can be vexed twice over same cause of

action, learned counsel for the appellant had referred to judgment

Parmod Kumar & Anr. Vs. Zalak Singh & Ors., 2019 AIR (SC) 2465.

28. In judgment Dadu Dayalu Mahasabha, Jaipur (Trust) Vs.

Mahant Ram Niwas & Anr., in Civil Appeal No.3495 of 2008 (arising

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment out of SLP (C) No.10317 of 2007), decided on 12.05.2008, while

discussing the scope of Order 2 rule 2 CPC, it was observed that when

entire relief is not claimed in the first suit provisions of Order 2 Rule 2

bars the jurisdiction of the Court in entertaining a second suit where the

plaintiff could have but failed to claim the entire relief in the first one.

29. In judgment State Bank of India Vs. Gracure

Pharmaceuticals Ltd., in Civil Appeal Nos. 10531-10532 of 2013

(arising out of SLP (C) Nos. 5945-5946 of 2009), decided on 22.11.2013,

while dealing with provisions of Order 2 Rule 2 CPC, it was observed by

the Apex Court that order 2 Rule 2 enjoins on the plaintiff to include the

whole of the claim which the plaintiff is entitled to make in respect of the

cause of action and if the plaintiff omits to sue or intentionally

relinquishes any portion of his claim it is not permissible for him to sue

in respect of the portion so omitted or relinquished afterwards because

the plaintiff cannot be permitted to draw the defendant to Court twice for

the same cause by splitting up the claim and suing in the first instance in

respect of a part of claim only.

30. The present suit is clearly barred by Order 2 Rule 2 CPC and

by limitation even.

The Legislature in its wisdom had enacted the Limitation Act

providing a specific period of limitation for a person to approach the

Court for redressal of his grievances because the Damocles sword of

litigation cannot be kept hanging over heads of the persons against whom

a particular person nurses a grudge of being wronged at his/their hand(s).

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment

31. Section 3 of the Limitation Act provides that every suit

instituted, appeal preferred and application made after the prescribed

period shall be dismissed, although, limitation has not been set up as a

defence. Article 58 of the Limitation Act provides that to obtain a

declaration, the period of limitation is three years which begins to run

when the right to sue first accrues.

32. In this case, the right to sue accrued to the plaintiff for the

first time on 22.04.1970 when Sh. Vikram Singh Mehtani, the original

owner of the suit properties had expired because the succession opened at

that very time. There is no denying the fact that succession does not

remain in abeyance but then the beneficiary or likely beneficiary in the

estate of the deceased has to stake his claim at the earliest rather than

going into slumber and not enforcing his right at the earliest. In this case,

the plaintiff had filed a suit in Court at Delhi in the year 1990 wherein he

had asserted his right in the residential house, although, in a very vague

and ambiguous manner. Subsequently, he had brought a suit in Court at

Bhiwani which was in the year 1996 i.e., after 26 years of death of Sh.

Vikram Singh Mehtani and execution of registered Will by him in favour

of Smt. Shanti Devi. Under the circumstances, the suit was clearly time

barred and the plaintiff was estopped by his own act and conduct from

bringing the suit. It is not that one can sleep over one's rights for a long

time and one fine morning get out of slumber and after 26 years of arising

of cause of action file a suit. The suit is clearly time barred. As already

observed, the suit is hit by Order 2 Rule 2 CPC and further the plaintiff is

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment estopped by his own act and conduct from filing the suit.

33. Reverting back to the judgment passed by the trial Court, it

had not taken into consideration the legal bars under Order 2 Rule 2 CPC,

estoppel and limitation for filing of the suit and granted relief to the

plaintiff with regard to 1/4th share in the residential house ignoring the

Will dated 18.04.1970 when on the basis of testamentary succession,

Shanti Devi had become owner of the house in question and the plaintiff

could not get any share in that house. Learned counsel for the appellant

had submitted that the suit is bad for constructive res judicata because in

the previous suit filed by plaintiff in the Court at Delhi which was

dismissed in the year 1999, the plaintiff had not specifically taken the

plea that he is entitled to 1/4th share in the suit property on the basis of

same being joint Hindu family property. In support of his contention, he

had referred to judgment Aanaimuthu Thevar deceased by LRs Vs.

Alagammal & Ors., in Civil Appeal No.2592-2593 of 2000 decided on

12.07.2005.

34. However, the trial Court was justified in refusing the

remaining relief to the plaintiff with regard to sale deed executed by

Shanti Devi in favour of defendants No.3 to 9 as regards the agricultural

land situated at village Jamalpur, District Bhiwani. As has been discussed

in the earlier part of the judgment, that land in hands of Sh. Vikram

Singh Mehtani has been found to be his absolute property and he could

very well execute the Will in that regard in favour of his wife Shanti

Devi. After his death, Shanti Devi stepped into his shoes acquiring

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment ownership of that agricultural land. Mutation was sanctioned in her name

and then she had sold of the land to defendants No.3 to 9 by different sale

deeds. It is specific case of defendants No.3 to 9 that they are bona fide

purchasers for consideration without notice. They had statedly made

enquiries with regard to revenue record and from other persons finding

that Shanti Devi was owner of the land and then purchased the same from

her. Even Mohini Mehtani in her cross-examination has admitted the fact

regarding Shanti Devi having sold the land to defendants No.3 to 9. Such

purchasers of the land are certainly protected under law. However, the

trial Court fell in error in coming to the conclusion that suit was time

barred with regard to sale deeds executed by Shanti Devi in favour of

defendants No.3 to 9 but not as far as challenge to Will dated 18.04.1970.

The suit to that extent was also barred by limitation.

35. The fact cannot be lost sight of that the plaintiff did not

challenge the Will during life time of Shanti Devi inasmuch as in the

previous suit filed by him in Court at Delhi, he did not do so despite

having an opportunity to challenge the Will and doing it after a period of

26 years of arising of cause of action and even if it is believed that he had

acquired knowledge regarding the same in the year 1987 as admitted by

wife of deceased plaintiff in her cross-examination, the present suit was

filed in the year 1996 i.e. after 9 years of gaining knowledge that a cloud

has been cast over his title. The bar of limitation does come into play. The

Will was challenged when the beneficiary under the Will had expired.

The matter could not have been reopened after such a long time, saying

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment that the succession does not remain in abeyance and the person affected

by testamentary succession can file a suit at any time, that would render

the provisions of Limitation Act redundant and if that logic is considered,

then the Will could have been challenged after a longer period even, say

after 50 years, 70 years and so on of opening of the succession but that

cannot be.

36. Learned counsel for respondents No.1 to 4 had also referred

to few judgments. First being Alka Gupta Vs. Narender Kumar Gupta,

2010 (3) Apex Court judgments 545 (SC), Venkategowda Vs.

Shivanegowda & Anr., 1990 CivCC 435 but for the reasons mentioned

above, these judgments are not helpful to the case of respondents No.1 to

4 i.e. LRs of deceased plaintiff.

37. He had further referred to judgment Mohinder Singh &

Anr. Vs. Kashmira Singh, AIR 1985 P & H 215 in support of his

contention that inheritance does not remain in abeyance. However, the

facts of that judgment were quite different and the observations made

were that inheritance does not remain in abeyance and the heirs after

death of the last male holder succeed to the property of the deceased in

accordance with law. As per facts of that case, son of the deceased owner

was found entitled to 1/3rd share in the land in dispute and it was

observed that he was not required to file any suit for possession on the

basis of inheritance, however, it was observed that when a heir is not in

possession of the property, in that event the suit for possession may have

to be filed which is governed by the provisions of Article 65 of the

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment Limitation Act i.e. within a period of 12 years from the date when the

inheritance opens. Even otherwise, the facts of the present case are quite

different from the facts of the judgment in question. As discussed supra,

Surender Kumar Mehtani being aware of existence of the Will by his

deceased father Vikram Singh Mehtani in favour of his stepped mother

Shanti Devi which had cast a cloud over his rights, choose to keep mum

for a long time and as has been discussed earlier, the estoppel came in his

way of filing the present suit besides bar of Order 2 Rule 2 CPC and

constructive res judicata. Although earlier the law was to the effect that

limitation does not apply to a void order and one could challenge that

order at any point of time without bar of limitation coming into play but

it is not so now because even a void order has to be challenged within a

period of limitation so as to get it set aside and if it is not so done, the

void order attains finality and cannot be got set aside later on.

38. Similarly a wrongful action needs to be challenged and got

set aside within a period of limitation and if a person in whose favour

cause of action arises keeps quiet and allow that order/action to exist as

such by his acquiescence and inaction, then he cannot challenge its

legality and validity after the period of limitation. Law requires a person

to be alert and conscious of his legal rights and in case he feels

aggrieved, to avail legal remedy at the earliest within a fixed time period

provided by the Limitation Act and the law does not come to rescue of a

person who is grossly negligent, sluggish and careless. Sometimes, a

person aggrieved is not aware of any actionable wrong done to him by

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment some other person, in that case, provision is made for condonation of

delay if the same is found to be unintentional and valid reasons for

condoning the delay comes out to be there, but no such reason exist in

this case.

39. Similarly the other judgment referred to by learned counsel

for respondents No.1 to 4 Ram Chander Vs. Prito & Ors., in RSA-

5086-2012 decided on 20.09.2022 is not helpful to the case of such

respondents in any manner.

40. The judgment and decree passed by the trial Court to the

extent of declaring the plaintiff joint owner in possession of the house

situated at Delhi to the extent of 1/4th share was wrong, however, that

wrong was further compounded by learned Addl. District Judge, Bhiwani

when in the judgment passed by him disposing of appeal No.112 of 2004

filed by defendant Rakesh Kumar Mehtani and Civil Appeal No.113 of

2004 filed by legal representatives of Surender Kumar Mehtani namely

Mohini Mehtani etc., he had dismissed the appeal filed by Rakesh Kumar

Mehtani while allowing the appeal filed by the plaintiff decreeing the suit

in toto, declaring the plaintiff Surender Kumar Mehtani (since deceased)

and now represented by his legal representatives be entitled to 1/4th share

in the suit property. That judgment was result of misappraisal of evidence

and wrong interpretation of law. As has been discussed in detail earlier,

plaintiff Surender Kumar Mehtani now represented by his LRs did not

acquire any interest in the residential house or agricultural land and the

suit deserve dismissal in toto. Therefore, the impugned judgments and

SUMIT KUMAR 2023.06.06 11:43 I attest to the accuracy and authenticity of this order/judgment decrees are set aside that is of trial Court to the extent of granting

Surender Kumar Mehtani (since deceased) 1/4th share and that of Addl.

District Judge, Bhiwani decreeing the suit of plaintiff in toto setting aside

the sale deed executed by Shanti Devi in favour of defendants No.3 to 9.

The appeals filed by Rakesh Kumar Mehtani bearing Nos. RSA-75 and

76 of 2008 and Hawa Singh and others bearing No.467 of 2008 are

allowed and suit of the plaintiff is ordered to be dismissed in toto.

                        02.06.2023                                         (H.S. MADAAN)
                        sumit.k                                                JUDGE

                                      Whether speaking/reasoned :    Yes           No
                                      Whether Reportable :           Yes           No




SUMIT KUMAR
2023.06.06 11:43
I attest to the accuracy and
authenticity of this order/judgment