In the Court of Dr. [ENTITY]: Commercial Civil Judge of North Delhi District at Tis Hazari Courts, Delhi Suit No : 246/07 Unique ID No: [SECTION]965 In the matter of : 1.) Smt. [ENTITY] Wife of late Ram Dev 2.) [ENTITY] 3.) [ENTITY] Both sons of late Ram Dev 4.) [ENTITY] 5.) [ENTITY] Both daughters of late Ram Dev All resident of 2733, Gali Munde Wali, Sadar Thana Road, Delhi110006. 6.) Smt. [ENTITY] Wife of Ajay Daughter of late Ram Dev Resident of 299, Lalita Park, Laxmi Nagar, Delhi. Plaintiffs V E R S U S [ENTITY] Son of Rameshwar Chaurasia Resident of 2733, Gali Munde Wali, Sadar Thana Road, Delhi. Defendant Date of institution : 08.05.2007 Reserved for Judgment: 28.09.2011 Date of decision : 28.09.2011 Suit for recovery J U D G M E N T
1. This is a suit for recovery of Rs.17,100/(Rupees Seventeen Thousand One Hundred Only) along with costs and interest.
2. Facts are that late [ENTITY], grand father of the plaintiffs no.2 to 6 and fatherinlaw of the plaintiff no.1 was owner of property no.2733, Gali Munde Wali, Sadar Thana Road, Delhi who during his lifetime executed a Will dated 23.09.1992 whereby he had bequeathed the said property in favour of the plaintiffs; that late [ENTITY] had let out one shop (hereinafter referred to as 'the tenanted shop') of the property no. 2733, Sadar Thana Road, Delhi to the defendant on a monthly rent of Rs.450/ per month exclusive of other charges; that the said defendant is presently running the business of fruit juice in the tenanted shop; that the plaintiffs have now served a notice dated 14.02.2007 upon the defendant calling upon him to pay the arrears of rent for 36 months ending with 28.02.2007 and amounting to Rs.16,200/; that the defendant sent a false reply dated 06.03.2007 whereby he has claimed that the tenanted shop is owned by him by virtue of the documents executed in his favour by the Vendor on 17.07.1992; that the documents which the defendant has claimed have been executed in his favour by late [ENTITY] are forged documents and even otherwise thy are legally inadmissible, hence the present suit.
3. The defendant contested the present suit by filing written statement of his defence wherein took preliminary objections to the effect that this court does not have the jurisdiction to entertain the present suit; that the suit is barred by the principles of resjudicata; that the plaintiffs do not have the locus standi to file the present suit; that the suit being without cause of action is liable to be dismissed.
4. In the reply on merits, it is contended that the plaintiff had been inducted as tenant in the premises in suit by late [ENTITY], however, the premises in suit had been sold to the defendant by the said landlord for valuable consideration while executing the relevant title documents and delivering the symbolic possession of the suit premises to the defendant; that the plaintiffs or their predecessors in interest did not hold any such right therein after 1992.
5. It is denied that late [ENTITY] had executed any alleged Will dated 23.09.1992. It is also denied that at any relevant time including the period for which the rent amount is being sought to be recovered by the plaintiffs, the defendant had been a tenant. It is also denied that even on 23.09.1992, the defendant had been a tenant. Other allegations are denied and disputed by the answering defendants and prayed for dismissal of present suit.
6. The plaintiffs filed replication to the written statement wherein they denied the contentions raised in the written statement and reiterated the allegations made in the plaint.
7. From the pleadings of the parties, following issues for trial were framed by my Learned Predecessor on 13.03.2008, namely:
1.) Whether the plaintiff is entitled to a decree for sum of Rs. 17,100/ as prayed for ? OPP
2.) Whether the plaintiff is entitled for interest, if so at what rate ? OPP
3.) Whether the suit is barred by provisions of [ACT] ? OPD
4.) Relief.
8. The plaintiffs examined one witness. PW1 is [ENTITY], the plaintiff no. 2 himself. During there evidence, the plaintiffs produced the documents Ex. PW1/B to Ex. PW1/E.
9. The defendant also produced only one witness. DW1 is [ENTITY]. DW1 was examined and partly cross examined but he did not appear and entered into the witness box on 01.09.2011 when the case was fixed for his further cross examination and he did not allow the plaintiff for his further cross examination. Vide order dated 01.09.2011, it was declared that the affidavit of evidence and cross examination of DW1 [ENTITY] shall not be read in evidence.
10. I have heard counsel for the parties and perused the material available on record carefully. My issue wise findings are as under :
Whether the plaintiff is entitled to a decree for sum of Rs.17,100/ as prayed for ?
Whether the plaintiff is entitled for interest, if so at what rate ?
11. Onus qua issues no.1 and 2 was placed on the plaintiffs. These issues are taken together being interconnected.
12. In the present case, the plaintiffs are seeking recovery of arrears of rent of three years immediately preceding the institution of present suit on the allegations that the tenant defendant has not paid rent.
13. In the written statement, it is contended by the defendant that predecessor in interest of the plaintiffs have sold the suit property for valuation consideration to the defendant.
14. To prove their case, it is stated by PW1 [ENTITY] in his affidavit that the property no.2733, Gali Munde Wali, Sadar Thana Road, Delhi, was owned by late [ENTITY], grand father of the deponent and the plaintiff no.3 to 6 and fatherinlaw of the plaintiff no.1. It is further stated that late [ENTITY] had let out one shop of the property no.2733, Sadar Thana Road, Delhi to the defendant on a monthly rent of Rs.450/ per month exclusive of other charges. It is further stated that late [ENTITY] during his lifetime executed a Will dated 23.09.1992 whereby he had bequeathed the entire property No. 2733, Sadar Thana Road, Delhi including the shop, in the tenancy of the defendant, in favour of the plaintiffs. It is further stated that the plaintiffs have now served a notice dated 14.02.2007 on the defendant calling upon him to pay the arrears of rent for 36 months ending with 28.02.2007 and amounting to Rs.16,200/. It is further stated that the notice sent under certificate of posting has been received by the defendant to which he sent a false reply dated 06.03.2007 whereby he has claimed that the shop measuring 6' x 9' forming part of property no.2733, Gali Munde Wali, Sadar Thana Road, Delhi is owned by him by virtue of the documents executed in his favour by the Vendor on 17.07.1992.
15. No material contradiction had arisen in the cross examination of PW1.
16. There is no evidence on behalf of the defendant to disprove claim of the plaintiffs.
17. In the light of testimonies of the plaintiff and pleadings of the parties, the position that emerges is that the defendant, admittedly, had entered into the suit property as a tenant of [ENTITY], grandfather of the plaintiffs. Admittedly, the defendant has not paid rent since the year 1992. The contention of the defendant is that he has purchased the suit property from [ENTITY] in the year 1992, so, there is no question of paying rent. No evidence has been produced on behalf of the defendant to prove his contentions. There is no material on record to prove that the defendant had purchased the suit property. DW1 [ENTITY] after his part cross examination did not enter into the witness box and allowed the opposite party to crossexamine him further and it was declared that his evidence shall not be read. It has been held in [ENTITY] v. Manik Rao, AIR 1999 SC 1441 as follows:
"Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side a presumption would arise that the case set up by him is not correct."
18. In view of law laid down in [ENTITY]'s case (Supra), I draw adverse inference against the defendant.
19. But for the aforestated discussion, the documents, if any, relied upon by the defendant are certified copies of Receipt, Will, General Power of Attorney, Agreement for Sale and Affidavit all dated 02.11.1992. A division bench of the Hon'ble High Court of Delhi in [ENTITY] v. Delhi Development Authority, AIR 2003 Delhi 120 has held as follows: "An agreement of sale is not a document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under [SECTION] of the [ACT] read with [SECTION] of the [ACT]".
20. Similar view has been taken by another division bench of Hon'ble Delhi High Court in case [ENTITY] v. Oriental Bank of Commerce and others, 128(2006) Delhi Law Times 407(DB) which is as follows:
"The petitioner had only produced an Agreement to Sell, Will and a Power of Attorney and a receipt for payment of money but these, in our opinion, do not constitute a sale. Under [SECTION] of the [ACT], sale of an immovable property can only be by a registered deed.
In our opinion, the petitioner has no right, title or interest in the property as he has not purchased it by any registered Sale Deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to sell".
21. The Hon'ble Supreme Court in [ENTITY] and Industries (P) Ltd. v. State of Haryana, AIR 2009 SC 3077 has declared Power of Attorney Sales transactions as irregular and illegal. Relevant portion of judgment reads thus:
The 'Power of Attorney Sales', as noticed above was adopted to overcome the restrictions/prohibitions in terms of allotment and the rules of allotment of DDA governing the allotment of flats. Such transactions were obviously irregular and illegal being contrary to the rules and terms of allotment. Further, in the absence of a registered deed of conveyance, no right, title or interest in an immovable property could be transferred to the purchaser."
22. In the light of the law laid down by the Hon'ble High Court of Delhi in [ENTITY]' case (supra) and [ENTITY]' case (supra) and by the Hon'ble Supreme Court in [ENTITY]' case (supra) on the execution of General Power of Attorney and Agreement for sale, the right, title or interest qua the suit property were not conferred on the defendant.
23. Next document produced on behalf of the defendant is Will. What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. [SECTION] and [SECTION], [ACT] are relevant for this purpose. Under [SECTION], if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under [SECTION] and [SECTION] of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. [SECTION] deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly [SECTION] and [SECTION] of the [ACT] are also relevant. [SECTION] provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. [SECTION] requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the Will shall be attested by two or more witnesses as prescribed.
Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by [SECTION] of the [ACT]. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. [ENTITY] v. B. N. Thimmajamma and others, AIR 1959 SC 443.
24. However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in the support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. [ENTITY] v. B. N. Thimmajamma and others (Supra)
25. The Hon'ble Supreme Court in the case of [ENTITY] & others. v. Sodha & Others,AIR 2005 Supreme Court 233, has held as follows: "In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other."
26. In the light law laid down in [ENTITY]' case (Supra) and [ENTITY]' case (Supra) in order to assess as to whether the Will has been duly executed, the propounder has to show that the Will was signed by the testator and that he has put his signatures on the Will of his own free will; that at the time of execution of the Will, he was in a sound disposing state of mind and understood the nature and effect of the dispositions. In the light of these settled position of law, I have to examine whether the Will under consideration had been duly executed and validly attested. The defendant is the propounder of the Will so the onus to prove the due execution and attestation of the Will was on the defendant.
27. The original Will was never produced by the defendant. The defendant has placed on record mere photocopy of the said Will. No explanation has been tendered by the defendant for not producing the original Will to prove his case. The defendant never sought any permission of the court for leading secondary evidence. The attesting witnesses of the said Will were also not examined by the defendant to prove that the said Will was duly attested. Nor the defendant plaintiff has proved the due execution of the said Will. It has been neither pleaded nor proved that the testator of the Will was of sound mind when he executed the Will.
28. In view of the above, the Will in favour of the defendant is neither produced nor proved by the defendant. The defendant has also not proved due execution and valid attestation of the said Will.
29. The plaintiff has proved that monthly rent of tenanted shop is rupees 450/ per month. The defendant has failed to prove that rent of the tenanted shop is rupees 150/ per month.
30. Admittedly, the plaintiffs are Legal Representatives of the owner/Landlord of the tenanted shop. Under [SECTION] of the [ACT] defendant is estopped from denying the title of the plaintiffs.
31. For the aforesaid reasons, these issues are decided in favour of the plaintiffs and against the defendant.
Issue No.3 Whether the suit is barred by provisions of [ACT] ?
32. Onus qua this issue was placed on the defendant. The defendant has failed to produce any evidence to prove this issue. Hence, this issue remains unproved for want of evidence.
33. During the course of final arguments, it is argued by counsel for the defendant that the present case is for non payment of rent, so the plaintiff should have claimed relief under [SECTION] of [ACT]. Under [SECTION] of [ACT], provisions for eviction of tenant on the ground of nonpayment of rent has been given. Where the plaintiff is merely claiming the recovery of rent, the suit cannot be said to be barred under the provisions of [ACT]. For the reasons stated above, this issue is decided in favour of the plaintiff and against the defendant.
Relief
34. In view of my findings on issues no.1 and 2, the suit of the plaintiffs is decreed. The defendant shall pay a sum of Rs.17,100/. The defendant shall also pay interest @ 15% per annum on such sum from the date of institution of suit till the date of realization of decetal amount. Costs of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
Announced in the open court (Dr. [ENTITY]) on 28.09.2011 Commercial Civil Judge North Delhi District Tis Hazari Courts: Delhi