R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 (O&M) Date of Decision : May 21, 2010 Air Vice Marshal Mahinder Singh Rao (Retd.) .......... Appellant Versus Narender Singh Rao & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Ashok Aggarwal, Sr. Advocate with Mr. Lokesh Sinhal, Advocate for the appellant. Mr. Arun Palli, Sr. Advocate with Mr. Sunil Garg, Advocate and Mr. K.S. Kang, Advocate for respondent No.1. **** VINOD K. SHARMA, J. This is plaintiff's second appeal against the judgments and decrees dated 23.4.2005, passed by the learned Courts below vide which suit filed by the plaintiff / appellant for declaration to the effect, that the plaintiffs and the defendants are owners in possession in equal shares of the property bearing No. 504, Ward No. 16, Gurgaon, as fully detailed and described in para 1 of the plaint; and further that they are entitled to be recorded as such in the ownership column in the Municipal record of the Municipal Committee, Gurgaon, and further claiming a decree for possession by way of partition by metes and bounds of the share of the plaintiffs R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -2- in respect of the suit property along with actual possession. The plaintiffs filed the suit, referred to above, on the pleadings that Sh. Rao Gajraj Singh, Advocate, Member of Parliament (Lok Sabha) and father of the plaintiffs and defendants, was the owner in possession of the property in dispute. Sh. Rao Gajraj Singh expired on 29.3.1981 intestate, leaving behind the parties to suit and Smt. Sumitra Devi, widow of late Sh. Rao Gajraj Singh and mother of the parties. Smt. Sumitra Devi also died on 6.6.1989, leaving behind the plaintiffs and the defendants as the only legal heirs. It was the pleaded case of the plaintiffs, that house in dispute stands in the name of Sh. Rao Gajraj Singh, in the records of Municipal Committee, Gurgaon for which house tax upto date i.e. 1990-91 stood paid on 9.7.1990 to the tune of Rs. 3290/- (Rupees three thousand two hundred and ninety only) vide receipt No. 13, book No. 46, dated 19.7.1990. The electric connection was also in the name of late Sh. Rao Gajraj Singh and upto date bills for electricity consumption also stood paid. It was also pleaded by the plaintiffs, that plaintiff No.3, applied to the Administrator, Municipal Committee, Gurgaon on 8.4.1991, with the consent of other plaintiffs, for transfer of the house in the names of the surviving plaintiffs and defendants being the heirs of late Sh. Rao Gajraj Singh, but the Administrator, Municipal Committee, Gurgaon vide letter dated 15.6.1991 advised them to get Court order with regard to change of ownership. Thus, the suit. R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -3- It was also the case of the plaintiff / appellant, that relationship between the parties was strained and no longer amicable. So, they did not want to keep the property joint. The partition by metes and bounds was prayed. The suit was contested by defendant No.1, whereas defendant No.2 was proceeded ex parte on 20.5.1992, and defendants No. 3 & 4 were proceeded ex parte on 5.2.1992. In the written statement, a plea was taken that the boundaries of the suit property were not correctly stated. It was denied that late Sh. Rao Gajraj Singh, father of the parties, was absolute owner in possession of the suit property. The stand of defendant No.1 was, that the suit property was owned and possessed by Sh. Rao Gajraj Singh, to the extent of half share and Smt. Sumitra Devi, mother of the parties, to the extent of remaining half share. This was said to be the position, even during the life time of Sh. Rao Gajraj Singh, as he had himself executed a writing in his own hand, which was attested by Rao Devender Singh, real sister's son, in token of its correctness. The said writing was said to have been handed over to Smt. Sumitra Devi for assertion and protection of her rights in the said property and also to get necessary entries, in the Municipal record changed. The copy of, that writing was kept by Sh. Rao Gajraj Singh with him. The writing was said to be a memorandum of acknowledgment of settlement of the suit property made by him, prior to its recording. In the writing the ownership and possession of Smt. R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -4- Sumitra Devi, to the extent of half share, was acknowledged. Sh. Rao Gajraj Singh assigned the remaining half share belonging to him in favour of Smt. Sumitra Devi and vice-versa. Since Rao Gajraj Singh died during the life time of Smt. Sumitra Devi, therefore, she became absolute owner in possession of the entire property by operation of law. Nothing was, therefore, left to be inherited or shared by any other person, including any of other heirs, as Smt. Sumitra Devi had become absolute owner in possession of the suit property on the death of Rao Gajraj Singh, with no restriction on the right of alienation. It was denied, that Sh. Rao Gajraj Singh died without leaving any will or assignment. It was, however, admitted that Smt. Sumitra Devi, mother of the parties expired on 6.6.1989, at Ranchi while she was staying with defendant No.1. Smt. Sumitra Devi executed a Will bequeathing the suit property in favour of defendant No.1. The Will was executed on 1.6.1989, after understanding the contends of the Will in a sound disposing mind. Defendant No.1 claimed absolute ownership of the suit property. It was also the case of defendant No.1, that he had served Rao Gajraj Singh and Smt. Sumitra Devi, to the best of his capacity, therefore, his parents had great love and affection for him. Smt. Sumitra Devi being pleased with the services of the defendant and his family members, who was neglected by the plaintiffs during her life time, and specially in her old age, when she executed the Will in favour of defendant No.1. R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -5- It was further the stand of defendant No.1, that the house tax and electricity bills were paid from the amount collected by way of rent of the tenanted portion of the suit property. It was further asserted by defendant No.1, that existence of name of Sh. Rao Gajraj Singh in the Municipal record and in the record of the Haryana State Electricity Board in respect of the electricity connection, did not make any difference to the right, title and interest of Smt. Sumitra Devi, and after her death to that of the answering defendant. The plea of partition was denied. In view of the facts stated above, it was asserted, that the plaintiffs had no share in the suit property. Other preliminary objections were also taken. Replication was filed, wherein the pleas raised in the plaint were reiterated and those of written statement were denied. In addition thereto, in the replication, it was asserted that the property was owned by Sh. Rao Gajraj Singh, as absolute owner and not to the extent of half share. It was denied, that Sh. Rao Gajraj Singh had ever admitted ownership and possession of Smt. Sumitra Devi in respect of the suit property, as alleged. The stand taken in the replication was, that Smt. Sumitra Devi had succeeded to the extent of 1/9th share, after the death of late Sh. Rao Gajraj Singh along with their sons and daughters. It was denied, that Sh. Rao Gajraj Singh ever executed any writing in his own hand, during his life time, admitting the ownership of Smt. Sumitra Devi, in the house in question. It was denied, that the writing was executed and signed R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -6- by Sh. Rao Gajraj Singh and handed over to Smt. Sumitra Devi, as pleaded by defendant No.1. It was pleaded that Rao Gajraj Singh had written a letter in the year 1970, in response to the letter from the office of Income Tax Office, Gurgaon dated 11.12.1970, seeking clarification of ownership of the house in question, which was occupied by Rao Gajraj Singh and his family members, wherein he has written, that it was a joint property, along with his wife, and his five sons. The writing said to have been written was claimed to be having no evidentiary value being not admissible in evidence, because rights in immovable property worth of more than Rs. 100/-, could only be created by registered deed, duly stamped. It was also pleaded, that after the death of Sh. Rao Gajraj Singh, Smt. Sumitra Devi being widow of Sh. Rao Gajraj Singh filed an application for grant of succession certificate in respect of the amount, which was lying deposited with the State Bank of India and the Bank of Baroda under Section 372 of the Indian Succession Act. The said application was tried and decided by the Court of Senior Sub Judge, Gurgaon on 12.6.1981. In those proceedings, a specific stand was taken by Smt. Sumitra Devi that Rao Gajraj Singh did not leave any Will. This averment was supported by her while deposing in the Court. All the sons and daughters of Sh. Rao Gajraj Singh including defendant No.1, admitted that Rao Gajraj Singh died without leaving any Will. The writing by Sh. Rao Gajraj Singh was said to be outcome of fraud and manipulation of the fertile brain of defendant No.1. It was asserted, that writing could not be termed, as R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -7- memorandum of acknowledgment of settlement of the suit property. It was pleaded that settlement required involvement of more than two persons. It was pleaded, that Sh. Rao Gajraj Singh was residing in his own house i.e. the disputed house and was being looked after by Sh. Rao Surender Singh, plaintiff No.2, who was practicing as an advocate at Gurgaon, and was staying with him along with his family. It was pleaded in the replication, that Sh. Rao Gajraj Singh suffered an acute attack of left vertical failure, which resulted in infection on 10.1.1981, and he was admitted in Dr. Ram Manohar Lohia Hospital, New Delhi, from where he was discharged on 4.3.1981. Defendant No.1 took him to Karnal, where his condition became bad to worse, and on 28.3.1981 he became unconscious, and ultimately died at 11 P.M. on 29.3.1981, in the presence of all the family members. It was denied, that Sh. Rao Gajraj Singh was being served and looked after by defendant No.1. The allegations were also levelled, that defendant No.1 tried to forge a Will of Sh. Rao Gajraj Singh while he was staying at Karnal and was not keeping good health but he could not succeed, as the CMO posted there, did not connive with him. It was also alleged, that the writing had never seen the light of the day during the life time of Sh. Rao Gajraj Singh and Smt. Sumitra Devi. The execution of Will by Smt. Sumitra Devi on 1.6.1989 was also denied, by pleading that Smt. Sumitra Devi was ill and suffering from paralysis before her death. She was stated to R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -8- have lost her memory and was not having the sound disposing mind, as she had become completely wreck physically and mentally. She was not in a position to take independent cogent decision, therefore, she was said to be not in sound disposing mind to execute any Will. The Will also did not see the light of the day till the filing of the written statement. The Will was said to be unnatural and surrounded by suspicious circumstances. She was said to be seriously ill since 1986 and her condition became very serious, as she had fallen down on the night of 27.5.1989 and became unconscious. It was the case of the plaintiff / appellant, that defendant No.1 informed, that Smt. Sumitra Devi had been admitted in hospital in Ranchi and gone in COMA and lateron died in hospital at about 3:45/4 A.M. on 6.6.1989 without regaining consciousness. The Will was, said to be a manipulated, fraudulent, fake, and false document. It was the case of the plaintiffs, that vide letter dated 4.7.1989, defendant No.1 was informed about the suspicious circumstances in the alleged Will, and the strange circumstances under which Smt. Sumitra Devi died. It was also the case of the plaintiff / appellant, that they were kept away from Smt. Sumitra Devi, so that they don't come to know about the real condition, and cause of death of Smt. Sumitra Devi. It was the case of the plaintiffs / appellant, that defendant No.1 had not replied to their letter or controverted the averments R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -9- made therein, pointing out the suspicious circumstances. It was the case of the plaintiff / appellant, that defendant No.1 was posted as Judge of the High Court Bench at Ranchi at relevant time, therefore, he played a great fraud and coerced in preparing the alleged Will of Smt. Sumitra Devi. It was pleaded, that defendant No.1 might have got the thumb impression of Smt. Sumitra Devi on blank papers, either when she was unconscious or after her death, and subsequently used it to prepare the false Will. It was the case of the plaintiffs, that Smt. Sumitra Devi was forced to go to Ranchi against her Will, and further forced to take all the fixed deposit receipts lying in the name of the deceased, which were maturing on 6.7.1989, 8.7.1989, 23.11.1989 and 18.12.1989, bank books, huge cash approximately amounting to Rs. 206456/- (Rupees two lac six thousand four hundred and fifty six only), as also the deceased's gold bangles, gold chain, pair of ear rings and gold rings besides other valuables, which was not accounted for by defendant No.1. It was the case of the plaintiffs, that Smt. Sumitra Devi was taken to Ranchi with mala fide intention, to grab her valuables, which were deposited in the bank at Gurgaon, which defendant No.1 got transferred for misusing and usurping. It was also alleged, that defendant No.1 being Judge of the High Court, colluded with the Administrator, Municipal Committee, posted at that time. On the allegations referred to above, the Will was claimed to be fake and forged, and not executed by Smt. R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -10- Sumitra Devi of her free will. Defendant No.1 filed rejoineder to the replication on 31.8.1988, and re-asserted the facts already set out in the written statement and also controverted the pleas taken by the plaintiffs in their replication. From the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the plaintiff and defendants are co- sharers in the property in dispute to the extent of 1/8th share each? OPP 2. Whether the late Sh. Rao Gajraj Singh was sole owner in possession of the disputed house at the time of his death as alleged?OPP 3. Whether the plaintiffs are entitled to partition of the suit property by metes and bounds?OPD 4. Whether the alleged writing /memorandum of acknowledgment of settlement of the suit property was executed by Rao Gajraj Singh in favour of late Smt. Sumitra Devi as alleged?OPD 4-A. Whether late Smt. Sumitra Devi was owner in possession of ½ share of the suit property during the life time of Rao Gajraj Singh and after his death she became absolute owner in possession of the same by virtue of writing R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -11- / memorandum of acknowledgment of the settlement as alleged? If so to what effect?OPD 5. Whether deceased Smt. Sumitra Devi had duly executed a valid Will in favour of defendant No.1 on 1.6.1989. If so, its effect?OPD 6. Whether the plaintiffs have got no locus standi or cause of action to file and maintain the present suit?OPD 7. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit?OPD 8. Whether the present suit is time barred?OPD 9. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction?OPD 10. Whether the suit is bad for want of complete description of the land and site plan of the suit property?OPD 11. Whether the suit is not maintainable in the present form?OPD 12. Whether the plaintiffs have suppressed material facts? If so, its effect?OPD 13. Relief.” R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -12- Both the parties, were called upon to lead evidence, in support of their respective claims. The plaintiff's in support of their case examined Ram Kumar House Tax Clerk, MC, Gurgaon as PW- 1, Dharam Parkash Jain, Record Keeper, Sessions Court, Gurgaon as PW-2, Mahender Singh plaintiff No.1 himself appeared as PW-3 and also produced Jagdish Chander as PW-4. Defendant No.1, on the other hand, himself stepped into the witness box as DW-1 and produced Chhote Lal, DRK of the D.C. Office as DW-2, Sh. Rakesh Kataria, Clerk, Bank of Baroda, Gurgaon as DW-3, Sh. Banshi Parshad Advocate as DW-4, Dr. B.N. Yadav as DW-5, Sh. Sanjay Kumar Banerjee as DW-6, Sh. Sher Singh as DW-7, Laxmi Chand Jain as DW-8 and Sh. Som Nath Aggarwal, Hand Writing and Fingerprints Expert as DW-9. In rebuttal to the evidence led by defendant No.1, the plaintiff examined Smt. Savita Rai Singh as PW5, Sh. Veer K. Sakhuja, Handwriting and Fingerprints Expert as PW-6 and Jai Gopal Accountant, Bank of Badoda, Gurgaon as PW-7, besides tendering documents. The learned trial Court, took up issues No. 4 & 4-A together, as the findings on issues No.1 & 2 were dependent upon the findings on issues No. 4 & 4-A. The learned trial Court on appreciation of evidence, came to the conclusion, that the stand taken by the plaintiff / appellant, was contradictory for the reason, that in the plaint the plaintiffs had claimed Rao Gajraj Singh to be the absolute owner of the property in R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -13- dispute, as per assessment register of property tax Ex. P-1 to Ex. P- 4, but in the replication, it was stated, that in reply to the letter of income tax authority Rao Gajraj Singh had shown himself to be the joint owner of the property in dispute. The learned trial Court held, that except for the copy of assessment register Ex. P-1 to Ex.P-4, there was no document of title of the property brought on record, thus held, that the plaintiffs / appellant had failed to prove the fact, that Sh. Rao Gajraj Singh was the absolute owner of the property in dispute. The learned trial Court also held, that the document Ex. D-1 was duly proved on file, for the reason that in letter Ex. PW3/3 dated 4.7.1989, it was stated that their father Rao Ji left a Will about the Gurgaon house, which was solely owned by him, wherein restrictions were imposed on Bibi Ji from alienating the house, and that the house will go to the heirs of Rao Ji. The learned trial Court held, that in the plaint, the case pleaded was, that Sh. Rao Gajraj Singh did not leave any Will, the learned trial Court drew a presumption, that the plaintiffs were aware of the document Ex. D-1. The learned trial Court, therefore held, that the admission made in Ex. PW3/3, was sufficient to prove the document Ex. D-1. The learned trial Court, further relied upon the evidence of Smt. Savita Rai Singh, defendant, who had admitted the writings of Ex.D-1 and identified the signature of Rao Gajraj Singh on Ex. D-1. Besides this, the writing was also identified by Sh. Sher Singh DW-7, R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -14- who was Clerk of Rao Gajraj Singh. Besides the evidence, referred to above, Sh. Som Nath Aggarwal, Handwriting and Finger Print Expert was also examined as DW-9, to prove the handwriting on Ex. D-1. Defendant No.1, the other son of Rao Gajraj Singh, while appearing as DW-1, also proved the writing of Rao Gajraj Singh on document Ex. D-1. The learned trial Court thereafter considered the question, whether the document Ex. D-1, which stood duly proved, required registration under Section 17 of the Indian Registration Act, and came to the conclusion, that it did not require any registration. The reason for coming to this conclusion was, that under the said document, no new rights were created, in favour of Smt. Sumitra Devi, as it was a mere declaration, of her rights which she already possessed. The learned trial Court held, that it did not require registration, as there was no transfer of property. The learned trial court also held, that there was no date mentioned on the document Ex. D-1, therefore, it could not be presumed, that it was executed after expiry of six months after the date of purchase of the stamp paper for the said purpose. The learned trial Court also did not find any substance in the contention of the learned counsel for the plaintiffs, that Ex. D-1 did not bear the signatures of Smt. Sumitra Devi. Interestingly, the learned trial Court thereafter went on to hold, that in view of admission of the plaintiffs, that Sh. Rao Gajraj Singh was the absolute owner of the property in dispute, and being the sole owner, R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -15- the presence of his sons and daughters was not necessary, while making settlement of the property in dispute. The learned trial Court relied upon the judgment of this Court in the case of Premlata Vs. Bhupender Singh 2001(1) SLJ 59 to hold that the house tax assessment registers Ex. P-1 to Ex. P-4 were not the documents of title to prove the ownership. The reliance in support of this was also placed on the judgment of the Hon'ble High Court of Madras in the case of Arulmigu Viswesharaswami Vs. R.V.E. Venkatachata Goumder 1997(1) Civil Court Cases 574 (Madras). The learned trial Court also rejected the contention of the plaintiffs / appellant, that document Ex. D-1 was never acted upon, and the ownership of Smt. Sumitra Devi was not got recorded in the revenue record, on the ground, that the matter was between husband and wife, who were residing together, and enjoying the property in dispute, therefore by merely not getting the document entered in the Municipal record, it did not mean, that Smt. Sumitra Devi ceased to be the owner of ½ share, or that the document was not acted upon. The learned trial Court also held, that it was proved on record, that after the death of Sh. Rao Gajraj Singh, Smt. Sumitra Devi alone was residing in the property in dispute. The learned trial Court held, that there was no reason forthcoming, as to why the proceedings of partition were not initiated by the plaintiffs during the life time of Smt. Sumitra Devi. On the basis of this conclusion, it was held, that the plaintiffs admitted Smt. Sumitra Devi as absolute owner R.S.A. No. 3937 of 2005 and Cross-Objection No. 9-C of 2006 -16- of the property in dispute, after the death of their father Sh. Rao Gajraj Singh. The learned trial Court, also did not agree with the contention, that adverse inference was required to be drawn, for non- examining Sh. Devender Singh, the witness to Ex. D-1, for the reason, that the document stood proved beyond doubt, as it was admitted by