R. S. A. No. 3876 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3876 of 2006 Date of Decision : May , 2010 Krishan Lal Sahni .... Appellant Vs. Shashi Sahni and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. J. S. Toor, Advocate with Ms. Rajni Anand, Advocate for the appellant. Mr. Arvind Singh, Advocate for respondents no.1 to 4. Mr. Puneet Bassi, Advocate for respondent no. 5. * * * L. N. MITTAL, J. : By this common judgment, I am disposing of three Regular Second Appeals i.e. R. S. A. No. 3876 of 2006 titled Krishan Lal Sahni vs. Shashi Sahni and others, R. S. A. No. 3877 of 2006 titled Krishan Lal Sahni vs. Suman Sawhney and others and R. S. A. No. 2887 of 2006 titled Shashi Sahni and others vs. Krishan Lal Sahni and another, as all these three appeals have arisen out of the same suit. R. S. A. No. 3876 of 2006 2 Suit was filed by Krishan Lal Sahni against his two sons Gulshan Kumar and Suman Kumar. Gulshan Kumar died during the pendency of the suit and is represented by his legal representatives (respondents no. 1 to 4 in R. S. A. No. 3876 of 2006). The plaintiff alleged that he is owner of the suit property i.e. House No. 206-L/B-VI/171 (new number B-VI/0488), situated in Model Town, Yamuna Nagar and House No. 818 (new number 1824/849-A), Ward No.5, Prem Nagar Colony, Yamuna Nagar. He allowed the defendants to reside with him in the said houses. He had also executed Will dated 06.04.1992 regarding the suit property in favour of both defendants. Plaintiff's wife Basant Kumari had died on 02.10.1990. Defendants started pressurizing the plaintiff to transfer the suit property in their names even during his life time in spite of Will already executed by the plaintiff in favour of defendants. Ultimately on 15.03.2002, the defendants, with the help of their sons and wives, physically threw the plaintiff out of the suit property forcibly. The plaintiff was aged 83 years at that time. The plaintiff cancelled the Will dated 06.04.1992 vide cancellation deed dated 31.05.2002. Plaintiff sent notice dated 26.09.2002 asking both the defendants to vacate the suit property, but they failed to do so. The plaintiff sought mandatory injunction directing the defendants with their family members to vacate both the houses in dispute. The plaintiff also claimed recovery of mesne profits @ Rs.5,000/- per month from the date of suit till the delivery of physical possession of the suit property to R. S. A. No. 3876 of 2006 3 him. Defendant no.1 Gulshan Kumar raised preliminary objections. On merits, it was admitted that plaintiff was owner of House No. 206-L. However, defendant no.1 alleged that in view of Will dated 06.04.1992 executed by the plaintiff, defendant no.1 has already become owner in possession of half share of the said house. It was also alleged that House No.818 has been leased out by plaintiff to defendant no.1 for 99 years and defendant no.1 is in possession thereof as lessee. Defendant no.1 also alleged that the suit property was purchased from joint Hindu family funds. Averments made by plaintiff were controverted. It was alleged that suit has been filed at the instance of plaintiff's daughter, who forcibly took the plaintiff to Delhi. Cancellation deed dated 31.05.2002, if any, is null and void and was never executed by the plaintiff. Defendant no.2, besides taking preliminary objections, pleaded that House No. 206-L was owned and possessed by Basant Kumari Sahni – wife of plaintiff/mother of defendants, who died on 02.10.1990 leaving behind the defendants as her legal heirs. All movable and immovable properties including the suit property were bequeathed to the defendants and since then, defendant no.2 is enjoying northern part of House No.206-L as owner in possession. The plaintiff never objected to the same. Averments made by plaintiff were controverted. Defendant no.2 denied knowledge of Will dated 06.04.1992 executed by the plaintiff. It was pleaded that R. S. A. No. 3876 of 2006 4 plaintiff is neither owner nor in possession of House No.206-L. Learned Civil Judge (Junior Division), Jagadhri, vide judgment and decree dated 18.11.2005, decreed the plaintiff's suit. Against said judgment and decree, both defendants preferred separate first appeals. Both the said first appeals have been disposed of by learned Additional District Judge, Yamuna Nagar at Jagadhri, vide judgment dated 25.05.2006, whereby judgment and decree of the trial court have been modified and suit filed by the plaintiff has been decreed partly for mandatory injunction directing defendant no.1 Gulshan Kumar through his legal heirs to deliver possession of House No.818 to the plaintiff and also to pay mesne profits @ Rs.2,500/- per month for illegal use and occupation of the said house from the date of receipt of notice Ex.P-3 till delivery of possession of the said house to the plaintiff. Suit for mandatory injunction for delivery of possession of House No.206-L was held to be not maintainable because defendants were also held to be co-sharers in the said house and consequently, defendants have been directed to pay Rs.500/- per month in equal shares as mesne profits for use and occupation of plaintiff's share in the said house, from the date of receipt of notice Ex.P-3 till delivery of possession of said house. Feeling aggrieved, plaintiff has preferred R. S. A. No. 3876 of 2006 and R. S. A. No. 3877 of 2006, whereas legal representatives of defendant no.1 have preferred R. S. A. No. 2887 of 2006. I have heard learned counsel for the parties and perused the R. S. A. No. 3876 of 2006 5 case files. Learned counsel for the plaintiff vehemently contended that the lower appellate court has erred in holding defendants to be co-sharers in House No.206-L. It was pointed out that defendant no.1 in his written statement has admitted that plaintiff was owner of said House No.206-L. The contention, although apparently attractive, is devoid of any merit. Defendant no.2 has specifically pleaded that House No. 206-L was owned by their mother Basant Kumari i.e. wife of the plaintiff and the same was bequeathed in favour of defendants. However, no Will executed by Basant Kumari in favour of defendants regarding the said house has seen the light of the day. On the other hand, the plaintiff himself relied on Will dated 18.10.1974 (Ex.P-1) allegedly executed by Basant Kumari in favour of plaintiff regarding the said house. The said Will has been attested by one witness only. However, according to Section 63 of the Indian Succession Act, 1925, the Will is required to be attested by at least two witnesses. So, this is not a valid Will. However, this Will relied on by the plaintiff himself depicts that plaintiff's wife Basant Kumari i.e. mother of defendants was owner of House No.206-L. Consequently, on her death, the said house was inherited by her five natural heirs i.e. plaintiff (husband), both defendants (sons) and two daughters, in equal shares. The plaintiff has not led any evidence to depict that he is exclusive owner of House No.206-L. On the other hand, the plaintiff inherited 1/5th share therein and both the defendants R. S. A. No. 3876 of 2006 6 also inherited 1/5th share each in the said house. Thus, defendants are co- sharers in the said house to this extent. Consequently, both appeals bearing R. S. A. No. 3876 of 2006 and R. S. A. No. 3877 of 2006, preferred by the plaintiff, are devoid of any merit. Finding of the lower appellate court regarding House No.206-L, as noticed above, does not suffer from any infirmity, illegality or perversity so as to warrant interference in second appeal. As regards R. S. A. No. 2887 of 2006, preferred by legal representatives of defendant no.1, learned counsel for the appellant vehemently contended that the Will dated 06.04.1992 (copy Ex.DW-7/B) admittedly executed by plaintiff in favour of defendants regarding the suit property is like a family settlement and is, therefore, irrevocable. It was contended that vide this Will, the properties were partitioned by the plaintiff among his sons and daughters with minute details and it would depict that it was not a simple Will, but was a family settlement and therefore, defendant no.1 became absolute owner in possession of the property, which was given to him under this Will. In support of this contention, reliance has been placed on judgment of Hon'ble Supreme Court in the case of Namburi Basava Subrahmanyam vs. Alapati Hymavathi and others reported as AIR 1996 Supreme Court 2220. In that case, document was held to be a settlement deed and not a Will. Reliance has also been placed on judgment of Hon'ble Supreme Court namely Ram Sarup Gupta (dead) by L. Rs. R. S. A. No. 3876 of 2006 7 vs. Bishun Narain Inter College and others reported as AIR 1987 Supreme Court 1242. In that case, license of certain premises and land for running school was held to be irrevocable because the school acting on license made construction on the land without any objection by licensor. On the other hand, learned counsel for the plaintiff contended that the contents of the Will very clearly depict that it is a simple Will and not a family settlement. Minute details regarding the property bequeathed to each beneficiary were given because the plaintiff himself was professional petition writer. It was also contended that if it had been a family settlement, then after more than six years, there was no question of lease deed dated 22.09.1998 allegedly executed by plaintiff in favour of defendant no.1 regarding House No. 818 for 99 years. Learned counsel for the appellants also referred to photostat copy of affidavit dated 28.01.1999 (Ex.D-1) allegedly affirmed by the plaintiff affirming that pursuant to Will dated 06.04.1992, plaintiff had no objection to transfer of Unit 206/2 in favour of his son Gulshan Kumar – defendant no.1. Learned counsel for the appellants also contended that lease deed Ex.D-1 has been proved by two witnesses thereof, who have stepped into the witness-box. The said lease deed is also a registered document. Signatures of plaintiff thereon had been admitted by plaintiff's daughter and attorney Saroj (PW-5), although she has stated that the said signatures had R. S. A. No. 3876 of 2006 8 been obtained under pressure when the plaintiff was unwell and even unable to see. On the other hand, learned counsel for the plaintiff contended that lease deed purports to have been signed by `Krishan Lall', whereas the plaintiff always affixes his signatures as `Krishan Lall Sawhney', as is evident from other documents relied on by defendant no.1 himself. It was also contended that there was no occasion for executing the aforesaid lease deed for 99 years. It was also argued that rent amount of Rs.100/- per annum for the house was very paltry and nominal amount, for which nobody would lease such a big house. It was also contended that not even a single penny was paid at the time of execution of this lease deed and the lease money of Rs.9,900/- for 99 years was allegedly paid vide receipt dated 04.08.1999 (Ex.D-2), which is also not proved. Learned counsel for the appellants also contended that the plaintiff himself appeared in the witness box as PW-4, but his part cross- examination was deferred and thereafter, he did not appear for further cross- examination and therefore, his testimony cannot be taken into consideration. It was argued that Power of Attorney holder cannot be allowed to appear and depose as a witness on behalf of the principal in the matters of his personal knowledge, as laid down by Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd. reported as 2004 (10) J. T. 264. R. S. A. No. 3876 of 2006 9 I have carefully considered the aforesaid contentions. As regards contention of the appellants that Will dated 06.04.1992 is a family settlement is concerned, the same has no merit. A bare perusal of the Will dated 06.04.1992 reveals that the plaintiff bequeathed his immovable properties to two sons and a daughter and did not give any immovable property to the second daughter. The plaintiff has assigned reasons for the said distribution of the properties and therefore, the Will cannot be said to be family settlement nor the Will can be said to be irrevocable. Judgments cited by learned counsel for the appellants have no applicability to the facts of the instant case. On the other hand, if the Will had been in the nature of family settlement, there was no occasion for defendant no.1 to obtain alleged lease deed dated 22.09.1998 for 99 years more than six years after the execution of the Will. In fact, even defendant no.1, in his written statement, alleged that he has become owner of half share in the properties under the Will. However, it could not be so because the Will takes effect after the death of the testator. In the instant case, however, the testator- plaintiff is still alive. Defendant no.1 did not plead any family settlement in the written statement, but simply pleaded that in the alternative, if the Court comes to conclusion that the plaintiff could revoke the registered Will dated 06.04.1992, in that eventuality, the registered Will dated 06.04.1992 could be treated as a compromise/family settlement between the plaintiff and answering defendant on account of very close relationship between them R. S. A. No. 3876 of 2006 10 being father and son. Thus, defendant no.1 very well knew that Will dated 06.04.1992 is Will and Will only and is not a family settlement and defendant no.1 simply took alternative hypothetical plea in the written statement that the said Will could be treated as compromise and family settlement. Even otherwise, by way of Will, the suit property, which is self-acquired property of plaintiff, could not be transferred in presenti to the defendants. It could be transferred only by way of registered gift deed, but admittedly, there is no such registered gift deed. It is thus apparent that Will dated 06.04.1992 is only a Will and not a family settlement or compromise. As regards affidavit dated 28.01.1999, the same has not been proved. Vishavnath – Clerk from Municipal Committee, Yamuna Nagar, appeared as DW-1 and proved copy of affidavit Ex.D-1 by stating that he had brought the original affidavit from the record of municipality. However, Vishavnath (DW-1) admitted that the aforesaid affidavit was not affirmed in his presence. Vishavnath has also not stated that he identified the signatures of the plaintiff on the said document. Notary, who attested the said document, has not been examined as witness to prove it. Plaintiff's attorney Saroj (PW-5) was also not confronted with the said affidavit. Thus, affidavit Ex.D-1 is not proved and therefore, cannot be taken into consideration. Even otherwise, affidavit Ex.D-1 cannot have the effect of transferring immovable property by plaintiff in favour of defendant no.1. R. S. A. No. 3876 of 2006 11 As regards lease deed, the same has rightly been discarded by the courts below after appreciating evidence on record. The lease deed has allegedly been signed by the plaintiff as `Krishan Lall'. However, on all other documents, plaintiff's signatures appear as `Krishan Lall Sawhney'. It is so even in respect of the other documents relied on by defendant no.1 himself. It is thus apparent that plaintiff did not sign this document consciously nor executed this lease deed. Moreover, the plaintiff would not have leased out the house for 99 years as there was no occasion for the same. Rent of Rs.100/- per annum is also a very paltry amount. Market rent of this house has been found to be Rs.2,500/- per month i.e. Rs.30,000/- per annum. Consequently, mere fact that two witnesses of lease deed have proved the same, it cannot be said that the lease deed was validly executed by the plaintiff. It is a sham and bogus transaction and the lease deed was not executed by the plaintiff. Learned counsel for the appellants referred to statement of Saroj (PW-5), wherein she admitted that defendant no.2 Suman Kumar had raised construction in part of House No.206-L by spending Rs.6,00,000/-. However, this admission of Saroj (PW-5) is of no help to defendant no.1 or his legal representatives because said admission relates to construction raised by defendant no.2, who has not challenged the judgment of lower appellate court. The circumstance that revocation of Will is not proved, is R. S. A. No. 3876 of 2006 12 immaterial in the instant case because the plaintiff is still alive. However, suffice to mention that the plaintiff has himself pleaded in the plaint that he has cancelled the Will vide cancellation deed dated 31.05.2002. In any event, under the Will, the beneficiaries cannot acquire any right, title or interest in the properties of the plaintiff, who is still alive. Non-appearance of the plaintiff as witness also has no adverse bearing against him because the plaintiff, in fact, did appear as witness and made statement in examination-in-chief. He was also partly cross- examined. However, his further cross-examination was deferred by observing that the witness was hard of hearing and was not capable of comprehending the questions and counsel for the plaintiff was also hard of hearing and therefore, it was not possible to continue with the cross- examination of the witness and therefore, cross-examination was deferred and counsel for the plaintiff requested that he would examine Power of Attorney holder of the plaintiff and it was in these circumstances that the plaintiff did not appear for further cross-examination and rather plaintiff's daughter and General Attorney appeared as witness. However, the fact remains that from the admitted facts and evidence on record, the case of the plaintiff stands proved to the extent decreed by the lower appellate court. There is no infirmity or illegality in the judgment of the lower appellate court so as to warrant interference at the hands of this Court in second appeal. No question of law, much less substantial question of law, arises for R. S. A. No. 3876 of 2006 13 determination in the instant second appeals. For the reasons recorded herein above, I find no merit in all the three appeals, which are accordingly dismissed. May , 2010 ( L. N. MITTAL ) monika JUDGE