Delhi District Court
Kusum Wadhwa vs Radha Krishan on 29 March, 2025
DLSE010002002011
THE COURT OF DISTRICT JUDGE-03
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
(PRESIDED OVER BY: SACHIN MITTAL)
CS DJ No. 9455/16
In the matter of:
RADHA KRISHAN,
S/o Shri Jaswant Rai Wadhwa,
Karta and Manager of Shri Radha Krishan Wadhwa HUF
R/o I-30, Lajpat Nagar Part-III, New Delhi. ..... Plaintiff.
VERSUS
KUSUM WADHWA,
D/o Late Mans Raj Wadhwa,
R/o I-30, Lajpat Nagar Part-III, New Delhi. ..... Defendant.
SUIT FOR POSSESSION, PERMANENT PROHIBITORY AND
MANDATORY INJUNCTIONS, DAMAGES AND MESNE
PROFITS.
Date of Institution : 28.01.2011
Date on which arguments concluded : 03.03.2025
Date of Judgment : 29.03.2025
Result : Dismissed
CS DJ No. 249/25
And in the matter of:
KUSUM WADHWA,
D/o Late Mans Raj Wadhwa,
R/o I-30, Lajpat Nagar Part-III,
New Delhi. ..... Counter-Claimant.
VERSUS
RADHA KRISHAN,
S/o Shri Jaswant Rai Wadhwa,
Karta and Manager of Shri Radha Krishan Wadhwa HUF
R/o I-30, Lajpat Nagar Part-III,New Delhi.
..... Defendant.
CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 1 of 52
AND AND Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN
SACHIN MITTAL
Date:
MITTAL 2025.03.29
15:14:04
+0530
COUNTER CLAIM FOR DECLARATION, CANCELLATION AND
MANDATORY INJUNCTIONS.
Date of Institution : 27.04.2011
Date on which arguments concluded : 03.03.2025
Date of Judgment : 29.03.2025
Result : Partly Decreed.
JUDGMENT
1. Vide this common Judgment, I shall decide the captioned
two suits. While the first suit i.e. main suit for the reliefs of possession,
permanent prohibitory and mandatory injunctions, damages and mesne
profits has been filed on behalf of Radha Krishan Wadhwa against
Kusum Wadhwa; the second suit i.e. counter claim for the reliefs of
declaration, cancellation and mandatory injunctions has been filed on
behalf of Kusum Wadhwa against Radha Krishan Wadhwa as a counter
claim to the main suit.
PLEADINGS IN THE MAIN SUIT (CS DJ No. 9455/16)
Plaint:
2. The necessary facts, as pleaded in the plaint, upon which
the suit of plaintiff is based, can be summarized as under:
(a) The plaintiffs, Radha Krishan Wadhwa and Krishna Wadhwa,
siblings, are owners of the property bearing no. I-30, Lajpat
Nagar-III, New Delhi, consisting of two and half storey building
built on plot of land measuring 300 sq meters (herein after ‘the
said property’).
(b) The defendant, Kusum Wadhwa is an unmarried daughter of
plaintiffs’ deceased brother namely, late Shri. Mans Raj
Wadhwa.
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AND AND Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
15:16:10 +0530
(c) Late Sh. Vasdev Wadhwa, who died in the year 2009, was
another brother of plaintiffs and defendant’s father. He was the
registered owner of the said property. He, vide registered gift
deed dated 15.09.1999, gifted the said property to both the
plaintiffs. The plaintiffs, even otherwise, are entitled to the said
property by virtue of Hindu Succession Act.
(d) Late Sh. Vasdev Wadhwa had initially allowed defendant’s
father, late Sh. Mans Raj Wadhwa to live on the ground floor
portion consisting of two bedrooms, drawing/dining, kitchen,
lavatory etc. (herein after ‘the suit property’) of the said property
without any rent or other charges. The defendant, who was living
with her father before his death, is still living in the suit property.
The defendant has not been paying anything in respect of the suit
property, except the electricity and water charges. The plaintiffs
only used to pay house tax in respect of the suit property.
(e) The plaintiffs, after becoming the owner of the said property,
including the suit property, extended the license of defendant’s
father. They also allowed the defendant to continue to live in the
suit property after the death of her father as she had promised that
she would vacate the same after making an arrangement for
alternative accommodation. The defendant, who is a member of
Delhi Public School Cooperative Group Housing Society, had
promised that she would vacate the suit property after getting the
possession of the accommodation from the society.
(f) The defendant, however, after getting possession of the
accommodation from the aforesaid society, failed to vacate the
suit property and instead started leveling false and frivolous
allegations against the plaintiffs.
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AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.03.29
15:16:17 +0530
(g) On 12.01.2011, the defendant broke open the lock of one back
side room adjacent to garage and also removed the belongings of
the plaintiff no.1. The defendant also got certain equipment
installed on the ground floor so as to breach the privacy of the
plaintiffs.
(h) The plaintiffs, firstly, revoked the license of the defendant orally
and then, by way of a legal notice dated 15.01.2001, which was
duly received by her on 19.01.2011. The defendant, however,
failed to reply the said legal notice. The defendant was called
upon to vacate and handover the physical possession of the suit
property to the plaintiffs after 3 days of the service of aforesaid
notice.
(i) The suit property can easily fetch a monthly rent of Rs. 60,000/-
i.e. Rs. 2000/- per day. The defendant’s license coming to an end
on 22.01.2011, and the present suit having been filed on
25.01.2011, the plaintiffs are entitled to the recovery of a sum of
Rs. 4000/- as mesne profit for the pre-suit period. The Court, in
terms of Order XX Rule 12 CPC, may also fix mesne profits for
the pendente lite and future period. The plaintiffs undertake to
pay the deficient Court fees at the time of passing of Decree.
(j) The defendant also got an iron jaal installed in the open courtyard
on the ground floor. She has also threatened to make
alterations/additions, to create 3rd party interest and to part with
possession of the suit property.
(k) The cause of action arose on 19.01.2011, when the legal notice of
termination of license was served upon the defendant. The cause
of action is still continuing. As the suit property is situated within
the territorial limits of this Court, this Court has the territorial
jurisdiction. The relief of possession has been valued at Rs.
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AND AND
Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
15:14:10 +0530
1,00,06,000/-; the two reliefs of injunction have been valued at
Rs. 1000/- each; and the relief of recovery of mesne profit for the
pre-suit period has been valued at Rs. 4000/-. The prescribed
Court fees has been paid.
(l) The plaintiffs seek the following prayers:
“(i) That a Decree of possession be passed in favour of
the plaintiff and against the defendant in respect of the
ground floor consisting of drawing-cum-dining room,
three bed rooms, kitchen, lavatory etc. more
conspicuously shown within in red colour in the attached
site plan forming part of property bearing No.I-30, Lajpat
Nagar-III, New Delhi.
(ii) That a Decree of damages and mesne profits be also
passed in favour of the plaintiff and against the defendants
for a sum of Rs. 4000/- for the period 23.01.2011 to the
date of filing of the present suit.
(iii) That a further decree be also passed in favour of the
plaintiff and against the defendant on such rate which this
Hon’ble Court may arrive at after holding enquiry under
Order 20, Rule 12 CPC towards damages and mesne
profits for the period pendente-lite and future till the
defendant actually vacate and hand over the physical
vacant peaceful possession of the suit premises to the
plaintiffs. The plaintiff undertakes to pay deficient Court
fee at the time of passing the Decree.
(iv) That a Decree of permanent prohibitory injunction
be also passed in favour of the plaintiff and against the
defendant restraining the defendant, her associates,
assignees, servants, etc. from causing any additions,
alteration in the premises in question or subletting or
parting with possession or creating any third party interest
in respect of the suit property.
(v) A Decree of mandatory injunction be also passed in
favour of the plaintiff and against the defendant directing
the defendant to remove all her equipment thereby
encroaching upon the privacy of the plaintiff regarding
their movements and recording their day to day
conversation.
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AND AND
Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan
SACHIN by SACHIN
MITTAL
MITTAL 15:16:23
Date: 2025.03.29
+0530
(vi) Cost of the present suit be also awarded in favour of
the plaintiffs.
(v) Any other Order/relief/direction may also kindly be
passed in favour of the plaintiff and against the defendant
as this Hon’ble Court may deems fit, just and proper
according to the facts and circumstances of the present
case.”
Written Statement of the defendant, Kusum Wadhwa:
3. The defence of the defendant, Kusum Wadhwa, as
pleaded in her written statement, is based upon following
allegations/averments:
(a) The said property i.e. property bearing no. I-30, Lajpat Nagar-III,
New Delhi, consisting of two and half storey building built on
plot of land measuring 300 sq meters, was purchased by
defendant’s father, late Sh. Mans Raj Wadhwa and his brothers,
late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff
herein). They had purchased the said property from the funds of
death claim of their father, late Sh. Jaswant Rai Wadhwa, who
was murdered in Pakistan at the time of partition of India. The
said property was purchased in the name of late Sh. Vasdev
Wadhwa as trustee and for the benefit of all legal heirs of late Sh.
Jaswant Rai Wadhwa. It was also agreed that all legal heirs of
late Sh. Jaswant Rai Wadhwa would have a share in the said
property.
(b) In the year 1995, the three sons of late Sh. Jaswant Rai Wadhwa
namely late Sh. Mans Raj Wadhwa (defendant’s father), late Sh.
Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff herein),
entered into an oral family settlement. It was, accordingly,
agreed that the ground floor would go to defendant’s father, late
Sh. Mans Raj Wadhwa; the first floor would go to late Sh.
Vasdev Wadhwa and the sister, Krishna Wadhwa; and the
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AND AND Digitally signed
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan
SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.03.29
15:16:28 +0530
second floor would go to Radha Krishan Wadhwa (the plaintiff
herein). It was also agreed that they would also sign the requisite
documents as and when necessary for conveying the ownership
of respective share falling to them.
(c) The aforesaid family settlement was acted upon and all parties
have been enjoying the respective portions, which fell to their
share.
(d) It is denied that the defendant or her deceased father, late Sh.
Mans Raj Wadhwa were allowed to live in the suit property by
virtue of license granted by late Sh. Vasdev Wadhwa or by the
plaintiffs.
(e) Late Sh. Vasdev Wadhwa, therefore, was not entitled to execute
any gift deed in respect of the said property in favour of the
plaintiffs. The said gift deed is void.
(f) The defendant, vide letter dated 02.02.2011, through her lawyer,
had duly replied the legal notice dated 15.01.2011, issued by the
plaintiffs.
(g) On 28.01.2011, the plaintiffs have put a welded iron-sheet on the
iron door leading to the common area on the ground floor of the
said property, where electricity control panel is installed. Further,
they w.e.f. 12.01.2011, have also stopped the access of the
defendant to the roof of the said property, where water tanks are
installed.
(h) The defendant has obtained an expert opinion from Forensic
Experts and has come to know that the alleged gift deed dated
15.09.1999, is a forged and fabricated document and that the
same was not signed by the deceased, late Vasdev Wadhwa.
(i) It is denied that the defendant broke open the lock of a room on CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 7 of 52 AND AND Digitally signed CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan by SACHIN SACHIN MITTAL Date: MITTAL 2025.03.29 15:14:14 +0530
the ground floor, or that she stole/removed belongings of the
plaintiffs.
(j) It is denied that the defendant has encroached upon the privacy of
the plaintiffs. She has got the CCTV installed on the ground floor
for the purpose of her own safety.
(k) It is denied that the plaintiffs are otherwise entitled to the suit
property by virtue of Hindu Succession Act.
(l) It is denied that the defendant has threatened to make any
additional/alteration, or to create 3rd party interest, or to part with
possession of the suit property.
(m) Lastly, it has been prayed that the plaintiffs are not entitled to
any relief as sought.
Replication:
4. The plaintiffs filed a replication, which is, more or less, in
denial of averments/allegations made in the written statement and in
reaffirmation of those made in the plaint. It has been denied that the gift
deed dated 15.09.1999, is a forged and fabricated document. It has been
stated that late Sh. Vasdev Wadhwa died on 29.12.2009 i.e. after about
10 years from the date of the gift deed dated 15.09.1999, and during
this period no one, not even defendant’s father, ever challenged the said
gift deed. It has been denied that the said property was purchased from
the funds of death claims of late Sh. Jaswant Rai Wadhwa. It has been
denied that the said property was purchased in the name of late Sh.
Vasdev Wadhwa as trustee for the benefit of all other legal heirs of late
Sh. Jaswant Rai Wadhwa. It has been stated that defendant’s father, late
Sh. Mans Raj Wadhwa, was working as Depot Superintendent with the
Burma Shell Company in Farukabad, UP, before partition and that he
had been living there alongwith his family before partition. It has been
stated that the plaintiffs, Radha Krishan Wadhwa and Krishna
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AND AND Digitally signed
by SACHIN
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan
SACHIN MITTAL
Date:
MITTAL 2025.03.29
15:16:34
+0530
Wadhwa; late Sh. Vasdev Wadhwa and their mother had come to India
during summer vacations before partition. Their father, late Sh.
Jaswant Rai Wadhwa, who was in Pakistan, before he could return to
India, was murdered on 13.09.1947. The plaintiffs, Radha Krishan
Wadhwa and Krishna Wadhwa; late Sh. Vasdev Wadhwa and their
mother shifted to a refugee camp at Bela Road, Delhi. The defendant’s
father, late Sh. Mans Raj Wadhwa also joined the plaintiffs, who were
minors at that time. Thereafter, late Sh. Vasdev Wadhwa joined a job in
India and started earning. Three houses, one to defendant’s father late
Sh. Mans Raj Wadhwa, one to late Sh. Vasdev Wadhwa and one to
Radha Krishan Wadhwa (who was minor at that time) alongwith
mother, were allotted to them in lieu of their properties left in Pakistan.
Afterwards, late Sh. Vasdev Wadhwa purchased the plot upon which
the said property is built from his own earnings. The construction upon
the plot was raised in several stages jointly by the plaintiff and late Sh.
Vasdev Wadhwa. The defendant’s father, late Sh. Mans Raj Wadhwa
had been living separately alongwith his wife and daughters and,
therefore, he had not contributed in the construction cost. It has also
been stated that in the year 1995, the defendant’s father, late Sh. Mans
Raj Wadhwa, after selling his house, was searching for a house and in
such circumstances late Sh. Vasdev Wadhwa and plaintiffs allowed
him and his daughters to live on the ground floor i.e. the suit property. It
has been denied that any family settlement as alleged was entered into.
It has been reiterated that the said property was gifted by late Sh.
Vasdev Wadhwa to the plaintiffs. It has been stated that defendant’s
reply dated 02.02.2011 to plaintiffs’ legal notice dated 15.01.2011, was
not mentioned in the plaint as the same was received after filing of this
suit.
5. One, Nirmala Wadhwa, filed an application under Order I
Rule 10(2) CPC, therein seeking her impleadment in the present suit.
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AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.03.29
15:16:45 +0530
The said application was allowed by this Court, vide Order dated
09.11.2016.
Written Statement of the defendant, Nirmala Wadhwa:
6. Newly impleaded defendant, Nirmala Wadhwa filed a
separate written statement. Her defence can be summarized as follows:
(a) The plaintiffs have filed the present suit in collusion with the
defendant no.1.
(b) She had got married to late Sh. Vasdev Wadhwa on 10.12.1973
according to Hindu rites and ceremonies and, therefore, she is his
legally wedded wife. No child was born out of the wedlock. She
is, therefore, the only surviving class I legal heir of late Sh.
Vasdev Wadhwa.
(c) As late Sh. Vasdev Wadhwa died intestate on in the year 2009,
she became the absolute owner of all his properties, including the
share in the said property i.e. property bearing no. I-30, Lajpat
Nagar-III, New Delhi, consisting of two and half storey building
built on plot of land measuring 300 sq meters.
(d) The said property was purchased and constructed from the funds
of death claim of the common ancestor, late Sh. Jaswant Rai
Wadhwa, who was murdered during partition of the country.
(e) The said property was purchased in the name of “Vasdev
Wadhwa HUF, which comprised of three brothers namely late
Sh. Mans Raj Wadhwa, late Sh. Vasdev Wadhwa and Radha
Krishan Wadhwa (plaintiff herein).
(f) Subsequently, the aforesaid three brothers had entered into a
family settlement whereby the HUF was dissolved and it was
agreed that the ground floor would go to late Sh. Mans Raj
Wadhwa; the first floor would go to late Sh. Vasdev Wadhwa;
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AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.03.29
15:14:18 +0530
and the second floor would go to Radha Krishan Wadhwa (the
plaintiff herein).
(g) By virtue of aforesaid family settlement, her husband, late Sh.
Vasdev Wadhwa became owner of first floor of the said property
and he continued to be so till his death.
(h) After the death of her husband, late Sh. Vasdev Wadhwa in the
year 2009, the plaintiffs approached her with the request to grant
him license to use the first floor for the accommodation of his
wife and step children. She granted the said license to him with a
condition that he would vacate the first floor upon completion of
construction/additions on his portion in the said property.
(i) In September, 2015, when, the renovation/construction on the
second floor of the said property had been completed, she
required the plaintiffs to vacate the first floor. However, the
plaintiffs failed to do so.
(j) She was, therefore, constrained to terminate the license of the
plaintiff, vide notice dated 16.02.2016, which was duly served
upon him. Ultimately, she had to file a suit, Civil Suit No.
52099/2016. It was during the proceedings in the said suit that
she came to know about the alleged gift deed.
(i) The alleged gift deed dated 15.09.1999 is a forged and fabricated
document and the same was never executed by her deceased
husband, late Sh. Vasdev Wadhwa. At the time of alleged
execution of the gift deed, her husband was not keeping well and
due to illness, he was not in position to understand anything.
(k) The plaintiff kept the aforesaid alleged gift deed completely
under the cover. She came to know about the aforesaid alleged
gift deed dated 15.09.1999 only when the plaintiff in the present
suit filed the written statement in the suit filed by her.
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AND AND
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by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
15:16:50 +0530
(l) The subsequent alleged gift deed dated 08.02.2011, executed by
the plaintiff no.2 in the present suit i.e. Krishna Wadhwa in
favour of the plaintiff no.1, Radha Krishan Wadhwa is
inconsequential as the same is based upon the earlier gift deed
dated 15.09.1999, allegedly executed by her late husband, which
is a forged and fabricated document. The plaintiff no.2, Krishna
Wadhwa, is a psychiatric patient and she has been manipulated
by the plaintiff no.1 for getting the alleged gift deed executed in
his favour.
(m) All other contents of the plaint are wrong and, therefore, denied.
Replication to the Written Statement of the defendant, Nirmala
Wadhwa:
7. The plaintiff, Radha Krishan, filed a replication to the
aforesaid written statement of Nirmala Wadhwa, therein stating as
under:
(a) It is denied that the plaintiff has filed the present suit in collusion
with the defendant, Kusum Wadhwa.
(b) The present suit has been filed in respect of the ground floor. No
relief is being sought against Nirmala Wadhwa.
(c) It is not denied that Nirmala Wadhwa had married late Sh.
Vasdev Wadhwa. However, they hardly lived together as the
matrimonial dispute had arisen between them. Her whereabouts
were not known for a number of years. She herself had filed a suit
bearing no.223/1999 for injunction against late Sh. Vasdev
Wadhwa. In the said suit, late Sh. Vasdev Wadhwa had filed a
written statement, therein stating that he did not own any
property. The said suit was ultimately dismissed.
(d) Late Sh. Vasdev Wadhwa after gifting the said property, vide gift
deed dated 15.09.1999 to the plaintiff, had died in the year 2009.
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Digitally signed
AND AND by SACHIN
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan SACHIN MITTAL
MITTAL Date:
2025.03.29
15:14:22 +0530
At the time of his death, late Sh. Vasdev Wadhwa did not own
any property. Therefore, there is no question of Nirmala Wadhwa
inheriting any property from late Sh. Vasdev Wadhwa.
(e) Nirmala Wadhwa filed a suit against the plaintiff at the
instigation of the defendant no.1.
(f) It is denied that the said property was purchased and constructed
by utilizing the funds from the death claim of late Sh. Jaswant
Rai Wadhwa. The said property was constructed in phases from
the income of late Sh. Vasdev Wadhwa and plaintiff.
(g) There was no HUF of late Vasdev Wadhwa.
(h) There was no family settlement as alleged.
(i) Late Sh. Vasdev Wadhwa, vide gift deed dated 15.09.1999, had
gifted the said property to Radha Krishan HUF. At the relevant
time, the plaintiff, Radha Krishan was the karta of the family; he
was unmarried at that time; and Krishna Wadhwa was his sister.
Therefore, for all intents and purposes, the said property was
gifted to him. Later on, Krishna Wadhwa also executed a gift
deed in respect of the said property in favour of the plaintiff,
Radha Krishan Wadhwa.
(j) The plaintiff Radha Krishan Wadhwa became absolute owner of
the property and he only got the building plan sanctioned. He
only has been paying the property tax since 1999.
PLEADINGS IN THE COUNTER-CLAIM (CS DJ No. 249/25)
Counter-claim:
8. The defendant, Kusum Wadhwa has also filed a counter-
claim, which is more or less, based upon the same allegations/
averments as pleaded by her in the written statement filed in the main
suit. To put it succinctly, the said counter-claim is based upon the
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AND AND
CS DJ No. 249/25 Kusum Wadhwa v. Radha Krishan Digitally signed
by SACHIN
SACHIN MITTAL
MITTAL Date:
2025.03.29
15:16:59 +0530
allegations/ averments that the said property was purchased by the
defendant’s father, late Sh. Mans Raj Wadhwa and his brothers namely
late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa (plaintiff herein)
out of the death claim funds of their father, late Sh. Jaswant Rai
Wadhwa; that the defendant’s father and after his death the defendant
are in use and occupation of the suit property since long; that a family
settlement was arrived at in the year 1995 wherein the entire said
property was apportioned floor wise and the ground floor i.e. the suit
property fell to the share of defendant’s father; that late Sh. Vasdev
Wadhwa had no right to execute any gift deed in favour of the plaintiff;
and that this alleged gift deed dated 15.09.1999 is a forged and
fabricated document. Based upon these pleadings, the
defendant/counter-claimant has made following prayers in the counter-
claim:
“(i) Pass a decree of declaration in favour of the
defendant and against the plaintiff’s declaring that the Gift
Deed dated 15.09.1999 bearing registration no. 2376 in
Addl. Book No. I, Vol No. 140 on pages 43 to 49
registered with the office Sub-Registrar, New Delhi in
relation to the property No. I-30, Lajpat Nagar-III, New
Delhi-110024 is forged and fabricated and thus void and
the same is otherwise illegal, ineffective as Late Sh.
Vasudev Wadhwa did not have right to execute Gift Deed
of the entire property and accordingly, the Gift Deed is
null and void-ab-initio and is ineffective in law and
plaintiffs cannot claim any right, title or interest on the
basis of said Gift Deed;
(ii) Pass a Decree of cancellation of gift deed dated
15.09.1999 bearing registration no. 2376 in Addl. Book
No.1, Vol. No. 140 on pages 43 to 49 registered with the
office of Sub Registrar, New Friends Colony, New Delhi
in relation to property bearing no. I-30, Lajpat Nagar-III,
New Delhi executed by Mr. Vasdev Wadhwa in favour of
the plaintiff’s with directing to the Sub Registrar of
Assurances concerned to cancel the same.
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AND AND
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by SACHIN
SACHIN MITTAL
Date:
MITTAL 2025.03.29
15:17:04
+0530
(iii) Pass a Decree of mandatory Injunction in favour of
the defendant and against the plaintiffs directing to
execute the documents in respect of ground floor of
property bearing no. I-30, Lajpat Nagar-III, New Delhi in
favour of the defendant.
(iv) Pass a Decree of mandatory Injunction in favour of
the defendant and against the plaintiffs, directing the
plaintiffs to remove the welded iron sheet on the iron door
leading to the common area on the ground where
electricity control panel is installed in the property.
(v) Grant costs.The burden of proving this issue is fixed
upon the defendant/counter-claimant.
(vi) Grant such other, further relief in the facts and
circumstances of the case as this Hon’ble Court may deem
just and equitable in favour of the defendant and against
the plaintiffs.”
Written Statement:
9. The plaintiff filed a written statement to the aforesaid
counter-claim of the defendant. It has been stated therein that the
defendant has three more sisters and, therefore, she alone cannot seek
the relief as sought in the counter-claim. It has been alleged that the
relief of declaration with respect to gift deed dated 15.09.1999 and
relief of mandatory injunction, are barred by limitation. It has been
denied that the gift deed dated 15.09.1999, is a forged and fabricated
document. It has been stated that the construction upon the suit
property was raised with the earnings of the plaintiff, Radha Krishan
and those of late Sh. Vasdev Wadhwa. The plaintiff has relied upon the
various receipts and bills for purchase of building material and
payment to the labourers, as filed with the written statement. Some
amount was taken as a loan from their mother, late Jesi Bai also, which
was later on repaid, as is clear from her Will, executed on 28.01.1989. It
has also been alleged that in the absence of any class I legal heir left by
late Sh. Vasdev Wadhwa, the plaintiffs being the only class II legalCS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 15 of 52
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heirs, are entitled to the estate of late Sh. Vasdev Wadhwa. All other
allegations/averments in the counter-claim have been denied and those
pleaded in the plaint and replication filed on behalf of the plaintiff in
the main suit have been reaffirmed. For the sake of brevity, the
pleadings in the plaint and replication filed on behalf of the plaintiff are
not being repeated herein.
Replication:
10. The defendant/counter-claimant filed a replication to the
aforesaid written statement of the plaintiff. It has been stated therein
that the defendant’s three sisters have relinquished their right, title or
interest in the suit property in favour of the defendant/counter-claimant.
Regarding the plea that the relief of declaration with respect to the gift
deed dated 15.09.1999 being barred by limitation, it has been stated
that the defendant/counter-claimant came to know about the said gift
deed only upon filing of the aforesaid main suit. It has also been alleged
that the Will dated 21.01.1989, allegedly executed by late Jesi Bai is a
forged and fabricated document as she was suffering from physical and
mental incapacity as she was paralyzed for almost a year before her
death.
Interim/ Misc. Applications:
11. The Ld. Predecessor Court, vide Order dated 02.02.2011,
issue ex-parte, directed the defendant to maintain status quo with
regard to title, possession and construction in the suit property. The said
ex-parte Order was confirmed and made absolute till the disposal of the
suit, vide subsequent Order dated 14.02.2013. Vide Order dated
05.09.2014, an application under Order VI Rule 17 CPC, filed on
behalf of the defendant, for amendment in the written statement for
alleging forgery in the gift deed dated 15.09.1999, was allowed.
Another application under Order VIII Rule 1A (3) CPC, filed on behalf
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of the defendant, for permission to place on record the forensic reports
regarding forgery in the aforesaid gift deed, was also allowed, vide the
Order of even date. An application under Order XXII Rule 10 CPC,
filed on behalf of the plaintiff no.2, therein seeking her deletion from
the suit, on the ground that she, vide gift deed dated 07.02.2011, has
transferred the suit property in favour of the plaintiff no.1, was also
allowed, vide Order dated 05.09.2014. Vide Order dated 19.11.2015,
an application under Order VII Rule 14(3) CPC, filed on behalf of the
plaintiff, for permission to file additional documents, was allowed. The
impleadment of the defendant no.2, Nirmala Wadhwa, was allowed,
vide Order dated 09.11.2016, upon her application under Order I Rule
10(2) CPC. On 13.03.2019, it was reported to the Court that the
defendant no.2, Nirmala Wadhwa has died. The Court gave a liberty to
the Ld. Counsel for impleadment of her LRs. However, no application
for the said purpose was ever filed. The suit against the defendant no.2,
therefore, stood abated, as directed, vide Order dated 13.11.2019.
ISSUES
12. On 13.08.2015, the Hon’ble High Court, framed
following issues for trial:
Issue no.1: Whether the suit property that was purchased by Shri.
Vasdev Wadhwa as a trustee, for the benefit of the legal heirs of Shri
Jaswant Rai Wadhwa, father of the plaintiff and grandfather of the
defendant, as alleged in para 3(a) of the preliminary objections raised
by the defendant in written statement? (OPD)Issue no.2: Whether there was an oral family settlement arrived at
between the sons of Shri Jaswant Rai Wadhwa in the year 1995, if so
the effect thereof? (OPD)CS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 17 of 52
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Issue no.3: Whether the suit premises was purchased by Mr. Mans Raj
Wadhwa, father of the defendant and his brother from the funds of the
death claim of their father, late Shri. Jaswant Rai Wadhwa? (OPD)Issue no.4: Whether the duly registered gift deed dated 15.09.1999,
executed by Shri Vasdev Wadhwa (brother of the plaintiff and paternal
uncle of the defendant) is liable to be cancelled as void ab initio?
(OPD/-Counter Claimant)Issue no.5: Whether the plaintiff is entitled to a Decree of possession
in respect of the ground floor of the suit premises on the basis of the
registered gift deed dated 15.09.1999, executed by late Shri Vasdev
Wadhwa? (OPP)Issue no.6: If issue no.5 is decided in favour of the plaintiff, whether
he is entitled to claim damages/mesne profits against the defendant in
respect of the suit premises, if so at what rate and for what period?
(OPP)Issue no.7: Whether the plaintiff is entitled to a Decree of permanent
injunction against the defendant in respect of the suit premises, as
prayed for in prayer clause (iv)? (OPP)Issue no.8: Whether the plaintiff is entitled to a Decree of mandatory
injunction against the defendant in respect of the suit premises, as
prayed for in prayer clause (v)? (OPP)Issue no.9: Relief.
13. The Court, vide Order dated 18.05.2016, while exercising
power under XIV Rule 5(1) CPC, framed the following additional
issue:
Additional Issue no. 3(a):Whether gift deed dated 15.09.1999 executed
by Vasdev Wadhwa is a forged and fabricated document? OPD/counter
claimant.
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EVIDENCES
Plaintiff's evidences:
14. The plaintiff, in order to prove his case, examined five
witnesses i.e. plaintiff himself, Radha Krishan as PW-1, Sh. Sunil
Verma as PW-2, Sh. Harit Chhillar as PW-3, Ms. Jagriti Jain as PW-4
and Sh. Naveen Chhabra as PW-5.
14.1 The plaintiff, as PW1, tendered his affidavit-in-evidence,
Ex.PW1/A towards his examination-in-chief, wherein he relied upon,
among other documents, Sale Deed dated 11.04.1958, Ex.P-1
pertaining to the purchase of the said property; the bills, challans and
receipts for proving construction in the said property, Ex.PW-1/1 to Ex.
PW-1/23; passbook of late Vasdev Wadhwa’s bank account, Ex.
PW-1/25; passbook of plaintiff’s bank account, Ex. PW-1/26; Will
dated 21.08.1989, executed by late Jesi Bai, Ex. PW-1/27; registered
Gift Deed dated 15.09.1999, executed by late Vasdev Wadhwa in
favour of the plaintiff, Ex. PW-1/28; house tax payment receipt, Ex.
PW-1/29; and site plan, Ex. PW-1/31. PW-1 was cross-examined on
behalf of the defendant on 21.11.2015, 02.12.2015, 01.06.2016,
02.06.2016, 11.12.2019, 14.01.2020 and 20.02.2020 and then he was
discharged. The testimony of the witness, PW-1 will be dealt with,
wherever relevant, while returning the findings on the issues.
14.2 PW-2/Sh. Sunil Verma, Senior Secretarial Assistant, Tax
Department, was a summoned witness. He tendered in evidence a
Mutation Letter dated 10.03.2004, issued in the name of Sh. Radha
Krishan and Ms. Krishana Wadhwa as Ex. PW-2/1. He was cross-
examined on behalf of the defendant and discharged on 21.12.2021.
14.3 PW-3/Sh. Harit Chillar, Record Keeper, Sub Registrar -V,
Mehrauli was a summoned witness. He tendered in evidence the Gift
Deed dated 13.09.1999, registered at document no. 2376 in Additional
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Book No.1, Volume No. 140, Page No. 43 to 49, as already Ex.
PW1/28. He was cross-examined on behalf of the defendant and
discharged on 21.12.2021.
14.4 PW-4/Ms. Jagriti Jain, tendered her affidavit-in-evidence,
Ex.PW4/A towards her examination-in-chief, wherein she relied upon
death certificate dated 18.12.2001 of her father, Mr. N.K. Jain as Ex.
PW4/1 and Registered gift deed dated 15.09.1999 as already Ex.
PW1/28. She was cross-examined on behalf of the defendant on
24.03.2022 and then she was discharged. The testimony of the witness,
PW-4 will be dealt with, wherever relevant, while returning the
findings on the issues.
14.5 PW-5/Sh. Naveen Chhabra tendered his affidavit-in-
evidence, Ex.PW5/A towards his examination-in-chief, wherein he
relied upon gift deed dated 15.09.1999, as already Ex. PW1/28. He was
cross-examined on behalf of the defendant on 21.12.2021 and then he
was discharged. The testimony of the witness, PW-5 will be dealt with,
wherever relevant, while returning the findings on the issues.
14.6. The plaintiff did not examine any other witness. Plaintiff’s
evidence, pursuant to statement of the Ld. Counsel for the plaintiff
recorded on 24.03.2022, were closed.
Defendant/ Counter-claimant’s evidence:
15. The defendant, in order to prove her defence and claim in
her counter-claim, examined six witnesses i.e. defendant herself,
Kusum Wadhwa as DW-1, Ms. Anju Loomba as DW-2, Mr. M.S.
Mishra as DW-3, Sh. Sunil Verma as DW-4, Sh. S.C. Raghvendra
Kumar Singh as DW-5 and Sh. Dharmvir Jakhar as DW-6.
15.1 The defendant, Kusum Wadhwa, DW1, tendered her
affidavit-in-evidence, Ex.DW1/A and additional affidavit-in-evidence,
Ex. DW1/B towards her examination-in-chief, wherein she relied
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upon, the forensic experts’ reports, Ex. DW1/1 and Ex. DW1/2; Police
complaints, Ex.DW1/3 (Colly.) (OSR); the application for
impleadment of Ms. Nirmala Wadhwa, Ex. DW1/4; application under
Section 340 Cr.PC, Ex.DW1/5; and certified copy of the case file CS
87/2016 titled as Nirmala Wadhwa vs. Radha Krishan and Anr., Ex.
DW1/6 (Colly). DW-1 was cross-examined on behalf of the plaintiff on
15.07.2022, 29.07.2022, 19.11.2022, 26.11.2022, 14.12.2022,
21.12.2022 and then she was discharged. The testimony of the witness,
DW-1 will be dealt with, wherever relevant, while returning the
findings on the issues.
15.2. DW-2/Ms. Anju Loomba tendered her evidence by way of
affidavit-in-evidence, Ex. DW-2/C. She was cross-examined on behalf
of the plaintiff on 14.02.2023 and 25.04.2023 and then she was
discharged. The testimony of the witness, DW-2 will be dealt with,
wherever relevant, while returning the findings on the issues.
15.3. DW-3/Mr. M.S. Mishra, Forensic Handwriting and
Fingerprint Expert, was a summoned witness. He identified his
signatures alongwith his stamp on the each and every page of the report
already Ex. DW-1/1. He also identified his signatures alongwith stamp
on the set of documents i.e. indemnity bond (page-1) dated 16.08.2023
and Gift deed dated 15.09.1999, already Ex. DW1/P-I. He was cross-
examined on behalf of the plaintiff on 28.01.2023 and then he was
discharged.
15.4. DW-4/Sh. Sunil Verma, Assistant Zonal Inspector, House
Tax Dept., Municipal Corporation of Delhi (MCD), was a summoned
witness, who brought the original office record file of property No.
I-30, Lajpat Nagar-III, New Delhi-24 and identified the receipt bearing
no. PT-550146 and property UPIC 157275410038000, issued by his
department for online payment in the name of Kusum Wadhwa. He was
cross-examined on behalf of the plaintiff on 22.03.2023 and then he
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was discharged. During cross-examination, the receipt bearing no.
PT-550146 and property UPIC 157275410038000 pertaining to the
F.Y. 2022-2023 was exhibited as Ex. DW-4/1
15.5. DW-5/Sh. S.C. Raghvendra Kumar Singh, Head
Constable, PS Lajpat Nagar-III, was a summoned witness, who
tendered in evidence a certified copy of the Order dated 10.04.2012
bearing no. 9232-329, Ex. DW-5/1. He was cross-examined on behalf
of the plaintiff on 25.04.2023 and then he was discharged.
15.6. DW-6/Sh. Dharmvir Jakhar, Head Constable, PS Lajpat
Nagar-III, was a summoned witness, who tendered in evidence the
original record of Book no.1 Roznamcha B dated 09.01.2011 to
22.01.2011 alongwith Book no.2 Roznamcha B dated 23.01.2011 to
02.02.2011, depicting DD entry no. 55B dated 30.01.2011, DD entry
no. 80B dated 21.01.2011 and DD entry No. 50B dated 12.01.2011,
Ex. DW-6/1, Ex. DW-6/2 and Ex. DW-6/3. He was cross-examined on
behalf of the plaintiff on 05.07.2023 and then he was discharged.
15.7. The defendant did not examine any other witness.
ARGUMENTS
16. I have heard Sh. S.C. Singhal, Ld. Counsel for the plaintiff
and Sh. Sourabh Malhotra, Ld. Counsel for the defendant/counter-
claimant. I have carefully perused the judicial record as well.
FINDINGS ON ISSUES
17. Issue no.1: Whether the suit property that was purchased
by Shri. Vasdev Wadhwa as a trustee, for the benefit of the legal heirs
of Shri Jaswant Rai Wadhwa, father of the plaintiff and grandfather of
the defendant, as alleged in para 3(a) of the preliminary objections
raised by the defendant in written statement? (OPD)
And
Issue no.3: Whether the suit premises was purchased by
Mr. Mans Raj Wadhwa, father of the defendant and his brother from
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the funds of the death claim of their father, late Shri. Jaswant Rai
Wadhwa? (OPD)
17.1. The issue no.1 and 3 are being taken up together as these
issues can be decided on the basis of common findings. The burden of
proving both these issues was fixed upon the defendant/counter-
claimant.
17.2. The case of the defendant/counter-claimant is that the said
property was purchased by her father, late Sh. Mans Raj Wadhwa, and
his brothers, late Sh. Vasdev Wadhwa and Radha Krishan Wadhwa
(plaintiff herein) out of death claim funds of their father late Sh.
Jaswant Rai Wadhwa; that it was purchased in the name of late Sh.
Vasdev Wadhwa as a trustee for benefit of other legal heirs of late Sh.
Jaswant Rai Wadhwa; and that all three sons of late Sh. Jaswant Rai
Wadhwa had share in the said property. On the other hand, the plaintiff
claims that the said property was purchased by late Sh. Vasdev
Wadhwa out of his self-acquired earnings and without the help of any
alleged death claim funds of late Sh. Jaswant Rai Wadhwa.
17.3. The defendant/counter-claimant for the purpose of
proving the issues under consideration laid a lot of emphasis upon 6 th
recital of the alleged Gift Deed dated 15.09.1999 (Ex. PW-1/28), which
reads as : “AND WHEREAS it is mentioned here that the said property
was purchased by the family members of the Donar from the funds and
resources of their father and mother in the name of the Donar, and in
view of these circumstances same was assessed in the Income Tax
Department in the name of Vasdev Wadhwa, HUF, w.e.f. 01.04.1969”.
The said Gift Deed purports to have been signed by the Donar, late
Vasdev Wadhwa as well as Donees, Radha Krishan Wadhwa and late
Ms. Krishana Wadhwa. The aforesaid recital is in obvious
contradiction to the claim of the plaintiff that the said property was
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purchased by late Sh. Vasdev Wadhwa out of his self acquired
earnings.
17.4 It becomes relevant here to examine the relevancy of the
aforesaid recital in the Gift Deed for the purpose of proving the issues
under consideration, particularly it needs to be examined whether the
aforesaid recital can be proved as an admission against the plaintiff.
17.5. An ‘admission’, in common parlance, means an
acknowledgment of truth of a particular fact. Section 15 of the
Bharatiya Sakshya Adhiniyam, 2023 (BSA) defines ‘admission’ as a
statement, which suggests an inference as to any fact in issue or
relevant fact and which is made by any of the persons mentioned in
Section 16 to 18. The admission of a fact amounts to waiver of proof of
such a fact. It is presumed that nobody would make a wrong statement
against his own interest. Admission by a party is substantive evidence
of fact admitted by him and admission duly proved is admissible
evidence irrespective of whether the party making it appeared in the
witness box or not and whether the said party, when appeared, was
confronted with the said statement.1 A clear and unambiguous
admission is the best substantive evidence that an opposite party can
rely upon and though it is not conclusive, yet it would be decisive of the
matter unless it were successfully withdrawn or proved to be
erroneous.2 If an admission amounts to a estoppel, it becomes
conclusive under Section 25 of the BSA. As per Section 16 of the BSA,
an admission can be made by a party to the proceedings, or its agent, or
by a person having proprietor or pecuniary interest in the subject matter
of the proceedings, or by predecessor in interest of the party to the
proceedings. As per Section 19 of the BSA, an admission can be proved
against the person, who made it, or his representative in interest.
1
Union of India v. Moksha Builders and Financiers, AIR 1966 SC 405
2
Thiru John v. Returning Officer, AIR 1977 SC 1724
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17.6. Now, coming to the present case, one of the facts in issue
is whether the said property was purchased out of the alleged death
claim funds of late Jaswant Rai Wadhwa, or out of the self acquired
earnings of late Vasdev Wadhwa. The aforesaid recital in the gift deed
is suggesting an inference that the said property was purchased out of
the alleged death claim funds, and not out of the self acquired earnings
of late Vasdev Wadhwa. As the gift deed has been signed by late
Vasdev Wadhwa as well as the plaintiff, Radha Krishan Wadhwa, the
statement in the form of recital therein can be said to have been made
by a party to the present proceedings (i.e. the plaintiff herein) as well as
the plaintiff’s predecessor in interest i.e. late Vasdev Wadhwa. The
alleged admission is being sought to be proved against the plaintiff.
The statement in the said recital is clear and unambiguous. The said
recital, therefore, qualifies all the requirements of “admission” as per
the law. As regards its evidentiary value, though the Ld. Counsel for the
plaintiff argued that the said recital is wrong, the plaintiff/Ld. Counsel
has failed to show any motive for making a wrong statement in the said
gift deed. It is important to note here that the fact stated in the said
recital was within the personal knowledge of the plaintiff and his
predecessor in interest; it cannot be said that they made the said
statement in the gift deed on the basis of any hearsay or on the basis of
inference from any document provided by any 3 rd party. In view of
these facts, this Court is convinced that in view of the admission, the
plaintiff should be precluded from setting up a contrary case. This
finding in itself is sufficient for determination of the issues under
consideration in favour of the defendant and against the plaintiff. Held
so.
17.7. Now, I shall proceed to determine the issues under
consideration from another perspective. It would be relevant here to
examine the comparative financial condition of late Vasdev Wadhwa
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vis-a-vis that of the entire joint family, comprising of the eldest son,
late Mans Raj Wadhwa (defendant/counter-claimant’s father), late
Vasdev Wadhwa, Radha Krishan Wadhwa (plaintiff) and their mother,
late Jesi Bai. The plaintiff, as PW-1, during his cross-examination on
02.12.2015, stated that late Vasdev Wadhwa had started working in the
year 1950-51 with Postal and Telegraph Department, New Delhi at a
salary of Rs. 120/- per month and that he had no other source of income.
He during his cross-examination on 01.06.2016 also stated that the said
property was purchased in the year 1957-58 for Rs. 6000 – 7000. If the
income of late Vasdev Wadhwa for a period of 7 years prior to
purchasing of the said property is calculated, it comes to Rs. 10,000/-
approximately. It is also the case of the plaintiff that he; his brother,
Vasdev Wadhwa; his sister Krishna Wadhwa; and their mother, after
their return to India, had lived with late Mans Raj Wadhwa only for
about 5-6 months. After that they had shifted to refugee camp at Bela
road, Daryaganj, Delhi. Their mother was not working. The plaintiff in
his cross-examination on 02.12.2016 also stated that the household
expenditure of him, his mother and his sister were borne by late Sh.
Vasdev Wadhwa. Thus, a major portion, say 70% to 80%, of the
income of late Vasdev Wadhwa would have been utilized in
subsistence of a family of four members. It, thus, cannot be said that
late Vasdev Wadhwa would have saved Rs. 6000 to 7000 by the year
1957-58 for purchasing the said property out of his total income of Rs.
10,000/- approximately for last seven years. As against this, the
defendant’s father, Mans Raj Wadhwa had been working in India with
Burma Shell Company even before the partition. As answered by the
defendant in her cross-examination on 19.11.2022, first drawn salary of
late Mans Raj Wadhwa in the year 1947 was Rs. 500/-. The plaintiff,
during his cross-examination on 01.06.2016, stated that after the
murder of his father during partition, his mother has started getting a
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pension of Rs. 100/- per month and he and his siblings had started
getting a pension of Rs. 13/- per month. He also stated that they, in lieu
of their properties in Pakistan, received gratuity, provident fund and
last salary etc. after the death of late Jaswant Rai Wadhwa. Further,
they had received agricultural lands as part of death claims of their
father, which lands were sold off. In view of these facts, I find it more
probable that the said property was purchased out of death claim funds
and other income/savings of the family, instead of out of self acquired
arnings of late Vasdev Wadhwa. In this regard, Ld. Counsel for the
defendant has relied upon the Judgment of the Hon’ble Supreme Court
in K.V. Narayanaswami Iyer v. K.V. Ramakrishana Iyer and Ors. 3,
wherein it was held that if at the time of purchase of a property by the
joint family in the name of any of its member, such joint family has
sufficient funds for its purchase, the said property is considered to be a
joint family property:
15. The legal position is well settled that if in fact at the
date of acquisition of a particular property the joint
family had sufficient nucleus for acquiring it, the
property in the name of any member of the joint family
should be presumed to be acquired from out of family
funds and so to form part of the joint family property,
unless the contrary is shown. (Vide Amritlal Sen & ors.,
v. Surath Lal Sen & others A.I.R. 1942 Cal. 553
Appalaswami v. Suryanarayanamurthy & others [1948]
I.L.R.Mad 440.
17.8. Ld. Counsel for the plaintiff, while placing reliance upon
passbook of PNB account of late Vasdev Wadhwa (Ex. PW-1/25),
submitted that the consideration for the purchase of the said property
was paid by way of a cheque dated 14.11.1956. He further submitted
that there is no evidence of any payment having been received in the
said bank account from the alleged death claim funds of late Sh.
3
MANU/SC/0307/1964
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Jaswant Rai Wadhwa. A perusal of the said passbook, however, shows
that the entries therein are from August, 1956 onwards only, while the
payment for purchase of the property was made in November, 1956 i.e.
a few months after only. Thus, a possibility of late Vasdev Wadhwa
receiving funds prior to August, 1956 in the said bank account cannot
be ruled out. Further, there are credit entries of Rs. 7000/-
approximately prior to the date of said cheque. It cannot, thus, be said
conclusively that the payment was made out of self acquired earnings
of late Vasdev Wadhwa only.
17.9. Ld. Counsel for the plaintiff, then, relied upon the Will
dated 21.08.1989 (Ex. PW-1/27) of late Smt. Jesi Bai for the purpose of
contending that it has been mentioned therein that house in question
over the said property was built by Vasdev Wadhwa by the funds
arranged by him out of his own earnings and from the loans received
from his friends and her. It has also been stated therein that the said loan
was repaid by late Vasdev Wadhwa. I am afraid that these facts can be
proved by way of a Will of 3rd person. The purpose of Will is to make an
arrangement for distribution of assets after the death of testator/
testatrix. The statements in the Will as relied upon by the Ld. Counsel
for the plaintiff cannot be taken as a gospel truth, more so, when the
genuineness/truthfulness of the said statements cannot be tested by
cross-examination as the maker, late Ms. Jesi Bai of these statements
has died. These statements in the Will cannot be considered to be
relevant under Section 26 of the BSA because the same do not fall in
any of the eight cases specified under clause (a) to (h). The said
statements in the Will are merely a hearsay-evidence and, therefore, not
relevant. There is no other evidence led by the plaintiff for proving that
late Vasdev Wadhwa had borrowed loans for the purpose of purchasing
the said property.
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17.10. It was also the case of the plaintiff that the construction
upon the said property was raised in stages by him and late Vasdev
Wadhwa out of their income/ earnings and that the defendant’s father,
Mans Raj Wadhwa had not contributed in the cost of the construction.
At the outset, I must note that it is hardly relevant as to who contributed
the funds for construction upon the property. Having said this, now, I
proceed to examine the claim of the plaintiff in this regard. The plaintiff
relied upon the passbook of PNB bank account (Ex. PW-1/25) of late
Vasdev Wadhwa and that of his bank account (Ex. PW-1/26). The
plaintiff, however, during his cross-examination on 02.06.2016, failed
to point out the entries for depicting the payments made towards
construction. He then stated that the said payments were also made
from his separate saving bank account and that of his brother late
Vasdev Wadhwa. The passbook/account statements of the said saving
bank accounts were, however, not produced in evidence. The plaintiff
also stated that he cannot produce the same in evidence. As regard the
alleged bills, challans, receipts (Ex. PW-1/1 to Ex. PW-1/23), it cannot
be said that the payments mentioned in these documents were
contributed only by the plaintiff or late Vasdev Wadhwa. It is not
unusual in a joint family for a member to make the payments and get
the bills/receipts etc. in his name, when the said payments are in fact
made out of joint family funds.
17.11. Ld. Counsel for the plaintiff had also argued that the plea
of the defendant that the said property was purchased by the joint
family in the name of late Vasdev Wadhwa would be hit by Section 4 of
the prohibition of right to recover the benami property. Ld. Counsel
was probably referring to Benami Transactions (Prohibition) Act,
1988. The said Act was amended by way of the Benami Transactions
(Prohibition) Amendment Act, 2016 and renamed as The Prohibition of
Benami Property Transactions Act, 1988. Prior to the said amendment,
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‘benami transaction’ was defined under Section 2(a) as a transaction in
which property is transferred to one person for a consideration paid by
another person. Section 3 of the said Act prohibited the benami
transactions and Section 4 provided for prohibition of right to recover a
benami property. The said Section 4 in sub section (3)(a) excepted a
property held in the name of a coparcener for the benefit of coparceners
in the joint Hindu family from the prohibition of benami transaction.
After the aforesaid amendments, a comprehensive definition of
‘benami transaction’ has been inserted under Section 2(9), which reads
as under:
(9) “benami transaction” means –
(A) a transaction or an arrangement-
(a) where a property is transferred to, or is held by, a
person, and the consideration for such property has
been provided, or paid by, another person; and
(b) the property is held for the immediate or future
benefit, direct or indirect, of the person who has
provided the consideration,
except when the property is held by-
(i) a Karta, or a member of a Hindu undivided family,
as the case may be, and the property is held for his
benefit or benefit of other members in the family and
the consideration for such property has been provided
or paid out of the known sources of the Hindu
undivided family;
(ii) a person standing in a fiduciary capacity for the
benefit of another person towards whom he stands in
such capacity and includes a trustee, executor, partner,
director of a company, a depository or a participant as
an agent of a depository under the Depositories Act,
1996 (22 of 1996) and any other person as may be
notified by the Central Government for this purpose;
(iii) any person being an individual in the name of his
spouse or in the name of any child of such individual
and the consideration for such property has beenCS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 30 of 52
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provided or paid out of the known sources of the
individual;
(iv) any person in the name of his brother or sister or
lineal ascendant or descendant, where the names of
brother or sister or lineal ascendant or descendant and
the individual appear as joint-owners in any document,
and the consideration for such property has been
provided or paid out of the known sources of the
individual; or
(B) a transaction or an arrangement in respect of a
property carried out or made in a fictitious name; or
(C) a transaction or an arrangement in respect of a
property where the owner of the property is not aware of,
or, denies knowledge of, such ownership;
(D) a transaction or an arrangement in respect of a
property where the person providing the consideration is
not traceable or is fictitious;
Explanation.-For the removal of doubts, it is hereby
declared that benami transaction shall not include any
transaction involving the allowing of possession of any
property to be taken or retained in part performance of a
contract referred to in section 53A of the Transfer of
Property Act, 1882 (4 of 1882), if, under any law for the
time being in force,-
(i) consideration for such property has been provided
by the person to whom possession of property has been
allowed but the person who has granted possession
thereof continues to hold ownership of such property;
(ii) stamp duty on such transaction or arrangement has
been paid; and
(iii) the contract has been registered.
17.12. Where a person buys a property with his own money but
in the name of another person without any intention to benefit such
other person, the transaction is called benami. The aforesaid new
definition of ‘benami transaction’ also specifically provides two
requirements for a transaction to be considered ‘benami transaction’.
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The first requirement is that the property is held in the name of a
person, consideration whereof has been paid by another person. The
second requirement is that such property is held for the benefit of a
person, who has provided the consideration. It is required to be noted
that out of the four exceptions provided in the aforesaid definition when
a transaction or an arrangement is not considered to be the ‘benami
transaction’, the first exception is when a property is held by a karta, or
a member of HUF; such property is held for his benefit or for the
benefit of other members in the family; and when the consideration for
such property has been paid out of known source of HUF. In the present
case, it has already been held herein above that at the time of purchase
of the said property, the known sources of the joint family were
sufficient for the said purchase. In view of this, the plea of the
defendant that the said property was purchased by the legal heirs of late
Sh. Jaswant Rai Wadhawa in the name of late Vasdev Wadhawa as a
trustee for the benefit of all other members in the family cannot be said
to be hit by Section 4 of the Act.
17.13. In view of the above discussion, it is held that the said
property was purchased in the name of late Vasdev Wadhwa as a
trustee for the benefit of all legal heirs of late Jaswant Rai Wadhwa.
The issue no.1 is, thus, decided in favour of the defendant/counter-
claimant. It is also held that the said property was purchased out of
death claim funds of late Sh. Jaswant Rai Wadhwa. The issue no.3 is,
therefore, also decided in favour of the defendant/counter-claimant.
18. Issue no.2: Whether there was an oral family settlement
arrived at between the sons of Shri Jaswant Rai Wadhwa in the year
1995, if so the effect thereof? (OPD)
18.1. The burden of proving this issue was fixed upon the
defendant/counter-claimant.
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18.2. The case of the defendant/counter-claimant is that in the
year 1995, the three sons of late Sh. Jaswant Rai Wadhwa namely late
Sh. Mans Raj Wadhwa (defendant’s father), late Sh. Vasdev Wadhwa
and Radha Krishan Wadhwa (plaintiff herein), entered into an oral
family settlement. It was, accordingly, agreed that the ground floor
would go to defendant’s father, late Sh. Mans Raj Wadhwa; the first
floor would go to late Sh. Vasdev Wadhwa and the sister, Krishna
Wadhwa; and the second floor would go to Radha Krishan Wadhwa
(the plaintiff herein). The defendant also claims that the said family
settlement was acted upon and that she alongwith her father, Mans Raj
Wadhwa started residing on the ground floor from the year 1995
onwards, and that after his death, she has been living therein till date.
On the other hand, the plaintiff is disputing the alleged family
settlement.
18.3. Ld. Counsel for the plaintiff relied upon a mutation letter
dated 10.03.2004, issued by the MCD, Ex, PW-2/1 and receipts of
house tax payment, Ex. PW-1/29 for the purpose of contending that the
plaintiff, pursuant to execution of gift deed dated 15.09.1999, Ex.
PW-1/28, has always exercised the rights over the said property as an
owner. He submitted that it was the plaintiff only, who had been paying
the property tax.
18.4. It is noted that the house tax receipts tendered in evidence
by the plaintiff are receipt dated 29.08.1997 in the name of Vasdev,
receipt dated 01.09.1997 in the name of Vasdev, receipt dated
10.03.2004 in the name of the Radha Krishan Wadhwa, and receipt
dated 17.04.2010 in the name of Radha Krishan Wadhwa and Krishna
Wadhwa. Thus, there are only two receipts in the name of the plaintiff.
I am of the considered view that merely on the basis of mutation letter
dated 10.03.2004 and a few house tax receipts, it cannot be said that the
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plaintiff was exercising ownership rights in denial of the alleged family
settlement/arrangement.
18.5. Ld. Counsel for the defendant placed reliance upon the
pleadings of the suit no.87/2016 : 52099/2016, which was filed by late
Nirmala Wadhwa. The pleadings of the said suit was tendered in
evidence as Ex. DW-1/6. Ld. Counsel submitted that Nirmala Wadhwa
in the plaint of the said suit had also alleged that a family settlement in
the year 1995 was arrived at between the three brothers and the suit
property was divided floor wise between them. However, as Nirmala
Wadhwa has died and her statements in the plaint of the said suit are not
covered under Section 26 of the BSA, the facts stated in the plaint of the
said suit are merely a hearsay-evidence.
18.6. Ld. Counsel for the defendant in support of plea of family
settlement has placed reliance upon the celebrated judgment of the
Hon’ble Supreme Court pronounced in the case titled, Kale v. Dy.
Director of Consolidation, (1976) 3 SCC 119, wherein it was held:
“9. Before dealing with the respective contentions put
forward by the parties, we would like to discuss in general
the effect and value of family arrangements entered into
between the parties with a view to resolving disputes once
for all. By virtue of a family settlement or arrangement
members of a family descending from a common ancestor
or a near relation seek to sink their differences and
disputes, settle and resolve their conflicting claims or
disputed titles once for all in order to buy peace of mind
and bring about complete harmony and goodwill in the
family. The family arrangements are governed by a special
equity peculiar to themselves and would be enforced if
honestly made. In this connection, Kerr in his valuable
treatise Kerr on Fraud at p. 364 makes the following
pertinent observations regarding the nature of the family
arrangement which may be extracted thus:
“The principles which apply to the case of ordinary
compromise between strangers do not equally apply toCS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 34 of 52
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the case of compromises in the nature of family
arrangements. Family arrangements are governed by a
special equity peculiar to themselves, and will be
enforced if honestly made, although they have not been
meant as a compromise, but have proceeded from an
error of all parties, originating in mistake or ignorance
of fact as to what their rights actually are, or of the
points on which their rights actually depend.”
The object of the arrangement is to protect the family
from long-drawn litigation or perpetual strifes which mar
the unity and solidarity of the family and create hatred and
bad blood between the various members of the family.
Today when we are striving to build up an egalitarian
society and are trying for a complete reconstruction of the
society, to maintain .and uphold the unity and
homogeneity of the family which ultimately results in the
unification of the society and, therefore, of the entire
country, is the prime need of the hour. A family
arrangement by which the property is equitably divided
between the various contenders so as to achieve an equal
distribution of wealth instead of concentrating the same in
the hands of a few is undoubtedly a milestone in the
administration of social justice. That is why the term
“family” has to be understood in a wider sense so as to
include within its fold not only close relations or legal
heirs but even those persons who may have some sort of
antecedent title, a semblance of a claim or even if they
have a spes successionis so that future disputes are sealed
for ever and the family instead of fighting claims inter se
and wasting time, money and energy on such fruitless or
futile litigation is able to devote its attention to more
constructive work in the larger interest of the country. The
courts have, therefore, leaned in favour of upholding a
family arrangement instead of disturbing the same on
technical or trivial grounds. Where the courts find that the
family arrangement suffers from a legal lacuna or a formal
defect the rule of estoppel is pressed into service and is
applied to shut out plea of the person who being a party to
family arrangement seeks to unsettle a settled dispute and
claims to revoke the family arrangement under which he
has himself enjoyed some material benefits. The law in
England on this point is almost the same. In Halsbury’s
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Laws of England, Vol. 17, Third Edition, at pp. 215-216,
the following apt observations regarding the essentials of
the family settlement and the principles governing the
existence of the same are made:
“A family arrangement is an agreement between
members of the same family, intended to be generally
and reasonably for the benefit of the family either by
compromising doubtful or disputed rights or by
preserving the family property or the peace and
security of the family by avoiding litigation or by
saving its honour.
The agreement may be implied from a long course
of dealing, but it is more usual to embody or to
effectuate the agreement in a deed to which the term
“family arrangement” is applied.
Family arrangements are governed by principles
which are not applicable to dealings between strangers.
The court, when deciding the rights of parties under
family arrangements or claims to upset such
arrangements, considers what in the broadest view of
the matter is most for the interest of families, and has
regard to considerations which, in dealing with
transactions between persons not members of the same
family, would not be taken into account. Matters which
would be fatal to the validity of similar transactions
between strangers are not objections to the binding
effect of family arrangements.”
10. In other words to put the binding effect and the
essentials of a family settlement in a concretised form, the
matter may be reduced into the form of the following
propositions:
“(1) The family settlement must be a bona fide one
so as to resolve family disputes and rival claims by a
fair and equitable division or allotment of properties
between the various members of the family;
(2) The said settlement must be voluntary and
should not be induced by fraud, coercion or undue
influence;
(3) The family arrangement may be even oral in
which case no registration is necessary;
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(4) It is well settled that registration would be
necessary only if the terms of the family arrangement
are reduced into writing. Here also, a distinction should
be made between a document containing the terms and
recitals of a family arrangement made under the
document and a mere memorandum prepared after the
family arrangement had already been made either for
the purpose of the record or for information of the court
for making necessary mutation. In such a case the
memorandum itself does not create or extinguish any
rights in immovable properties and therefore does not
fall within the mischief of Section 17(2) of the
Registration Act and is, therefore, not compulsorily
registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property which is
acknowledged by the parties to the settlement. Even if
one of the parties to the settlement has no title but
under the arrangement the other party relinquishes all
its claims or titles in favour of such a person and
acknowledges him to be the sole owner, then the
antecedent title must be assumed and the family
arrangement will be upheld and the courts will find no
difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible,
which may not involve legal claims are settled by a
bona fide family arrangement which is fair and
equitable the family arrangement is final and binding
on the parties to the settlement.”
15. In Tek Bahadur Bhujil v. Debi Singh Bhujil [AIR
1966 SC 292, 295 : (1966) 2 SCJ 290] it was pointed out
by this Court that a family arrangement could be arrived at
even orally and registration would be required only if it
was reduced into writing. It was also held that a document
which was no more than a memorandum of what had been
agreed to did not require registration. This Court had
observed thus:
“Family arrangement as such can be arrived at
orally. Its terms may be recorded in writing as a
memorandum of what had been agreed upon betweenCS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 37 of 52
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the parties. The memorandum need not be prepared for
the purpose of being used as a document on which
future title of the parties be founded. It is usually
prepared as a record of what had been agreed upon so
that there be no hazy notions about it in future. It is
only when the parties reduce the family arrangement in
writing with the purpose of using that writing as proof
of what they had arranged and, where the arrangement
is brought about by the document as such, that the
document would require registration as it is then that it
would be a document of title declaring for future what
rights in what properties the parties possess.”
18.7. Regarding the family settlement/arrangement, it can be
summarized that the Courts lean strongly in favor of family settlement;
the family settlements are governed by a special equity; technical and
trivial discrepancies should be ignored to facilitate a mutually
agreeable instrument of family settlement; law favors family settlement
that encourage amicable distribution of family property; the family
settlement can be oral also; even an unregistered family settlement can
be used as corroborative evidence for explaining the arrangement
thereunder and conduct of the parties; and even an unregistered family
settlement operates as an estoppel to preclude the family members, who
had benefited from the arrangement to later challenge the validity of the
same.
18.8. The facts that the said property was a joint family property
purchased in the name of late Sh. Vasdev Wadhwa as a trustee for
benefit of all members of the family; recital to similar effect in the gift
deed dated 15.09.1999; and the fact that the defendant/counter-
claimant has been residing in the ground floor of the property since the
year 1995; make it more probable that the aforesaid family
settlement/arrangement was in fact entered into.
18.9. The effects of the said family settlement would be that late
Sh. Vasdev Wadhwa did not have any authority to execute the alleged
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gift deed dated 15.09.1999 in favour of the plaintiff; and that the
defendant as a legal heir of her late father, Mans Raj Wadhwa, has
become owner of the suit property.
18.10. The defendant/counter-claimant, basis the family
settlement of the year 1995, has sought the relief that mandatory
injunction be issued to the plaintiff thereby directing him to execute the
documents in respect of the suit property i.e. the ground floor in favour
of the defendant/counter-claimant. The defendant/counter-claimant, in
a way, is seeking specific performance of the said family settlement.
Such a relief can be granted in a suit for specific performance, which is
governed by Chapter II of the Specific Relief Act, 1963. Section 41 of
the said Act, which provides as to when the injunction cannot be
granted, specifically provides under clause (h) that an injunction cannot
be granted when equally efficacious relief can certainly be obtained by
any other usual mode of proceeding except in case of breach of trust. As
the remedy of seeking specific performance of oral family settlement is
available to the defendant/counter-claimant, the relief of mandatory
injunction thereby directing the plaintiff to execute the documents in
respect of the suit property in favour of the defendant/counter-claimant
is declined.
18.11. The issue no.2 is determined in aforesaid terms in favour
of the defendant.
19. Additional Issue no. 3(a):Whether gift deed dated
15.09.1999 executed by Vasdev Wadhwa is a forged and fabricated
document? OPD/counter claimant.
19.1. The burden of proving this issue is fixed upon the
defendant/counter-claimant.
19.2. The defendant for the purpose of proving this issue
admitted in evidence the reports of two Forensic Experts, marked as
Ex. DW-1/1 and Ex. DW-1/2. The defendant also examined the
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Forensic Expert, M.S. Mishra as DW-3, who had prepared the report,
Ex. DW-1/1. The author of another report, Ex. DW-1/2, could not be
examined as he was reported to have died.
19.3. On the other hand, the plaintiff for the purpose of proving
the gift deed examined one Jagriti Jain as PW-4 and one Naveen
Chhabra as PW-5. The PW-4 identified the signatures of her late father
N.K. Jain, who was one of the witnesses in the gift deed 15.09.1999.
The PW-5 himself was one of the attesting witnesses on the gift deed
dated 15.09.1999. He deposed that the Donar, late Vasdev Wadhwa;
the Donees, Radha Krishan Wadhwa and Krishana Wadhwa; and the
other witness, late N.K. Jain, had signed on the gift deed dated
15.09.1999 in his presence.
19.4. It is a settled law that identification of
handwriting/signatures is not a perfect science. The opinion of a
Handwriting/Signature Expert is not conclusive evidence. A
Handwriting/Signature Expert has a tendency to depose in favour of the
party at whose instance he is examined as witness before the Court.
19.5. Upon appreciation of evidences produced from both the
sides, I am of the considered view that the defendant/counter-claimant
has not been able to prove forgery/fabrication in the alleged gift deed
dated 15.09.1999.
19.6. The aforesaid Additional Issue no.3(a) is, accordingly,
decided against the defendant/counter-claimant.
20. Issue no.4: Whether the duly registered gift deed dated
15.09.1999, executed by Shri Vasdev Wadhwa (brother of the plaintiff
and paternal uncle of the defendant) is liable to be cancelled as void ab
initio? (OPD/-Counter Claimant)
20.1. The burden of proving this issue was fixed upon the
defendant/counter-claimant.
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20.2. The defendant/counter-claimant is seeking cancellation of
registered gift deed dated 15.09.1999 mainly on three grounds: firstly,
on the ground that the same was a forged and fabricated document;
secondly, on the ground that the suit property being a joint family
property, late Sh. Vasdev Wadhwa did not have an authority to dispose
off the same by way of gift; and thirdly, on the ground that the three
brothers had already divided the suit property floor-wise by way of an
oral family settlement/arrangement in the year 1995.
20.3. The aforesaid first ground of seeking cancellation of the
gift deed dated 15.09.1999 is liable to be rejected as it has already been
held herein above while deciding the Additional Issue no. 3(a) that the
said gift deed is not a forged and fabricated document.
20.4. The second ground is regarding the authority of late Sh.
Vasdev Wadhwa to gift the said property. It has already been held
herein above while deciding issue no.1 and 3 that the said property was
purchased in the name of late Vasdev Wadhwa as a trustee for the
benefit of all legal heirs of late Jaswant Rai Wadhwa. It has also been
held that the said property was purchased out of death claim funds of
late Sh. Jaswant Rai Wadhwa. The said property being a joint family
property could not have been validly gifted by any member of the
family. In this regard, Ld. Counsel for the defendant has relied upon the
Judgment of the Hon’ble Supreme Court in Thamma Venkata
Subbamma (Dead) by LR v. Thamma Rattamma and Ors. 4, wherein it
was held that a coparcener cannot make a gift of his undivided interest
in the coparcenary property either in favour of a stranger, or in favour
of his relations:
15. The rigor of this rule against alienation by gift
has been to some extent relaxed by the Hindu Succession
Act, 1956. Section 30 of the Act permits the disposition by4
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way of will of a male Hindu in a Mitakshara coparcenary
property. The most significant fact which may be noticed
in this connection is that while the Legislature was aware
of the strict rule against alienation by way of gift, it only
relaxed the rule in favour of disposition by a will the
interest of a male Hindu in a Mitakshara coparcenary
property. The Legislature did not, therefore, deliberately
provide for any gift by a coparcenary of his undivided
interest in the coparcenary property either to a stranger or
to another coparcener. Therefore, the personal law of the
Hindus, governed by Mitakshara School of Hindu Law, is
that a coparcener can dispose of his undivided interest in
the coparcenary property by a will, but he cannot make a
gift of such interest.
17. It is, however, a settled law that a coparcener
can make a gift of his undivided interest in the
coparcenary property to another coparcener or to a
stranger with the prior consent of all other coparceners.
Such a gift would be quite legal and valid.
20.5. The aforesaid Judgment is on the point that a coparcener
cannot gift his undivided interest in the joint family property. In the
present case, the entire joint family property i.e. the said property is
claimed to have been gifted by late Sh. Vasdev Wadhwa in favour of
the plaintiff. In view of the settled law, Sh. Vasdev Wadhwa in the
capacity of being a member or karta did not have any authority to gift
the said property by way of the alleged gift deed dated 15.09.1999. The
aforesaid second ground of seeking cancellation of gift deed is,
therefore, upheld.
20.6. The third ground is that late Sh. Vasdev Wadhwa pursuant
to family settlement having been arrived at between three brothers in
the year 1995 had no right to gift the said property by way of gift deed
dated 15.09.1999. In this regard, it has also been held herein above
while deciding issue no.2 that the three brothers, late Sh. Mans Raj
Wadhwa, late Sh. Vasdev Wadhwa and the plaintiff, Radha Krishan
Wadhwa had entered into an oral family settlement in the year 1995. As
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per the said family settlement, only first floor had fallen into the share
of late Sh. Vasdev Wadhwa; and the ground floor had fallen into the
share of defendant’s father late Sh. Mans Raj Wadhwa. Late Vasdev
Wadhwa, therefore, did not have an authority to make gift of the entire
property, including that of the defendant/ counter claimant. The third
ground is, therefore, also upheld.
20.7. It is also noted that “gift” is one of the modes of transfer of
property recognized in the Transfer of Property Act, 1882. As per
Section 7 of the said Act, a property can be transferred only by a person,
who is either entitled to the said property, or who is authorized to
dispose of the property not belonging to him. As per Section 8, upon
transfer of a property, only those interests are transferred to the
transferee, which the transferrer is capable of transferring. In the
present case, it has already been held herein above that late Sh. Vasdev
Wadhwa was not the owner of the said property; and it has further been
held that he was also not entitled to dispose of the same by way of a gift.
Therefore, the gift of the said property by late Sh. Vasdev Wadhwa
would also not transfer the ownership in the property in favour of the
plaintiff. For all these reasons also, the gift deed dated 15.09.1999, is
liable to be cancelled as void ab initio.
20.8. The plaintiff contested the relief of declaration with
respect to the gift deed as sought by the defendant/counter-claimant on
the ground that the same is barred by limitation. Article 58 in the
Schedule annexed with the Limitation Act, 1963, prescribes 3 years as
a period of limitation for a relief of declaration and the said period
begins to run when the right to sue first accrues. The case of the
defendant/counter-claimant is that she came to know about the alleged
gift deed dated 15.09.1999, when she received a copy of the same along
with the plaint at the time of service of summons in the main suit. The
plaintiff has failed to lead any evidence to prove that the
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defendant/counter-claimant had knowledge of the said gift deed at any
time prior thereto. This relief, therefore, cannot said to be barred by
limitation.
20.9. The issue no.4 is, therefore, decided in favour of the
defendant/counter-claimant.
21. Issue no.5: Whether the plaintiff is entitled to a Decree
of possession in respect of the ground floor of the suit premises on the
basis of the registered gift deed dated 15.09.1999, executed by late Shri
Vasdev Wadhwa? (OPP)
21.1. The burden of proving this issue was fixed upon the
plaintiff.
21.2. In view of the findings on other issues recorded herein
above, the present issue is liable to be decided against the plaintiff and
in favour of the defendant/counter-claimant.
21.3. Having said above, Ld. Counsel for the
defendant/counter-claimant urged an additional ground for denial of
the relief of possession to the plaintiff. He submitted that plaintiff’s title
over the suit property, being under cloud, he could not have simply
sought the relief of recovery of possession with injunction without
seeking declaration with respect to his title over the property. For this
proposition, Ld. Counsel relied upon the Judgment of the Hon’ble
Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by
LRs and Ors.5:
11. The general principles as to when a mere suit for
permanent injunction will lie, and when it is necessary to
file a suit for declaration and/or possession with injunction
as a consequential relief, are well settled. We may refer to
them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession
of a property and such possession is interfered or5
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threatened by the defendant, a suit for an injunction
simpliciter will lie. A person has a right to protect his
possession against any person who does not prove a better
title by seeking a prohibitory injunction. But a person in
wrongful possession is not entitled to an injunction against
the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he
is not in possession, his remedy is to file a suit for
possession and seek in addition, if necessary, an
injunction. A person out of possession, cannot seek the
relief of injunction simpliciter, without claiming the relief
of possession.
11.3) Where the plaintiff is in possession, but his title to
the property is in dispute, or under a cloud, or where the
defendant asserts title thereto and there is also a threat of
dispossession from defendant, the plaintiff will have to
sue for declaration of title and the consequential relief of
injunction. Where the title of plaintiff is under a cloud or
in dispute and he is not in possession or not able to
establish possession, necessarily the plaintiff will have to
file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration
will be necessary only if the denial of title by the
defendant or challenge to plaintiff’s title raises a cloud on
the title of plaintiff to the property. A cloud is said to raise
over a person’s title, when some apparent defect in his title
to a property, or when some prima facie right of a third
party over it, is made out or shown. An action for
declaration, is the remedy to remove the cloud on the title
to the property. On the other hand, where the plaintiff has
clear title supported by documents, if a trespasser without
any claim to title or an interloper without any apparent
title, merely denies the plaintiff’s title, it does not amount
to raising a cloud over the title of the plaintiff and it will
not be necessary for the plaintiff to sue for declaration and
a suit for injunction may be sufficient. Where the plaintiff,
believing that defendant is only a trespasser or a wrongful
claimant without title, files a mere suit for injunction, and
in such a suit, the defendant discloses in his defence the
details of the right or title claimed by him, which raises a
serious dispute or cloud over plaintiff’s title, then there is aCS DJ No. 9455/16 Radha Krishan v. Kusum Wadhwa Page 45 of 52
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need for the plaintiff, to amend the plaint and convert the
suit into one for declaration. Alternatively, he may
withdraw the suit for bare injunction, with permission of
the court to file a comprehensive suit for declaration and
injunction. He may file the suit for declaration with
consequential relief, even after the suit for injunction is
dismissed, where the suit raised only the issue of
possession and not any issue of title.
17. To summarize, the position in regard to suits for
prohibitory injunction relating to immovable property, is
as under:
(a) Where a cloud is raised over plaintiff’s title and he does
not have possession, a suit for declaration and possession,
with or without a consequential injunction, is the remedy.
Where the plaintiff’s title is not in dispute or under a cloud,
but he is out of possession, he has to sue for possession
with a consequential injunction. Where there is merely an
interference with plaintiff’s lawful possession or threat of
dispossession, it is sufficient to sue for an injunction
simpliciter.
(b) As a suit for injunction simpliciter is concerned only
with possession, normally the issue of title will not be
directly and substantially in issue. The prayer for
injunction will be decided with reference to the finding on
possession. But in cases where de jure possession has to be
established on the basis of title to the property, as in the
case of vacant sites, the issue of title may directly and
substantially arise for consideration, as without a finding
thereon, it will not be possible to decide the issue of
possession.
(c) But a finding on title cannot be recorded in a suit for
injunction, unless there are necessary pleadings and
appropriate issue regarding title [either specific, or
implied as noticed in Annaimuthu Thevar (supra)]. Where
the averments regarding title are absent in a plaint and
where there is no issue relating to title, the court will not
investigate or examine or render a finding on a question of
title, in a suit for injunction. Even where there are
necessary pleadings and issue, if the matter involves
complicated questions of fact and law relating to title, the
court will relegate the parties to the remedy by way of
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comprehensive suit for declaration of title, instead of
deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title,
and appropriate issue relating to title on which parties lead
evidence, if the matter involved is simple and straight-
forward, the court may decide upon the issue regarding
title, even in a suit for injunction. But such cases, are the
exception to the normal rule that question of title will not
be decided in suits for injunction. But persons having clear
title and possession suing for injunction, should not be
driven to the costlier and more cumbersome remedy of a
suit for declaration, merely because some meddler
vexatiously or wrongfully makes a claim or tries to
encroach upon his property. The court should use its
discretion carefully to identify cases where it will enquire
into title and cases where it will refer to plaintiff to a more
comprehensive declaratory suit, depending upon the facts
of the case.
21.4. A suit for possession of an immovable property can be
filed either on the basis of previous possession, or on the basis of title.
21.5. When the suit is on the basis of previous possession, the
period of limitation, as provided under Article 64 of the Schedule
annexed to the Limitation Act, 1963, is 12 years from the date of
dispossession by the defendant.
21.6. When the suit is on the basis of title, the period of
limitation, as provided under Article 65 of the Schedule annexed to the
Limitation Act, 1963, is 12 years from the date when the possession of
the defendant becomes adverse to the plaintiff. In such a suit, the
plaintiff is required to prove: firstly, that he possesses the title over the
suit property, and secondly, that the possession of the defendant has
become adverse to him within 12 years immediately before the filing of
the suit. The defendant can defend such a suit by disputing the title of
the plaintiff, or by establishing his own title. A suit for possession on
the basis of title can be explained by two illustrations. Suppose, a
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person ‘A’ claiming to be a lawful owner of a property allows another
person ‘B’ to reside in the said property as a Licensee upon the payment
of monthly license fees. After some time, the said Licensee ‘B’ stops
the payment of monthly license fees and refuses to vacate the property.
In such a case, the owner ‘A’ is required to file a suit for possession on
the basis of his title against ‘B’ within 12 years from the date when the
Licensee ‘B’ stopped paying the monthly license fee and started
claiming adversely to the owner ‘A’. Let us take another example. Two
sons, ‘A’ and ‘B’ inherit a property from their deceased father. While
‘A’ is living in the said property, ‘B’ is living in another city due to his
job. Initially, after the death of father, there was no dispute between ‘A’
and ‘B’. After some time, ‘B’ shifts to the same city wherein the said
inherited property is situated. ‘B’ wants to reside in some portion of the
said property. However, ‘A’ does not allow ‘B’ to shift in the said
property and rather, claims that he is the sole owner of the said
property. ‘A’ also refuses the demand of ‘B’ for partition of the said
property. In such a case, ‘B’ is required to file a suit for possession on
the basis of title/co-ownership within 12 years from the date ‘A’
refused to agree to the partition of the said property.
21.7. It is required to be noted that the nature of reliefs in a suit
depends upon the cause of action furnished by the act/omission of the
defendant. In other words, if the defendant dispossesses the plaintiff
forcibly or without due process of law, the plaintiff is required to file
suit for possession on the basis of previous possession. On the other
hand, if the possession of the defendant, which was permissive in the
beginning, becomes adverse to the plaintiff at a later point of time, the
plaintiff is required to file a suit for possession on the basis of title. The
pleadings, issues and burden of proof, all, depend upon the cause of
action alleged and reliefs sought in a suit.
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21.8. The plaintiff claiming to be the owner of the said property
by virtue of gift deed dated 15.09.1999 has filed the present suit on the
basis of title. He also claims that the possession of the defendant, who
was living in the suit property as a licensee, became adverse,
subsequent to her refusal to vacate the same after termination of her
license.
21.9. It is required to be noted that the plaintiff’s title, being
under cloud by virtue of 6th recital in the gift deed dated 15.09.1999,
basis which he is claiming ownership in the suit property, it was
necessary for him to first clear the said cloud by seeking the relief of
declaration in addition to the reliefs of possession and injunction as
sought in the present suit. The title of the plaintiff came under even
heavier clouds upon the defendant filing the written statement and
counter-claim therein raising dispute over title of the plaintiff. At least,
at that stage, the plaintiff should have sought the permission to amend
the plaint so as to include the additional relief of declaration with
respect to title over the suit property. The plaintiff, having failed to do
so, is not entitled to the relief of possession by the ratio of Anathula
Sudhakar (Supra).
21.10. Ld. Counsel for the plaintiff in a counter to Anathula
Sudhakar (Supra) relied upon the Judgment of Hon’ble Supreme Court
in Padhiyar Prahladji Chenaji (deceased) through LRs v. Maniben
Jagmalbhai (deceased) through LRs and Ors.6. In this case, plaintiff had
filed a suit for declaration of title, declaration that the sale deed
executed by her husband in favour of the defendant was void, and
further relief of injunction for restraining the defendant from
interfering in her possession over the suit property. The defendant,
apart from defending the sale deed, also claimed to be in possession
over the suit property. The Trial Court declined the relief of declaration
6
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with respect to title of the plaintiff as well as the relief of declaration
that the sale deed is void. The relief of injunction was, however,
granted in favour of the plaintiff. The plaintiff did not challenge the
denial of aforesaid two reliefs of declarations. The defendant, however,
preferred an appeal first before the first Appellant Court and having
failed there he filed a second appeal before the Hon’ble High Court to
the extent the relief of injunction was granted in favour of the plaintiff.
Both the Appellants Courts dismissed the appeals of the defendant and
affirmed the relief of injunction in favour of the plaintiff. The matter
came to the Hon’ble Supreme Court upon an SLP filed by the
defendant. It was argued on behalf of the plaintiff that the defendant
should file a separate suit seeking relief of possession against the
plaintiff. However, the Hon’ble Supreme Court held that once the relief
of title was adjudicated in favour of the defendant, there was no need
for defendant to file a separate suit for possession and that the plaintiff
was not entitled to the relief of injunction. Pertinently, the Hon’ble
Supreme Court held that the plaintiff was not entitled to the relief of
injunction; it was not held that if the defendant were to file a separate
suit, he could have simply sought the injunction or possession when his
title was not clear.
21.11. The facts of the aforesaid case as discussed herein above
being totally different from those involved in the present case, the law
as explained in Padhiyar (Supra) as relied upon by the plaintiff would
not help him.
21.12. The issue no.5 is, therefore, decided against the plaintiff.
22. Issue no.6: If issue no.5 is decided in favour of the
plaintiff, whether he is entitled to claim damages/mesne profits against
the defendant in respect of the suit premises, if so at what rate and for
what period? (OPP)
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Issue no.7: Whether the plaintiff is entitled to a Decree
of permanent injunction against the defendant in respect of the suit
premises, as prayed for in prayer clause (iv)? (OPP)
AndIssue no.8: Whether the plaintiff is entitled to a Decree
of mandatory injunction against the defendant in respect of the suit
premises, as prayed for in prayer clause (v)? (OPP)
22.1. The burden of proving of all these issues was fixed upon
the plaintiff.
22.2. All other issues having been decided in favour of the
defendant/counter-claimant and against the plaintiff, these issues,
being based upon the ancillary/ consequential reliefs to the main reliefs,
are also liable to be decided against the plaintiff. Held so.
CONCLUSION/ RELIEF, IF ANY (MAIN SUIT, CS DJ NO.
9455/16):
23. As a net result of findings upon issues, the plaintiff, Radha
Krishan Wadhwa, is not entitled to any relief as sought in the plaint.
Plaintiff’s suit is, therefore, dismissed with costs, as per rules, in favour
of the defendant/counter-claimant, Kusum Wadhwa.
CONCLUSION/ RELIEF, IF ANY (COUNTER-CLAIM CS DJ No.
249/25):
24. A Decree granting the following reliefs in favour of the
defendant/counter-claimant, Kusum Wadhwa and against the plaintiff,
Radha Krishan Wadhwa, is passed:
(a) It is declared that the gift deed dated 15.09.1999 bearing
registration no. 2376, in additional book no.1, volume no. 140 on
pages 43 to 49 registered with the office of Sub Registrar, New
Delhi, in relation to the property bearing no. I-30, Lajpat Nagar-
III, New Delhi-110024, is null and void ab initio as the Donar,
late Vasdev Wadhwa did not have right to execute the same;
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(b) The office of Sub Registrar is directed to cancel the gift deed as
mentioned in clause (a) herein above;
(c) The plaintiff, Radha Krishan Wadhwa, is directed to remove the
welded iron sheet on the iron door leading to the common area
on the ground floor where electricity control panel installed;
(d) Costs as per the rules.
25. It is made clear here that this counter-claim has been
allowed partly only. The relief of mandatory injunction thereby
directing the plaintiff to execute the documents in respect of the suit
property i.e. the ground floor in favour of the defendant/ counter-claim,
as sought, has been declined.
26. Decree sheet be prepared accordingly.
27. File be consigned to Record Room thereafter.
28. This Judgment is being signed in two sets. One set each be
placed in the judicial record of the main suit and counter-claim.
Announced & dictated in
the open Court on 29.03.2025
(Sachin Mittal)
District Judge-03/South-East District
Saket Courts, New Delhi/29.03.2025
Certified that this Judgment contains 52 pages and each page bears my
signatures.
(Sachin Mittal)
District Judge-03/South-East District
Saket Courts, New Delhi/29.03.2025
Digitally signed
by SACHIN
SACHIN MITTAL
Date:
MITTAL 2025.03.29
15:15:58
+0530
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