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MAN MOHAN SINGH KOHLI vs AMARJEET SINGH AND ORS.

Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 15th May, 2024
Pronounced on:28th October, 2024

+ CS(OS) 1832/2003

MANMOHAN SINGH KOHLI
S/o Late S. Gurbachan Singh Kohli,
R/o 45-A, 20`/404, Manish Nagar,
Andheri (West)
Mumbai.

….. Plaintiff
Through: Mr. Arvind Dhingra and Mr. Sunny Gahlot, Advocates.

versus

1. AMARJIT SINGH KOHLI
S/o Late S. Gurbachan Singh Kohli
R/o House No.H-25, Rajouri Garden,
New Delhi-110027.

2. SMT. RAJINDER KAUR CHANDOK
W/o S. Jaswant Singh chandok,
R/o WZ-26, Street No.11,
Krishna Park,
New Delhi-110018.

3. SMT. GURCHARAN KAUR
Widow of Late S. Durlabh Singh
R/o D-27-6-114 Prakashan Road,
Governor Path,
Vijayawada (A.P.)

4. SMT. BALBIR KAUR
D/o Late S. Gurcharan Singh Kohli
C/o Mr. Sunil Arora,
Soft Touch Network Pvt. Ltd.,
D-46, East Uttam Nagar,
Near Police Chowki,
New Delhi-110059.

5. SMT. VARINDER KAUR KOHLI
W/o Late S. Kulwant Singh Kohli
R/o WZ-153-C, Varinder Nagar,
Janakpuri Road,
New Delhi-110058.

6. SMT. GURJEET KAUR
D/o Late S. Kulwant Singh Kohli
W/o Sh. Mahender Pal Singh
R/o G-22, Hari Nagar,
Near Shiv Nagar,
New Delhi-110058.

7. SH. MANJEET SINGH KOHLI
S/o Late S. Kulwant Singh Kohli
R/o WZ-153C, Varinder Nagar
Janakpuri, Road,
New Delhi-110058.

8. GURPREET KAUR
D/o Late S. Kulwant Singh Kohli
R/o WZ-153 C, Varinder Nagar,
Janakpuri Road,
New Delhi-110058.
…..Defendants

Through: Mr. Jugal Wadhwa, Mr. Rishabh Wadhwa, Mr. Raghav Goyal and Mr. Siddharth Sharma, Advocates for D1.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. A Suit for Partition, Declaration, Rendition of Accounts, Permanent Injunction and Mesne Profits has been filed by the plaintiff seeking partition of the properties owned by his father Late S. Gurbachan Singh Kohli.
2. Briefly stated, Sh. Gurbachan Singh Kohli was the father of plaintiff and defendant No.1 to 4. Defendant No.5 to 8 are the legal heirs of Late Sh. Kulwant Singh, the son who had died on 10.10.1983 during the life time of Late Gurbachan Singh Kohli. Sh. Gurbachan Singh Kohli was a resident of Pakistan, who migrated to India along with his wife Smt. Inder Kaur Kohli and four minor children in the year 1947. Thereafter, he was blessed with two more children i.e. defendant No.1, Amarjeet Singh Kohli and defendant No.4, daughter Balbir Kaur. He owned various movable and immovable properties in Pakistan which were owned by their forefathers. He was in actual and physical possession of all these properties and managed the same for the benefit of HUF. After migrating to India with whatever cash, gold and silver jewellery he could manage, as well as the funds raised by selling the family properties in Dhudhyal (now in Pakistan), he purchased both residential and commercial properties. As the Karta and head of the family, he made acquisitions for himself, his wife, and children. The properties so acquired by him are:
(a) A small residential property bearing House No.6023, Matkewali Gali, Sadar Bazar, Delhi which was used for the residence of the family members till 1964-65, which was thereafter used as a Godown for storing goods of the business of the family. The defendant No.1 had inducted some tenant here, but the plaintiff is not aware of the rent being received by him;
(b) A shop bearing No.6005, Krishna Market, Matkewali Gali, Sadar Bazar, Delhi acquired in or around 1947-48, where S. Gurbachan Singh Kohli started the business of stationery items in the name and style of M/s Kohli & Sons. The defendant No.1 inducted tenants in this property as well and the plaintiff is not aware of the rent being received by him;
(c) Plot of land bearing Plot No.25, Block No.H, measuring 271.9 sq. yds in the name of his wife Smt. Inder Kaur Kohli. It is claimed that the entire funds had been paid and contributed by S. Gurbachan Singh Kohli from the funds of joint family though this property was in the name of Smt. Inder Kaur Kohli, but it was purchased and used as a residence jointly for all the family members for the coparceners in the HUF. Smt. Inder Kaur Kohli was an un-educated lady having no source of income and did not possess any movable or immovable properties.
3. After acquiring a plot of land in Rajouri Garden, Sh. Gurbachan Singh Kohli constructed only the Ground Floor from the funds of joint family and also from the funds raised from the business. After the construction was completed, Sh. Gurbachan Singh Kohli along with all the family members came to reside in this property. The front two rooms on the Ground Floor are being used as shops and are in the tenancy of two tenants. One shop is under the tenancy of Mr. Ashok Kumar for about 20 years who is running a business as M/s Queen-up Jewellers rent being Rs.6,000/- per month. The second shop is under the tenancy of one Mr. Dharamveer Dhawan for the last 35 years who is doing the business in the name of M/s Dhawan Tailors rent being Rs.4,000/- per month. Smt. Inder Kaur Kohli has been receiving the rent from the tenants for and on behalf of the family.
4. The plaintiff claimed that he is in possession of one small room and a miani of this property as shown in green colour in the Site Plan annexed with the Plaint. He has stored his goods i.e. almirah, trunk, blanket, jewellery, etc in the room and miani under his lock and key. The plaintiff along with his family was living in this property before he shifted to Mumbai in the year 1976, where he is doing the business of stationary goods. The plaintiff however, has throughout continued to be in possession of the rooms and the miani. The portion shown in red colour in the Site Plan of the suit property is in possession of defendant No.1, where he is residing with his family.
5. Somewhere in the month of January-February 2002, defendant No.1 carried out unauthorized and illegal additions and alterations which were contrary to the original sanctioned plan. He closed the front entrance of the house, removed the staircase, and transformed the main entrance and the back courtyard into an L-shaped shop. There, he and along with his son started a Cyber Café and mobile phone business, including accessories, under the name M/s ComCom.Com. Additionally, he installed an iron staircase at the rear of the property.
6. Sh. Gurbachan Singh Kohli, the father, died intestate on 23.03.1998 leaving behind his wife Smt. Inder Kaur Kohli, two sons i.e. plaintiff and defendant No.1, three daughters i.e. defendant No.2 to 4 and also wife and three children of his pre-deceased son Sh. Kulwant Singh Kohli.
7. Smt. Inder Kaur Kohli, mother of the parties died on 26.07.2003 at the age of about 80 years. At the time of her death, she was suffering from various chronic ailments and was bed ridden with cataract in both the eyes because of which she was unable to see properly. She suffered from ailments like blood pressure, kidney problems and diabetes. She was hard of hearing and was unable to even walk due to pain in her backbone. She was completely uneducated and was not able to read and write. She used to sign only in Gurumukhi.
8. It is asserted by the Plaintiff that during her lifetime, she recognized the Rajouri Garden property as belonging to all the family members having been purchased for their residence and all throughout this property had been so used for the members of the family who were the coparceners in the HUF. Till her death on 26.07.2003 she was residing in the subject property. The plaintiff even though had shifted to Mumbai, had been regularly visiting his mother to take care of her. During such visits he always stayed in his room along with the family. Defendant No.1, however, did not like the visits of the plaintiff as well as he being in possession of a room and miani in the property.
9. The plaintiff has claimed that defendant No.1 was never inclined to give any share in the joint properties either to plaintiff or to defendant No.2 to 8. He had always been threatening to forcibly dispossess the plaintiff from the portion which was in his possession. He even interfered in the meetings of the plaintiff with his mother who had great love and affection towards the plaintiff and his children. She had even advised defendant No.1 to his dislike, to give the share in the property to the plaintiff and all other joint owners. The plaintiff’s demand from time to time for the partition of the joint properties was avoided persistently by defendant No.1.
10. The plaintiff submits that about 7 days after the demise of the mother on 26.07.2003, the plaintiff and defendant No.2 to 8 again took up the matter of partition of the joint properties with defendant No.1, who again avoided the discussion.
11. On 05.08.2003, defendant No.1 was heard talking to the neighbour that he had already become owner of the property as Smt. Inder Kaur had executed a Gift Deed in respect of this Rajouri Garden property in his favour immediately prior to her death. The plaintiff confronted defendant No.1 who initially refused to acknowledge, but subsequently he started claiming that he is the owner of the property and nobody has any right on the subject property.
12. The plaintiff on enquiry from the Office of Sub-Registrar, Janakpuri, Delhi was surprised and shocked to find a registered Gift Deed dated 15.07.2003 executed allegedly by Smt. Inder Kaur Kohli in favour of defendant No.1 on a judicial stamp paper of Rs.74,600/- and the value of the property had been assessed as Rs.5,73,750/-.
13. The plaintiff has challenged the Gift Deed as illegal and unlawful on the following grounds:
(i) Smt. Inder Kaur Kohli was not the owner of the property as it was belonging to all the family members having been purchased by their father in the name of Smt. Inder Kaur Kohli, from the funds belonging to HUF, and had always been used for the residence of the family members. Smt. Inder Kaur Kohli was only the benami owner;
(ii) The Gift Deed allegedly contains the thumb impression of Smt. Inder Kaur Kohli, while she used to sign in Gurumukhi;
(iii) Smt. Inder Kaur Kohli during her last days, was completely bed ridden and suffering from various ailments and was unable to see or walk properly;
(iv) The stamp paper has been procured on 15.07.2003, on which date the Gift Deed has been registered by defendant No.1 in connivance with Mr. Bunty Jain and Mr. Rajinder Pal Singh the alleged two attesting witnesses; and
(v) The Gift Deed was executed barely eleven days prior to her death.
14. The plaintiff has contended that immediately after coming to know about the Gift Deed, he contacted defendant No.1 on 18.08.2003 who refused to talk to him. The plaintiff was thus, compelled to serve a Notice dated 19.08.2003 upon the defendants wherein he sought partition of the joint family properties. The defendant No.1 consequently became hostile and inimical to the plaintiff and started extending threats of dispossession to the plaintiff.
15. The plaintiff has further come to know that defendant No.1 is contemplating to sell two shops on the Ground Floor of the Rajouri Garden property to the tenants or to any other person. To the knowledge of the plaintiff, the two tenants had offered a sum of Rs.40 lakhs each for the transfer of the title of the shops in their favour.
16. It is further asserted that the defendant No.1, by illegally and unlawfully carrying out substantial changes in the property to set up his own business in a portion of the suit property which is capable of fetching a rental income of not less than Rs.25,000/- per month. Moreover, defendant No.1 has been occupying major portion of the suit property for his personal used and benefit to the exclusion of the plaintiff and defendant No.2 to 8. Therefore, he is liable to render the accounts for such unauthorized use and occupation and also to pay mesne profits @ Rs.20,000/- per month. He is, therefore, liable to pay Rs.45,000/- per month along with interest @ 24% per annum.
17. The plaintiff further asserts that on 08.10.2003 at about 11 A.M the defendant brought some unidentified property dealers at Rajouri Garden, New Delhi and showed them the property and has been negotiating a deal for sale of the property, which would result in substantial loss to the plaintiff and wrongful gain to defendant No.1. The plaintiff is also apprehending his dispossession from this property.
18. The plaintiff has claimed that no partition of the properties has taken place which is still un-partitioned. Hence, a prayer is made for Partition of the three properties, Mesne Profits and Permanent Injunction.
19. The defendant No.1, Sh. Amarjeet Singh Kohli in his Written Statement, took preliminary objection that the plaintiff has no locus standi to file the present Suit in respect of the two properties located in Sadar Bazar as their father Late Sh. Gurbachan Singh Kohli, had bequeathed these two properties to him vide his Registered Will dated 28.07.1995. Furthermore, Late Smt. Inder Kaur, their mother was the absolute owner of the Rajouri Garden property, which was purchased and constructed by her from her own funds. She had received a sum of Rs.13,095/- by the Order dated 12.12.1957 of Settlement Officer against the compensation of the house, which she left at Dudhiyal, Tehsil Chakwal, District Jehlum, Pakistan. She took a loan from her brother, Late Sh. Har Bans Singh and also received Rs. 6500/- from National Motor Company, Dwarkadas Mansion, Bombay-4, for raising the construction on the plot. She, therefore, used the money, which she received from the Settlement Officer for purchase of the Rajouri garden property; and also the loan, which she took from her brother, for raising the construction. Not a single penny was spent out of the funds of Late Sh. Gurbachan Singh Kohli either for the purchase or the construction. During her lifetime, she out of love and affection, gifted the aforesaid property to defendant No. 1, vide Registered Gift Deed dated 15.07.2003.
20. Further, it is claimed that the plaintiff during the lifetime of their father, had settled all his account and got his due share in the family properties. Thereafter, he started his business first in Calcutta and then he shifted to Bombay in 1976. He did not pay anything to the aged parents from his separate business in Calcutta or Bombay. This fact was specifically noted by their father in the Will dated 28.07.1995. Since the plaintiff has already received his share in the family properties, the plaintiff cannot ask for the partition and for rendition of accounts.
21. Further, preliminary objection has been taken by Defendant No. 1 that he has not filed the requisite court fee on the valuation of the Suit. He was never in possession of one room and miani as claimed by him either directly, indirectly or symbolically.
22. Further, the Suit of the plaintiff is not maintainable as he has not impleaded Sub-Registrar, District Centre, Janakpuri, New Delhi, who had got executed the Gift Deed, which according to the plaintiff, is illegal and unlawful. Also for seeking cancellation of the Gift Deed, the concerned Sub-Registrar, who registered the Gift Deed, was a necessary party to the present Suit.
23. It is further asserted that the defendant Nos. 2 to 8 are not a necessary party in the present Suit. While the plaintiff has claimed that the Suit Properties are ancestral and belonged to HUF, the female members of HUF have no right to claim any share in the HUF property. Therefore, the defendants Nos. 2 to 4, who are the daughters, have nothing to do with the suit properties. Insofar as, the defendant Nos. 5 to 8 are concerned, who are the legal heirs of Late Sh. Kulwant Singh Kohli, the brother of the plaintiff and defendant No. 1, they also have no right, title and interest in the properties since Sh. Kulwant Singh had died during the lifetime of the father and he had also got his share in the suit property, during his lifetime, from the father, as has also been mentioned in the Will dated 28.07.1995, of their father. He had started his own motor part business in Uttam Nagar subsequently, in the part of his property at Uttam Nagar and started living in Virender Nagar, New Delhi and commenced the business of Transport.
24. It is thus, asserted that the suit is bad for non-joinder and mis-joinder of the necessary parties.
25. On merits, it is denied that Sh. Gurbachan Singh Kohli was the Karta of joint family comprising of himself, his wife, sons and daughters. Late Sh. Gurbachan Singh is claimed to be the Karta of the family, which consisted only of himself, his wife and defendant No. 1, his wife and sons of defendant No. 1. The other sons and daughters of Late Sh. Gurbachan Singh Kohli had nothing to do with the joint family as they were never part and parcel of the family. All the daughters had got married during his lifetime. Plaintiff and Late Sh. Kulwant Singh Kohli had separated from Sh. Gurbachan Singh Kohli, after receiving their respective shares in the properties.
26. It is denied that the suit properties were ancestral properties or were in the hands of Sh. Gurbachan Singh Kohli, as HUF. The defendant No. 1 has explained that the property No. 6023, Sadar Bazar, had been taken on rent from Custodian, but subsequently it came under the power and possession of DDA Slum, to whom Sh. Gurbachan Singh continued to pay rent @3.50 paisa per month, against the valid receipts. Later, Sh. Gurbachan Singh Kohli along with his entire family in 1967-1968, shifted to the house in Rajouri Garden, which belonged to Smt. Inder Kaur. After the demise of Sh. Gurbachan Singh Kohli, defendant No. 1 became the tenant in the Sadar Bazar property, on the basis of the Will, executed in his favour.
27. It is denied that the property No. 6005, Gali Matke Wali, Sadar Bazar, had been purchased by Sh. Gurbachan Singh Kohli, out of the funds of ancestral property and it is also denied that he started his business in the aforesaid shop in the name of M/s Kohli and Sons. It is explained that this property was under the tenancy of one Late Sh. Hara Singh, who was paying rent @8.50 paisa previously to the Custodian and thereafter, to DDA Slum Department. Sh. Hara Singh and Late Sh. Gurbachan Singh Kohli had started their stationery item business in the aforesaid property in Partnership, which later was dissolved and the property came to the share of Sh. Gurbachan Singh Kohli, who bequeathed his right to the defendant No. 1 by Will dated 28.07.1995. The defendant No. 1, therefore, has acquired the tenancy rights of this property by virtue of the Will and is now paying damages to DDA Slum. It is denied that the defendant No. 1 had inducted any tenants or sublet, assigned or parted with possession of the aforesaid property to any third party or has created third party interest in the aforesaid property.
28. Insofar as the Rajouri Garden property is concerned, it is reiterated that it was the exclusive property of their mother, which had been purchased from her own funds. It was denied that the said plot was acquired benami by Sh. Gurbachan Singh Kohli, in the name of his wife, Smt. Inder Kaur.
29. The defendant No. 1 has denied that the parties were co-parceners in a Hindu Undivided Family or that the property was ever held for the benefit of all the co-parceners.
30. The defendant No. 1 has further clarified that there were three shops and one open verandah in the Rajouri Garden House aside from the living area comprising of three rooms including drawing room, two latrine, bathroom and kitchen. Mr. Ashok Kumar, who is a tenant in one shop is paying the rent @ Rs. 880/- per month excluding other charges. Likewise, the rate of rent of M/s Dhawan Tailors in the second shop, is Rs.590/- per month. It is denied that their mother was receiving the rent for and on behalf of all the family members. It is claimed that she was receiving the rent as an absolute owner of the property. It is denied that the defendant No. 1 has made structural changes and converted the main entrance and backyard into L-shape shop. It is asserted that this shop has been in existence since the lifetime of Smt. Inder Kaur and it had been let out by her to another tenant Sh. Bhupinder Pal Singh. The entire staircase has also been in existence since the lifetime of Sh. Gurbachan Singh Kohli.
31. It is further denied that the plaintiff is in possession of one room or a miani in the Rajouri Garden property. It is claimed that he along with his family members, was permanently residing previously at Calcutta and now at Mumbai and has separate business and no concern with the business of with their father. It is further denied that his belongings are lying in one room, as alleged. It is claimed that the plaintiff is not in possession of any portion of Rajouri Garden house.
32. The defendant No. 1 has denied that Smt. Inder Kaur was suffering from various chronic ailments or had cataract in both her eyes. It is asserted that she was having good health and all her senses were working properly till her death. Due to old/ advanced age and body weakness, her legs and hands had started trembling. She could walk only with the help of someone because of her weakness. Because of her physical weakness and trembling hands, she was not in a position to sign on the Gift Deed in the presence of the attesting witnesses, for which reasons her thumb impression was taken on the Gift Deed, in the presence of attesting witnesses and the Sub-Registrar at the time of registration of the Gift Deed.
33. The defendant No. 1 has denied that the plaintiff used to visit their late mother, to take care of her. He never visited the house at any time after 1973, either alone or with the family. The question of like or dislike of defendant No. 1, does not arise at all as the plaintiff never visited the aforesaid house. It is also claimed that the mother of the parties, had no love and affection for the plaintiff or that the defendant Nos. 2 to 8 were not on visiting terms with the mother.
34. There was no mala fide or fraudulent means adopted for the execution and registration of the Gift Deed. It is denied that the documents were manipulated with the help of the attesting witnesses, namely Mr. Bunty Jain and Mr. Rajinder Pal Singh. Smt. Inder Kaur was well within her senses and understood right and wrong and had good vision of eyes, at the time of execution of the Gift Deed. It is claimed that the Gift Deed is a valid, genuine and a legal document. It is denied that it was fabricated or manipulated in connivance with the attesting witnesses.
35. The defendant No. 1 denied that the plaintiff came to know about the Gift Deed dated 15.07.2003 on 18.08.2003 or that the defendant No. 1 refused to talk to him or refused for partition of the properties as demanded by the plaintiff. Since there were no joint owners of any of the properties, there was no question of partition of the properties. The question of dispossession of plaintiff from the suit property, does not arise as he was never in possession of any part of the property. The defendant No. 1 has claimed that he has exclusive right, title and interest to insure the property and to realise the rent. The defendant No. 1 has thus, asserted that the suit of the plaintiff is liable to be dismissed.
36. The defendant Nos. 2 to 8 in their Written Statement, have supported the plaintiff and have asserted that the defendant No. 1 has acted mischievously and illegally in getting the Gift Deed executed exclusively in his favour. The Gift Deed is a fabricated document, which is liable to be set-aside.
37. The plaintiff in his Replication, has reiterated his averments made in the Suit and denied the stand taken by the defendant No. 1, in the Written Statement.
38. From the pleadings, the issues were framed on 19.07.2006, which are as under:-
1) Whether Smt. Inder Kaur was the absolute owner of the property bearing No. H-25, Rajouri Garden, New Delhi? OPD

2) Whether S. Gurbachan Singh Kohli had affected a partition and settled the amount of the plaintiff during his life time? If so, to what effect? OPD

3) Whether the suit has been valued property and court fee has been paid in accordance with law? OPP

4) Whether the plaintiff is entitled to the relief of partition and rendition of accounts in respect of the properties reflected in the prayer clause? OPP

5) Whether the plaintiff is entitled to the relief of permanent injunction? OPP

6) Whether the plaintiff is entitled to the relief of mesne profits against the defendant No. 1? If so, at what rate and for what period? OPP

7) Whether the Gift Deed dated 15.07.2023 executed by Smt. Inder Kaur is null and void and liable to be cancelled? OPP

8) Whether Late Sardar Gurbachan Singh Kohli had executed the Will dated 28.07.1995? If so, to what effect? OPD

9) Relief.

39. The plaintiff, Sh. Man Mohan Singh Kohli in support of his case, examined himself as PW-1 wherein he reaffirmed the facts as narrated in the Plaint and exhibited documents PW-1/1 to PW-1/14, in his support.
40. PW-2, Mr. Dori Lal, the Department of Archives, Delhi, produced the Sale Deed of the Rajouri Garden property, which is exhibited as Ex.PW-1/5.
41. PW-3, Mr. Ashok Sapra, proprietor of Queen Up Jewellers, tenant of one shop in the Rajouri Garden property, has deposed that he had taken the shop on rent from Smt. Inder Kaur, with whom he had executed a Rent Agreement and was paying the rent at times to her and at other times Sh. Amarjeet Singh, her son used to collect the rent, but the receipt was always in the name of Smt. Inder Kaur. The copies of the rent receipts are exhibited as Ex.PW-3/1 to PW-3/38.
42. PW-4, Mr. Dharamveer Dhawan, is the tenant in the second shop in the Rajouri Garden property, who has also deposed that he had taken the shop on rent from Smt. Inder Kaur and had been issuing the rent receipts issued by her, till her death. The six rent receipts produced are exhibited as Ex.PW-4/1 to PW-4/6. He further deposed that the Electricity bill for the shop in his tenancy was also in the name of Smt. Inder Kaur. In his cross-examination, when confronted with the signatures of Smt. Inder Kaur, on various rent receipts to be at variants. It was explained by him that the variants could be because of her old age and having become weak with the passage of time. He further deposed that she had a balanced mental state and could identify the people, she knew.
43. PW-5, Mr. J.A. Varghese. Canara Bank, Dinesh Nagar, New Delhi, deposed that Smt. Inder Kaur was not having any Saving Account. She had three Term Deposit Receipts in the Bank, which are exhibited as Ex.PW-5/1 to PW-5/6. The last renewal of the Term Deposit was done on 08.03.2003 and in accordance with the instructions of Smt. Inder Kaur and the renewal dated 08.03.2003, bears her signatures and is exhibited as Ex.PW-5/4 and PW-5/5.
44. The defendant No. 1, Sh. Amarjeet Singh Kohli examined himself as DW-1 and proved his affidavit of evidence as DW-1/A. He proved the documents Ex.DW-1/1 to Dw-1/63 in his defence.
45. DW-2, Sh. Satwant Singh, Advocate deposed that Sh. Gurbachan Singh Kohli and Smt. Inder Kaur were his clients and they used to consult him about the legal problems. The Will dated 28.07.1995 was executed by him on the instructions of Late Sh. Gurbachan Singh Kohli and he is also the attesting witness to the Will dated 28.07.1995. He identified his signatures and that of the testator on the Will, Ex.DW-1/18.
46. DW-3, Sh. Banti Jain, the attesting witness has deposed that he had been personally called by Late Smt. Inder Kaur on 14.07.2003, to accompany her to the Registrar Office for registration of the Gift Deed. He has deposed that Smt. Inder Kaur had put her thumb impression on the Gift Deed before the Registrar in his presence and that he had also signed the Gift Deed as an attesting witness.
47. DW-7, Sh. V.V. Bhatia has proved the Site Plan of the Rajouri Garden property, though it was not exhibited.
48. Learned counsel for the plaintiff has argued that on migration from Pakistan to India, the two shops in Sadar Bazar were purchased in the name of father while one house in Rajouri Garden was purchased in the name of the mother, from the family funds, which the family had brought with them from sale of ancestral properties in Pakistan, at the time of migration. They all continued to be joint family and the plaintiff being the son, is entitled to his share in the three properties.
49. The learned counsel has further argued that the registered Will on which reliance has been placed by the defendant No. 1, is invalid as the father was not the absolute owner of the suit property and thus, was not competent to treat it as his individual property. There was an earlier Will dated 06.01.1992 on which Sh. Satwant Singh, Advocate, was the attesting witness, who continued to represent the defendant No. 1. He is an interested witness and no credibility can be attached to his testimony. The first Will got revoked while the second Will, which is identical, got executed. There is no reason why the first Will would be revoked to be again executed on identical terms. The address of son and number of children is not correctly mentioned in the Will. There is no explanation given why the other children have been excluded. There are cuttings on the Will on which reliance has been placed by defendant No. 1 which creates a doubt about the authenticity of the Will.
50. The Ld. Counsel for the plaintiff has further argued that the alleged Gift Deed executed by the mother in favour of the defendant No. 1, is also not above suspicion since the mother always used to sign her name but the Gift Deed has a thumb impression. It has been executed barely 10 days before her demise. Moreover, she was not the exclusive owner of the Rajouri Garden property house as the money was paid by the husband, as is also mentioned in the Sale Deed. She was a benami owner and the property had been purchased for the benefit of the entire family. Two witnesses have been examined by the plaintiff, who have deposed that Smt. Inder Kaur always used to sign her name; the last signatures being about 28 days prior to the execution of the Gift Deed. The attesting witness, Sh. Bunty Jain is a close friend of the defendant No. 1. Moreover, the defendant No. 1 had been residing with the mother and was in her dominant possession. Allegedly, the Gift Deed was prepared by Mr. Mehta, who was not examined as a witness. The Gift Deed writer has also not been produced as a witness. The Medical Fitness Certificate has been procured of the same date as Gift Deed has been procured by the defendant No. 1. The stamp paper has been purchased on the same day, in the name of Smt. Inder Kaur Kohli on which it was registered. The Gift Deed is, therefore, proved to be a manipulated document.
51. The Ld. Counsel for the plaintiff has referred to the Order of the Settlement Commissioner DW-1/5, whereby the Claim filed by the mother, was verified. It is argued that even though the claim money was given in the name of the mother but the Sale Deed of the Rajouri Garden property itself states that the money had been paid by the father.
52. It is, therefore, argued that the attending circumstances around the Gift Deed, as well as, the Will, create suspicion about the authenticity of these two documents. Moreover, these properties being the joint family properties having been acquired from ancestral funds could not have been exclusively dealt by either the father or the mother. It is thus, argued that the suit properties are the joint families properties in which the plaintiff has a right to claim partition.
53. Written Submissions of similar line have been filed on behalf of the plaintiff.
54. Learned counsel for the defendant has controverted all the arguments and has submitted that admittedly, the Rajouri Garden property by virtue of the Sale Deed, had been purchased by the mother in her name. Aside from bold assertions of it having been purchased from the ancestral property, no cogent evidence has been led on behalf of the plaintiff. On the other hand, the defendant No. 1 has been able to prove the Settlement Claim by virtue of which the mother got the money and has also deposed about the loan having been taken by her from her brother for raising the construction of the Rajouri Garden property. Insofar as, the arguments of the Rajouri Garden property being benami, the same is barred under the Benami Transaction Act, 1988. This plea, therefore, is not tenable under the law.
55. It is vehemently denied that any of the suit properties belong to joint family. It is asserted that the two shops of Sadar Bazar had been taken on rent by the father, which has been inherited by defendant no.1 by virtue of the Will, which is genuine and has been proved by the attesting witness.
56. Likewise, the Gift Deed has been duly proved by examining the attesting witnesses. The thumb impression has not been denied by the plaintiff by virtue of Section 34(3) read with Section 35(2) of the Registration Act, the authenticity of the Gift Deed stands fully proved. The defendant No. 1 has also proved the House Tax Receipts, Ration Card and the Electricity Bills etc, to prove that the property has always been in the name of the mother.
57. Learned counsel for the defendant has argued that there is not an iota of evidence about the constitution of HUF. Neither is there any date of constitution of HUF given nor are there any supporting documents in the form of Income Tax Return, Bank Accounts or any proof of Income so generated, to prove the existence of the HUF.
58. Learned counsel for the defendant has further argued that the plaintiff after his marriage, shifted to Mumbai with his in-laws, in 1976. He got the share in the property of his in-laws and never visited the suit property after 1976. The father and the mother throughout resided with the defendant No.1.
59. Though the mother was old and ailing at the time of execution of the Gift Deed but none of her ailments were life threatening or incapacitating.
60. It is thus, argued that the plaintiff is not entitled to the partition and the Suit is liable to be dismissed.
61. Submissions heard and the evidence and the entire record is perused. The Issue wise findings are as under:

ISSUE NO. 1:
Whether Smt. Inder Kaur was the absolute owner of the property bearing No. H-25, Rajouri Garden, New Delhi? OPD

62. Admittedly, Late Sh. Gurbachan Singh Kohli along with his wife and minor children, migrated from Pakistan to India in 1947. It is also not in dispute that after coming to India, one house in Rajouri Garden was purchased for a consideration of Rs.13,459.05 paisa vide Sale Deed dated 18.09.1963, Ex.PW-1/5 executed in the name of Smt. Inder Kaur, the mother of the parties to the suit.
63. The plaintiff has contended that though the Sale Deed was in the name of the mother but she was an illiterate woman who had no independent source of income; in fact, the money for the purchase of the property was invested by their father, Sh. Gurbachan Singh Kohli. The plaintiff in order to counter the Sale Deed in the name of Smt. Inder Kaur, took the plea that the property was purchased in the name of the mother but the funds were given from the family funds and it was purchased benami in her name.
64. In the case of Jaydayal Poddar v. Bibi Hazra (Mst.), (1974) 1 SCC 3, the Apex court held that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden must be discharged by providing definitive legal evidence that either directly proves the benami nature of the transaction or establishes circumstances that unequivocally lead to that conclusion. Furthermore, there is no automatic presumption in law that property is joint family property merely because family members resided together at some point. The onus is on the plaintiff to prove that the property is joint family property. A reference was made to its earlier judgment in the case of Valliammal v. Subramaniam, (2004) 7 SCC 233, and laid down the following six circumstances can be taken as a guide to consider whether a particular transaction is benami in nature,:
(1) the source from which the purchase money came;
(2) the nature and possession of the property, after the purchase;
(3) motive, if any, for giving the transaction a benami colour;
(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale; and
(6) the conduct of the parties concerned in dealing with the property after the sale.
65. The plaintiff though has claimed that the mother Smt. Inder Kaur,,was not the actual owner of the Rajouri Garden property but has not been able to prove the same.
66. The Sale Deed, dated 18.09.1963 Ex. PW-1/5, is admittedly in the name of Smt. Inder Kaur. This fact has also been proved by PW-2, Mr. Dori Lal, from the Department of Archives, Delhi. Likewise, PW-3, Sh. Ashok Sapra, who was the tenant in one of the Shops in Rajouri Garden property, has deposed that he had entered into the Rent Agreement with Smt. Inder Kaur, who used to issue the rent receipts in her name, which are exhibited as Ex. PW-3/1 to Ex. PW-3/38. Likewise, PW-4, Sh. Dharamveer Dhawan, the other tenant in the shop at Rajouri Garden has deposed that he has been a tenant in the shop since April, 1968 under the land lordship of Smt. Inder Kaur. The rent receipts were being issued by her regularly till June, 2003 some of which have been exhibited as Ex.PW-4/1 to Ex.PW-4/6. The electricity bills for the shop in his tenancy, were also in the name of Smt. Inder Kaur. He further clarified that even during the lifetime of Sh. Gurbachan Singh Kohli, the rent was being paid to Smt. Inder Kaur.
67. The testimony of the witnesses examined on behalf of the plaintiff also corroborate that it was Smt. Inder Kaur, who was the landlord and was realising the rent from Shops existing in Rajouri Garden property. There is no challenge that Smt. Inder Kaur always conducted herself as the owner landlord of the Rajouri Garden property and the rent was being collected by her. At no point of time did Sh. Gurbachan Singh Kohli, her husband, exert the ownership rights in this property.
68. The defendant No. 1 has explained that his mother, Smt. Inder Kaur had bought the Rajouri Garden property from her own funds. She had received a sum of Rs.13,095/- from the Settlement Commissioner, Sh. A.H. Malkani as rehabilitation grant vide Appln. Index No. P/JH-2/RG(95)667 in lieu of her property at Dudhiyal, Tehsil Chakwal, District Jehlum, Pakistan. The Order of the Settlement Commissioner dated 12.12.1957 is exhibited as Ex. DW-1/5. DW-1 Sh. Amarjeet Singh Kohli has further explained that their mother had also sold her personal jewellery and borrowed some money from her brother, Late Sh. Har Bans Singh and Uncle, Late Sh. Kartar Singh of National Motor Company, Bombay, for the purpose of constructing and building the house on Rajouri Garden. The original Letter received from Late Sh. Kartar Singh, dated 01.12.1965 is exhibited as Ex.DW-1/6. The Letter dated 21.04.1964, Ex.DW-1/7, was written by Smt. Inder Kaur to the Land Acquisition Collector confirming that she would be constructing her house on the Rajouri Garden plot. She accordingly, placed an Order on 06.10.1965 Ex.DW-1/9 with the Cement Marketing Company of India, vide which she paid a sum of Rs.3,800/- to the Cement Marketing Company of India Ltd., the original receipt dated 06.10.1965 is Ex.DW-1/10. She also received a fund of Rs.341.63 from Cement Marketing Company of India Ltd., through a cheque along with covering Letter dated 27.07.1966, which is exhibited as Ex.PW-1/11.
69. Smt. Inder Kaur purchased the bricks from Sh. Mulk Raj and Sh. Hans Raj vide receipt dated 25.07.1965 and 16.08.1965 respectively, which are exhibited as Ex.DW-1/10 collectively. She also purchased the bricks from M/s Brij Bhushan Lal Sharma and Company vide Challan dated 04.03.1966 and 24.02.1966, which are exhibited as Ex.DW-1/13 and Ex.DW-1/14 respectively. The Electrical articles were purchased from M/s V.K. Electrical and Sanitations vide receipts dated 29.03.1966, which are exhibited as Ex.DW-1/15 and Ex.DW-1/16. Lime was purchased from Universal Lime Company vide receipt dated 24.07.1965, Ex.DW-1/17.
70. The property was also assessed in House Tax in her name and she had been regularly paying the House Tax as is evident from the receipts dated 26.12.1967, 02.02.1978, 18.01.1983, 07.01.1983 and 22.09.2003, which are exhibited as DW-1/35 to DW-1/39. The rent receipts Ex.DW-1/48 to Ex.DW-1/54 are in respect of the Shop No. 1, Rajouri Garden property, likewise, rent receipts in respect of the Shop No. 2 in Rajouri Garden property from the year 1968 to 2001 are exhibited as Ex.PW-1/55 to Ex.PW-1/60. The income receipt by Smt. Inder Kaur as rent of the shops in Rajouri Garden property was being reflected in her Income Tax Assessment Orders for the year 1970-1971, 1971-1972, 1972-1973, which are exhibited as Ex.DW-1/40 to Ex.DW-1/42. The Income Tax Receipt for a sum of Rs.190/- paid by the defendant No. 1, on account of taxes for the late Mother for the year 1970-71, is exhibited as Ex.PW-D/43. A Demand Notice was received from Income Tax Department by Smt. Inder Kaur, for the assessment year 1970-71, 1971-1972 and 1972-1973 respectively, which are exhibited as Ex.DW-1/44 and Ex.DW-1/45. The Assessment Order dated 19.02.1977 for the Assessment year 1971-1972 and 1972-1973 respectively and the Assessment Order dated 19.07.1977 for the assessment year 1970-1971, passed by the Income Tax Officer, are exhibited as Ex.DW-1/46.
71. The plaintiff had sought reference to be made to the Will dated 28.07.1995, Ex.DW-1/18, executed by Sh. Gurbachan Singh Kohli, during his lifetime wherein it is asserted that he had specifically stated that the Rajouri Garden property belonged to him. However, there is no such recitation in the Will. The relevant Clause reads as under:-
“I have moveable and immovable properties. I have tenancy rights/partnership shares at shop nos. 6005, and 6023, Krishna Nagar, Gali Matkewali, Sadar Bazar, Delhi-6. I am also the owner/in my name many articles lying at shops nos. 6005 and 6023, Krishna Market, G-11, Matkewali, Sadar Bazar, Delhi-6 and also at H-25, Main Market, Rajouri Garden, New Delhi-27. I have also bank balance being partner of M/s Kohli Bros. 6005, Krishna Market, G-11, Matkewali, Sadar Bazar, Delhi-6.”

72. From the reading of the aforesaid Clause, it is evident and needs no interpretation that Sh. Gurbachan Singh Kohli had stated that many articles were lying in the Shop Nos. 6005 and 6023, Krishna Market, Sadar Bazar and also at the house and at the Rajouri Garden property, New Delhi. At no place has he asserted that the Rajouri Garden property belongs to him or that property was purchased from the funds given by him. It is not denied that Gurbachan Singh and his family had come to reside in Rajouri Garden property and it is natural that his goods and belongings would be lying in this property, as had been stated by him in his Will. The contention of the plaintiff that it is Sh. Gurbachan Singh, who had invested the money or that Smt. Inder Kaur was holding it as benami is not borne out from the documents relied upon by the plaintiff.
73. All the aforesaid documents along with the testimony of the defendants coupled with the admissions of the plaintiff in his evidence, establishes that Smt. Inder kaur was the owner of Rajouri Garden property, having purchased it from her own funds including a rehabilitation grant, sale of jewellery, and family loans. The Sale Deed is in her name. The construction thereon was also done from her funds, as established from various documents. Mere existence of a familial relationship is insufficient to prove such a benami arrangement. The plaintiff has failed to provide convincing evidence across the six areas as defined in the case of Jaydayal Poddar (supra) to establish the property as benami. Her comprehensive involvement in acquiring and managing the property including collection of rent from the tenants, aligns with the broad interpretation as set by the Supreme Court, confirming Smt. Inder Kaur as the full and absolute owner.
74. The Issue No. 1 is decided accordingly in favour of defendant No.1.

ISSUE NO. 8:
Whether Late Sardar Gurbachan Singh Kohli had executed the Will dated 28.07.1995? If so, to what effect? OPD

75. The plaintiff has claimed that their father, Sh. Gurbachan Singh Kohli was having movable and immovable ancestral properties i.e. agricultural land, residential house, cash, gold and silver jewellery etc., which he had inherited from the movable and immovable properties of his forefather, which became joint family ancestral property in his hand being a Karta of joint family comprising of himself, his wife, sons and daughters and he was in possession of all the joint properties, which he took care and managed the same for the benefit of HUF. He has further deposed that on migrating to India, he liquidated whatever cash, gold, silver jewellery and money, which he could manage at the time of migration and all these assets became the ancestral property in his hand as Karta of the HUF. He as the Karta, immediately felt necessity for suitable residential accommodation and felt necessity of consistent income to feed the family. Therefore, for the purpose of residence and business, he from the corpus and funds of the joint family, purchased the two properties in Sadar Bazar and one in Rajouri Garden, in the name of his wife, Smt. Inder Kaur Kohli.
76. The first premise for seeking the partition by the plaintiff, is that the properties have been acquired from ancestral properties and funds left in Pakistan and there was an HUF existing from the funds of which the two properties of Sadar Bazar and one Rajouri Garden property, had been acquired.
77. In this regard, it would be pertinent to refer to the testimony of DW-1, Sh. Amarjeet Singh Kohli, who has clarified that the two properties bearing No. 6005 and 6023, Krishna Market, Sadar Bazar, were taken on rent by their father. Initially, the entire family had resided together in Shop No. 6005 but after the construction of the house in Rajouri Garden, they all shifted to the said house and the two premises in Sadar Bazar, were being used for the business of Sh. Gurbachan Singh Kohli, which he was largely doing either on his own or in partnership with defendant No. 1.
78. That these two properties/ shops of Sadar Bazar, had been taken on rent also finds mention in the Will dated 28.07.1995 of Sh. Gurbachan Singh, Ex. DW-1/18.. Being the tenanted premises, the plaintiff can claim only a right of partition in the tenancy rights provided it could be shown that this belonged to HUF.
79. The plaintiff, aside from his oral assertions that there existed a joint family corpus of money and assets that was used by Sh. Gurbachan Singh Kohli to acquire the suit properties, no cogent evidence has been led by him in this regard. There was a joint family and an HUF existing at the time of migration of the family from Pakistan, but the Hindu Succession Act, 1956 thereafter got enacted. After the demise of Sh. Gurbachan Singh Kohli in 1998, neither any averment nor an iota of evidence to show that there was an HUF, which was constituted or continued. The only assertion being made by the plaintiff is that it was ancestral/joint family property but there is no proof thereof. Rather, the evidence led is that Sh. Gurbachan Singh Kohli, post coming to India, took Shops in Sadar Bazar and started his business. There is no evidence that he had any ancestral money or realized in lieu of the ancestral properties left in Pakistan. Rather, there is express evidence of the Mother, Smt. Inder Kaur, having got the money, but none exists in regard to according to Sh. Gurbachan Singh Kohli. From the evidence on record, what emerges is that the properties and money of Sh. Gurbachan Singh Kohli was self-acquired and did not belong to the family. Also, there is no proof of there being any HUF constituted of Sh. Gurbachan Singh Kohli and his family. Furthermore, Section 8 of the Hindu Succession Act, provides that on the demise of the head of the family, the property gets divided not by survivorship but by succession. Therefore, even if it is accepted for the sake of arguments that there ever existed an HUF till the time Sh. Gurbachan Singh Kohli was alive, but on his demise, his assets are amenable to division by rule of succession and not by survivorship.
80. It is also pertinent to observe that Sh. Gurbachan Singh Kohli during his lifetime had executed a Will dated 28.07.1995, Ex.DW-1/18, which was duly registered with the Sub-Registrar. In the said Will, it had been mentioned that one earlier registered Will dated 06.01.1992, had been executed by him in the name of his son, Sh. Amarjeet Singh Kohli/defendant No. 1. The same was got cancelled on 13.07.1994 vide registered document and since all the misunderstanding got cleared, he again executed the Will on 28.07.1995.
81. To prove the Will, the defendant No. 1, Sh. Amarjeet Singh Kohli had examined DW-2, Sh. Satwant Singh, Advocate, who deposed that Sh. Gurbachan Singh and his wife, Smt. Inder Kaur, were his clients and they used to consult it. The Will dated 28.07.1995, Ex.DW-1/18 was drafted by him, as per the instructions of Late Sh. Gurbachan Singh Kohli, which was read over to him in Gurmukhi by him, in the presence of Mr. Pawan Kumar and defendant No. 1, outside the Office of Sub-Registrar. He was also one of the attesting witness to the Will. After admitting the contents to be correct, Sh. Gurbachan Singh Kohli had signed each page of the Will in Urdu, in his presence. He also affixed the photo of the testator on the Will. On the request of the testator, he first signed the Will as witness No. 1 and also signed at the point “drafted by” since the Will was drafted by him. The second witness, Mr. Pawan Kumar also signed in their presence and gave his parent age, as well as, the address. The registration fee for the Will was deposited and the duly signed Will was presented on 28.07.1995, for registration.
82. DW-2, Sh. Satwant Singh, Advocate further deposed that they all appeared before the Sub-Registrar where the Sub-Registrar again explained the contents of the Will to the testator in their presence. The Will’s registration with the Sub-Registrar adds another layer of authenticity, as it is established that the Sub-Registrar explained the contents to the testator in the presence of witnesses. He has further deposed that a testator was in sound disposing mind at the time of execution and signing the aforesaid Will. Though, this witness has been cross-examined at length but no material contradiction could be brought forth, which could create any doubt in regard to the execution of the Will.
83. The only ground agitated by the plaintiff was that identical Will dated 06.01.1992 was executed by Sh. Gurbachan Singh Kohli but it was cancelled and another Will dated 28.07.1995, Ex.DW-1/18 was executed, the contents of which were identical to the earlier Will, for which there is no logic. It is not disputed that there was an earlier Will with same contents, but it has been explained that the second Will was executed as all the misunderstanding got cleared. The mention of a previous Will and its cancellation in the document shows a history of the testator’s intentions, and the corroboration by defendant No. 1, Sh. Amarjeet Singh Kohli, further strengthens the case for the Will’s authenticity. No suspicious circumstance has been proved surrounding the Will dated 28.07.1995, Ex.DW-1/18.
84. The defendant No. 1, Sh. Amarjeet Singh Kohli has been able to prove the authenticity and genuineness of the registered Will dated 28.07.1995 in accordance with Section 63 of the Indian Succession Act and has duly proved it by examining the attesting witness in terms of Section 68 of Indian Evidence Act.
85. Issue no.8 is accordingly decided, and the Will dated 28.07.1995 Ex.DW-1/18 of Sh. Gurbachan Singh Kohli, is held to be genuine and valid.

ISSUE NO. 2:
Whether S. Gurbachan Singh Kohli had affected a partition and settled the amount of the plaintiff during his life time? If so, to what effect? OPD

86. From the aforesaid discussion on Issue Nos. 1 and 8, it is evident that Sh. Gurbachan Singh only had tenancy rights in the suit property in Sadar Bazar and had no other immovable properties in his name. He was having various movable assets, which have been explained by DW-1 Sh. Amarjeet Singh Kohli in his testimony to have been distributed to the family members during the lifetime of their father as under:-
S.NO.
PARTY
PARTICULARS
1.
Plaintiff
Cash for starting an independent business in Calcutta in 1973 and later on for starting business in Bombay in 1975
2.
Defendant No. 2
Cash and Jewellery at the time of wedding. Cash from time to time.
3.
Defendant No. 3
Cash and Jewellery at the time of wedding. Cash from time to time.
4.
Defendant No. 4
Cash and Jewellery at the time of wedding. Cash from time to time.
5.
Defendant No. 5
Cash to late Husband for starting an independent business in Delhi. Purchased a flat in Uttam Nagar being WZ-173A, Uttam Nagar, New Delhi. Lump sum Cash at the time of death of Defendant No. 5’s husband and cash and jewellery from time to time.
6.
Defendant No. 6
Cash to late father for starting an independent business in Delhi. Purchased a flat in Uttam Nagar being WZ-173A, Uttam Nagar, New Delhi. Lump sum Cash at the time of death and cash and jewellery from time to time.
7.
Defendant No. 7
Cash to late father for starting an independent business in Delhi. Purchased a flat in Uttam Nagar being WZ-173A, Uttam Nagar, New Delhi. Lump sum Cash at the time of death and cash and jewellery from time to time.
8.
Defendant No. 8
Cash to late father for starting an independent business in Delhi. Purchased a flat in Uttam Nagar being WZ-173A, Uttam Nagar, New Delhi. Lump sum Cash at the time of death and cash and jewellery from time to time.

87. Again, there is no serious challenge to the testimony of DW-1 in regard to the distribution of the movable assets by Sh. Gurbachan Singh Kohli, during his lifetime. It is thus, held that during his lifetime, he distributed his entire movable assets to amongst his children.
88. Insofar as, the tenancy rights in the two Sadar Bazar properties, which were in the name of Sh. Gurbachan Singh Kohli, are concerned, the same have been bequeathed by Sh. Gurbachan Singh Kohli, to defendant No. 1 by virtue of his Will, Ex.DW-1/18. Therefore, there was no immovable property of Sh. Gurbachan Singh Kohli in which the plaintiff can seek the partition.
89. Issue No.2 is decided accordingly.

ISSUE NO. 7
Whether the Gift Deed dated 15.07.2003 executed by Smt. Inder Kaur is null and void and liable to be cancelled? OPP

90. The defendant No. 1 Sh. Amarjeet Singh Kohli has claimed his right, title and interest in the Rajouri Garden property, on the basis of Gift Deed dated 15.07.2003 Ex. DW-1/19 executed by Late Smt. Inder Kaur Kohli, the mother in his favour. The plaintiff has challenged it on the grounds as under:-
(i) that it was executed on 15.07.2023 soon her demise on 26.07.2003;
(ii) that she was frail, ailing and was not having a mental capacity to know the contents of the Will;
(iii) that the mother always used to sign in Gurmukhi but the Gift Deed bears the alleged thumb impression of the mother; and
(iv) that she was suffering from cataract of both eyes and was hard of hearing and was unable to see or hear.
91. There is overwhelming evidence by way of the testimony of DW-1, which is fully corroborated by DW-2 and DW-3, who are the tenants that it is he who had been living throughout with his parents in the Rajouri Garden house. There is no cogent evidence to show that the plaintiff ever visited his parents or supported them in any manner. This is the first significant aspect for Smt. Inder Kaur Kohli, to gift the property to the defendant No. 1.
92. While the plaintiff has asserted that the mother was old and ailing and suffering from various ailments, he has failed to produce any cogent evidence that despite her ailment, her mental faculties were affected or that she was not in a mental state to comprehend the contents of the documents or the happenings around her. In the absence of any evidence that her mental faculties were affected to the extent of her being unable to comprehend the contents of the documents, no suspicion on this account can be annexed to the Gift Deed.
93. Similarly, the plaintiff has claimed that she was suffering from cataract of both the eyes but that again can be of no consequence for the reasons stated above.
94. The only circumstance which may need consideration is that the Gift Deed was executed 11 days before her demise and it had her thumb impression instead of the signatures. This again has been sufficiently explained by DW-1, Mr. Amarjeet Singh Kohli that because of her frail health, her hands had started trembling and was unbale to sign her signatures. Consequently, she had put her thumb impression on the Gift Deed.
95. Pertinently, to prove the Gift Deed, the defendant had examined DW-4, Mr. Banti Jain, who was one of the attesting witness to the Gift Deed, Ex.DW-1/19. He has deposed that he was personally called by Smt. Inder Kaur Kohli on 14.07.2003, to accompany her to the Registrar Office for getting the Gift Deed registered. He along with Sh. Amarjeet Singh Kohli and Sh. Rajinder Pal, had accompanied Smt. Inder Kaur to the Office of Mr. Mehta, in the morning of 15.07.2003, to collect the Gift Deed. It is deposed by him that the Gift Deed was prepared as per the instructions of Smt. Inder Kaur Kohli, according to her wishes and was written in English. The contents were explained to her in Gurmukhi by Mr. Mehta. She agreed and consented to the contents of the Gift Deed.
96. DW-4, Mr. Banti Jain was cross-examined at length by the plaintiff but no material contradiction could be brought forth from his cross-examination. He clarified that he did not enquire from Smt. Inder Kaur Kohli as to why instead of asking him, she was not making any of her other relatives or children or doctor or neighbour as a witness to the Gift Deed. He clarified that he knew Sh. Amarjeet Singh Kohli for the past 20 years, prior to 2003 but was not aware of how many siblings were they, since he never made any such enquiry. It is admitted by him that he was not a summoned witness but had come to depose in the Court, on the request of Defendant No.1 Sh. Amarjeet Singh Kohli, but it cannot be overlooked that the attesting witness would naturally be a person known to the donor; merely because he appeared in the Court without summons, cannot be taken as a factor to shake his credibility. Furthermore, the plaintiff has not been able to create any kind of dent in his testimony.
97. It is no doubt true that the execution of a document in the nature of a Gift soon before the demise needs extra caution and warrants a scrutiny to adjudicate its genuineness, as has been held in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma, AIR 1959 SC 443 in the context of proving the Will, but the same principle equally applies to the present case wherein the registered Gift Deeds have been placed under challenge. However, it merely requires a closer scrutiny but it cannot be the sole ground to discredit such document. As discussed in detail, the testimony of DW-1 coupled with DW-4, Sh. Banti Jain, the attesting witness proves the authenticity of the Gift Deed, Ex.PW-1/19.
98. Since the property got gifted through this Deed to the defendant No. 1, the plaintiff is not entitled to seek partition in the same.
99. Issue No. 7 is accordingly, decided against the Plaintiff.

ISSUE NO. 3:
Whether the suit has been valued properly and court fee has been paid in accordance with law? OPP

100. The plaintiff has claimed that he is in possession of one room and miani in the property in Rajouri Garden, which has been denied by the defendant No. 1. There is no evidence whatsoever produced by the plaintiff to prove his possession in the said room and miani. It is not in dispute that he got married in the year 1976 and shifted to Mumbai in 1976 with his in-laws where he has been residing since then. DW-1 in his testimony had deposed that the plaintiff never visited the suit property thereafter. The plaintiff aside from bold assertions, has not been able to show that he had been visiting the house at Rajouri Garden or that he was in possession of any part of the room. However, it is a suit for partition of the suit properties, which has been filed by him claiming to be the co-owner.
101. It was held by this court in Prakash Wati vs. Dayawanti, (1990) 42 DLT 421, that in the case of co-owners, the possession of one is in law the possession of all unless ouster or exclusion is proved. It was stated that when the plaintiff asserts shared possession of the property for which partition is requested, whether actual or constructive, the plaintiff is only required to pay a fixed court charge in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870.
102. Thus, ad volorem court fee under Section 7(iv) (b) of the Court Fees Act, 1870 can be applied only when the plaintiff has been ousted from its enjoyment of the suit property and seeks restoration of the joint possession by way of a suit as was held in Asa Ram Vs. Jagan Nath and others, AIR 1934 Lahore 563.
103. To constitute ouster, there must be evidence an open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other.
104. Where averments in the plaint would show that the plaintiff admits ouster by the defendants to keep him away from immovable property and the ouster is premised on the plaintiff’s right, title or interest in the property being denied; title, right or interest has to be established and only thereupon partition claimed followed by possession.
105. In the decision of Mohendra Chandra Ganguli v. Ashutosh Ganguli, 20 Cal. 762, it was held that if it was a case of complete ouster, a claim of being a co-sharer in an immovable property and hence, partition with recovery of possession as the prayer would warrant ad-valorem court fee to be paid on the plaint.
106. The key distinction in determining the appropriate court fee lies in whether the property is admittedly joint or whether the title is disputed. In the instant case, the plaintiff claims co-ownership of the properties, but has not been able to prove any title in the suit properties.
107. The plaintiff alleges possession of a room and miani in the Rajouri Garden property, but provides no evidence to support this claim. Defendant no.1 denies the plaintiff’s possession. Moreover, the plaintiff has been residing in Mumbai since 1976 and has not shown evidence of visiting or possessing any part of the property since then. The evidence as led by the parties establishes a complete ouster of the plaintiff with no Title in the Suit properties. an open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other.
108. Hence, such a situation warrants the payment of ad valorem court fee under Section 7(iv)(b) of the Court Fees Act, 1870, rather than a fixed fee which was paid the plaintiff.
109. The issue no.3 is therefore, decided against the plaintiff and he is required to pay the deficit Court fees.

ISSUE NO. 4, 5 & 6:
Whether the plaintiff is entitled to the relief of partition and rendition of accounts in respect of the properties reflected in the prayer clause? OPP

Whether the plaintiff is entitled to the relief of permanent injunction? OPP

Whether the plaintiff is entitled to the relief of mesne profits against the defendant No. 1? If so, at what rate and for what period? OPP

110. In view of the findings on the aforesaid issues, it has been established that there was no joint family property and that the plaintiff is not entitled to a share either in the Rajouri Garden property or in the two premises at Sadar Bazar. Therefore, he is not entitled to relief of partition, Injunction and rendition of accounts as claimed by him.
111. The issues No. 4, 5 & 6 are decided against the plaintiff.

RELIEF:
112. In view of the findings on the aforesaid issues, it is held that the plaintiff is not entitled to partition, Injunction or Rendition of Accounts and the suit is hereby dismissed. The Plaintiff, however is directed to pay the deficient Court Fees within 30 days failing which the Registrar General may recover the same, in accordance with law.
113. Parties are to bear th