Delhi District Court
Nanhi Devi vs Ratan Singh Verma on 11 February, 2026
IN THE COURT OF NAVEEN GUPTA, DISTRICT JUDGE-09
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No.DLWT01-001567-2017
CS DJ No. 208/2017
In the matter of :-
Nanhi Devi (since deceased)
W/o Late Sh. Sarnam Singh,
Through LRs:
1. Suresh Chandra Verma
S/o Late Sh. Sarnam Singh,
R/o H. No. 72/154, Agrasen Vihar,
Jaansath Road, Muzaffar Nagar,
Uttar Pradesh-251001.
2. Rajveer Singh
S/o Late Sh. Sarnam Singh,
R/o Vasundhara Vihar Colony,
Near Sanskar Banquet Hall, Bijnor,
Uttar Pradesh-246174.
3. Kuldeep Kumar
S/o Late Sh. Sarnam Singh,
R/o Village Rasulgarh,
P.O. Fazalpur, District Bulandshahar,
Uttar Pradesh-202396.
..... Plaintiff
VERSUS
1. Ratan Singh Verma (since deceased)
S/o Late Sh. Sarnam Singh
Through LRs:
(i) Anita Verma (defendant no. 2 herself)
(ii) Ankit Singh
(iii) Mayank Singh
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
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2. Anita Verma
W/o Sh. Ratan Singh Verma,
All R/o H. No. 88, Extension No. 2,
Nangloi, Delhi-110041.
3. Nirmala Devi
W/o Sh. Satish Chand,
D/o Late Sh. Sarnam Singh,
R/o H. No. 280, Kailash Puri Colony,
District Bulandshahar,
Uttar Pradesh-202396
4. Meenakshi Devi
W/o Sh. Rakesh Kumar,
D/o Late Sh. Sarnam Singh,
R/o H. No. 25, Govind Dev Colony,
Khurja, District Bulandshahar,
Uttar Pradesh-202131.
..... Defendants
Date of institution : 22.07.2017
Reserved for judgment : 27.01.2026
Judgment pronounced on : 11.02.2026
SUIT FOR DECLARATION, POSSESSION
AND PERMANENT INJUNCTION
JUDGMENT
1. This is a suit for decree of declaration, possession and permanent
injunction filed by the plaintiff Nanhi Devi, through her son/Special
Power of Attorney namely Suresh Chandra Verma, against the
defendants no.1 and 2. Defendant no. 1/Ratan Singh Verma was the son
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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of plaintiff and defendant no. 2 was the wife of defendant no. 1. The
plaintiff expired on 24.05.2018. Subsequently, three sons/LRs of
plaintiff namely Suresh Chandra Verma, Rajvir Singh and Kuldeep
Kumar were impleaded as plaintiffs in the array of parties. While other
LRs of plaintiff namely Ratan Singh Verma/son, Nirmala Devi/daughter
and Meenakshi Devi/daughter were impleaded as defendants, as
Nirmala Devi and Meenakshi Devi stated that they were supporting the
case of defendants no. 1 & 2. Further, D-1 expired on 29.03.2025.
Thereafter, his legal heirs were impleaded in the array of parties. It is
clarified that the parties have been referred as follows: Nanhi Devi as
plaintiff and Ratan Singh Verma as defendant no.1.
2. Succinctly put, the case of plaintiff is that Suresh Chandra Verma
is her real son, who is her Special Power of Attorney executed on
09.02.2017, through whom she has filed the present case. She was the
owner of property bearing no. 88, Extension 2, Nangloi, Delhi-110041
(hereinafter referred as ‘suit property’). The said property was her self
acquired and self constructed property. The defendant no. 1 (D-1)/Ratan
Singh Verma is her third son and defendant no. 2 (D-2) is the wife of
D-1. Both the defendants were occupying the suit property under her
permissive possession.
3. It has been averred by the plaintiff that after marriage of her
youngest son Kuldeep Singh in the year 2003, she tried to partition the
suit property amongst all her four sons namely Suresh Chandra Verma,
Rajvir Singh, Ratan Singh Verma and Kuldeep Singh. But, D-1 became
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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annoyed and started misbehaving with the plaintiff and in this regard,
D-1 and D-2 abused and beat her elder son Suresh Chandra Verma and
his wife in the native place at Village Rasulgarh in the presence of her
husband and other villagers. The original papers/documents of the suit
property were taken from her native place by using illegal tactics. D-1
and D-2 obtained her thumb impressions on certain blank stamp
papers/papers and other documents under false pretext. They fabricated
the signatures of her husband on the alleged documents as a witness,
however, he had never signed the said documents as witness or in any
capacity.
4. It has been further averred that with fraudulent intention, D-1 had
executed alleged gift deed in favour of D-2 just to grab the property of
plaintiff with ulterior motive on the basis of forged and fabricated
General Power of Attorney (GPA), even without having any right, title
or interest over the suit property in any manner. Since the plaintiff
wanted to make partition of the suit property, therefore, she got a Will
dated 22.09.2014 executed, then she came to know that D-1 had played
fraud upon her. D-1 and D-2 had procured the alleged GPA. To fulfill
their malafide intention of grabbing the suit property, they managed to
forge/prepare a deed of Will and GPA on the same day i.e. 03.08.2009.
Thereafter, D-1 transferred the said property in the name of D-2 on
31.10.2011 by virtue of gift deed.
5. The plaintiff has further averred that she had not executed any
GPA in favour of D-1. Her thumb impressions on the alleged
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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documents were obtained by D-1 and D-2 by playing fraud without
explaining the details and results. She was not aware as to how and in
what manner the defendants had used the thumb impressions. This
fraud played by them came into her knowledge only on 22.09.2014.
6. It has been submitted that D-1 and D-2 had beaten the youngest
son of plaintiff namely Kuldeep Singh and his wife. In this regard, a
written complaint dated 23.06.2012 was given to the SSP,
Bulandshahar, UP and the copy of same was also given to the SHO PS
Nangloi, Delhi and to SHO PS Pahasu, Bulandshahar, UP. Again, on
22.10.2014, the plaintiff made written complaint to the SHO PS
Nangloi, but no action was taken on the said complaint. Thereafter, she
filed a complaint case under Section 200 Cr.P.C. for commission of
offence under Section 420/406/467/468/471/506 of the Indian Penal
Code against the defendants [no. 1 & 2], which was dismissed.
7. The plaintiff has further contended that she did not wish to
permit D-1 and D-2 to live in the suit property. She had terminated their
living capacity/locus standi in the said premises w.e.f. 22.03.2016.
Thus, they had no right to stay in the property and they were liable to
pay use and occupation charges @ Rs.10,000/- per month w.e.f.
21.04.2016. She had sent a legal notice dated 09.04.2016 to them,
whereby she directed them to hand over the peaceful and vacant
possession of the suit property. But, the defendants no. 1 and 2 sent a
false and frivolous reply dated 07.04.2016. Thus, the plaintiff has filed
the present suit praying for decree of declaration that the alleged
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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ownership documents of the suit property including the GPA and deed
of Will dated 03.08.2009 and any other document allegedly in favour of
the defendants are null and void, decree of possession of suit property,
decree of permanent injunction restraining the defendants no. 1 and 2
from creating any third party interest over the suit property.
8. In their written statement, the defendants no. 1 and 2 have raised
preliminary objections that the present suit was barred by law of
limitation. On merits, they submitted that the plaintiff had neither
authorized the SPA to file the present suit nor she intended to file the
same. The present suit had been filed by the plaintiff under undue
pressure, influence, coercion, fraud played on behalf of SPA and her
other sons. Further, D-2 is the absolute and exclusive owner of the suit
property by virtue of registered gift deed dated 01.11.2011. The suit
property had been purchased by father of D-1 and at the time of its
purchase, he had paid a sum of Rs.200/- on 28.08.1972 as part payment.
However, due to love and affection, it was purchased in the name of
plaintiff on 10.09.1972. The father of D-1 was a government servant
(retired Principal) from Delhi. The plaintiff was a housewife and at no
point of time during her life, she was earning anything. The defendants
denied that they were living and occupying the suit property under
permissive possession. They were residing in the suit property for more
than 30 years and electricity meter had been installed in the name of
D-1. An electricity bill dated 17.08.1990 had been issued in this regard.
D-1 was working as a PGT teacher in Government Boys Sr. Secondary
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
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School, Nangloi, Delhi since 1988 and was residing in the suit property
alongwith his family.
9. It has been further averred that during the lifetime of father of
D-1 (who expired on 09.05.2015), prior to the year 2003, all his
properties were mutually and orally partitioned amongst all the brothers
in the presence of all family members. Since it had been settled that the
suit property would be of D-1, the plaintiff executed a registered power
of attorney in his favour on 03.08.2009. She also executed agreement to
sell, affidavit, receipt and possession letter on the same day for a total
consideration of Rs.20,00,000/-. All the above documents were
executed in the presence of Sh. Sarnam Singh as one of the attesting
witnesses. The suit property was transferred by the plaintiff in favour of
D-1 in the office of Sub-Registrar and the entire transaction took place
voluntarily, without any force and coercion. The defendants no. 1 and 2
have further denied all the allegations leveled by the plaintiff against
them in her plaint. They prayed for dismissal of the present suit.
10. In their written statement, defendants no. 3 and 4 stated that their
mother late Nanhi Devi was the sole owner of the suit property.
However, due to oral partition among the family members i.e. plaintiffs
[LR no. 1, 2 and 3 of the original plaintiff] and defendant no. 1,
respective shares were given to the plaintiffs and defendant no. 1 by
their parents out of free Will and consent and without any fraud,
coercion or misrepresentation. Due to escalation in price of suit
property, the plaintiffs, after demise of their father, used to harass and
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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victimize their mother for transferring the suit property in their name.
D-1 alongwith his family had been residing in the suit property since
long and due to which, the suit property was transferred in his name by
late Nanhi Devi in the presence and consent of their father. They have
further averred that their parents never asked defendants no. 1 and 2 to
vacate the suit property, rather their mother had herself transferred the
same in the name of D-1. Thus, they prayed for dismissal of the present
suit.
11. In the replication filed by the plaintiff qua the written statement
filed on behalf of D-1 and D-2, the plaintiff has merely denied the
contents of written statement. In the replication qua the written
statement filed on behalf of D-3 and D-4, the plaintiffs have stated that
D-1 prepared forged documents in respect of the suit property and their
mother had given police complaints in this regard. When the police
failed to take any action against D-1, then she filed the present suit
against D-1 and D-2 and also made last Will on 22.09.2014 with a view
that her life shall end without any dispute amongst her sons.
12. From the pleadings of the parties, following issues were framed
on 29.05.2019:-
1. Whether the plaintiffs are entitled for a decree of
declaration against the defendants for declaring the
ownership documents of the suit property bearing no. 88,
Extension-2, Nangloi, Delhi including GPA and Will
dated 03.08.2009 and any other such document as null
and void? OPPCS DJ 208/2017 Page no. 8/42
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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2. Whether the plaintiffs are entitled for a decree of
possession against the defendants in respect of the
portions of the suit property as shown in red colour in the
site plan? OPP
3. Whether the plaintiffs are entitled for a decree of
permanent injunction against the defendants for
restraining them from creating any third party interest in
the said suit property? OPP
4. Whether the present suit is barred by Limitation? OPD
5. Whether the suit is not maintainable in its present form
and without seeking partition of the suit property? OPD1
&2
6. Relief
13. To prove their case, the plaintiffs/LRs of the deceased plaintiff
examined five witnesses. PW-1 is the LR no. 1/son of deceased
plaintiff. He tendered his evidence affidavit as PW-1/A. He submitted
on the similar lines as stated in the plaint. He relied upon the following
documents:-
1. Copy of Aadhar Card, Ex. PW-1/1.
2. Ex.PW-1/2 is the computer generated copy of death
certificate of the plaintiff Nanhi Devi, who was his
mother.
3. Ex. PW-1/3 is the original General Power of Attorney
dated 09.02.2017 executed in his favour by Nanhi Devi.
4. Ex. PW-1/4 is the site plan of suit property.
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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5. Ex. PW-1/5 is the registered Deed of Will dated
22.09.2014 of Nanhi Devi.
6. Ex.PW-1/6 is the copy of legal notice dated 29.03.2016
sent to defendants no. 1 and 2.
7. Ex. PW-1/7 is the copy of reply dated 07.04.2016 of
defendants no. 1 and 2 in respect of the legal notice dated
29.03.2016.
8. Mark A is the photocopy of the complaint dated
23.06.2012 given by Nanhi Devi to the SSP,
Bulandshahar, U.P.
9. Mark C is the complaint dated 22.10.2014 given by Nanhi
Devi to the SHO, PS Nangloi, Delhi.
PW-1 was cross-examined on behalf of defendants no. 1 and 2. Vide
order dated 18.10.2024, PW-1 was permitted to be recalled to the extent
of tendering additional documents. Thereafter, PW-1 tendered his
additional affidavit of evidence, Ex.PW-1/B. He relied upon following
documents:-
1. Copy of GPA dated 03.08.2009, already Ex. PW-1/D-1.
2. Copy of agreement to sell and affidavit dated 03.08.2009,
Mark-D.
3. Will dated 03.08.2009, already Ex.PW-1/D-2.
4. Copy of Gift deed dated 01.11.2011, Mark-E.
PW-1 was further cross-examined on behalf of LRs of deceased
defendant no. 1 and defendant no. 2.
14. PW-2 is Kuldeep Kumar, who is LR no. 3/son of deceased
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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plaintiff. He tendered his evidence affidavit as PW-2/A. He too
submitted on the similar lines as stated in the plaint. He relied upon all
the documents relied upon by PW-1. He was cross-examined on behalf
of the defendants no. 1 and 2.
15. PW-3 is Rajveer Singh, who is LR no. 2/son of deceased
plaintiff. He tendered his evidence affidavit as PW-3/A. He too
submitted on the similar lines as stated in the plaint. He relied upon all
the documents relied upon by PW-1 i.e. Ex.PW-1/1, Ex.PW-1/2,
Ex.PW-1/4, Mark-A, Mark-B, Ex.PW-1/5, Mark-C and Ex.PW-1/6. He
was cross-examined on behalf of the defendants no. 1 and 2.
16. PW-4 is Jyoti Panwar, Data Entry Operator, Office of Sub-
Registrar-II A, Nangloi. She tendered copy of Will [of late Nanhi Devi]
dated 22.09.2014, Ex.PW-4/1.
17. PW-5 is Dinesh Kumar/one of the attesting witnesses of the Will
dated 22.09.2014. He deposed that Nanhi Devi visited him on
21.09.2014 alongwith her younger son namely Kuldeep Kumar. She
informed that he had to go to the Court with regard to some documents
related to the property. He accordingly visited Nangloi Court in the
morning of 22.09.2014. He was sitting in the office of lawyer and he
was not aware as to which document was executed on that day.
However, he had signed two documents at two places. He had appeared
before the office of Sub-Registrar as witness. He identified his
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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signatures on the Will dated 22.09.2014, Ex.PW-1/5. He was cross-
examined on behalf of the defendants no. 1 and 2. The plaintiff’s
evidence was closed vide order dated 26.07.2025.
18. To prove their defence, LRs of deceased defendant no. 1 and
defendant no. 2 examined two witnesses. DW-1 is the defendant no. 2.
She tendered her evidence affidavit as DW-1/A. She submitted on the
similar lines as stated by the defendants no. 1 and 2 in their written
statement. DW-1 relied upon the following documents :-
1. Part payment receipt dated 28.08.1972 paid by late Sh.
Sarnam Singh is Ex.DW1/1.
2. Copy of letter nо. PAOIXX(MISC)Pe/536/93 of the Pay
and Accounts Officer no. XX(MISC), Delhi Government
is Mark-D/A.
3. Mark-D/H is copy of electricity bill dated 17.08.1990 in
the name of Rattan Singh.
4. Mark-D/B is copy of appointment order dated 30.05.1988.
5. GPA executed by Nanhi Devi in favour of Rattan Singh
Verma and Deed of Will dated 03.08.2009 are Ex.DW1/5
(Collectively).
6. Agreement to Sell and Purchase, Affidavit, Receipt,
Possession letter, all dated 03.08.2009 are Ex.DW1/6
(Collectively).
7. Written statement filed by the defendants nos. 3 and 4 is
Ex.DW1/7.
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
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8. Registered Gift Deed dated 31.10.2011 is Ex.DW1/8.
9. Mark-D/C is copy of complaint dated 27.07.2012 and part
of this exhibit which are complaint dated 23.06.2012
(already marked as Mark-A in PE on 11.02.2021) and
complaint dated 22.10.2014 (already marked as Mark-B
in PE on 11.02.2021).
10.Copy of legal notice 29.03.2016 alongwith envelope
postal receipt, which are already exhihibited as Ex.PW1/6
and copy of legal notice dated 29.08.2012 is Mark-D/D.
11.Copies of replies dated 14.09.2012, 10.11.2014,
13.11.2014 and 07.04.2016 are Mark-D/E.
12.Copy of order dated 21.07.2016 passed by Learned MM,
West, Delhi is Mark-D/F.
13.Copy of order dated 06.02.2017 of suit bearing no.
11079/2016 is Mark-D/G.
DW-1 was cross-examined on behalf of the plaintiff.
19. DW-2 is Om Prakash, Advocate. He stated that legal notice dated
29.08.2012 alongwith postal receipt filed by the defendants on record,
Ex.PW-2/D-1 bore his signatures on each page. The said legal notice
was sent on the instructions of Nanhi Devi. He was not cross-examined
on behalf of the plaintiffs, despite an opportunity having been given to
them. Thereafter, the evidence of LRs of deceased defendant no. 1 and
defendant no. 2 was closed vide order dated 21.11.2025.
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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20. Final arguments were heard from Ld. Counsels for the parties.
Record has been perused. Ld. Counsel for the plaintiff has argued that
the defendant no. 1 had got the documents of suit property executed in
his favour by committing fraud and thereafter, he executed a Gift Deed
in favour of his wife/D-2. The plaintiff has proved the said aspect
during trial. Further, D-1 cannot claim ownership over the suit property
by virtue of the General Power of Attorney, Will, unregistered
Agreement to Sell, affidavit and receipt all dated 03.08.2009. Ld.
Counsel has further argued that the defendants nos. 1 and 2 did not
prove the due execution of above documents as well. Even otherwise,
D-1 had never paid the alleged consideration amount of Rs.20,00,000/-
to his mother and he was not even financially capable to pay the same.
He had also forged the signatures of his father as one of the attesting
witnesses on the said documents. Further, the present suit has been filed
within limitation period. The deceased Nanhi Devi had bequeathed the
suit property to her sons through a registered Will dated 22.09.2014. In
these circumstances, present suit shall be decreed. Ld. Counsel has
relied upon following precedents in support of his arguments: Suraj
Lamp and Industries (P) Ltd. v. State of Haryana, AIR 2012 SC 206;
M.S. Ananthamurthy v. J. Manjula, 2025 (2) BLJ 171 and Ramesh
Chand (D) through LRs v. Suresh Chand, Civil Appeal No. 6377/2012
decided on 01.09.2025.
21. Ld. Counsel for defendant no. 2 and LRs of deceased defendant
no.1 has argued that mother of D-1 had duly executed transfer
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
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documents in respect of suit property in favour of D-1 on 03.08.2009.
Out of which General Power of Attorney and Will are registered
documents. In all the documents of transfer of suit property, father of
D-1 was one of the attesting witnesses. He was a teacher and well
educated person. He had never filed any complaint complaining that his
signatures were either forged or taken out of any force, undue influence
or coercion. The plaintiff has not proved as to in what manner, the said
transfer documents are forged documents. Ld. Counsel has further
argued that late Nanhi Devi had admittedly filed a complaint dated
23.06.2012 in respect of getting her signatures on blank papers.
Moreover, the plaintiff’s witnesses have deposed that they had become
aware of the alleged forgery in the year 2009 itself, thus, the present
suit seeking cancellation of those documents is barred by limitation as
the present suit was filed on 22.02.2017. Even otherwise, late Nanhi
Devi did not revoke the registered General Power of Attorney dated
03.08.2009 executed in favour of D-1. By virtue of the said GPA, D-1
had been authorized to sell, mortgage, gift or transfer the suit property.
And he by exercising the said authorization, gifted the suit property to
his wife/D-2 through a registered deed. Thus, the plaintiff has failed to
prove her case. Ld. Counsel has further argued that as the plaintiff
cannot be granted main relief of cancellation of documents dated
03.08.2009 and the Gift Deed dated 31.10.2011, thus she is also not
entitled to the reliefs of possession of suit property and permanent
injunction, which are consequential reliefs. Ld. Counsel has argued that
even otherwise, by virtue of transfer documents dated 03.08.2009, the
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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defendant no.1 has possessory rights over the suit property, thus the
plaintiffs/LRs of deceased plaintiff are not entitled to get its possession.
Further, the operation of precedent of Suraj Lamp case (supra) is
prospective only. Ld. Counsel has relied upon following precedents in
support of his arguments: Suraj Lamp case (supra); Asha M. Jain v.
Canara Bank, 94 (2001) DLT 841; Maya Devi v. Lalta Parsad, AIR
2014 SC 1356; Mallava v. Kalsammanavara Kalamma (since dead) by
LRs, Civil Appeal No. 14803/2024 decided on 20.12.2024 and Nikhila
Divyang Mehta v. Hitesh P. Sanghvi, arising out of SLP (C) No.
13459/2024 decided on 15.04.2025.
22. Issue-wise findings are as follows:-
Issue no. 1
Whether the plaintiffs are entitled for a decree of declaration against the
defendants for declaring the ownership documents of the suit property
bearing no. 88, Extension-2, Nangloi, Delhi including GPA and Will
dated 03.08.2009 and any other such document as null and void? OPPThe onus to prove this issue was upon the plaintiff. It is worth noting
that the present case was initially filed by Nanhi Devi through her
Special Power of Attorney Suresh Chandra Verma/LR no. 1 of deceased
plaintiff. The Court is conscious of the precedent laid down by the
Hon’ble Supreme Court as to regarding which facts any Special Power
of Attorney can depose on behalf of the principal.
23. The Apex Court in Man Kaur (Dead) By LRs v. Hartar Singh
Sangha, 2010 (10) SCC 512, has held that:
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
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18. We may now summarise for convenience, the position as to
who should give evidence in regard to matters involving personal
knowledge:
(a) An attorney-holder who has signed the plaint and instituted the
suit, but has no personal knowledge of the transaction can only
give formal evidence about the validity of the power of attorney
and the filing of the suit.
(b) If the attorney-holder has done any act or handled any
transactions, in pursuance of the power of attorney granted by the
principal, he may be examined as a witness to prove those acts or
transactions. If the attorney-holder alone has personal knowledge
of such acts and transactions and not the principal, the attorney-
holder shall be examined, if those acts and transactions have to be
proved.
(c) The attorney-holder cannot depose or give evidence in place of
his principal for the acts done by the principal or transactions or
dealings of the principal, of which principal alone has personal
knowledge.
(d) Where the principal at no point of time had personally handled
or dealt with or participated in the transaction and has no personal
knowledge of the transaction, and where the entire transaction has
been handled by an attorney-holder, necessarily the attorney-
holder alone can give evidence in regard to the transaction. This
frequently happens in case of principals carrying on business
through authorised managers/attorney-holders or persons residing
abroad managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted through a
particular attorney-holder, the principal has to examine that
attorney-holder to prove the transaction, and not a different or
subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at
different stages of the transaction, if evidence has to be led as to
what transpired at those different stages, all the attorney-holders
will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other
party to a proceeding, to establish or prove something with
reference to his “state of mind” or “conduct”, normally the person
concerned alone has to give evidence and not an attorney-holder.
A landlord who seeks eviction of his tenant, on the ground of his
“bona fide” need and a purchaser seeking specific performance
who has to show his “readiness and willingness” fall under this
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
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category. There is however a recognised exception to this
requirement. Where all the affairs of a party are completely
managed, transacted and looked after by an attorney (who may
happen to be a close family member), it may be possible to accept
the evidence of such attorney even with reference to bona fides or
“readiness and willingness”. Examples of such attorney-holders
are a husband/wife exclusively managing the affairs of his/her
spouse, a son/daughter exclusively managing the affairs of an old
and infirm parent, a father/mother exclusively managing the
affairs of a son/daughter living abroad.
24. The Court now proceeds to examine the testimonies of plaintiff’s
witnesses to deliberate as to whether they have deposed about the facts
which were in their personal knowledge or had occurred in their
presence or they have merely deposed on the basis of information
received from any other person.
25. To the question put to him as to under what authority he filed
case against defendants nos. 1 and 2 when the General Power of
Attorney did not authorise him to do so, PW-1 replied that he had filed
the present suit so that the suit property could be partitioned and
divided amongst all brothers. He again stated that his mother filed the
present suit so that the suit property could be partitioned and divided
amongst all brothers.
26. PW-1 has deposed that in the year 2008-2009, the original
documents of the suit property were taken by the defendants from the
native place of plaintiff. He was not present at that time. His mother
informed him about the said fact. He admitted that he did not have anyCS DJ 208/2017 Page no. 18/42
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personal knowledge with respect to the above said fact. He had stated
so in the plaint as per the instructions of his mother.
27. To the question put to him as to whether he was present at the
time of taking the signatures and thumb impressions from his parents
on blank papers, PW-1 replied in affirmative and stated that he was
present. He admitted that no complaint was made in the year 2008-2009
with respect to the above said grabbing of documents and taking
signatures from his parents. However, during his further cross-
examination, he deposed that the thumb impressions of his mother on
blank papers on some false pretext were taken in the month of July-
August, 2009. He was not present at that time. His mother subsequently
told him about the same. PW-1 deposed that prior to the year 2012,
neither he nor his mother lodged any complaint regarding the said
incident.
28. PW-1 has deposed that the fact of execution of the impugned
documents dated 03.08.2009 was told to him by his mother and
simultaneously, he had also perceived that some foul play had been
committed in respect of the suit property by execution of some
documents. His mother had told him about execution of above
documents in the year 2012 or 2013. His mother did not revoke the
GPA dated 03.08.2009 during her lifetime. To the question put to him
that GPA dated 03.08.2009 and other documents had been executed by
his mother, PW-1 replied that it could not have been possible as his
mother was admitted to Sparsh Hospital, Peeragarhi on that day, for the
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NAVEEN GUPTA
GUPTA Date:
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treatment of stone. At that time, his mother was residing at the suit
property. His father was providing treatment to his mother. Perhaps, his
father was in Delhi at that time. He had not placed any record in
support of his statement about admission of his mother in the hospital
on 03.08.2009. He did not know exactly as to since when his parents
were in Delhi prior to 03.08.2009, as he was working at Muzaffarnagar
at that time. He had not met his mother when she was admitted in the
Sparsh Hospital. He had also not come to meet her after her discharge
from the hospital. He voluntarily stated that he could not have visited
the suit property due to misbehaviour of D-1. He did not know whether
the thumb impressions put on the GPA dated 03.08.2009 were of his
mother or not. The other attesting witness in the said GPA and other
documents was Lachhi Ram, who used to reside in a house situated in
front of the suit property. He did not inquire anything about the
execution of above documents from Lachhi Ram.
29. PW-2 admitted that in the year 2009, his mother got treatment of
hernia at Peeragarhi, Delhi. He deposed that in the year 2008, he came
to know through his mother regarding misplacement of documents of
suit property. He came to know in the year 2012 that his mother had
transferred the suit property in the name of D-1.
30. PW-3 deposed that he was not aware about the theft of
documents of suit property, but his parents informed him about the
same in the year 2010-2011. The documents were stolen in the year
2007. He again stated that it was in the year 2008. His mother went to
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GUPTA Date:
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the police station for making complaint regarding theft of documents in
the year 2007. His mother informed him about preparation of alleged
false documents in favour of D-1 in the year 2009. He had not filed any
complaint against D-1 regarding preparation of forged documents.
31. From the above versions of PW-1, PW-2 and PW-3, it is made
out that they did not have personal knowledge as to in what manner and
circumstances, the impugned documents dated 03.08.2009 were
executed by the plaintiff/their mother in favor of D-1, wherein their
father was one of the attesting witnesses. They had merely been
informed about the said execution. Thus, they were not competent to
depose on behalf of the plaintiff, who only had the personal knowledge
of circumstances in which the impugned documents had been executed.
Leaving aside this legal impediment, the Court proceeds to deliberate
upon other evidence led by the parties to examine whether the plaintiff
could prove her case.
32. The case of plaintiff, as per plaint was that D-1 and D-2 had
taken original documents of the suit property from her native place.
They had obtained her thumb impressions on certain blank stamp
paper/papers under false pretext. They had also manipulated and
fabricated the signatures of her husband on the alleged documents as a
witness.
33. The plaintiff’s witnesses have tendered several complaints filed
by Nanhi Devi and legal notices sent on her behalf to D-1 and D-2. In
this regard, PW-1 stated that the complaint dated 23.06.2012 was filed
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by his mother and no action had been taken by the concerned SSP,
Bulandshahar, U.P. The complaint case under Section 200 Cr.P.C. filed
by his mother was dismissed by the Court of Ld. MM observing that the
dispute was of civil nature. He admitted that prior to filing of the
present suit, his mother sent a legal notice to D-1 through one
Advocate, namely, Sh. Om Prakash Singh on 29.08.2012. He admitted
that the reply of the said legal notice was sent by D-1 on 14.09.2012.
He (PW-1) was aware about the contents of the legal notice dated
29.08.2012 and its reply dated 14.09.2012.
34. PW-2 has deposed that his mother was illiterate. His mother
made her first complaint against D-1 in the month of June 2012, with
PS Pahasu, District Bulandshahar, U.P. regarding taking the documents
of suit property. He had no knowledge in respect of complaint case filed
by his mother against D-1 and D-2. He admitted that in the year 2012,
his mother sent a legal notice to D-1 and D-2 regarding returning of the
documents of suit property and its partition. He admitted that reply to
the said legal notice was also received by his mother.
35. PW-3 deposed that he did not accompany his mother while she
filed the complaint dated 27.07.2012 at Bulandshahar against D-1 and
D-2. To the question put to him that D-1 and D-2 had replied to the
legal notice dated 29.08.2012, PW-3 answered that the said reply was
received by his mother. However, he was not aware about the contents
of the reply. His mother visited Patiala House Courts with regard to
issuance of legal notice to D-1 and D-2. He had not accompanied his
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GUPTA Date:
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mother. He had been informed about issuance of legal notice by his
mother. He admitted that name of the Advocate, who issued the said
legal notice, was Sh. Om Prakash Singh.
36. Now, the Court examines the contents of various complaints etc.
In the complaint dated 23.06.2012, Mark A, filed by the plaintiff to
S.S.P. Bulandshahar, she has inter alia stated that she had a doubt that
when she was operated for stone in the hospital at Nangloi, then in the
state of her unconsciousness, D-1 had taken her thumb impressions on
some papers, which he could misuse. Further, D-1 was threatening her
that the said house at Nangloi had been got transferred by him in his
name.
37. In the complaint dated 27.07.2012, Mark D/C, filed by the
plaintiff to the worthy Commissioner of Police, Delhi, she has inter alia
stated that ‘all the original papers of the property in question are with
Ratan Singh Verma and further it is revealed to me that when I was
admitted in hospital at Nangloi, he had obtained my thumb impression
on some papers during my unconciousness and on the basis of same he
can grab my whole property as he is claiming that he has got transferred
the property in his name’.
38. In the legal notice dated 29.08.2012, Ex.DW2/D-1, sent by the
plaintiff to D-1 and D-2 through Advocate Sh. Om Prakash, it has been
stated in para no. 4 that ‘you have got the said propety transferred in
your name, whereas you have no right, title or interest to get the said
property transferred exclusively in your name because the same belongs
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GUPTA Date:
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to my client and my client has not executed any document for transfer
of her above said property in your favour. It seems that when my client
was admitted in the hospital at Nangloi, you the noticees had obtained
the thumb impression of my client on some blank papers by fraudulent
means and on the basis of said fraud, you are trying to grab the whole
property of my client’.
39. In the complaint dated 22.10.2014, Mark B, filed by the plaintiff
to S.H.O. P.S. Nangloi, she has inter alia stated that D-1 had grabbed
the suit property after getting Power of Attorney executed having taken
her thumb impressions on false pretext. Further, having committed the
cheating, he had got the signature of her husband as a witness on Power
of Attorney.
40. It is worth noting that the defendants no. 1 and 2 have placed on
record copy of order dated 21.07.2016 of Ld. MM (West), Tis Hazari
Courts, Mark-D/F, passed in Complaint Case titled ‘Nanhi Devi v.
Ratan Singh Verma etc.’, whereby the Court heard arguments on point
of summoning. The said order inter alia contains that ‘complainant Smt.
Nanhi Devi stated in her PSE [pre-summoning evidence] that proposed
accused no. 1 and 2 transferred her plot of 100 sq. Yards in their names.
She further submitted that she was taken to some government office by
way of deceit by accused no.1 where judge like person was sitting and
her thumb impressions were taken. In reply to the Court question, she
deposed that she had not asked as to why and to what purpose, thumb
impression was taken. She further deposed that she was operated a
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month before the said incident for stone, therefore, she was not in
proper state of mind’. It has been further observed by the Court that
‘UDC, Sub Registrar has proved GPA dated 03.08.2009 of Nanhi Devi
in favour of Ratan Singh. He also proved gift deed dated 01.11.2011 by
Ratan Singh Verma in favour of Anita Kumari’. The Court has observed
that ‘there is nothing on record which even prima facie suggests that
accused persons committed theft, cheating, forged the documents or
threatened the complainant’. Thereafter, the Court dismissed the
complaint.
41. The above documents show that the plaintiff had been taking
different stand in respect of execution of the impugned documents. On
one hand, she claimed that her thumb impressions were taken on blank
papers on false pretext. While before the Court of Ld. MM, she deposed
that she was taken to an Office by deceit and her thumb impressions
were taken.
42. But, the General Power of Attorney dated 03.08.2009 executed
by the plaintiff in favour of D-1 i.e. Ex.PW1/D-1 shows that the said
document is a registered document. On the back side of page no.1, it
has been certified by Registrar/Sub-Registrar that ‘contents of the
document explained to the parties to understand the condition and admit
them as correct.’ Further, two witnesses, namely, Sarnam and Lachhi
Ram had identified the presenter/executor Nanhi Devi and D-1. The
document bears the photographs of Nanhi Devi, D-1 and the witnesses.
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GUPTA Date:
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Further, the registered Will dated 03.08.2009 of Nanhi Devi,
Ex.PW1/D-2 contains the similar certificate of Sub-Registrar. This
document too bears the photographs of Nanhi Devi and of witnesses.
43. Accordingly, the plea of plaintiff that her signatures had been
taken by D-1 on some blank stamp papers on false pretext, is contrary
to record. It is reiterated that the documents General Power of Attorney
and Will dated 03.08.2009 are registered documents and the certificate
of Sub-Registrar is also available to the effect that the contents of the
documents were explained to the parties who understood the conditions
and admitted them as correct. Further, husband of plaintiff, namely,
Sarnam Singh witnessed the execution of above documents. The
plaintiff has not produced any complaint filed by Sarnam Singh,
wherein he had complained that his signatures were taken on the said
documents by any force, undue influence, coercion or
misrepresentation. Even otherwise, Sarnam Singh was stated to be a
teacher in the Government school. Had there been any force, undue
influence, coercion or misrepresentation upon Sarnam Singh on behalf
of D-1 at the time of getting his signatures as witness to the execution
of above documents, he must have initiated a legal action against D-1 in
this regard. Further, other attesting witness Lachhi Ram is also not a
stranger to the plaintiff as PW-1 has deposed that he used to reside in a
house situated in front of suit property and he (PW-1) did not inquire
anything about the execution of the above said documents from him.
But, the plaintiff did not examine him to prove any such force, undue
influence, coercion or misrepresentation upon either Nanhi Devi or
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GUPTA Date:
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Sarnam Singh at the time of execution of transfer documents dated
03.08.2009. The plaintiff had also executed an agreement to sell and
purchase in favour of D-1, wherein the consideration amount has been
mentioned as Rs.20,00,000/-. The plaintiff had further issued a reciept
of Rs.20,00,000/- having been taken from D-1. Nowhere in the plaint, it
has been stated by the plaintiff that she did not receive the said
consideration amount of Rs. 20,00,000/- from D-1.
44. The circumstances put forward by the plaintiff can be analysed
further. The plaintiff claimed that her signatures were taken by D-1 in
the state of her unconsciousness, while she had been operated for stone.
Surprisingly, the statement of plaintiff herein had been recorded by the
Court of Ld. MM, where she had filed a criminal case against D-1. In
the said statement, as reflected in the order dated 21.07.2016, Mark D/F
(which has remained uncontroverted during cross examination of
DW-1), the plaintiff had submitted that after one month of her
operation, she had been taken to the office of Sub-Registrar. By no
stretch of imagination, it can be made out that she might not have been
in a fit state of mind after one month of operation for stone. Moreover,
no medical document in this regard has been filed on behalf of the
plaintiff. Thus, the plea of plaintiff that her signatures were taken in the
state of unconsciousness is not tenable at all.
45. The above aspect can be looked into from another angle. The
plaintiff has set up a case that the impugned transfer documents dated
03.08.2009 had been got executed by D-1 through fraud. But, her case
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is silent about the details as to in what manner, such fraud was
committed by D-1 in getting the impugned documents executed in his
favour. The Court is conscious of a precedent laid down by the Hon’ble
Delhi High Court in Chander Mohan Khandelwal v. Hemant Wadhwa,
2025 SCC OnLine Del 4022, wherein the Court held that:
28. Insofar as the allegations of fraud are concerned, apart from
making vague assertions in the plaint in some paragraphs
regarding the prior dealings between the parties, the only relevant
paragraphs in relation to alleged fraudulent intention of the
petitioner in reference to the Sale Deed are paragraphs 14 and 22.
A bare perusal of the plaint makes it clear that no particulars are
pleaded so as to make out a case for fraud. No attending
circumstances have been pleaded either which would render the
Sale Deed voidable. As provided under Order VI Rule 4 of
the CPC, as also noted in the aforesaid case, in cases a party
pleading fraud, particulars are required to be stated in the
pleading. The present plaint is found to be wanting in regard to
any details.
46. In these circumstances, the plaintiff has failed to prove the
necessary ingredients required for cancellation of the impugned transfer
documents dated 03.08.2009 executed by her in favour of D-1. Further,
Ld. Counsel for defendants no. 2 and LRs of deceased defendant no. 1
has argued that the GPA dated 03.08.2009 in para no. 12 contains a
recital that ‘to sell, mortgage, gift or transfer the above said property
(either in part or in whole) to anyone to receive the total sale
consideration amount or earnest money.’ By virtue of the said
authorization given by Nanhi Devi to D-1, he has claimed to have
gifted the suit property to his wife/D-2 vide registered Gift Deed dated
31.10.2011. Since D-1, by virtue of rights transferred to him over the
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NAVEEN GUPTA
GUPTA Date:
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suit property through the above documents dated 03.08.2009 as well as
by virtue of a specific recital authorizing him to dispose off the suit
property by way of gift etc., has transferred the rights, title and interest
over the suit property in favour of his wife D-2, there is no ground
made out for cancellation of the said registered Gift deed as well. It is
not the case that after execution of the documents in favour of D-1 on
03.08.2009, he had executed a Gift Deed in favour of his wife in a very
short span of time. The said Deed has been executed after more than
two years of transfer of rights over the suit property in his favour. Thus,
no doubt could be created on the impugned gift deed.
47. At this stage, it is required to examine the defence evidence as
well. During her cross-examination, DW-1 has deposed that the suit
property was purchased by her father-in-law in the name of her mother-
in-law as her father-in-law was a teacher. Her marriage with Ratan
Singh Verma was solemnized in the year 1989. At that time, her
husband was working as a teacher in Nangloi since 1988. She admitted
that his contractual job was not converted to a permanent teacher job.
She could not tell the amount of last drawn salary of her husband from
his teaching job. Her father-in-law during his life time had partitioned
the properties/assets. Plaintiff no. 2/Rajveer Singh and plaintiff no.
3/Kuldeep were given property at Noida. Plaintiff no. 1/Suresh Chand
had been given Rs. 2,00,000/- as his share by her father-in-law. She did
not remember the date when her mother-in-law had partitioned her
properties amongst her four sons. There was no written
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agreement/settlement regarding the partition of the properties by
mother-in-law.
48. DW-1 has further deposed that the alleged transfer documents
dated 03.08.2009 were executed in favour of her husband. She was also
accompanying her husband at that time. At the time of execution of the
said documents, her father-in-law Sarnam Singh and his friend Lachhi
Ram (Pandit ji) were present. She did not know the address of Lachhi
Ram, however, he was residing in the neigbourhood. She voluntarily
stated that her husband had told her that Rs.20,00,000/- was the
consideration amount. Her husband must have given the said amount to
her father-in-law. She did not know the source(s) from where her
husband arranged the said amount. She voluntarily stated that her
husband was earning from various sources i.e. from his teaching job as
well as by giving tuition of commerce subject. She could not tell the
total amount of income of her husband in the year 2008-2009.
However, she voluntarily stated that he was earning a handsome
income.
49. It is the case of defendants no. 1 and 2 that the impugned transfer
documents had been duly executed by the plaintiff in favour of D-1 as
all the properties of Sarnam Singh had been mutually and orally
partitioned amongst all brothers in the presence of all family members
by the parents of D-1. Further, since it had already been settled in the
oral family settlement that the suit property shall be of D-1, the plaintiff
executed the impugned transfer documents in his favour for a total
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consideration of Rs. 20,00,000/-. The plaintiff could not bring anything
on record during cross-examination of DW-1 to controvert her such
stand taken in the written statement/evidence affidavit. DW-1 has
shown that it is not the case that D-1 was not having financial capability
to pay the said consideration amount of Rs. 20,00,000/-. He had been
working as a teacher since the year 1988, while the impugned transfer
documents had been executed after more than 20 years, since he had
started earning. The plaintiff did not put any suggestion to DW-1 to the
effect that as to in what manner, the plaintiff was deceived by D-1 and
D-2 in getting the impugned transfer documents executed in favour of
D-1. It was not put to her that thumb impressions of the plaintiff had
been taken by D-1 on blank papers on false pretext. It was further not
put to her that her signatures were taken on the transfer documents in
state of her unconsciousness.
50. During his cross-examination, PW-1 has deposed that the
property was purchased by his late father Sarnam Singh in the year
1972 in the name of his mother late Nanhi Devi. His mother was a
house wife. However, she used to earn from pashupalan business. PW-3
has deposed that his father purchased the suit property in the name of
his mother. Thus, as per DW-1, if the consideration amount was given
by D-1 to his father, then it does not create any doubt on payment of
sale consideration against the impugned documents dated 03.08.2009.
51. DW-1 denied the suggestion put to her that she and her husband
had got the documents executed in favour of D-1 after
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threatening/forcing her mother-in-law and father-in-law in absence of
other LRs. Ld. Counsel for defendants no. 1 and 2 has argued that by
putting the above suggestion to DW-1, the plaintiff has admitted the
execution of impugned transfer documents in favour of D-1, however,
so far as threat given/force applied is concerned, the plaintiff has failed
to prove the same.
52. In view of above observations, the issue no. 1 is decided against
the plaintiff.
53. Issue no. 4
Whether the present suit is barred by Limitation? OPD
The onus to prove this issue was upon the defendants no. 1 and 2. In the
plaint, the plaintiff has presented a case that when she got her Will
dated 22.09.2014 executed, she came to know that D-1 had played
fraud upon her. But, the evidence led by the plaintiff does not support
her such claim. As per testimony of PW-1, his mother had told him
about execution of the impugned documents dated 03.08.2009 in the
year 2012 or 2013. To the question put to him as to who and when he
was informed about execution of gift deed by D-1 in favour of D-2,
PW-1 deposed that D-1 himself informed him. He again stated that D-1
publicly informed in the year 2008-2009. During his further cross-
examination, PW-1 deposed that he came to know about the execution
of gift deed dated 31.10.2011 in the year 2012. PW-2 deposed that he
came to know in the year 2012 that his mother had transferred the suit
property in the name of D-1. While PW-3 deposed that his mother
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informed him about preparation of alleged false documents in favour of
D-1 in the year 2009. Even otherwise, the witnesses have further
admitted about the knowledge of reply dated 14.09.2012 of defendants
no. 1 and 2 sent in response to the legal notice of the plaintiff dated
29.08.2012.
54. In the reply dated 14.09.2012, Mark D/E, to the above notice, the
defendants no. 1 and 2 had denied all the allegations levelled by the
plaintiff against them and inter alia contended that ‘since it was already
settled in the oral family settlement that the above said property shall be
of my client, your client on 03.08.2009, executed a registered power of
attorney in favour of Sh. Ratan Singh and your client also executed
Agreement to Sell and Purchase, affidavit, receipt, possession letter (all
notarized) on 03.08.2009 for a total consideration of Rs. 20,00,000/-. It
is further clarified that all the above documents were executed in the
presence of Sh. Sarnam Singh as one of the attesting witness’. It has
been further stated in the reply that ‘the above said property was
transferred by your client in favour of my client Sh. Ratan Singh in the
office of Sub-Registrar and the transaction took place voluntarily and
without any force or coercion’.
55. PW-1 has deposed that he was a retired Government servant from
U.P. Government. PW-2 has stated that he was a post graduate. PW-3
has stated that he was retired from PWD, U.P. as Assistant Engineer in
the month of April 2016. All witnesses are well educated. It cannot be
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said that they could not comprehend the contents of the said reply dated
14.09.2012.
56. From the complaints dated 23.06.2012 and 27.07.2012, legal
notice dated 29.08.2012 and reply to the said notice dated 14.09.2012, it
is clear that the plaintiff was very well aware about the execution of
impugned transfer documents dated 03.08.2009 in favour of D-1 as well
as about the gift deed dated 31.10.2011 executed by D-1 in favour of
D-2. Despite such knowledge, the plaintiff did not initiate any legal
action for cancellation of those documents till filing of the present case
on 22.02.2017.
57. Ld. Counsel for the plaintiff has argued that in accordance with
the precedent of case of M.S. Ananthamurthy (supra), as the present suit
is for declaration and possession of the suit property, the period of
limitation would be 12 years as provided under Article 65 of the
Limitation Act, 1963.
58. Ld. Counsel for the defendants no. 1 and 2 has stated that in
accordance with the precedent of case of Mallava (supra), when a suit is
filed for cancellation of sale deed and recovery of possession, the same
suggests that the title of the plaintiff has already been lost. By seeking
to get the sale deed set aside, the plaintiff could be said to be trying to
regain her title over the suit property and recover the possession. In
such circumstances, the period of limitation would be three years and
not 12 years. Further, it is well settled that when there are several reliefs
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claimed in a suit, the limitation period would be that of the main relief,
the limitation for ancillary relief being ignored.
59. The Court is in agreement with submissions made by Ld.
Counsel for defendants no. 1 and 2. Since the plaintiff has sought
cancellation of the impugned transfer documents dated 03.08.2009 on
the ground of fraud, Article 59 of the Limitation Act would be
applicable. According to which, the limitation period of three years
would commence from the date when the facts entitling the plaintiff to
have the instrument cancelled first became known to him/her. It has
already been observed that in the year 2009 itself, she had become
aware of the alleged fraud having been committed by D-1 while getting
the said documents executed in his favour. The said aspect is also
reflected from the contents of legal notice dated 29.08.2012,
Ex.DW-2/D-1 sent on her behalf to the defendants no. 1 and 2.
Accordingly, the limitation period commenced in the year 2009 itself.
Above all, from the contents of reply dated 14.09.2012 of the
defendants no. 1 and 2 to her legal notice, she had come to know about
the impugned documents dated 03.08.2009 and gift deed dated
31.10.2011. But, the present suit was filed on 22.02.2017 i.e. much
beyond the limitation period of three years. Thus, it is held that the
present suit has been filed beyond limitation period. Accordingly, the
issue no. 4 is decided in favour of defendants no. 1 and 2.
60. Issue no. 2
Whether the plaintiffs are entitled for a decree of possession against the
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
17:03:40
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defendants in respect of the portions of the suit property as shown in
red colour in the site plan? OPPThe onus to prove this issue was upon the plaintiff. The plaintiff has
sought possession of the suit property as a consequence of cancellation
of impugned transfer documents dated 03.08.2009. But, the issue no. 1
in this regard has been decided against the plaintiff. Since the main
relief has been denied to the plaintiff, the consequential relief of
possession of the suit property shall stand rejected.
61. Even otherwise, the Court proceeds to deliberate upon the
arguments advanced by Ld. Counsels for parties on this aspect. Ld.
Counsel for plaintiff has argued that following the precedents of Suraj
Lamp case (supra) and Ramesh Chand case (supra), defendant no. 1
does not attain ownership rights over the suit property. On other hand,
Ld. Counsel for defendants no. 1 and 2 has argued that first of all, the
impugned documents had been executed prior to the decision of the
case of Suraj Lamp (supra). In the case of Maya Devi (supra), the
Hon’ble Supreme Court has categorically observed that the operation of
the judgment of Suraj Lamp was pointedly and poignantly
prospective. Thus, there could not be any challenge to the impugned
transfer documents conferring right, title and interest to D-1 over the
suit property. Even otherwise, by virtue of precedent of Asha M. Jain
case (supra), since the General Power of Attorney and Agreement to
Sell, both dated 03.08.2009 are two contemporaneous documents and
GPA and Will are registered documents; accordingly, there is no doubt
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NAVEEN GUPTA
GUPTA Date:
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that interest has been created in the property in favour of D-1. The
possession over the suit property was already with D-1. Accordingly,
the plaintiff stands debarred from claiming back the suit property from
D-1 and/or D-2.
62. The Court is in agreement with submissions made by Ld.
Counsel for the defendants no. 1 and 2. The facts and circumstances of
the case of Ramesh Chand (supra) are different from the present case.
PW-2, during his cross-examination, deposed that D-1 had been
residing in the suit property since 1986. He admitted that since D-1 was
working in Delhi that was why he was residing in the suit property.
Thus, as in the present case, admittedly, at the time of execution of the
impugned documents dated 03.08.2009, possession of the suit property
was already with D-1 [which was not so in the case of Ramesh Chand
(supra)]. Thus, following the precedents of the case of Asha M. Jain
(supra), Ghanshyam v. Yogendra Rathi, AIR 2023 SC 2754 and Anuj
Sharma v. Amit Sharma, 2023 (304) DLT 270, the defendant no. 1 has
possessory rights over the suit property.
63. Ld. Counsel for the plaintiff has argued that the plaintiff had
executed the Will dated 22.09.2014 during her lifetime and PW-5 has
duly proved the same. By virtue of the said Will, all four sons of the
plaintiff, including D-1 had equal shares in the suit property.
Accordingly, the plaintiffs at present i.e. three sons of deceased plaintiff
are entitled to 3/4th share of the suit property.
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NAVEEN GUPTA
GUPTA Date:
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64. First of all, the Court has already observed that the plaintiff has
failed to prove the issue no. 1 regarding cancellation of the impugned
transfer documents. Even otherwise, the nature of present suit is not a
partition suit having been filed by the legal heirs/three sons of deceased
plaintiff. Accordingly, the abovesaid argument of Ld. Counsel for the
plaintiff cannot be appreciated.
65. Moreover, the present plaintiffs could not prove the validity of
the Will dated 22.09.2014 due to following reasons. PW-1 has deposed
that Dinesh Kumar, Mahender Kumar and Late Nanhi Devi were
present at the time of execution of Will dated 22.09.2014 at Nangloi,
Delhi. Apart from the said persons, no other person was present at the
time of execution of the said Will. His younger brother Kuldeep Kumar
brought his mother from Rasulgarh, U.P. to Delhi for execution of the
said Will. Prior to the said Will, his mother Nanhi Devi had executed a
Will dated 14.05.2013. The case of plaintiffs is silent on the aspect as to
when Nanhi Devi had already executed a Will dated 14.05.2013, then
what was the need of executing another Will in the very next year. It
has not been explained as to why Nanhi Devi, aged about 77 years (in
the special power of attorney dated 09.02.2017, Ex. PW-1/3, her age
has been mentioned as 80 years) was brought to Delhi from a faraway
place of Rasulgarh by her son/one of the beneficiaries of the impugned
Will, for the purpose of execution of Will. It has not been explained in
the Will as to why the testator excluded her daughters from the fruits of
the suit property. Further, the contents of SPA, Ex. PW-1/3 lead to infer
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NAVEEN GUPTA
GUPTA Date:
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that besides the suit property, Nanhi Devi must have owned other
properties as well. But, surprisingly, the impugned Will is related to one
property only i.e. suit property.
66. One of the attesting witnesses of the Will i.e. PW-5, during his
cross-examination, deposed that the impugned Will dated 22.09.2014
was drafted in English. He did not know the contents of the said Will.
He admitted that the testator was not formally educated and she used to
affix her thumb impression on the documents. On the day of execution
of the impugned Will, the testator, plaintiff no. 3 and lawyer were
present. The Will was prepared by the lawyer, namely, Mahender
Kumar, who was also one of the attesting witnesses. He was not aware
whether the Will had already been prepared, when he reached for the
purpose of execution of the Will. The Will had not been typed in his
presence. He did not remember as to who signed the Will first out of
two attesting witnesses. He did not remember as to whether the thumb
impression had already been affixed on the Will, when he signed the
same. He had not been read over or explained about the contents of the
Will. The testator had informed about the contents. He could not
comment whether the testator knew or did not know about the contents
of the Will as she was illiterate. To the question put to him as to
whether the testator had been informed about the contents of the Will in
vernacular by anyone in his presence, PW-5 deposed that no one had
informed about the contents of the Will in vernacular in his presence.
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NAVEEN GUPTA
GUPTA Date:
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67. The above version of PW-5 shows that it has not been clarified at
all that whether the testator/Nanhi Devi, who was an illiterate, had been
informed about the contents of Will, which was in English. Thus, the
present plaintiffs have failed to prove that the testator had signed the
Will while being aware of its contents and after understanding the
nature and effect of the dispositions in the Will. PW-5 deposed that he
did not even remember as to whether the thumb impression had already
been affixed on the Will, when he signed the same. As per Section 63 of
the Indian Succession Act, the Will shall be attested by two or more
witnesses, each of whom has seen the testator sign or affix his mark to
the Will or has seen some other person sign the Will, in the presence
and by the direction of the testator, or has received from the testator a
personal acknowledgement of his signature or mark, or the signature of
such other person; and each of the witnesses shall sign the Will in the
presence of the testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular form of
attestation shall be necessary. Accordingly, this essential pre-condition
of declaring a Will as genuine, is missing in the testimony of PW-5.
Since the present plaintiffs have not been able to remove the
surrounding suspicious circumstances of the impugned Will, the same
cannot be declared as a valid Will of late Nanhi Devi.
68. It is trite law that mere registration of the Will is not a sufficient
proof of its validity. The Court is conscious of the precedent laid down
by Hon’ble Supreme Court in Leela v. Muruganantham, (2025) 4 SCC
289, wherein it has been held that:
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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22. There can be no doubt with respect to the manner in which
execution of a will is to be proved. In the light of plethora of
decisions including the decisions in Moturu Nalini
Kanth v. Gainedi Kaliprasad and in Derek A.C. Lobo case this
position is well settled that mere registration of a will would not
attach to it a stamp of validity and it must still be proved in terms
of the legal mandates under the provisions of Section 63 of the
Succession Act and Section 68 of the Evidence Act. It is not the
case of the appellant that the will dated 6-4-1990 is a registered
one.
25. The trial court rightly held that the propounder of the will has
to establish by satisfactory evidence that the will was signed by
the testator, that the testator at the relevant time was in a sound
disposing state of mind and that he understood the nature and
effect of the dispositions and put his signature out of his own free
will.
69. In view of above observations, the issue no. 2 is decided against
the plaintiff.
70. Issue no. 5
Whether the suit is not maintainable in its present form and without
seeking partition of the suit property? OPD1 & 2
The Court has already decided issue no. 1 against the plaintiff. It has
also been observed by the Court that the plaintiff is not entitled to seek
possession of the suit property in the present nature of suit.
Accordingly, in view of observations made by the Court while deciding
issue no. 2, the issue no. 5 stands decided in favour of defendants no. 1
and 2.
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NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.02.11
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71. Issue no. 3
Whether the plaintiffs are entitled for a decree of permanent injunction
against the defendants for restraining them from creating any third party
interest in the said suit property? OPP
The plaintiff has claimed permanent injunction. This relief was
dependent upon the relief of declaration and possession. Since the
plaintiff could not succeed in getting the main relief. Therefore, once
the suit in respect of the main relief is denied, the other ancillary relief
claimed by the plaintiff also falls down. The Court has followed the
precedent relied upon by Ld. Counsel for defendants no. 1 and 2 laid
down in the case of Nikhila Divyang Mehta (supra). Accordingly, the
issue no. 3 is decided against the plaintiff.
Relief
72. In view of the findings on above issues, the plaintiff is not
entitled to the reliefs claimed in the plaint. This suit is dismissed.
Decree-sheet be prepared accordingly. The parties shall bear their own
costs.
File be consigned to record room after due compliance.
Digitally
signed by
NAVEEN
NAVEEN GUPTA
Announced in the open Court GUPTA Date:
on the 11th day of February, 2026 2026.02.11
17:04:23
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(Naveen Gupta)
District Judge-09, West District,
Tis Hazari Courts, Delhi.
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