Rajinder Kaur Gill v. Shri Sardool Singh Bhatti & Ors.

5.2. Defendants No. 1 and 5 have presented a Will dated 30th October, 1995, which they claim was executed by the late Sh. Sujan Singh Bhatti. However, the Plaintiff was completely unaware of this document's existence until it was referenced in the written statement submitted by the said Defendants. The authenticity of the Will is called into question for several reasons. Notably, it references properties that were allegedly sold during the lifetime of the late Sh. Sujan Singh Bhatti, prior to the Will's stated date. This discrepancy raises significant doubts as to the document's veracity. Furthermore, there has been no effort by the Defendants to act upon or execute the provisions of this purported Will, despite over two decades having passed since the death of Sh. Sujan Singh Bhatti in 1997. This lack of action further undermines the credibility of the Will, suggesting that it may not be a genuine document.

5.3. In November 2022, the Plaintiff discovered that Defendant No. 1 had sold several properties involved in the lawsuit without the Plaintiff's knowledge or consent. It has come to the Plaintiff's attention that Defendants No. 1 and 5 are alleged to have engaged in forgery. Specifically, they are accused of forging the signatures of Defendant No. 2(d), Sh. Jaspal Singh (husband of Defendant No. 3), and Late Sh. Ranjit Singh (husband of the Plaintiff). Utilizing these forged signatures, they have purportedly transferred the rights, title and interests of the Plaintiff and aforementioned Defendants in the Farm House located at Manu Nagar, Rampur, Uttar Pradesh. Additionally, Defendant No. 1 is accused of donating the Gurudwara at Kachha Tihar to the Trust of one Mr. Lakha Singh Nanaksar Jagraonwala, disregarding the Plaintiff’s objections. Moreover, Defendant No. 1 has allegedly attempted to unilaterally sell the residential property at A/C 10 Ganga Ram Vatika, Mukherjee Park, Chaukhandi, Tilak Nagar, Delhi, thereby excluding the other stakeholders.

5.4. Given the afore-stated circumstances wherein the Defendants have already alienated certain properties involved in the suit, and considering the risk that they might attempt to further create third-party interests in the remaining properties, urgent judicial intervention is imperative. The urgency of this situation necessitates prompt action to prevent any further unauthorized disposal of the suit properties, thereby ensuring that the rights and interests of all parties are safeguarded throughout the pendency of the suit.

6. Mr. Abhimanyu Walia, representing Defendant No. 5, disputes these allegations. He argues that the document dated 30th October, 1995, is indeed the duly registered Will of the late Sh. Sujan Singh Bhatti. According to Mr. Walia, this Will had initially granted a life interest to Sh. Bhatti's first wife, the late Smt. Suhagwanti Kaur. Following her demise, the Will stipulates that the suit properties are to be equally divided among her children, specifically Defendants No. 1 and 5. Consequently, he asserts that the Plaintiff and other Defendants do not possess any rightful claim to shares in these properties. Furthermore, Mr. Walia contends that the Plaintiff and other concerned parties were always aware of the Will's existence. He argues that this prior knowledge renders the current lawsuit both misconceived and untenable as they cannot at this belated stage challenge the Will without any basis.” (emphasis added) The Court after assessing the submissions, concludes as under:

9. The plaintiff, therefore, claims that the order cannot be read in isolation, and there has been a change in the enjoyment of the property, and in any event constructive possession continues due to the Oral Agreement, which was admitted between the parties. Paragraph 4 of the plaint would bear this out and states as under: “4. That at the time of Shri Sujan Singh Bhatti's death, he left the aforementioned properties among others, which were inherited by all his surviving legal heirs in equal share, having died intestate. The said properties have till date, remained joint properties of all the legal heirs and its ownership is still joint amongst the Plaintiff and the Defendants.”

10. Plaintiff relies upon the decision in Krishna Gupta and Ors v Rajinder Nath & Co. and Ors & Co. 2013:DHC:690, wherein the Court held that reading abstracts of the plaint are impermissible, and the entire plaint must be read to understand the context to pleadings. Relevant paragraphs are extracted as under:

In fact, they profess to be in joint and constructive possession of the assets that form the subject matter of the present suit and partition whereof has been prayed for. The factum of the plaintiffs being Class-I heirs of Late Sh.Rajinder Nath and Late Smt.Kamla Devi is not denied by the other side, but the defendants seek to exclude them on the basis of wills propounded by their parents, that have been denied by the plaintiffs and on the ground that Section 6 of the 2005 Act is not retrospective in operation and thus inapplicable to the plaintiffs. In para 22 of the plaint, the plaintiffs have denied that Late Sh.Rajinder Nath or Late Smt.Kamla Devi had executed any wills and have stated that the said documents, if any, are forged and fabricated. In the light of the averments made in the plaint, the argument of the defendants No.2 & 4 that the plaintiffs are not governed by Article 17 (vi) of Schedule II of the Court Fees Act 1870 or that ouster has been admitted by them, cannot be acceded to and is turned down.

61. Further, reliance on the judgments of the learned Single Judge of this court in the cases of Sudhir Joshi(supra) and Harjit Kaur(supra) will not advance the case of the defendants No.2 & 4 when the plaintiffs have pleaded constructive possession based on the demise of the owners of the suit properties, and when all the parties are Class-I legal heirs. The observations of the learned Single Judge in both the aforesaid cases were based on the averments made in the plaints in those cases from where the Court had inferred that the plaintiffs therein had been ousted from possession of the suit properties. The decisions in those cases are based on their own facts and no parallel can be drawn between the said cases and the present suit where the plaintiffs have categorically stated that they are in joint and constructive possession of the suit properties and ouster/exclusion has not been pleaded by them. ………

67. To condense the aforesaid legal proposition, it has been held that a co-sharer cannot succeed in claiming absolute title by adverse possession and mere possession however long, does not oust the other cosharer unless it is established by convincing evidence that there has been ouster of such a co-sharer as in the eyes of law, possession of joint property by one cosharer is possession of all and passage of time does not extinguish the right of the co-owner, who has been out of possession of the joint property, except in the event of ouster or abandonment.”

11. Plaintiff relies on the observations of the Supreme Court in Neelavathi & Ors. vs. N. Natrajan & Ors (1980) 2 SCC 247, wherein the Court held that determination of court fee must be based on the averments in the plaint and cannot be influenced by the contentions in the written statement or the outcome of the suit. Relevant paragraph is extracted as under:

ancestral joint family property as the head of the Hindu undivided joint family till his death. In para 8 the plaintiffs stated that on the death of Muthukumaraswamy Gounder his 1/3rd share in the joint family properties devolved upon his sons and daughters. It further alleged that the plaintiffs were in joint possession of the properties along with Vanavaraya Gounder and his other sons. In para 9, it is stated that each of the plaintiffs is entitled to a share in the suit properties as heirs of the late Muthukumaraswamy Gounder and also as heirs of the late Vanavaraya Gounder. In para 11, it is stated that since the death of Vanavaraya Gounder Defendants 1 to 6 are receiving the income from the properties and are liable to account to the plaintiffs. In para 12, it is stated that since the death of Vanavaraya Gounder Defendants 1 to 6 failed to give the plaintiffs their share of income and the plaintiffs could not remain in joint possession. Therefore the plaintiffs demanded partition and the Defendants 1 to 6 were evading. Again in para 13, it is claimed that each of the plaintiffs as co-owners is in joint possession of the suit properties, and this action is laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned. Throughout the plaint, the plaintiffs have asserted that they are in joint possession. We are unable to agree with the High Court that recitals in all the paragraphs is merely a formal statement repeating the statutory language. The plea in para 12 which was relied on by the High Court states that the Defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession. The plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint possession. The statement that they are not being paid their income, would not amount to having been excluded from possession. The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession. In fact, the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties. In para 18 of the written statement the defendants pleaded that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties. Asserting that the plaintiffs were out of possession, the defendants stated: “While it is so, the allegation that they are in joint possession of the suit properties, is not correct”.”

12. Defendant, in his rejoinder, contended that the Court in Suresh Kapoor (supra) has held, while noting previous decisions of the Court that, on the basis of the averments in the plaint, the plaintiff was claiming not to be in possession of the property and had been deprived from the same and, therefore, had to pay ad valorem Court Fees. Relevant paragraphs are extracted as under:

about the cause of action and the learned Single Judge held the Plaintiff to be not in constructive possession as under: - “… In paragraph 22 it has been pleaded that “the cause of action is a continuing one and since the defendant Nos. 1 to 4 are in actual occupation of the same, it is the submission of the Plaintiffs that they have no right to continue in possession exclusively to the exclusion of the Plaintiffs and every heirs and the only course open to the parties as to partition the property be metes and bounds and if not possible by sale of property…..”

18. Similarly, in Smt. Rani Devi v. Ashok Kumar Nagi, 76 (1998) DLT 279 on the basis of the averments made in the plaint that Defendant no. 1 is in actual possession and enjoyment of the first floor and whole of the second and third floor and symbolic possession of the property on the ground floor through tenant, only Defendant NO. 1 was recovering rent from all the tenants, it was held that the Plaintiff was not in possession of any part of the suit property and is liable to pay ad valorem court fees.”

13. In the written statement, the defendant has also stated that Late. Sh. Sujan Singh Bhatti left a Will dated 30th October 1995, as per which the properties were to devolve upon his first wife, Smt. Suhagvanti.

14. The said Will was duly registered, and as per the Will, after the death of Smt. Suhagvanti, properties would be distributed equally between plaintiff and defendant no.5. The mother of the plaintiff and defendants died on 09th January 2005, thereby devolving the said properties upon defendant no.1 and defendant no.5 equally. It was also stated that, during the lifetime of Late Sh. Sujan Singh Bhatti, the father, had disowned the plaintiff, defendant no.3 and defendant no.4 through a citation published in the newspaper of “Punjab Kesri” on 23rd April 1996, since certain disputes had arisen.

15. Accordingly, after the death of the mother, the properties devolved upon defendant no.1 and defendant no.5, which have been in their absolute possession. The aspect of oral understanding between the plaintiff and the defendants was denied on the basis that the father had died on 07th December 1997, and left behind a Will dated 30th October 1995, which was duly registered on 31st October 1995. In respect of the kidney transplant, the defendant no.1 states that the plaintiff either offered defendant no.1 one kidney or took Rs.20,00,000/- (Rupees Twenty Lacs only) for the offering. Analysis

16. The basis of claiming joint and constructive possession by the plaintiff is merely an assertion of an oral understanding arrived at between the parties in 2011. There being no proof of the same, it would be difficult to accept the plaintiff’s assertion that there was an agreement to permit defendant nos.[1] and 5 to hold the properties only in the interim, awaiting sale. The said averment has been duly denied by the defendant in the written statement. However, even as per the plaintiff’s assertion, ex facie, the understanding was that the possession would be with defendant no.1 and defendant no.5.

17. Accordingly, it would logically follow that the plaintiff was ousted from the possession by virtue of the said oral understanding, though these aspects may have to be finally decided during the trial.

18. At this stage, there is nothing in the plaint for the Court to accept the plaintiff’s claim of joint and constructive possession. The defendants have also propounded a registered Will of 1995, which could divest the plaintiff of any share in the said property. Therefore, to claim that they were in joint and constructive possession and could only pay fixed Court Fees for the same would be untenable.

19. It would be worthwhile to test the merits of the claim made by the plaintiff regarding joint and constructive possession. The plaintiff, even as per the plaint, effectively avers a self-proclaimed ouster, basis the oral settlement asserted by them, as per which the possession of the property would be with defendant nos.[1] and 5 until a situation arose of sale of the said property. Even if the said oral settlement is taken as its face value, there is not enough evidence on record for the Court to prima facie arrive at a finding that such an oral settlement was indeed arrived at. The tenability of the oral settlement asserted by the plaintiff would necessarily have to be proved during the trial.

20. What is important is to assess the contrarian assertions by the defendants in this regard, which prima facie dissipate the claim of joint and constructive possession. Firstly, there was a Will propounded by defendant Nos.1-5 of Late Father Sh. Sujan Singh Bhatti dated 30th October 1995 which was duly registered. As per the said Will, all the movable and immovable assets were bequeathed to his wife, Smt. Suhagvanti, for life, and if she pre-deceased him, it would devolve upon defendant no.1 and defendant no.5 in equal shares. The claim of the defendants is that this Will would bequeath upon them, an interest in the property, though it may be disputed whether the wife Late Smt. Suhagvanti inherited an absolute interest for life interest. The issue of possession though, in favour of defendant no.1 and defendant no.5 is further buttressed by the No Objections of defendant nos.[3] & 4, the other sisters of the plaintiff, agreeing to the bequest in the Will in favour of defendant no.1 and defendant no.5. Defendant No.2, the other sister, who had passed away in 2017 has been succeeded by her legal heirs in the suit. However, no protest has been placed on record by the legal heirs of defendant no.2 against the claim which has been made by defendant no.1 and defendant no.5.

21. The affidavits acknowledging the Will executed by defendant nos.[3] and 4 have been noticed by the Court in its order dated 29th November 2023. It has also been noted by the Court that there was a transfer of property titles, which has not been effectively disputed by the plaintiff, indicating a lawful change in ownership that cannot be ignored in the assessment of the case. On this basis, the injunction was refused by the Court while determining the application under Order XXXIX Rule 1 & 2 of the CPC (I.A. 6878/2023), the extracts from the order have been given in paragraphs 8 and 9 above.

22. Moreover, the Will dated 30th October 1995 of the Late Father has exclusionary terms stating that the bequest is being made ultimately in favour of defendant no.1 and defendant no.5 “to the exclusion (of) my other legal heirs”. The Will also states that there was consent from the Late daughter, Smt. Gurvinder Kaur (originally arrayed as defendant no.2). Notwithstanding the dispute regarding the nature of the interest which would have devolved upon the mother of defendant nos.[1] and 5 and the extent to which she had the right to entrust the property to defendant nos.[1] and 5, the Court also notes that there is a presumption of validity of a registered document. For this, reliance may be placed on Prem Singh and Ors. v. Birbal & Ors, (2006) 5 SCC 353, wherein the Supreme Court has held that the Court cannot ignore the presumption of validity of a registered document. Relevant paragraph is extracted as under: “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”

23. What is also relevant is that the plaintiff claims that this oral settlement was arrived at in 2011, but only now asserts a claim for partition in 2023, the father having passed away in 1997 and the mother, in 2004. More than 20 years have passed since the succession, even as per plaintiff, would have opened upon the death of the Late father in 1997 and then again on the death of the Late mother in 2004. The assertion by the plaintiff that they continued in joint and constructive possession is not merited, especially since no other action has been taken at the time despite the sale of the various properties by the defendants. Though the plaintiff states that only in November 2022, they became aware of the actions of defendant no.1 to dispose of the property, the silence of the plaintiff for the 20 years seriously erodes their claims for joint and constructive possession.

24. The principles for determining Court Fees in a partition suit was on the basis of possession, and exposition has been given in a decision of this Court in Bakshish Singh Chandhok v. Bhavjot Singh Chandhok 2024 SCC OnLine Del 6124. Relevant paragraphs are extracted as under:

9. As the Appellants-Plaintiffs themselves admit to their ouster from the possession of the suit property, the court fee payable shall be ad valorem in accordance with Section 7(iv)(b) of the Act and not Article 17(vi) of the Schedule II of the Act.”

25. In this case, the plaint itself assets that the possession of the suit properties would be with defendant nos.[1] and 5. As per the plaintiff, it was a temporary arrangement but there is a strong assertion of hostile animus by defendant nos.[1] and 5 with open support of the surviving siblings (defendant nos.[3] and 4).

26. Accordingly, the application allowed to the extent that the plaintiff would have to pay ad valorem Court Fees to continue with the suit.

27. Since, counsel for defendant pressed this application limited to the issue of Court Fees, it is, therefore, directed that the said suit will stand rejected unless the ad valorem Court Fees, as per Section 7(iv)(b) of the Court Fees Act, 1870, is deposited by plaintiff within a period of four weeks from the date of this judgment.

28. Needless to state that the aforesaid observations are prima facie in nature and have been made for adjudicating the claims raised in these applications and shall not influence the determination of the pleas of the parties at the stage of final disposal.

1. List before the Joint Registrar (Judicial) on 27th March 2025.

2. Judgment be uploaded on the website of this Court.

JUDGE FEBRUARY 27, 2025/MK/tk