Harcharan Singh Hazooria vs Kulwant Singh Hazooria

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 972

IN THE HIGH COURT OF DELHI AT NEW DELHI
Jayant Nath, J.
Harcharan Singh Hazooria - Appellant
Versus
Kulwant Singh Hazooria & Ors. - Respondents
CS(Os) 2244 of 2008
Decided On : 29-10-2021

Advocates appeared:
Mr. T.K. Ganju and Mr. Vikas Dhawan, Sr. Advocate with Mr. S. Pandaj and Mr. S.P. Das, Advocate, for the Appellant; Mr. Sanjeev Sindhwani, Sr. Advocate, with Ms. Shalini Kapoor, Ms. Bindita Chaturvedi, Ms. Sukriti Mago and Mr. Sangram Singh, Advocate, for the Respondent.

Headnote:
Suit for partition of suit property bearing No. 60, Ring Road, Lajpat Nagar III, New Delhi and possession after partition of the share of the plaintiff being one-half. A decree of declaration is also sought that the gift deeds dated 23.05.2007 and 02.06.2008 said to have been executed by Late Smt. Jaswant Kaur are null and void and are not binding on the plaintiff and consequently, cancellation of the said gift deeds. Other connected reliefs are also sought.
Fact of the Case:

Late Smt. Jaswant Kaur was the mother of the plaintiff, defendants No. 1 and 2. Defendant No. 2, namely, the sister of the plaintiff and defendant No.1 filed a written statement on 04.03.2009. In the written statement, she had said that Smt. Jaswant Kaur had in 1996 executed a second Will where she provided for the plaintiff and defendant No.1 to be entitled to half share each in the suit property and also directed that a sum of Rs. 10 lacs will be paid to defendant no. 2.
Finding of the Court:

The gift deeds dated 23.05.2007 and 02.06.2008 are null and void and stand cancelled. A preliminary decree is passed for partition of the suit property holding that the plaintiff and defendant No. l(heirs of defendant No.l) are entitled to 50% undivided share in the said suit property. The defendants No. 1 and 3 shall also be entitled to render accounts.
Issues: 1. Whether the suit has not been valued properly for the purposes of court fees and jurisdiction? OPD1 & 3 2. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 1 & 3 3. Whether Ms. Jaswant Kaur was conversant with English language? OPP, 4. Whether the gift deeds dated 23rd May, 2007 and 2nd June, 2008 were executed by Mrs. Jaswant Kaur? OPP 5. Whether the gift deeds dated 23rd May, 2007 and 2nd June, 2008 are sham, bogus and have been obtained by playing a fraud by defendants No.l and 3 on the plaintiff and late Ms. Jaswant Kaur? OPP 6. Whether the gift deeds are unconscionable? OPP 7. Whether the gift deeds have been obtained by exercising dominance by defendants No.l and 3 on the plaintiff and Mrs. Jaswant Kaur? OPP 8. Whether the gift deeds are hit by Section 16 of the Indian Contract Act, 1872? Onus to prove on both parties 9. Whether Mrs. Jaswant Kaur has validly executed the Will dated 5th January, 1996? OPP 10. Whether the plaintiff is entitled to a decree of partition as prayed for? OPP 11. Whether the plaintiff is entitled to a decree of rendition of accounts? OPP 12. Whether defendant nos. 1 and 3 are entitled for a decree of mandatory injunction, as claimed in their counterclaim? OPD 13. Whether defendant nos. 1 and 3 are entitled to mesne profits, if so at what rate and for which period? OPD 1&3
Ratio Decidendi: The gift deeds are clearly covered under Section 16 of the Indian Contract Act. The Will of Late Smt.Jaswant Kaur dated 05.01.1996 stands duly proved. As per the Will, the suit property devolves upon the two sons of Smt. Jaswant Kaur, namely, the plaintiff and defendant No. 1 who become the owners of the suit property in two equal shares.
Final Decision: A decree of declaration is passed holding that the gift deeds dated 23.05.2007 and 02.06.2008 are null and void and stand cancelled. A preliminary decree is passed for partition of the suit property holding that the plaintiff and defendant No. l(heirs of defendant No.l) are entitled to 50% undivided share in the said suit property. The defendants No. 1 and 3 shall also be entitled to render accounts.

JUDGMENT

Jayant Nath, J. - The plaintiff has filed the present suit seeking partition of the suit property bearing No. 60, Ring Road, Lajpat Nagar III, New Delhi and possession after partition of the share of the plaintiff being one-half. A decree of declaration is also sought that the gift deeds dated 23.05.2007 and 02.06.2008 said to have been executed by Late Smt. Jaswant Kaur are null and void and are not binding on the plaintiff and consequently, cancellation of the said gift deeds. Other connected reliefs are also sought.

2. It is stated that Late Smt. Jaswant Kaur was the mother of the plaintiff, defendants No. 1 and 2. Defendant No. 3 is the wife of defendant No. 1. Smt. Jaswant Kaur owned and possessed the suit property. It is stated that the suit property was converted into freehold via a conveyance deed dated 09.05.2000 executed in favour of Late Smt. Jaswant Kaur. The suit property is a plot of land measuring 790 sq.yards comprising of ground floor, first floor, second floor, terrace above the second floor, with lift room and barsarti.

3. It is the case of the plaintiff that Late Smt. Jaswant Kaur died on 15.08.2008. She was 98 years of age and due to her advanced age, was incapable of taking any decision. She was not able to fully understand or form a judgment as to what was in her own interest. It is stated that for the last many years, Late Smt. Jaswant Kaur was keeping unwell and was also incapable of managing her own affairs.

4. It is further stated that on 05.01.1996, Smt. Jaswant Kaur executed her last Will and Testament whereby she bequeathed the suit property to the plaintiff and defendant No. 1 in equal shares. Defendant No.2 was to receive a sum of Rs. 10 lakhs from the plaintiff and defendant No. 1 in equal shares. Smt. Jaswant Kaur also settled her other movable assets. It is the case of the plaintiff that the said Will dated 05.01.1996 is the last testament of Late Smt. Jaswant Kaur which was executed by her in sound and deposing mind.

5. It is further stated by the plaintiff that in 1961, he went abroad for pursing higher studies. The plaintiff got married in 1973 and remained in Germany. He finally is said to have retired in 2006 and came back to India and resided with his mother.

6. It is stated that sometime in or around March 2008, the plaintiff came to know that defendants No. 1 and 3 acting on behalf of Late Smt. Jaswant Kaur entered into a lease deed leasing out the entire ground floor of the suit property at a rent of Rs.3.75 lakhs per month. It is claimed that Late Smt. Jaswant Kaur was not even aware of the said transaction. Hence, the plaintiff claims to have instituted a suit being CS(OS) 707/2008 for declaration and injunction. However, on account of certain comprise talks that were going on between the parties, the plaintiff is said to have not served summons of the suit on the defendant therein to avoid any unpleasantness. It is stated that during pendency of the said suit, Smt. Jaswant Kaur expired on 15.08.2008.

7. It is further stated apprehending that defendant No. 1 was playing mischief, the plaintiff caused searches to be made in the office of the local authorities and was shocked to learn that defendant No. 1 in connivance with defendant No.3 was trying to get the suit property mutated in their names by giving false representations to MCD. It was also learnt that defendants No. 1 and 3 had got executed and registered certain gift deeds allegedly from Smt. Jaswant Kaur pertaining to the suit property in favour of the said defendants No. 1 and 3 respectively.

8. It is the case of the plaintiff that the said gift deed dated 23.05.2007 allegedly executed in favour of defendant No. 3 is sham and bogus and of no legal effect. It is stated that Smt. Jaswant Kaur was incapable of forming a judgment as to what was in her own interest and that due to her own illness and advanced age, she lacked competence to execute a valid gift deed. At the time of alleged execution of the gift deeds, Smt. Jaswa