{"id":112902,"date":"2009-12-23T00:00:00","date_gmt":"2009-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pt-debi-charan-deceased-vs-pt-durga-prasad-deceased-on-23-december-2009"},"modified":"2017-09-03T14:32:29","modified_gmt":"2017-09-03T09:02:29","slug":"pt-debi-charan-deceased-vs-pt-durga-prasad-deceased-on-23-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pt-debi-charan-deceased-vs-pt-durga-prasad-deceased-on-23-december-2009","title":{"rendered":"Pt. Debi Charan (Deceased) … vs Pt. Durga Prasad (Deceased) … on 23 December, 2009"},"content":{"rendered":"
Delhi High Court<\/div>\n
Pt. Debi Charan (Deceased) … vs Pt. Durga Prasad (Deceased) … on 23 December, 2009<\/div>\n
Author: Hima Kohli<\/div>\n
*            IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n                        + RFA No. 46\/1982\n\n                                        Reserved on : 04.12.2009\n                                        Pronounced on: 23.12.2009\n\nIN THE MATTER OF :\n\nPT. DEBI CHARAN (DECEASED) THROUGH LRs             ..... Appellants\n                   Through: Mr. M. Tarique Siddiqui, Advocate with\n                   Mr. Vishnu Sharma, Advocate\n\n                  versus\n\nPT. DURGA PRASAD (DECEASED) THROUGH LR               ..... Respondent\n                  Through: Nemo\n\n\n\nCORAM\n\n* HON'BLE MS.JUSTICE HIMA KOHLI\n\n     1. Whether Reporters of Local papers may\n        be allowed to see the Judgment?               Yes\n\n     2. To be referred to the Reporter or not?        Yes\n\n     3. Whether the judgment should be\n        reported in the Digest?                       Yes\n\n\n\nHIMA KOHLI, J.\n<\/pre>\n
1.           The appellants are aggrieved by the judgment dated<\/p>\n
02.12.1981 passed by the trial court in a suit instituted by their<\/p>\n
predecessor-in-interest, Late Pt. Debi Charan, for declaration and<\/p>\n
permanent injunction, which was dismissed by the learned ADJ.<\/p>\n
RFA No. 46\/1982                                       Page 1 of 21<\/span>\n<\/p>\n
 2.           The history of this case has its seeds in the early Twentieth<\/p>\n
Century, when the predecessor-in-interest of the appellants, one Pt.<\/p>\n
Jasanji Maharaj used to practice in Delhi as a famous Vaid and<\/p>\n
alongside, carried on the business of money lending against pledge of<\/p>\n
jewellery.    Pt. Jasanji Maharaj had one son by the name of Pt. Vidhya<\/p>\n
Dhar, who, upon the demise of his father, inherited all the immovable<\/p>\n
property, jewellery, cash etc. Pt. Vidhya Dhar also practiced as a Vaid<\/p>\n
and continued his father\u201fs money lending business.              He had one<\/p>\n
daughter by the name of Meero Devi, who was married to one Shri<\/p>\n
Prahlad Missar.     As Pt.Vidhya Dhar did not have any male issue, he<\/p>\n
adopted Pt. Shyam Lal as his son. Pt. Shyam Lal got married to Jog<\/p>\n
Maya. While Pt. Sham Lal died issueless in or around the year 1913,<\/p>\n
Smt. Meero Devi expired five years thereafter, in the early part of the<\/p>\n
year 1918.\n<\/p>\n<\/p>\n
3.           It is the case of Pt. Debi Charan, plaintiff in the suit, that to<\/p>\n
perpetuate the name of the family, Pt. Vidhya Dhar got Smt. Jog Maya<\/p>\n
to adopt the plaintiff in June 1918.        Pt. Vidhya Dhar expired in or<\/p>\n
around the later part of the year 1918.      As per the plaintiff, Pt. Vidhya<\/p>\n
Dhar left behind ancestral immovable property, cash, jewellery and<\/p>\n
other valuable assets and his money lending business and prior to his<\/p>\n
death, he had executed a Will dated 25.07.1918. Under the said Will,<\/p>\n
Shri Prahlad Missar, son-in-law of Pt. Vidhya Dhar and Smt. Jog Maya,<\/p>\n
mother of the plaintiff, were appointed as his guardians to manage the<\/p>\n
RFA No. 46\/1982                                             Page 2 of 21<\/span>
\n estate of the executant.    Upon the demise of Pt. Vidhya Dhar, Shri<\/p>\n
Prahlad Missar and Smt. Jog Maya took over the control and<\/p>\n
management of the entire estate and continued to carry on the money<\/p>\n
lending business. Pt. Prahlad Missar expired on 29.4.1930. Vide order<\/p>\n
dated 13.10.1930, the learned Sub-Judge, Delhi, granted a succession<\/p>\n
certificate in the estate of Shri Prahlad Missar to the plaintiff, Pt. Debi<\/p>\n
Charan. The plaintiff averred in the plaint that a sum of Rs.5,000\/-<\/p>\n
was realized by him by virtue of the succession certificate and was<\/p>\n
handed over to Smt. Jog Maya with whom, he was residing.<\/p>\n
4.          The plaintiff got married in the year 1932 and continued to<\/p>\n
live with his mother, Smt. Jog Maya. On 08.10.1933, Smt. Jog Maya<\/p>\n
purchased a house bearing No. 667 (old), 1243\/1247 (new) situated in<\/p>\n
Nahar Saadat Khan, Rang Mahal, Queens Road, Delhi (hereinafter<\/p>\n
referred to as \u201ethe suit property\u201f) by virtue of a sale deed dated<\/p>\n
08.10.1933, duly registered on 27.10.1933.          The plaintiff contended<\/p>\n
that the said property was purchased by Smt. Jog Maya out of the<\/p>\n
ancestral funds in her hands.      As per the averments made in the<\/p>\n
plaint, in or around the year 1935, Smt. Jog Maya fell into the grips of<\/p>\n
some interested persons, who had an eye on the family assets and<\/p>\n
while the plaintiff was away to Calcutta in connection with his<\/p>\n
business,    she   was    made    to   shift   to    the   suit    property.<\/p>\n
5.          The plaintiff contended that at the instigation of certain<\/p>\n
interested persons, in the year 1935, Smt. Jog Maya instituted a suit<\/p>\n
RFA No. 46\/1982                                            Page 3 of 21<\/span>
\n for possession, declaration and permanent injunction against him,<\/p>\n
registered as Suit No. 227\/1935. The said suit was contested by the<\/p>\n
plaintiff and was ultimately compromised on 20.07.1936. As per the<\/p>\n
plaintiff, under the compromise, Smt. Jog Maya gave up her claim to<\/p>\n
the suit properties. The suit properties have been detailed in para 13<\/p>\n
of the plaint as houses No. 1096 and 1097, Sat Gharan Gali Anar,<\/p>\n
Delhi. Smt. Jog Maya also agreed to accept from the plaintiff, a sum<\/p>\n
of Rs.10\/- per month towards maintenance allowance, which was to be<\/p>\n
a charge on the plaintiff\u201fs property.    The plaintiff claimed that he<\/p>\n
continued to pay maintenance allowance to Smt. Jog Maya in terms of<\/p>\n
the compromise till her demise on 22.10.1955.\n<\/p>\n<\/p>\n
6.         It is relevant to note that upon the demise of Smt. Jog<\/p>\n
Maya, defendant No. 1, Pt. Durga Prasad (respondent in the present<\/p>\n
appeal), filed a Probate Petition in respect of the Will dated 01.07.1947<\/p>\n
executed by Smt. Jog Maya. The Probate Court granted probate of the<\/p>\n
aforesaid Will vide order dated 02.12.1963, which was challenged in<\/p>\n
the superior court. Finally, the Supreme Court in Special Leave Appeal<\/p>\n
No.65\/1969 passed an order dated 19.09.1978, holding the Will dated<\/p>\n
01.07.1947 executed by Smt. Jog Maya to be a validly executed Will.<\/p>\n
7.         In para 25 of the plaint, the plaintiff claimed that the cause<\/p>\n
of action for instituting the suit against the defendants arose on<\/p>\n
01.07.1947, when a Will dated 01.07.1947 was propounded by<\/p>\n
RFA No. 46\/1982                                         Page 4 of 21<\/span>
\n defendant     No.1\/respondent, Pt. Durga Parshad as having been<\/p>\n
executed by Smt. Jog Maya. He further stated that the cause of action<\/p>\n
arose on 22.10.1955, when Smt. Jog Maya expired and defendant<\/p>\n
No.1\/respondent started interfering with the rights of the plaintiff in<\/p>\n
the suit properties.\n<\/p>\n<\/p>\n
8.          In the suit instituted by Shri Debi Charan, the predecessor-<\/p>\n
in-interest of the appellants against Pt. Durga Parshad as defendant<\/p>\n
No.1 National Bank of India Ltd. as defendant No.2 and eight other<\/p>\n
parties who were tenants in the suit property as defendants No.3 to<\/p>\n
10, he sought the following reliefs :\n<\/p>\n<\/p>\n
            “27. The plaintiff prays:-\n<\/p><\/blockquote>\n
            (a) for declaration<\/p>\n<\/blockquote>\n
            (i) that he is the exclusive owner of house No.
\n            1243\/1247, situate in Nahar Saadat Khan, Rang
\n            Mahal, Queen\u201fs Road, Delhi;\n<\/p><\/blockquote>\n
            (ii) that he is entitled to the deposits in the name
\n            of Smt. Jog Maya with the National Bank of India
\n            Ltd., Delhi, defendant No. 2;\n<\/p><\/blockquote>\n
            (iii) that the will dated 01.07.1947 alleged to
\n            have been made by Smt. Jog Maya deceased is
\n            void, ineffective and inoperative and does not
\n            affect the plaintiff\u201fs rights;\n<\/p><\/blockquote>\n
            (b) for a permanent injunction restraining the
\n            defendant No. 1 from interfering with the
\n            plaintiff\u201fs rights and defendant No.2 from
\n            delivering the deposits and other valuables for
\n            safe custody with them in the name of Smt. Jog
\n            Maya, and restraining defendants No. 3 to 10<\/span>
\n            from paying any rent to defendant No. 1 and
\n            restraining defendant No. 1 from receiving the<\/p>\n
RFA No. 46\/1982                                           Page 5 of 21<\/span>
\n            deposits and other valuables in the name of Smt.
\n           Jog Maya from defendant No. 2 and the rent
\n           from defendants No. 2 to 10; and<\/p>\n<\/blockquote>\n
           (c) Costs of the suit.”\n<\/p><\/blockquote>\n
9.         The suit was contested by the defendant No.1\/respondent<\/p>\n
who filed his written statement.     Apart from the various preliminary<\/p>\n
objections taken by him as to the maintainability of the suit, on merits<\/p>\n
defendant No.1 claimed that Smt. Jog Maya had purchased the suit<\/p>\n
property from her own funds as istridhan and the same was not an<\/p>\n
ancestral property as claimed by the plaintiff, that the jewellery items<\/p>\n
belonged to her as istridhan, that Smt. Jog Maya had executed a Will<\/p>\n
in his favour which had been upheld as legal and valid upto the<\/p>\n
Supreme Court and was binding on the plaintiff, and that as the suit<\/p>\n
property was in possession of defendant No.1, a suit for declaration<\/p>\n
alone was not maintainable. On the pleadings of the parties, the trial<\/p>\n
court framed the following issues on 21.08.1957:-\n<\/p>\n
           1. Is the plaintiff adopted son of Shri Sham Lal?\n<\/p><\/blockquote>\n
           2. Was not the Will revoked by Smt. Jog Maya?\n<\/p><\/blockquote>\n
           3. Did Smt. Jog Maya execute the will in favour
\n           of the defendant?\n<\/p><\/blockquote>\n
           4. Relief.\n<\/p><\/blockquote>\n
10.        After the Will of Smt. Jog Maya dated 01.07.1947 was held<\/p>\n
to be a validly executed document by the Probate Court vide order<\/p>\n
dated 02.12.1963, the plaintiff filed an application for framing<\/p>\n
RFA No. 46\/1982                                         Page 6 of 21<\/span>
\n additional issues, which was decided on 31.10.1979 and the following<\/p>\n
three additional issues were framed:-\n<\/p>\n<\/p>\n
             1. Whether the property No. 1243\/1247, Rang
\n             Mahal, Queens Road was purchased by Smt. Jog
\n             Maya from ancestral funds? OPP<\/p>\n<\/blockquote>\n
             2. Whether the cash and jewellery etc. deposited
\n             by Smt. Jog Maya in the National Bank were
\n             ancestral properties? OPP<\/p>\n<\/blockquote>\n
             3. Whether the suit is properly valued for
\n             purposes of court-fees and jurisdiction? OPP<\/p>\n<\/blockquote>\n
11.          Vide order dated 31.10.1979, it was observed by the trial<\/p>\n
court that keeping in view the decision of the Supreme Court of India<\/p>\n
dated 19.09.1978, in respect of the Will of Smt. Jog Maya, issues No.<\/p>\n
2 and 3 framed on 21.08.1957 were struck off as having become<\/p>\n
redundant.        The   third    additional    issue     framed   on   31.10.1979<\/p>\n
pertaining to the valuation of the suit for the purposes of court fee and<\/p>\n
jurisdiction was treated as a preliminary issue. The learned Sub Judge<\/p>\n
Ist-Class, passed an order dated 03.12.1979 holding that the valuation<\/p>\n
of the suit for the purposes of jurisdiction was more than Rs.25,000\/-<\/p>\n
and less than Rs.50,000\/- and as such, the plaint was directed to be<\/p>\n
returned to be presented before the court having appropriate<\/p>\n
jurisdiction. Consequently, the said suit was placed before the learned<\/p>\n
ADJ on 11.12.1979, for disposal.\n<\/p>\n<\/p>\n
12.          During     the     pendency      of   the   suit   proceedings,     the<\/p>\n
respondent\/defendant No. 1 moved two other applications. The first<\/p>\n
RFA No. 46\/1982                                                   Page 7 of 21<\/span>
\n application was filed under Section 151 CPC, seeking permission to<\/p>\n
further cross-examine the witnesses of the plaintiff. The second<\/p>\n
application was filed under the provisions of Order 6 Rule 17 CPC for<\/p>\n
amendment of the written statement with a view to include two<\/p>\n
preliminary objections.      Both the aforesaid applications filed by the<\/p>\n
respondent\/defendant No. 1 were allowed vide order dated 29.07.1980<\/p>\n
and the amended written statement was permitted to be taken on<\/p>\n
record and the plaintiff filed a replication to the amended written<\/p>\n
statement.     On the basis of the fresh pleadings, another additional<\/p>\n
issue was framed on 17.09.1980, which reads as below:-<\/p>\n
             1. Whether the plaintiff could raise pleas of title
\n             in the Probate Court, as alleged by the
\n             defendant? OPD<\/p>\n<\/blockquote>\n
13.          On 20.03.1979, the plaintiff, Pt. Debi Charan expired and<\/p>\n
his son, Shri Raminder Kumar was impleaded as his legal heir. After<\/p>\n
the parties led oral and documentary evidence and addressed their<\/p>\n
respective arguments, the learned ADJ decided the suit by passing the<\/p>\n
impugned judgment dated 02.12.1981 whereunder, the suit filed by<\/p>\n
the predecessor-in-interest of the appellants was dismissed while<\/p>\n
leaving the parties to bear their own costs. Aggrieved by the aforesaid<\/p>\n
dismissal order, the present appeal was filed on 17.02.1982.<\/p>\n
14.          The   present   appeal   was   admitted   vide   order      dated<\/p>\n
24.02.1982. Vide order dated 18.03.1982, the names of respondents<\/p>\n
RFA No. 46\/1982                                           Page 8 of 21<\/span>
\n No. 2 to 10 were struck off in view of the submission made on behalf<\/p>\n
of the appellants that they were not necessary parties.           During the<\/p>\n
pendency    of    the   present     appeal,   Pt.    Durga     Prasad,     the<\/p>\n
respondent\/defendant No. 1, expired and his legal heirs were<\/p>\n
permitted to be brought on record. As they did not appear even after<\/p>\n
substituted service through citation issued in the newspaper, vide<\/p>\n
order dated 22.01.2002, they were proceeded against ex parte.<\/p>\n
During the pendency of the present appeal on 16.01.2003, Shri<\/p>\n
Raminder Kumar Sharma, legal heir of Lt. Pt. Debi Charan expired and<\/p>\n
vide order dated 21.03.2006, his legal heirs, the present appellants,<\/p>\n
were brought on the record and the amended memo of parties was<\/p>\n
also permitted to be taken on record.     Thereafter, the appeal came up<\/p>\n
for hearing on 31.01.2007.          As none appeared on behalf of the<\/p>\n
appellants, the same was dismissed in default and for non-prosecution.<\/p>\n
Later on, on an application filed by the appellants, the order dated<\/p>\n
31.01.2007 was recalled and the appeal was restored to its original<\/p>\n
position. The appeal again came to be dismissed for non-prosecution<\/p>\n
vide order dated 29.08.2008.          The appellants filed yet another<\/p>\n
application for restoration of the appeal. Vide order dated 30.11.2009,<\/p>\n
the application for restoration of the appeal was allowed and the<\/p>\n
appeal was restored to its original position. On the same date, counsel<\/p>\n
for the appellants stated that the appeal paper book had been filed<\/p>\n
and   hence, the    trial   court   record may      not   be re-summoned.<\/p>\n
RFA No. 46\/1982                                             Page 9 of 21<\/span>
\n Arguments were therefore addressed on the basis of the appeal paper<\/p>\n
book.\n<\/p>\n
15.        Counsel for the appellants confined his arguments in the<\/p>\n
present appeal to the findings returned by the trial court in respect of<\/p>\n
additional issues No. 1 and 2 framed on 31.10.1979, pertaining to<\/p>\n
whether the suit property and the cash and jewellery, etc., deposited<\/p>\n
by Smt. Jog Maya in the National Bank of India Ltd., were ancestral<\/p>\n
properties or not.\n<\/p>\n
16.        Counsel for the appellant submitted that the trial court<\/p>\n
ought to have held that the suit property was purchased by Smt.Jog<\/p>\n
Maya, out of the ancestral funds in her hands and thus belonged to Pt.<\/p>\n
Debi Charan. He further stated that the trial court erred in discarding<\/p>\n
the evidence of nine witnesses (PW-1 to PW-9) produced by the<\/p>\n
plaintiff regarding purchase of the suit property with ancestral funds in<\/p>\n
the hands of Smt. Jog Maya and belonging to Pt. Debi Charan. It was<\/p>\n
also contended that the trial court fell in error in rejecting the evidence<\/p>\n
of PW-10, Sh. Dhakkan Lal Sharma who had deposed that the suit<\/p>\n
property was purchased by Smt. Jog Maya with ancestral funds of Pt.<\/p>\n
Sham Lal and Pt. Debi Charan. It was canvassed that the trial court<\/p>\n
drew a wrong inference from the documentary evidence produced by<\/p>\n
the   defendant,     namely,   will   of   Pt.   Vidhya   Dhar   (Ex.DW-2\/2),<\/p>\n
Relinquishment Deed executed by Pt. Debi Charan (DW-2\/1), Will of<\/p>\n
Smt. Jog Maya (Ex. DW2\/4) and the testimony of DW-1, Durga<\/p>\n
RFA No. 46\/1982                                              Page 10 of 21<\/span>
\n Pershad.\n<\/p>\n
17.        Counsel for the appellant also sought to emphasis the<\/p>\n
averments made in para 14 of the plaint to state that under the<\/p>\n
compromise arrived at between Smt.Jog Maya and the plaintiff, she<\/p>\n
gave up her claim to “the said property” and agreed to accept from the<\/p>\n
plaintiff, a sum of Rs.10 per month as maintenance allowance. It was<\/p>\n
urged that the “said property” as mentioned in the aforesaid para of<\/p>\n
the plaint was in fact the suit property.\n<\/p>\n
18.        I have heard the counsel for the appellant who has taken<\/p>\n
me through the relevant documents and the oral testimony of certain<\/p>\n
material witnesses, particularly PW-10 and DW-1.            I have also<\/p>\n
carefully perused the impugned judgment. It is pertinent to note that<\/p>\n
by the time the additional issues No.1 & 2 were framed on<\/p>\n
31.10.1979, the evidence of nine of the plaintiff\u201fs witnesses (PW-1 to<\/p>\n
PW-9) had already been recorded.            The learned ADJ noticed that<\/p>\n
though the defendant No.1\/respondent did ask for cross-examining the<\/p>\n
plaintiff\u201fs witnesses, which was allowed, he did not take any steps for<\/p>\n
summoning any of them. Rather, he expressed his inability to do so<\/p>\n
on the ground that the correct addresses had not been mentioned by<\/p>\n
the plaintiff, who was called upon to give their better particulars.<\/p>\n
Counsel for the plaintiff expressed his inability to furnish the correct<\/p>\n
addresses of the said witnesses and stated that they were of advanced<\/p>\n
age and that the plaintiff was unaware as to whether any of them were<\/p>\n
RFA No. 46\/1982                                          Page 11 of 21<\/span>
\n alive.   Consequently, none of the witnesses of the plaintiff were<\/p>\n
summoned or cross-examined by the defendant No.1 despite an<\/p>\n
opportunity granted for this purpose.    However, the defendant No.1<\/p>\n
was allowed to re-examine himself and to produce witnesses on the<\/p>\n
subject matter of the two additional issues.\n<\/p>\n
19.        After taking note of the aforesaid position, the trial court<\/p>\n
proceeded to examine and analyze the statements of the witnesses as<\/p>\n
existing on the record, to see whether the plaintiff could seek any help<\/p>\n
from their testimony to discharge the onus placed on him in respect of<\/p>\n
the two issues. After carefully perusing the testimony of the aforesaid<\/p>\n
witnesses, the trial court concluded that none of them were able to<\/p>\n
give the correct particulars of the cash and jewellery which the<\/p>\n
predecessor-in-interest of the appellants, Pt. Vidhya Dhar left behind<\/p>\n
and that they did not appear to have any personal knowledge of the<\/p>\n
actual assets held by him during his lifetime.\n<\/p>\n
20.        The trial court further observed that besides the oral<\/p>\n
testimony of the aforesaid witnesses, the plaintiff had not produced<\/p>\n
any documentary evidence to establish that he was in possession of<\/p>\n
the ancestral property which was in the name of Smt. Jog Maya and<\/p>\n
was in a position to invest and purchase the suit property.    The trial<\/p>\n
court carefully examined the testimony of the star witness of the<\/p>\n
plaintiff, Sh. Dhakkan Lal Sharma (PW-10) and concluded that the said<\/p>\n
witness knew nothing about the assets left behind by Pt. Vidhya Dhar<\/p>\n
RFA No. 46\/1982                                        Page 12 of 21<\/span>
\n either in cash or in the form of jewellery and that the said witness was<\/p>\n
ordinarily a resident of Bulandshaher and was unable to convey even<\/p>\n
the date, month or year in which Smt.Jog Maya had allegedly<\/p>\n
purchased the suit property, on the particulars of the party from whom<\/p>\n
the property was purchased and the sale price thereof. The testimony<\/p>\n
of PW-10 that a sum of Rs.5,000\/- was paid by the plaintiff in cash to<\/p>\n
Smt.Jog Maya after getting the succession certificate in respect of the<\/p>\n
estate of Lt. Prahlad Missar was disbelieved by the court below on the<\/p>\n
ground that the said witness was unable to state the date and the<\/p>\n
particulars of the parties in whose presence the said amount was given<\/p>\n
and for the reason that he was himself not present at the time of<\/p>\n
payment of the amount.      The trial court went a step further and<\/p>\n
observed that even if it was accepted that the amount was given by<\/p>\n
the plaintiff to Smt.Jog Maya, the same could not be treated as<\/p>\n
ancestral funds in the hands of Pt.Debi Charan and could not be<\/p>\n
connected with the ancestral properties.\n<\/p>\n
21.        Juxtaposed against the aforesaid testimony of the witnesses<\/p>\n
produced by the plaintiff, was the testimony of defendant No.1\/<\/p>\n
respondent (DW-1) and the documentary evidence produced by him,<\/p>\n
which was carefully scrutinized by the trial court. The three important<\/p>\n
documents produced by defendant No.1\/respondent included the Will<\/p>\n
executed by Smt. Jog Maya in his favour (Ex.DW-2\/4), the Will<\/p>\n
RFA No. 46\/1982                                        Page 13 of 21<\/span>
\n executed by Late Pt. Vidhya Dhar (Ex.DW-2\/2) and the Relinquishment<\/p>\n
Deed executed by the plaintiff, Pt. Debi Charan (Ex.DW-2\/1).<\/p>\n
22.          The learned ADJ noted in the impugned judgment that in<\/p>\n
her Will, Smt. Jog Maya had stated that the suit property was acquired<\/p>\n
by her out of her funds consisting of her istridhan and by sale of her<\/p>\n
jewellery.   Counsel for the appellants was unable to show from the<\/p>\n
records, any rebuttal on the part of the plaintiff in respect of the<\/p>\n
aforesaid assertion of Smt. Jog Maya in her Will.            The second<\/p>\n
documentary evidence was the duly registered Will of Pt. Vidhya Dhar.<\/p>\n
A perusal of the aforesaid document shows that apart from making a<\/p>\n
passing reference to “cash, jewellery and domestic articles”, the<\/p>\n
testator made no mention about the details of the cash or the<\/p>\n
quantities\/value of the jewellery.   In contrast, a specific reference was<\/p>\n
made by Pt. Vidhya Dhar to two houses purchased by his deceased<\/p>\n
father Pt. Jasanji Maharaj, situated in Gali Anar, Delhi.    The learned<\/p>\n
ADJ cannot be faulted in his observation that the aforesaid document<\/p>\n
could not be a basis to conclude the exact value of the jewellery and<\/p>\n
cash left behind by Pt. Vidhya Dhar, so as to support the plaintiff\u201fs<\/p>\n
case.    The third relevant document was the Relinquishment Deed<\/p>\n
executed by the plaintiff, Pt. Debi Charan himself by which, he<\/p>\n
relinquished his rights in respect of the two houses situated in Gali<\/p>\n
Anar in favour of Smt. Jog Maya.       In the said Relinquishment Deed<\/p>\n
also, there was no mention of any cash\/jewellery left behind by Pt.<\/p>\n
RFA No. 46\/1982                                          Page 14 of 21<\/span>
\n Vidhya Dhar, to enable the plaintiff to seek any benefit therefrom to<\/p>\n
fortify his case.\n<\/p>\n<\/p>\n
23.         Insofar as the oral testimony of defendant No.1\/respondent<\/p>\n
is concerned, I have carefully perused the same and find that the<\/p>\n
plaintiff was unable to shake the said witness, who categorically<\/p>\n
asserted that Smt. Jog Maya was not in possession of any ancestral<\/p>\n
property besides the suit property, which had been purchased by her<\/p>\n
from her own funds. It was further asserted by DW-1 that no part of<\/p>\n
the deposits made by her with the defendant No.2\/bank was out of the<\/p>\n
funds of Late Pt. Vidhya Dhar and the suit property was purchased by<\/p>\n
Smt. Jog Maya out of the funds of her istridhan.     He reiterated that<\/p>\n
neither the immovable nor the movable assets of Pt. Vidhya Dhar were<\/p>\n
invested in the suit property.   He further stated that the present suit<\/p>\n
was filed by the plaintiff only after the probate proceedings were<\/p>\n
initiated by defendant No.1\/respondent in respect of the Will of Smt.<\/p>\n
Jog Maya, executed in his favour. The said witness also asserted that<\/p>\n
he performed the last rites of Smt. Jog Maya but the plaintiff did not<\/p>\n
attend the ceremony.       A perusal of the record shows that the<\/p>\n
aforesaid witness was cross-examined at length by the plaintiff but<\/p>\n
nothing relevant could be elicited from the said witness, who stood by<\/p>\n
his stand that the suit property was not purchased by Smt. Jog Maya<\/p>\n
with the ancestral funds in her hands and that the deposits in her<\/p>\n
name with defendant No.2\/bank had also not been acquired from<\/p>\n
RFA No. 46\/1982                                        Page 15 of 21<\/span>
\n ancestral funds.   The trial court found the testimony of the aforesaid<\/p>\n
witness as reliable and worthy of being acted upon.           This Court finds<\/p>\n
no reason to disagree with the conclusion of the trial court.                 As<\/p>\n
against the vague and ambiguous statements of the oral testimony of<\/p>\n
the nine witnesses produced by the plaintiff, the documentary and oral<\/p>\n
evidence produced by defendant No. 1\/respondent are found to be far<\/p>\n
more reliable and taken collectively, they demolish the case of the<\/p>\n
plaintiff that the suit property was purchased by Smt. Jog Maya from<\/p>\n
ancestral funds.    The plaintiff was unable to establish that the suit<\/p>\n
property was purchased by Smt. Jog Maya from the ancestral funds or<\/p>\n
the cash and jewellery left by her with defendant No.2\/bank were<\/p>\n
acquired from ancestral funds.\n<\/p>\n<\/p>\n
24.        Similarly,   the   trial   court   cannot   also   be   faulted    for<\/p>\n
discarding the evidence of PW-10. The said witness admitted that he<\/p>\n
was a resident of Bulandshehar. The deposition made by him shows<\/p>\n
that most of it was on the basis of hearsay and he had no personal<\/p>\n
knowledge with regard to the allegations of the plaintiff that the suit<\/p>\n
property was purchased by Smt. Jog Maya out of ancestral funds. No<\/p>\n
material particulars pertaining to the purchase of the suit property<\/p>\n
were stated by the said witness in his deposition.        This Court concurs<\/p>\n
with the opinion of the trial court that even if the statement of the<\/p>\n
plaintiff that a sum of Rs.5,000\/- was paid to him by Smt. Jog Maya<\/p>\n
after getting the succession certificate in respect of the estate of Shri<\/p>\n
RFA No. 46\/1982                                               Page 16 of 21<\/span>
\n Prahlad Missar, is accepted, the said amount can by no stretch of<\/p>\n
imagination be treated as a part of the ancestral property to enable<\/p>\n
the plaintiff to lay a claim to the suit property as ancestral property.<\/p>\n
It is undisputed that the suit property was purchased by Smt. Jog<\/p>\n
Maya in the year 1933 whereas, the suit out of which the present<\/p>\n
appeal arises, was instituted by the plaintiff in January 1956, i.e., after<\/p>\n
a lapse of about 23 years from the date of purchase thereof and only<\/p>\n
upon the demise of Smt. Jog Maya.          It is also undisputed by the<\/p>\n
appellants that the present suit was instituted by the plaintiff only<\/p>\n
after defendant No. 1\/respondent filed a probate petition propounding<\/p>\n
the Will executed by Smt. Jog Maya in his favour. Thus the same was<\/p>\n
a counterblast to the probate proceedings initiated by defendant No.1.<\/p>\n
The aforesaid conduct of the plaintiff casts a cloud on his bonafides,<\/p>\n
which he was unable to dispel, by producing sufficient and reliable<\/p>\n
evidence.\n<\/p>\n<\/p>\n
25.         Furthermore, the stand of defendant No.1\/respondent that<\/p>\n
the suit property was purchased by Smt. Jog Maya from her istridhan<\/p>\n
is quite plausible and the trial court was not wrong in observing that it<\/p>\n
was not uncommon amongst the ladies to accumulate funds in their<\/p>\n
hands for future investment in case of need.      The allegation made by<\/p>\n
the plaintiff that various sums out of the ancestral funds were<\/p>\n
deposited by Smt. Jog Maya with a firm by the name of M\/s Johri Mal<\/p>\n
Sham Lal, which formed the basis for purchase of the suit property<\/p>\n
RFA No. 46\/1982                                          Page 17 of 21<\/span>
\n remained unsubstantiated as he failed to produce on record any<\/p>\n
witness to state that the amounts deposited by her with the said firm<\/p>\n
or for that matter, summon the relevant records of the said firm to<\/p>\n
establish the said allegations.     Except for making a bald allegation<\/p>\n
that Smt. Jog Maya deposited various sums out of the ancestral funds<\/p>\n
with the aforesaid firm, the plaintiff made no efforts to substantiate<\/p>\n
the same in any manner.       Similarly, the allegations with regard to<\/p>\n
deposits made by Smt. Jog Maya with defendant No. 2\/bank being part<\/p>\n
of the ancestral property were also not established by the plaintiff.<\/p>\n
26.        This Court therefore finds no infirmity in the findings of the<\/p>\n
trial court as recorded in the impugned judgment.          Having sifted<\/p>\n
through the evidence and carefully scrutinized and weighed the oral<\/p>\n
and documentary evidence produced by both the parties, the trial<\/p>\n
court rightly arrived at the conclusion that most of the evidence<\/p>\n
adduced on behalf of the plaintiff was based on hearsay and was<\/p>\n
rather general in nature as against the evidence produced by<\/p>\n
defendant No. 1\/respondent.       Hence, issues No. 1 and 2 framed on<\/p>\n
31.10.1979 were rightly decided against the plaintiff by holding that<\/p>\n
no worthwhile evidence was led by him to prove that the suit property<\/p>\n
was purchased by Smt. Jog Maya out of the ancestral funds or that the<\/p>\n
deposits made by her with defendant No. 2\/bank in the shape of cash<\/p>\n
and jewellery did not belong to her.\n<\/p>\n
RFA No. 46\/1982                                         Page 18 of 21<\/span>\n<\/p>\n
 27.        The last argument urged by the counsel for the appellant<\/p>\n
that in para 14 of the plaint, the reference made to “the said property”<\/p>\n
was in fact made in respect of the suit property as well, has to be<\/p>\n
examined in the light of the averments made in the preceding paras of<\/p>\n
the plaint. In para 12 of the plaint, it was averred by the plaintiff that<\/p>\n
Smt. Jog Maya purchased the suit premises by virtue of the sale deed<\/p>\n
dated 08.10.1933, out of the ancestral funds in her hands.         In the<\/p>\n
succeeding para, i.e., para 13, it was claimed that Smt. Jog Maya fell<\/p>\n
into the grips of some interested parties and shifted to the suit<\/p>\n
premises, i.e., House No. 1243\/47, Nahar Saadat Khan, Rang Mahal,<\/p>\n
Queen\u201fs Road, Delhi whereafter, she instituted a suit for possession,<\/p>\n
declaration and permanent injunction against the plaintiff with regard<\/p>\n
to House Nos. 1096 and 1097 situated in Gali Anar, Sat Ghara,<\/p>\n
Dharam Pura, Delhi.    No mention was made in para 13 of the plaint of<\/p>\n
the suit premises.    In the very next para No. 14, the plaintiff averred<\/p>\n
that the suit filed by Smt. Jog Maya was hotly contested by him but in<\/p>\n
the end, the same was compromised between the parties whereunder,<\/p>\n
she “gave up her claim to the said property and agreed to accept from<\/p>\n
the plaintiff Rs.10\/- per month as maintenance allowance, which was<\/p>\n
to be charged on the plaintiff\u201fs property”. A bare reading of para 14<\/p>\n
shows that the reference to the “said property” in para 14 was to the<\/p>\n
properties No. 1096 and 1097 situated in Gali Anar, Sat Ghara,<\/p>\n
Dharam Pura, Delhi alone and could not be stretched to include the<\/p>\n
RFA No. 46\/1982                                          Page 19 of 21<\/span>
\n suit property situated at Rang Mahal, Queens Road, Delhi as a part of<\/p>\n
the compromise arrived at between the plaintiff and Smt. Jog Maya in<\/p>\n
Suit No. 227\/1935.\n<\/p>\n<\/p>\n
28.        The reliance placed by the counsel for the appellants on the<\/p>\n
judgments entitled Surendra Kumar vs. Phoolchand (dead) through<\/p>\n
and Anr. (AIR 1996 SC 1148) and Bharat Sanchar Nigam Limited<\/p>\n
and Ors. vs. Abhishek Shukla and Anr. [(2009) 5 SCC 368] do not<\/p>\n
take his case further.    In the case of Surendra Kumar (supra), the<\/p>\n
Supreme Court held that a person alleging the property to be joint had<\/p>\n
to establish that the family was possessed of some property with the<\/p>\n
income of which the property could have been acquired and that such<\/p>\n
a presumption is a presumption of fact which can be rebutted.            But<\/p>\n
where it is established or admitted that the family which possessed<\/p>\n
joint property which from its nature and relative value may have<\/p>\n
formed sufficient nucleus from which the property in question may<\/p>\n
have been acquired, the presumption arises that it was joint property<\/p>\n
and the burden shifts to the party alleging self-acquisition to establish<\/p>\n
affirmatively that the property was acquired without the aid of the<\/p>\n
joint family.   In the present case, for the counsel for the appellants to<\/p>\n
contend that the onus had shifted to the defendant No. 1\/respondent<\/p>\n
to establish that the suit property and the movable properties of Smt.<\/p>\n
Jog Maya were self-acquired, the plaintiff had to first establish that<\/p>\n
Smt. Jog Maya had with her some ancestral funds\/property which<\/p>\n
RFA No. 46\/1982                                          Page 20 of 21<\/span>
\n could form the source of purchasing the suit property and the<\/p>\n
movables claimed by him. The plaintiff utterly failed to discharge the<\/p>\n
said onus placed on him.       Similarly, the observations made by the<\/p>\n
Supreme Court in the case of Bharat Sanchar Nigam Limited (supra),<\/p>\n
approving the observation of the court below that the appellants<\/p>\n
therein did not file the counter affidavit in a proper manner and that<\/p>\n
denial was not in accordance with the mandate of Order 8 Rule 5 of<\/p>\n
the CPC, is also not of any assistance to the appellants herein for the<\/p>\n
reason that it was for the plaintiff in the suit to discharge the onus<\/p>\n
placed on him in the first instance for the burden to shift to the<\/p>\n
defendant    No.1\/respondent    to   establish   affirmatively   that    the<\/p>\n
properties, subject matter of the suit, were self-acquired.      As noted<\/p>\n
above, the plaintiff utterly failed to discharge the onus placed on him.<\/p>\n
29.         In view of the aforesaid facts and circumstances, this Court<\/p>\n
is unable to persuade itself to interfere with the impugned judgment<\/p>\n
and decree dated 02.12.1981 passed by the trial court, dismissing the<\/p>\n
suit instituted by the predecessor-in-interest of the appellants.        The<\/p>\n
impugned judgment and decree are affirmed and the appeal is<\/p>\n
dismissed as being devoid of merits with no orders as to costs.<\/p>\n
\n\n\n\n\n                                                          (HIMA KOHLI)\nDECEMBER 23, 2009                                           JUDGE\nrkb\/mk\n\n\n\nRFA No. 46\/1982                                          Page 21 of 21<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Pt. Debi Charan (Deceased) … vs Pt. Durga Prasad (Deceased) … on 23 December, 2009 Author: Hima Kohli * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA No. 46\/1982 Reserved on : 04.12.2009 Pronounced on: 23.12.2009 IN THE MATTER OF : PT. DEBI CHARAN (DECEASED) THROUGH LRs ….. Appellants […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-112902","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nPt. Debi Charan (Deceased) ... vs Pt. 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