{"id":116296,"date":"1998-05-01T00:00:00","date_gmt":"1998-04-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-sarup-lau-lt-col-vs-bakshi-krishan-lall-ors-on-1-may-1998"},"modified":"2017-01-12T09:21:31","modified_gmt":"2017-01-12T03:51:31","slug":"ram-sarup-lau-lt-col-vs-bakshi-krishan-lall-ors-on-1-may-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-sarup-lau-lt-col-vs-bakshi-krishan-lall-ors-on-1-may-1998","title":{"rendered":"Ram Sarup Lau (Lt. Col.) vs Bakshi Krishan Lall &amp; Ors. on 1 May, 1998"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Ram Sarup Lau (Lt. Col.) vs Bakshi Krishan Lall &amp; Ors. on 1 May, 1998<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1998 IVAD Delhi 745, 73 (1998) DLT 816, 1998 (46) DRJ 475<\/div>\n<div class=\"doc_author\">Author: S Kapoor<\/div>\n<div class=\"doc_bench\">Bench: S Kapoor<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p> S.N. Kapoor, J. <\/p>\n<p> LA. 5764 of 1990  <\/p>\n<p> 1.     This  order  shall dispose of the aforesaid I.A.  seeking  ad  interim injunction in a suit for partition of property No. 12\/33, Tilak Nagar,  New Delhi (hereinafter called &#8216;the suit property&#8217;) and for perpetual injunction for  restraining defendant Nos.1 and 2 from disposing of the suit  property on 26th July, 1990.\n<\/p>\n<p> 2.   The plaintiff&#8217;s case is that his father late Shri Jiwan Dass Lau owned certain ancestral properties in Rawalpindi and in lieu there of got a claim of Rs. 33,506\/-. This claim was adjusted towards the sale price of property No. 12\/33, Tilak Nagar, New Delhi allotted to Sh. Jiwan Dass Lau, father of the  plaintiff. Sh. Jiwan Dass Lau expired in August, 1963  leaving  behind his  mother Smt. Devti Devi, Bakshi Ghansham Dass Lau, Lt. Col.  Ram  Sarup Lau, Bakshi Krishan LAll Lau, Sh. V.A. Bakshi and Smt. Brij Mohan Bali, who inherited the property. Smt. Devti Devi expired on 18th March, 1984. Bakshi Ghansham  Dass  Lau has also expired. It is claimed that  the  property  is owned  by plaintiff and all the defendants, including Smt. Ramkali  (wife), S\/Sh. Kulbhushan Bakshi, Dilip Bakshi, Rajinder Bakshi (sons) of late  Shri Ghansham Dass Lau.\n<\/p>\n<p> 3.   According to the plaintiff, defendant Nos.1, 2 and 7 are co-owners  of  1  \/5  share and defendant Nos. 3 to 6 are co-owners of the  remaining  1\/5  share. It is claimed that defendant Nos.1 and 2 have conspired and  started  claiming  their  exclusive share in the suit property. Defendant No.  2  in  connivance  with defendant No. 1 also started negotiating for disposing  of  the  suit  property and have agreed to sell the suit property to  one  M\/s.  Gandhi Electrical Company in consideration of Rs. 5,20,000\/-. On 13th July,  1990,  defendant  No. 2 threatened defendant No. 5 to dispossess  him.  The  plaintiff claims that he was in possession of a portion shown in red colour  in  the site plan and had stored household goods though he was residing  in  the  Government allotted accommodation and rest of the portion was in  possession  of  defendant Nos. 2 and 5. The plaintiff also  seeks  ad  interim  injunction  for  restraining defendant Nos. 1 and 2 from disposing  of  the  suit property and from handing over possession of any other portion to  any  other  person, for defendant Nos.1 and 2 have conspired to usurp shares  of  the plaintiff and the defendant Nos.3 to 6.\n<\/p>\n<p> 4.   According  to the defendants (defendant No. 1), the suit property  was  allotted  to late Shri Jiwan Dass Lau in lieu of verified claim in  respect  of  his  self-acquired  properties in  Rawalpindi.  Consequently  the  suit  property was his self-acquired property and not an ancestral property. Shri  Jiwan Dass Lau died on 29th August, 1963 leaving behind a registered, legal  and valid Will dated 17th March, 1959 bequeathing the property in favour of  his wife Smt. Devti Devi and on her death the property was to devolve  upon  defendant Nos. 1 and 2 in equal shares. Smt. Devti Devi died on 18th March,  1984. As such, on her death defendant Nos. 1 and 2 became exclusive  owners  of the property in dispute in equal shares. A partition took place  between  defendant  Nos. 1 and 2 wherein defendant No. 1 took over southern  portion  of  the  suit property and defendant No. 2 took over northern  portion.  On  29th May, 1990, before institution of the suit, defendant No. 1 claimed  to  have  sold  his portion of the property to Smt. Raj  Kumari  and  delivered  vacant and peaceful possession thereof to her. Thus, defendant No. 1 has no  more  interest  in the suit property. The plaintiff acting on the  Will  of  late  Shri  Jiwan Dass Lau dated 17th March, 1959 gave a  declaration  with  respect to property No. A-3\/247, Janak Puri, New Delhi that he has no other  property  either in his name or in the name of his wife. Thus,  having  accepted legality and validity of the Will he is estopped by his own  conduct  from challenging the Will of late Shri jiwan Dass Lau to claim any interest  in  the suit property. Defendant No. 2, in addition to above, further  contends  that the plaintiff has admitted the genuineness and  correctness  of  the Will when he gave &#8220;No objection&#8221; to the military authority for  payment  of  his  last pension to Smt. Devti Devi, mother of the parties,  and  this  fact has not been controverted in the written statement. No cause of action  has arisen in favour of the plaintiff. The presumption under Section 90  of  the  Evidence Act is attracted regarding the genuineness of  the  documents  (Will)  alongwith the sale deeds produced by defendant No.1  regarding  the  properties in Pakistan are more than 30 years old at the time of filing  of  the  suit. The plaintiff knew this fact since 1950 and as such, the  plaint  is barred by limitation and the property in suit is not ancestral.  Defendant Nos. 3 to 7 are virtually supporting the plaintiff as is apparent  from  the written statements.\n<\/p>\n<p> 5.   In additional pleas, defendant No. 1 claims that late Shri Jiwan  Dass  Lau was exclusive owner of the following self-acquired properties in Rawalpindi (Pakistan):\n<\/p>\n<pre>      1.  Property  No. 719 situated at Mohalla  Dadar  Kann, Rawalpindi      City. \n \n\n      2. Properties No. 720 and 721 situated at Mai Vero Ki Bani, Rawalpindi. \n \n\n      3.  Plots  No. 145,146,149,150 situated near  Asgar  Mall opposite      Khalsa  College, Rawalpindi, purchased Benami in the name of  his      wife Devti Devi.  \n \n\n 6.   In replication the fact that the properties at Rawalpindi were recorded  in  the own name of Shri Jiwan Dass Lau is not disputed. Rather  it  is  claimed that Shri Jiwan Dass Lau had purchased those properties in his  own  name  out  of  the sale proceeds of the ancestral properties  sold  by  him  without disclosing the identity of those ancestral properties.\n \n\n<\/pre>\n<p> 7.   The plaintiff has gone to the extent of saying in reply to paragraph 3  that  Shri Jiwan Dass Lau has wrongly and fraudulently described  ancestral  properties as his own self-acquired properties. It is claimed that  defendant No. 1 before filing of the written statement never disclosed the existence  of  alleged Will dated 17th March, 1959 nor he  obtained  probate  or  letter of administration. In reply to paragraph 3 of the preliminary objections  of defendant No. 2, the plaintiff did not specifically  controverted  the  fact that he had admitted the genuineness and correctness of the  Will  in favour of defendant Nos.1 and 2 dated 16th April, 1959 executed by their  father when he gave &#8216;No objection&#8217; to the Military Authorities for  payment  of  last pension to Smt. Devti Devi, mother of the  parties.  Consequently,  this  fact  may be deemed to be admitted. It is further  notable  that  the  plaintiff takes an alternative stand in replication by pleading that  &#8220;Even  otherwise  according  to  the alleged Will Smt. Devti  Devi  inherited  the  property in dispute after the death of Shri Jiwan Dass Lau who died on 29th  August,  1963  and she became absolute owner in view of the  provisions  of  Section 14 of the Hindu Succession Act. Smt. Devti Devi died on 28th March,  1984 and after her death her sons became co-owners of equal shares  because  she  died intestate.&#8221; Thus, the plaintiff has virtually admitted  existence  of the Will executed by his father in favour of Smt. Devti Devi as far back  as  1961  or 1964. Could he split the Will and read it in his  own  way?  I  think not. In the aforementioned circumstances, in absence of any specified  ancestral  property and the assertions made by Shri Jiwan Dass Lau in  purchasing the plots of land in the name of Smt. Devti Devi thereafter asserting his self-acquired property before the Claims Commissioner, allotment of  house  in question in lieu thereof prima facie does not indicate any  force  in  the plaintiff&#8217; s claim that property in suit was ancestral property  in  the  hands of Shri Jiwan Dass Lau and as such, he could not execute a  Will  in favour of his wife and after her death in favour of his two sons,  namely, defendant Nos.1 and 2. It may be mentioned that the Will was registered  on  9th May, 1959. The suit was filed in the year 1990. The lease deed  was  executed  on 16th July, 1962. These documents have acquired  some  sanctity  under Section 90 of the Indian Evidence Act raising and attracting presumption  of  genuineness of the documents, for the documents are  coming  from  proper custody of the defendants.\n<\/p>\n<p> 8.   One  of the contentions of the plaintiff is that even by alleged  Will  dated 17th March, 1959 Smt. Devti Devi became absolute owner of the property in dispute after death of her husband Shri Jiwan Dass Lau under  Section  14  of the Hindu Succession Act (hereinafter called &#8216;the Act&#8217;  for  short).  She expired on 18th March, 1984 intestate and hence, the plaintiff is owner  of  1\/5  share of the property in dispute. This contention makes  it  clear  that  Smt.  Devti Devi had been given limited rights under  the  Will.  The  property under the Will could not become an absolute estate of the deceased  Smt.  Devti  Devi under Section 14 of the Act. It would be proper  here  to  reproduce  Section  14(2) of the Act, which provides a restriction  on  the  scope and ambit of Section 14(1) of the Act. Section 14(2) of the Act reads  as under:\n<\/p>\n<p>       &#8220;14(2)  Nothing contained in Sub-section (1) shall apply  to  any      property  acquired  by way of gift or under a Will or  any  other      instrument  or under a decree or order or a Civil Court or  under      an award where the terms of the gift, Will or other instrument or      the decree, order or award prescribe a restricted estate in  such      property.&#8221;\n<\/p>\n<p> 9.   In Smt Karmi Vs. Amru and Ors., , it has been held that  a  widow  who  succeeds to the properties of her deceased  husband  on  the  strength  of a Will executed by the husband in her favour cannot claim  any  rights other than those conferred by the Will. Thus, where only life estate  is  conferred on her under the Will, she cannot claim to have become  absolute  owner under the Act. Her grand-daughter cannot, therefore, claim  any  title to the properties on the basis of the Will executed in her favour  by  the widow. Similar view was taken in G. Appaswami Chettiar and Anr. Vs.  R.  Sarangapani Chottiar and Ors.,  on the strength of  Section  14(2) of the Hindu Succession Act.\n<\/p>\n<p> 10.  Once  prima facie it appears that the property in Pakistan  was  self-acquired property       of late Shri jiwan Dass Lau and he could execute the Will,  it could not possibly be absolute property in the hands of Smt. Devti  Devi  allowing the plaintiff to claim 1\/5 share in the property on death of  Smt.  Devti Devi.\n<\/p>\n<p> 11.  The  plaintiff is not seeking any relief of cancellation of  the  Will  executed  by deceased Shri Jiwan Dass Lau and without cancellation  of  the  Will, the plaintiff may not be entitled to get any relief in the  aforementioned circumstances.\n<\/p>\n<p> 12.  It may be mentioned that according to defendant No. 1 he has sold  his  portion  under an agreement to sell dated 29th May, 1990 and delivered  the  vacant and peaceful possession of the property to Smt. Raj Kumari under the  agreement to sell. Smt. Raj Kumari has not been made a party so far despite  disclosure in the written statement.\n<\/p>\n<p> 13.  The  claim  of plaintiff is prima facie belied in view of  the  photocopies  of the orders passed by Claims Officer dated 11th July,  1953.  The  plaintiff  should  have asserted his right way back in 1952,1953  and  1962  when  the lease deed was executed in the exclusive name of Shri Jiwan  Dass  Lau.\n<\/p>\n<p> 14.  In so far as the question of possession of the plaintiff is concerned,  it is required to be seen in the aforesaid light that defendant Nos.1 and 2  had  become owners by virtue of a registered Will on death of their  mother  Smt.  Devti Devi on 18th March, 1984. According to defendant No. 2, he  was  in  possession of the said room and he was running a &#8216;Kirana&#8217; shop  earlier  and for some time he had locked the same. So far as the household  articles  are concerned, a sentence or two written by the A.S.I. may not be very much  meaningful in absence of statement of any representative of defendant Nos.1  &amp; 2.\n<\/p>\n<p> 15.  In this regard, the plaintiff has not produced any document worth  the  name  to indicate that he had any share in the suit property. His name  has  not been got mutated in the Municipal record. He has not paid any house tax  or  electricity  charges nor he has any correspondence. He  was  admittedly  living in any other house. He claims to be in possession in the  additional  room measuring 12 ft. X 10 ft. (shown red in the site plan) towards service  lane.  Three documents have been filed, all relating to an  incident  dated  10th  March, 1991 and these are his own statements, statement  of  Rajender  Kumar Bakshi, defendant No. 6, an entry of the report of the PCR and  there  is  report DD No. 61-B of Sh. Amar Pal Singh, ASI, indicating  quarrel  and  injuries  of  Sh.  Rajender Kumar Bakshi and the fact  that  the  household  articles of Ram Swarup and Dilip Kumar Bakshi were allegedly found kept  in  two  rooms  and  kitchen. Statement of Sh. Dilip Kumar Bakshi  was  to  the  effect that at that point of time his kitchen and room was properly  locked  alongwith his household articles. It is interesting to note that no kitchen  has  been shown in the site plan in red colour and in common user only  one  bath  room and latrine has been shown. None of the defendants 2 to  7,  including Sh. Dilip Kumar Bakshi in his written statement dated 24th October,  1990 has stated that they were in possession of any portion. The  plaintiff  also did not claim in his plaint that defendants 2 to 7 were in  possession  of any portion. Supposing for the sake of arguments that the plaintiff  and  his  nephew had some portion in their occupation. &#8220;Would it amount to  possession?&#8221; may be a question. If mother of the plaintiff was living and even  after her death, brothers of the plaintiff have allowed him to keep certain  household articles in some place in the house, it cannot be deemed to be  a  possession  but a mere license to keep the household articles for the  time  being and the defendant Nos.1 and 2 have all right to revoke such a licence  and  to remove household articles of the plaintiff. The way a  kitchen  has  been occupied just indicates the fact that the plaintiff is himself  creating trouble and is not entitled to be shown any indulgence in the aforesaid  circumstances. Thus, it would be very much apparent that the plaintiff  has  got  no prima facie case nor he has any balance of convenience in  his  favour, for he is already living separately in another house. In such circumstances,  the  question of irreparable loss would not arise. As  such,  the  plaintiff  is  not entitled to any injunction. There does  not  appear  any  force  in this application. IA No. 5764\/96 is accordingly  dismissed.  Stay  granted on 27th July, 1990 is hereby vacated.\n<\/p>\n<p>      IA No. 2197193 <\/p>\n<p> 16.  Defendant No. 2 claims that the plaintiff was not in possession of any  part  of the suit property and as such ad valorem Court fee should  be  affixed on the plaint in terms of Section 7(iv)(b) of the Court Fee Act.\n<\/p>\n<p> 17.  According to the submission of learned Counsel for the plaintiff, in a  suit  for partition by a coparcener alleging joint possession, fixed  Court  fee is payable under Article 17(vi) in Schedule-II of the Court Fee Act. In  support of his submission, he relies upon Neelawati and Ors.Vs. N.  Natarajan  and Ors.,  and Jagdish Prasad v. Joti Prasad, 1975  RLR  203.\n<\/p>\n<p>      It is settled law that the question of Court fee must be considered in  the light of the allegations made in the plaint and its decision cannot  be  influenced  either  by the pleas in the written statement or by  the  final  decision of the suit on merits. I feel that there is no force in the application  moved by the defendant. The plaintiff claims to be  coparcener  and  claims  to  be  in possession of one room as per  the  allegations  in  the  plaint. Even the tentative findings arrived at for the purpose of  deciding  injunction  application are not supposed to modify the  foregoing  negative  answer to the question of Court fee raised by the defendants in view of the  settled legal position. Accordingly, in terms of the judgment in  Neelawati  (supra), the application is dismissed.\n<\/p>\n<p>      IA No. 6628\/96 <\/p>\n<p> 18.  The plaintiff has moved this application under Order 39, Rule 2(A) for  violation of order dated 17th August, 1990. But it appears that there is no  such  order  dated 17th August, 1990. There is an order  dated  27th  July,  1990, which reads as under:\n<\/p>\n<blockquote><p>      &#8220;27.7.90  <\/p>\n<p>      S.No. 2313\/90  <\/p>\n<p>      Present:Mr. M.N. Dutt for plaintiff.\n<\/p><\/blockquote>\n<pre>      Let the suit be registered. Issue summons for service of  defendants  by ordinary process as well as by means of registered  A.D.      post for 7th September, 1990. \n \n\n      I.A.5764\/90  \n \n\n      Notice to defendants for 7th September, 1990.  \n \n\n      In the meanwhile, defendants No. 1 &amp; 2 are hereby restrained from      disposing of the property in dispute i.e. No. 12\/33, Tilak Nagar,      New Delhi to any other person or from handing over possession  of      their portion. \n \n\n      Dasti.  \n \n\n      JULY 27,1990               S.N. SAPRA, J.\" \n \n\n<\/pre>\n<blockquote><p> 19.  The  scope  of  the order dated 27th July, 1990 is  very  limited  and restrains  the  defendants from disposing of the property in  dispute  i.e. 12\/33,  Tilak  Nagar, New Delhi to any other person or  from  handing  over possession  of their portion. In the application, there is no such  allegation  that  either of the defendants had transferred the  property  to  any third  person after passing of the injunction order. The plea  of  forcible dispossession of the plaintiff from the portion in his possession shown  in red in the site plan, it appears, is belied by his own statement before the A.S.I. made on 11th March, 1991, a photocopy of which he has himself  filed and secondly, this statement does not indicate that the plaintiff had  been dispossessed  or any attempt had been made to dispossess him from any  portion  which was said to be in his possession. It indicates  that  defendant Veer  Abhimanyu  quarrelled with him and his nephews with an  intention  to mike them vacate. Defendant No. 1, Kishan Lall Lau, was not even present as per  report  and statement at the time of said quarrel. It is  not  alleged that any body had broken the lock and forcibly tried to occupy his portion. Secondly, he was not using common portion as is clear from omission to  say so in paragraph 7 nor he claimed any such right as is being claimed now  in the  application  under Order 39, Rule 2-A of the CPC about use  of  common facilities. Defendant Nos. 3 to 7 did not claim to be in possession of  any portion  in the house in their written statement dated 24th October,  1990. In such circumstances, in the light of the report of A.S.I. and his  statement before A.S.I., it becomes apparent that the plaintiff had in the  garb of  dispute wanted to and actually occupied one more room and kitchen  with the  help and assistance of his nephews named in A.S.I.&#8217;s report.  Even  if what  is mentioned in the application is accepted as true, alleged  allegations  are  not  covered by the injunction order to make out  any  case  of contempt, for it was not an attempt to sell to any third party in violation of the injunction. Defendant No. 1 was not present and he had already  sold his  share  on 29th May, 1990 about two months before the  restraint  order come into existence on 27th July, 1990. As such, I do not find any force in this  application and reject the same with cost of Rs. 1,000\/- each to  the defendants No. 1 and 2.\n<\/p><\/blockquote>\n<blockquote><p>      Application dismissed with costs.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Ram Sarup Lau (Lt. Col.) vs Bakshi Krishan Lall &amp; Ors. on 1 May, 1998 Equivalent citations: 1998 IVAD Delhi 745, 73 (1998) DLT 816, 1998 (46) DRJ 475 Author: S Kapoor Bench: S Kapoor JUDGMENT S.N. Kapoor, J. LA. 5764 of 1990 1. This order shall dispose of the aforesaid I.A. [&hellip;]<\/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-116296","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.6 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Ram Sarup Lau (Lt. 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