SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Smt. Mantya Devi (Deceased) … vs . Sh. Murli Manohar & Anr. on 25 May, 2019

Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.
CS No. 16535/16

IN THE COURT OF Sh. TARUN YOGESH
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS: NEW DELHI

Civil Suit No. 16535/16
CNR No. DLSW01­001118­2014

In the matter of:

Smt. Mantya Devi W/o Late Mahabir Santoshi,
(Through Legal Heirs)

(1) Sh. Madan Lal (Son)
S/o Late Sh. Mahabir Santoshi
R/o WZ­60, Gali No. 2,
Lajwanti Garden,
New Delhi­110 046.
(2) Smt. Savitri (Daughter)
W/o Sh. Mohan Lal
R/o C­5, Janak Puri, New Delhi.
(3) Sh. Brij Mohan (Son)
S/o Late Sh. Mahabir Santoshi
R/o WZ­60, Gali No. 2,
Lajwanti Garden,
New Delhi­110 046.
(4) Smt. Neelam (Daughter)
W/o Sh. Girdhari Lal.
(5) Sh. Rakesh Kumar (Son)
S/o Late Sh. Mahabir Santoshi
R/o WZ­60, Gali No. 2,
Lajwanti Garden,
New Delhi­110 046. ….Plaintiffs

Versus

(1) Sh. Murli Manohar
S/o late Sh. Amrit Lal

Page 1 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.
CS No. 16535/16

(2) Smt. Meena
W/o Sh. Murli Manohar

Both residents of:
S/21, Dabri Village,
Vashisht Park, Pankha Road,
New Delhi. …Defendants

Date of Institution of suit : 28.02.2014
Date on which judgment was reserved : 25.05.2019
Date on which judgment was pronounced : 25.05.2019

SUIT FOR DECLARATION, POSSESSION AND PERMANENT
INJUNCTION

­:JUDGMENT:­

1.

Plaintiff’s suit has been filed disputing (i) registered GPA and
Will dated 09.10.1996 in favour of defendant No.1 and (ii) registered sale
deed dated 09.04.2013 executed by defendant No.1 in favour of
defendant No.2 as illegal, manipulated, null and void and plaintiff, in
addition, has prayed for recovery of possession of 40 sq. yards forming
part of plot No. S/21 measuring 110 sq. yards in khasra rectangle No. 21,
Killa No. 13, Village Dabri, Vashisht Park, Pankha Road, New Delhi
(hereinafter referred as suit property) and for restraining defendants,
their legal heirs, etc. from creating any third party interest in the disputed
land.

2. Brief facts set out in the plaint are as under:

2.1 Plaintiff Smt. Mantya Devi (since deceased) had been

Page 2 /24 DOD: 25.05.2019

Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

residing at WZ­60, Gali No. 2, Lajwanti Garden, New Delhi along with her
children and her husband late Mahabir Santoshi had purchased plot No.
S/21 measuring 110 sq. yards in khasra rectangle No. 21, Killa No. 13,
Village Dabri, Vashisht Park, Pankha Road, New Delhi from previous
owner Sh. Mir Singh vide sale deed dated 29.07.1966.
2.2 Sh. Mahabir Santoshi died on 24.12.1984 leaving behind
Smt. Mantya Devi (widow), Sh. Madan Lal (son), Smt. Savitri (daughter),
Sh. Brij Mohan (son), Sh. Rakesh Kumar (son) and Smt. Neelam
(daughter) as legal heirs whereas defendant No.1 Sh. Murli Manohar was
given in adoption to Late Smt. Sunder Devi and Late Sh. Amrit Lal (sister
and brother­in­law of plaintiff) in the year 1964 who stayed with them at
Jalandhar, Punjab during their lifetime and worked in Punjab Roadways
till his retirement in the year 2011.

2.3 It is averred that legal heirs of Late Mahabir Santoshi except
defendant No.1 who was given in adoption executed registered
relinquishment deed dated 04.06.1993 relinquishing their share in favour
of Smt. Mantya Devi who became sole and absolute owner of property
No. S/21 comprising five shops and two rooms on the first floor of the
property as shown in the site­plan.

2.4 Defendant No.1 Sh. Murli Manohar after retirement from
service in Punjab Roadways shifted to Delhi in 2011 and requested
plaintiff (biological mother) to allow him to reside on the first floor of the
property which she agreed in view of their relations and defendant was
allowed to reside in two rooms on the first floor of the property out of love
and affection.

Page 3 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

2.5 Plaintiff being old aged lady remained confined to her house
and rarely visited the suit property and defendant No.1, with malafide
intention, started raising illegal construction in the property without her
consent and permission and without any sanction or approval from MCD.
2.6 He was confronted by plaintiff and requested to stop illegal
construction in the second week of August 2013 but paid no heed to her
lawful requests. Plaintiff, thereafter, approached common relatives and
defendant upon their intervention gave false assurance to stop illegal
construction but continued carrying illegal construction without her
consent and permission.

2.7 Defendant Sh. Murli Manohar, during course of talks, also
stated about registered GPA and Will executed by plaintiff on 09.10.1996
which were fraudulently obtained from plaintiff probably under the garb of
some documents/complaints and Civil Suit No.165/2013 for permanent
and mandatory injunction was filed by plaintiff which was contested by
defendant No.1 on the basis of manipulated and fabricated GPA allegedly
executed by plaintiff and sale deed dated 09.04.2013 executed in favour
of defendant No.2.

2.8 Plaintiff, having never intended to execute GPA and Will in
favour of defendant No.1, got them cancelled by way of deed of
cancellation duly registered in the office of Sub­Registrar, Delhi and
withdrew the earlier Civil Suit No.165/2013 on 12.02.2014 with permission
to file afresh and present suit for declaration, possession and permanent
injunction was thereafter filed on 28.02.2014.

3. Defendants No.1 and 2, pursuant to service of summons,

Page 4 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

have filed joint written statement contesting plaintiff’s suit by alleging that
Sh. Brij Mohan and Sh. Madan Lal have filed present suit for grabbing
their property by taking advantage of disability of Smt. Mantya Devi who
being natural mother of defendant No.1 had executed registered GPA
and Will in favour of defendant No.1 out of love and affection on
09.10.1996 and registered sale deed dated 09.04.2013 was thereafter
executed by defendant No.1 in favour of his wife Smt. Meena. It is further
averred that defendants along with their children are in legal possession
of the property since long time having electricity connection, water
connection, house tax receipts, etc. in their name which was never
objected by Smt. Mantya Devi and plaintiff’s suit has been filed after 18
years of execution of registered GPA and Will at the behest of Sh. Brij
Mohan and Sh. Madan Lal who have forcefully obtained signature of their
mother Smt. Mantya Devi who is suffering from mental illness for last 10
years and is bed­ridden for last 4­5 years.

4. Defendants, in addition, have also averred that Sh. Madan
Lal had signed registered GPA and Will dated 09.10.1996 as witness and
disputed plaintiff’s averments in corresponding para of reply on merit.

5. Replication was filed through SPA Sh. Brij Mohan on
23.07.2014 and following issues were settled on 18.09.2014:

i. Whether registered GPA and Will dated 09.10.1996 were
fraudulently got executed by defendant from plaintiff?

…OPP

ii. Whether defendant No. 1 had fraudulently, conspicuous and
illegal manner executed the sale deed dated 09.04.2013 in
favour of his wife (defendant No. 2)?

Page 5 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

…OPP

iii. Whether defendant No.1 was adopted son of Ms. Sunder
Devi W/o late Sh. Amit Lal (sister of plaintiff)? …OPP

iv. Whether suit of plaintiff is barred by limitation? …OPD

v. Whether plaintiff is entitled for relief of declaration declaring
registered GPA and Will dated 09.10.1996 in favour of
defendant No. 1 and registered sale deed dated 09.04.2013
in favour of defendant No. 2 are null and void? …OPP

vi. Whether plaintiff is entitled for relief of possession in
respect of property bearing No. S/21 area measuring 40 sq.
yards Khasra No. 21 Killa 13 Village Dabri known as
Vashisht Park, Pankha Road, New Delhi? …OPP

vii. Whether plaintiff is entitled for decree of permanent
injunction in respect of suit property? …OPP

viii. Relief.

6. Plaintiff Smt. Mantya Devi expired on 28.03.2015 and her
children except defendant No.1 were impleaded as LRs vide order dated
14.09.2015.

7. Sh. Kuldeep Kumar Chanan has been examined as PW­1
who has brought registered sale deed of property No.49, Street No.2,
Shahid Babu Labh Singh Nagar, Jalandhar City, Punjab purchased from
defendant No.1 Sh. Murli Manohar and proved copy of registered sale
deed as Ex. PW1/A (OSR).

8. Sh. Rajender Singh, Clerk, Office of Punjab Roadways,
Depot No.1, Jalandhar, Punjab being official witness summoned by LRs

Page 6 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

has referred to (i) authority letter issued by the General Manager in his
favour as Ex. PW2/1; (ii) service book/record of defendant Sh. Murli
Manohar S/o Sh. Amrit Lal as Ex. PW2/2 (OSR); (iii) clearance certificate
as Ex. PW2/3 (OSR); (iv) medical examination dated 09.06.1976 as Ex.
PW2/4 (OSR); (v) certificate of apprenticeship training as Ex. PW2/5
(OSR); (vi) certificate of training issued by ITC Jalandhar as Ex. PW2/6
(OSR); (vii) certificate of class VIII of Murli Manohar S/o Amrit Lal dated
10.04.1969 as Ex. PW2/7 (OSR); (viii) medical certificate dated
19.11.1977 as Ex. PW2/8 (OSR); (ix) affidavit of Sh. Murli Manohar S/o
Amrit Lal affirming his caste as Ex. PW2/9 (OSR) and (x) receipts No.
36681, 84956, 84952 issued by ESIC as Ex. PW2/10 to Ex. PW2/12
(OSR). He was cross­examined by defendants’ counsel and deposed that
defendant Sh. Murli Manohar had furnished an affidavit for correction of
name of his father as Mahavir Prashad on 17.09.1987.

9. Sh. Brij Mohan and Sh. Madan Lal being sons/LRs of Smt.
Mantya Devi have deposed as PW­3 and PW­4 in support of plaintiff’s
case by tendering their affidavits Ex. PW3/1 and Ex. PW4/A in evidence
and were cross examined by defendants’ counsel. No other witness was
examined and plaintiffs’ evidence was closed on 11.08.2016.

10. Defendant Sh. Murli Manohar, on the other hand, has
deposed as DW­1 by tendering his affidavit Ex. DW1/A in evidence and
relied upon following documents:

i. Copy of registered sale deed dated 09.04.2013 as Ex.

DW1/1;

ii. Copy of registered General Power of Attorney and Will dated

Page 7 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

09.10.1996 in favour of Sh. Murli Manohar as Ex. DW1/2 and
Ex. DW1/3;

iii. Legal notice dated 27.08.2013 as Ex. DW1/4;

iv. Photocopy of ration card, Voter ID card and Aadhar Card of

deponent as Ex. DW1/5 (OSR) (colly) and
v. Photocopy of Passport and Aadhar Card of son of deponent

as Ex. DW1/6 (OSR) (colly).

11. Sh. Rajender Singh, Junior Assistant, Punjab Roadways,
Jalandhar­I, Punjab and Sh. Vivek Yadav, LDC, Office of Sub­Registrar­II,
Basai Darapur, New Delhi have been examined as DW­2 and DW­3 who
have referred to photocopy of affidavit for correction of name of
defendant’s father in the office record as Ex. DW2/1 (OSR) and certified
copy of registered GPA dated 09.08.1996 bearing signature of first party,
second party and two witnesses and certified copy of Will dated
09.10.1996 bearing signatures of executant and two witnesses as Ex.
DW3/1 and Ex. DW3/2 respectively.

12. Defendant Sh. Murli Manohar and official witnesses were
cross­examined by plaintiff’s counsel and defendants’ evidence was
closed in the affirmative on 12.07.2017.

13. Advocate Sh. Lal Singh Thakur for plaintiff/LRs and Advocate
Sh. Puneet Bhatnagar for defendants have addressed their arguments
and filed written submissions in support of their respective contentions.

14. I have carefully perused the pleadings and evidence led on
record and considered their submissions including written submissions
and case­laws. My issue­wise findings are recorded below.

Page 8 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

15. Issue No. 1: Whether registered GPA and Will dated
09.10.1996 were fraudulently got executed by defendant from
plaintiff? …OPP
15.1 It is averred in the plaint that registered GPA and Will dated
09.10.1996 were fraudulently obtained by defendant No.1 under the garb
of some documents/complaints which the plaintiff did not remember and
were subsequently cancelled by way of deed of cancellation of GPA and
Will duly registered in the office of Sub­Registrar­IX, Delhi on 05.09.2013.
15.2 Testimony of plaintiff Smt. Mantya Devi could not be
recorded as she expired on 28.03.2015. Her sons/LRs Sh. Brij Mohan
and Sh. Madan Lal, nonetheless, have supported plaintiff’s case and
tendered their affidavits in evidence for disputing registered GPA and Will
dated 09.10.1996.

15.3 PW­3 Sh. Brij Mohan in para No.8 of his affidavit Ex. PW3/1
has deposed that defendant No.1 after retirement from service in Punjab
Roadways shifted to Delhi and was allowed to reside in two rooms on the
first floor of property No. S/21, Vashisht Park, Pankha Road, New Delhi
by their mother Smt. Mantya Devi. Site­plan of the property; copy of sale
deed dated 29.07.1966 in favour of Sh. Mahabir Santoshi and copy of
relinquishment deed dated 04.06.1993 in favour of Smt. Mantya Devi
were referred as Ex. DW3/A, Ex. DW3/B and Ex. DW3/C respectively and
PW­3 further deposed that plaintiff being old aged lady was mostly
confined to her house and defendant No.1, with malafide intention,
started illegal construction without her consent and permission and
present suit was thereafter filed by him on the basis of SPA (as averred in

Page 9 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

para 9 of the plaint).

15.4 His cross­examination by defendant’s counsel wherein PW­3
Sh. Brij Mohan has admitted that present suit and the earlier suit was filed
by him assumes significance. Following extract of his cross­examination
recorded on 12.05.2016 is reproduced below:

“….It is correct that I have mentioned in para no. 9 of
my affidavit that I am the SPA of my mother and the
SPA is enclosed. (witness is shown to record but SPA
is not found). It is correct that earlier suit against the
defendants was filed through me as the SPA of Smt.
Mantya Devi. It is correct that earlier suit I had filed on
03.09.2013. The plaint as well as affidavit in that suit
has been signed by me only. It is correct that after
filing the WS by the defendant No.1 I withdrew that
suit and thereafter I filed this present suit in February
2014 after taking the liberty from the earlier Court. I
know the contents of my affidavit. I along with my
mother had come to my advocate for preparation of
the suit. My mother was sick and old lady and she
died at her age 85­86 years…..”

15.5 Further, PW­3 Sh. Brij Mohan having denied the suggestion
that he along with Sh. Madan Lal had filed both suits taking benefit of the
disability of their mother Smt. Mantya Devi has nevertheless admitted that
replication was filed by him bearing his signatures. PW­3 Sh. Brij Mohan
during his cross­examination has also deposed that he could not

Page 10 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

remember the time since when defendant No.1 started residing in the suit
property but admitted that electricity and water connection are installed in
the name of defendant No.1 and no action was taken by plaintiff Smt.
Mantya Devi against defendant No.1 during the period between 1996 up
to 2013.

15.6 PW­4 Sh. Madan Lal has deposed identically and, in addition,
has also deposed that he has never signed (attested) any document in
favour of defendant No.1 as witness in para No.22 of affidavit Ex. PW­
4/A. He, nevertheless, upon being confronted with registered GPA and
Will referred as Ex. PW­4/X1 has identified photographs and signature of
Smt. Mantya Devi at point ‘C’, ‘D’ and ‘E’ and his signature as attesting
witness at point ‘F’ on the GPA.

15.7 Both witnesses have deposed that Smt. Mantya Devi was old
and sick lady who died at the age of 85­86 years and Sh. Madan Lal has
also stated that Smt. Mantya Devi was weak due to old age and ailments
(Sugar and Blood Pressure) who was taken to hospital regularly for five
years before her death.

15.8 Sh. Vivek Yadav, LDC, Office of Sub­Registrar­II, Basai
Darapur, New Delhi examined as DW­3 for proving registered GPA and
Will in favour of defendant Sh. Murli Manohar has produced official record
and referred to certified copy of registered GPA dated 09.08.1996 and
certified copy of Will dated 09.10.1996 as Ex. DW3/1 and Ex. DW3/2
respectively
Finding: It is, therefore, evident from their testimony that GPA and Will
were executed by Smt. Mantya Devi in favour of defendant No.1 Sh. Murli

Page 11 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

Manohar which was attested by Sh. Madan Lal (PW­4) as witness and
registered in the Office of Sub Registrar, Basai Darapur­II, New Delhi on
09.10.1996. Further, it is also significant to note that dispute arose
between brothers in the year 2013 when construction was started by
defendant Sh. Murli Manohar after demolishing the old structure.
Testimony of PW­3 and PW­4 disputing registered GPA and Will dated
09.10.1996 is therefore not sufficient to rebut the presumption of
execution and authentication of Power of Attorney as per Section 85 of
the Indian Evidence Act, 1872 and execution of GPA in favour of Sh.
Murli Manohar is rather confirmed by PW­4 Sh. Madan Lal who has
identified his signature as attesting witness at point ‘F’ on the GPA. Issue
No.1 is, therefore, decided against plaintiff/LRs.

16. Issue No.2: Whether defendant No. 1 had fraudulently,
conspicuous and illegal manner executed the sale deed dated
09.04.2013 in favour of his wife (defendant No. 2)? …OPP
16.1 The onus to prove the issue is upon the plaintiff who has
averred about written statement filed by defendant No.1 in the earlier suit
wherein it came to her knowledge that defendant Sh. Murli Manohar had
fraudulently and illegally executed registered sale deed dated 09.04.2013
in favour of his wife Smt. Meena.

16.2 Sh. Brij Mohan (PW­3) and Sh. Madan Lal (PW­4) have
disputed registered sale deed dated 09.04.2013 in favour of defendant
No.2 as illegal, sham and manipulated document which was executed
intentionally and deliberately by defendant in collusion with each other
with ulterior motive to grab the property belonging to plaintiff in para 19 of

Page 12 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

their affidavits Ex.PW3/1 and Ex.PW­4/A.

16.3 Defendant Sh. Murli Manohar (DW­1), on the other hand, has
stated about dispute over property between the brothers which led to
transfer of property in the name of his wife. Relevant portion of cross­
examination of DW­1 recorded on 03.10.2016 is reproduced below:

“The suit property was transferred in the name of my
wife for the sake of registration. The registry was
done after about 10 years in the name of my wife
when my mother become seriously ill, bed ridden and
my brothers and other family members started
disturbing me. They started disturbing me with
intention to grab my property. The plaintiffs used to
disturb me and my family by collecting at the gate of
my house and abusing me and my other family
members. They had started disturbing me and my
family in the year 2008. No police complaint was
lodged by me against my brothers for disturbing me
between the period, 2008 to 2013, when the sale
deed was executed in favour of my wife.”

16.4 Advocate Sh. Lal Singh Thakur for plaintiff has addressed his
submissions disputing sale deed dated 09.04.2013 as sham, illegal and
manipulated document which was prepared by defendants for creating
false evidence without any receipt verifying payment of sale consideration
and defendant No.2 Smt. Meena did not examine herself in support of
sale deed executed in her favour.

Page 13 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

16.5 Perusal of registered GPA dated 09.10.1996 executed in
favour of defendant Sh. Murli Manohar which was attested by Sh. Madan
Lal (PW­4) reveals that Smt. Mantya Devi had appointed Sh. Murli
Manohar as her true and lawful general attorney to do all acts, deeds and
things in her name and on her behalf in respect of first floor (one room)
and second floor (one room) along with open space with stairs measuring
40 sq. yds. of built­up plot No. S­31(WZ­21) out of khasra rectangle 21,
Killa No.13, Village Dabri, Vashishth Park, Pankha Road, New Delhi.
16.6 Registered sale deed dated 09.04.2013 was thereafter
executed by defendant Sh. Murli Manohar in favour of his wife/defendant
No.2 Smt. Meena in respect of first and second floor with roof/terrace
rights, each floor area measuring 40 sq. yds. i.e. 33.444 sq. mtrs. of total
area measuring 80 sq. yds. i.e. 66.888 sq. mtrs. out of free hold property
No. S­21(WZ­21) along with proportionate, undivided, indivisible and
impartible ownership rights of the underneath land with passage road to
staircase, separate staircase and 09 sq. yds. area on ground floor of
Khasra No. 21/13/2, part of Khasra No. 21/13 situated in Village Dabri,
Vashishth Park, Delhi.

Finding: Defendant No.1 Sh. Murli Manohar being lawful General
Attorney of Smt. Mantya Devi was therefore competent to execute sale
deed in favour of his wife on the basis of registered GPA dated
09.10.1996 executed in his favour which was attested by his brother Sh.
Madan Lal (PW­4) as witness. Issue No. 2 is therefore decided against
plaintiff/LRs.

17. Issue No.3: Whether defendant No.1 was adopted son of

Page 14 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

Ms. Sunder Devi W/o late Sh. Amit Lal (sister of plaintiff)?…OPP
17.1 It is averred in the plaint that Sh. Murli Manohar being
biological son of plaintiff was given in adoption to Late Smt. Sunder Devi
and Late Amit Lal (sister and brother­in­law of plaintiff) in the year 1964
who stayed with them at Jalandhar, Punjab during their lifetime and
worked in Punjab Roadways till his retirement in the year 2011.
17.2 Sh. Kuldeep Kumar Chanan examined as PW­1 has deposed
that property No.49, Street No.2, Shaheed Babu Labh Singh Nagar,
Jalandhar City, Punjab was purchased from defendant Sh. Murli Manohar
S/o Sh. Amrit Lal and referred to copy of registered sale deed dated
31.12.1993 as Ex. PW­1/1 (OSR) whereas Sh. Rajender Singh being
summoned witness has produced service record of defendant No.1 Sh.
Murli Manohar and referred to documents Ex. PW­2/2 to Ex. PW­2/12
wherein name of father of defendant No.1 has been recorded as Sh.
Amrit Lal.

17.3 Advocate Sh. Lal Singh Thakur for plaintiff/LRs has therefore
urged in favour of adoption by stating that defendant Sh. Murli Manohar
being adopted son of Sh. Amrit Lal and Smt. Sunder Devi had sold Plot
No.12, Labh Singh Nagar, Jalandhar, Punjab in the year 1991 and
enjoyed all benefits, name and status as son of Sh. Amrit Lal which was
mentioned in his school record, service record, bank accounts and
retirement pension accounts.

17.4 Advocate Sh. Puneet Bhatnagar for defendants, per contra,
has referred to copies of ration card, voter ID card, Aadhar card,
electricity bills, water bills and house tax receipts of defendant Sh. Murli

Page 15 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

Manohar mentioning his fathers’ name as Sh. Mahabir Santoshi and
adverted to cross­examination of official witness PW­2 Sh. Rajender
Singh who has deposed about affidavit filed on 17.09.1987 for correction
of name of father of defendant Sh. Murli Manohar and testimony of official
witness (Junior Assistant), Punjab Roadways, Depot No.1, Jalandhar
recorded as DW­2 who has produced service record of defendant and
referred to photocopy of affidavit as Ex.DW­2/1.
17.5 Ld. Counsel for defendants has also relied upon para 21, 22
and 41 of the judgment of Hon’ble Madras High Court titled Kallammal
Vs. K. Mayilsamy decided on 30.03.2012 for disputing valid adoption of
defendant No.1 Sh. Murli Manohar.

17.6 Section 6 and Section11 of the Hindu Adoptions and SectionMaintenance
Act, 1956 lay down the requisites and other conditions for a valid
adoption. These provisions being relevant are reproduced below:

“6. Requisites of a valid adoption – No adoption
shall be valid unless –

(i) the person adopting has the capacity, and also the
right, to take in adoption;

(ii) the person giving in adoption has the capacity to
do so;

(iii) the person adopted is capable of being taken in
adoption; and

(iv) the adoption is made in compliance with the other
conditions mentioned in this Chapter.

11. Other conditions for a valid adoption – In every

Page 16 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

adoption, the following conditions must be complied
with:­

(i) if the adoption is of a son, the adoptive father or
mother by whom the adoption is made must not have
a Hindu son, son’s son or son’s son’s son (whether by
legitimate blood relationship or by adoption) living at
the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father
or mother by whom the adoption is made must not
have a Hindu daughter or son’s daughter (whether by
legitimate blood relationship or by adoption) living at
the time of adoption;

(iii) if the adoption is by a male and the person to be
adopted is a female, the adoptive father is at least
twenty­one years older than the person to be
adopted;

(iv) if the adoption is by a female and the person to be
adopted is a male, the adoptive mother is at least
twenty­one yeas older than the person to be adopted;

(v) the same child may not be adopted
simultaneously by two or more persons;

(vi) the child to be adopted must be actually given
and taken in adoption by the parents or guardian
concerned or under their authority with intent to
transfer the child from the family of its birth (or in the

Page 17 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

case of an abandoned child or a child whose
parentage is not known, from the place or family
where it has been brought up) to the family of its
adoption.”

Provided that the performance of datta homam shall
not be essential to the validity of an adoption.
17.7 There is no evidence led on record in respect of aforesaid
conditions of valid adoption of son as per the Hindu Adoptions and
SectionMaintenance Act, 1956. Relevant extract of the testimony of PW­3 during
his cross­examination is reproduced below for reference:

“The adoption of defendant No.1 was taken place in
the year 1964 at Jalandhar as told by my mother Smt.
Mantya Devi. He was given in adoption by my Mausi
namely Smt. Sundri Devi wife of Sh. Amrit Lal. I do
not remember whether any documentation was
executed on the day of adoption or not. It is wrong to
suggest that defendant No. 1 was never adopted by
Smt. Sundri Devi at any point of time. It is further
wrong to suggest that since defendant No. 1 was not
adopted that is why there is no execution of
document as such.”

17.8 PW­4 Sh. Madan Lal has similarly deposed that he was told
about alleged adoption by his mother. Relevant portion of his cross­
examination in extracted herein below:

“It is correct that I cannot produce any document like

Page 18 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

adoption deed or any other Govt. documents to show
the alleged adoption of the defendant by my mother’s
sister. Vol. As there was no custom to do this, there
was no documentation. It is wrong to suggest that
there was a custom and law also at that time to have
the adoption done through documentation.”

17.9 It is, therefore, apt to note that no averment of any ceremony
of giving and taking of defendant No.1 by natural parents and adoptive
parents and that both of them were capable of giving and taking the child
in adoption has been pleaded either in the plaint or in the affidavits of
PW­3 and PW­4.

17.10 Para 22 of the judgment Kallammal Vs. K. Mayilsamy
(supra) is reproduced below for reference:

“In the above section, it has been held that
performance of datta homam is not one of the
essential ingredients to prove adoption and the
adoption must be proved by adducing evidence that
there was giving and taking by natural parents and
adoptive parents and both of them are capable of
giving the child and taking the child in adoption. As
stated supra, the plaint is silent about the ceremonies
conducted at the time of adoption and even the basic
requirement that the natural parents of the first
respondent gave the first respondent in adoption to
the adoptive father viz. Krishnan Chettiar and

Page 19 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

Pappammal and that was also accepted by Krishnan
Chettiar and Pappammal were also not pleaded. The
allegation in para 4 only says that Krishnan Chettiar
adopted him and he took all the care and with respect
to life and education towards the plaintiffs as his son
and he was given in adoption to late Krishnan
Chettiar and the first defendant when he was three
months old. Therefore, there was no pleadings
regarding giving and taking which is one of the
essential requirements to prove adoption”

17.11 Reliance placed upon sale deed dated 31.12.1993 in favour
of Sh. Kuldeep Kumar Chanan referred as Ex. PW­1/1 and various
documents including service record of Sh. Murli Manohar referred as Ex.
PW­2/2 to Ex. PW­2/12 mentioning name of his father as Sh. Amrit Lal is
not sufficient to prove valid adoption of defendant No.1 as held in para 41
and 42 of aforesaid judgment of Hon’ble Madras High Court.
17.12 Section 5 of the Hindu Adoptions and SectionMaintenance Act, 1956
lays down that any adoption made in contravention of the provisions of
Chapter II of the Act shall be void. The relevant provision is extracted
herein below:

“5. Adoptions to be regulated by this Chapter –

(1) No adoption shall be made after the
commencement of this Act by or to a Hindu except in
accordance with the provisions contained in this
Chapter, and any adoption made in contravention of

Page 20 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

the said provisions shall be void.

(2) An adoption which is void shall neither create any
rights in the adoptive family in favour of any person
which he or she could not have acquired except by
reason of the adoption, nor destroy the rights of any
person in the family of his or her birth.”

Finding: Hearsay evidence of PW­3 and PW­4 is not sufficient to
prove valid adoption of defendant Sh. Murli Manohar by Sh. Amrit Lal and
Smt. Sundri Devi and alleged adoption in contravention of the mandatory
provisions of Chapter II of the Hindu Adoptions and SectionMaintenance Act,
1956 is void. Issue No.3 is therefore decided against plaintiff/LRs.

18. Issue No.4: Whether suit of plaintiff is barred by
limitation? …OPD
18.1 Ld. Counsel for plaintiff has referred to para No.14 of the
plaint for contending that GPA and Will were fraudulently obtained from
plaintiff under the garb of some documents/complaints which the plaintiff
did not remember and para No.19 of the plaint wherein plaintiff has
averred about written statement filed by defendant No.1 in the earlier suit
whereupon it came to her knowledge that defendant Sh. Murli Manohar
had fraudulently and illegally executed registered sale deed dated
09.04.2013 in favour of his wife Smt. Meena.

18.2 Defendants’ counsel, per contra, would submit that plaintiff’s
suit has been filed in the year 2014 after 18 years of execution of
registered GPA and Will and plaintiff’s suit for declaration filed beyond
prescribed period of three years is therefore barred by limitation as

Page 21 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

signature and thumb impressions of parties including thumb impression of
attesting witness has been admitted by PW­4 Sh. Madan Lal and
plaintiff/LRs therefore cannot take the plea of knowledge attained on a
later date.

Finding: Issue No.1 has been decided against plaintiff/LRs by holding
that presumption of valid execution and authentication of GPA as per
Section 85 of the Indian Evidence Act, 1872 could not be rebutted by LRs
and execution of registered GPA has been rather confirmed on the basis
of identification of signature of attesting witness by PW­4 Sh. Madan Lal.
Plaintiff’s suit disputing GPA and Will dated 09.10.1996 in favour of
defendant No.1 Sh. Murli Manohar as illegal, manipulated, null and void is
therefore filed beyond prescribed period of limitation of three years. Issue
No.4 is therefore decided in favour of defendant and against plaintiff/LRs.

19. Issue No.5: Whether plaintiff is entitled for relief of
declaration declaring registered GPA and Will dated 09.10.1996 in
favour of defendant No. 1 and registered sale deed dated 09.04.2013
in favour of defendant No. 2 are null and void? …OPP
19.1 Ld. Counsel for plaintiff has adverted to deed of cancellation
of GPA and cancellation of Will referred as Ex.PW­3/E (colly) and Ex.PW­
3/F (colly) respectively which were registered in the office of Sub­
Registrar, Delhi on 05.09.2013 for contending that plaintiff upon
knowledge of forged and fabricated GPA and Will dated 09.10.1996 has
got them cancelled.

19.2 It is, however, significant to note that present suit and earlier
suit for permanent and mandatory injunction bearing Civil Suit No.

Page 22 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

165/2013 have been filed by Sh. Brij Mohan (PW­3) who has deposed
that earlier suit was filed on 03.09.2013 two days prior to execution of
deed of cancellation of GPA and cancellation of Will on 05.09.2013
whereas registered sale deed was executed on 09.04.2013 much prior to
cancellation of GPA and Will on 05.09.2013. He has also admitted that
deed of cancellation of GPA and cancellation of Will were witnessed by
PW­3 and his brother Sh. Madan Lal (PW­4) and admitted that signatures
at point ‘A’, ‘B’ and ‘C’ upon legal notice Mark ‘Z’ (Ex.PW­1/4) were not
properly signed by Late Mantya Devi.

Finding: Issue No.1 has been decided against plaintiff/LRs on
the basis of presumption of execution and authentication of Power of
Attorney in favour of defendant No.1 Sh. Murli Manohar as per Section 85
of the Indian Evidence Act which was confirmed by PW­4 Sh. Madan Lal
who has identified his signature as attesting witness at point ‘F’ on the
GPA. Deed of cancellation of GPA and Will registered on 05.09.2013
which was witnessed by PWs Sh. Brij Mohan and Sh. Madan Lal could
not be proved in the absence of testimony of executant Smt. Mantya Devi
who was admittedly weak due to old age, suffering from Diabetes and
Blood Pressure and was taken to hospital regularly for five years before
her death. Issue No. 5 is therefore decided against plaintiff/LRs.

20. Issue No.6: Whether plaintiff is entitled for relief of
possession in respect of property bearing No. S/21 area measuring
40 sq. yards Khasra No. 21 Killa 13 Village Dabri known as Vashisht
Park, Pankha Road, New Delhi? …OPP
AND

Page 23 /24 DOD: 25.05.2019
Smt. Mantya Devi (Deceased) through SectionLRs vs. Sh. Murli Manohar Anr.

CS No. 16535/16

Issue No. 7: Whether plaintiff is entitled for decree of
permanent injunction in respect of suit property? …OPP
Finding: Since GPA and Will dated 09.10.1996 were executed by Smt.
Mantya Devi in favour of defendant No.1 Sh. Murli Manohar and attested
by Sh. Madan Lal (PW­4) who has identified his signature as attesting
witness at point ‘F’ on the GPA so Issue No. 6 7 are decided against
plaintiff/LRs on the basis of finding upon Issue No. 1 to 5.

21. Relief : Plaintiff’s suit is therefore dismissed, but in the
circumstances, there shall be no order as to costs.

22. Decree sheet be prepared accordingly.

23. File be consigned to record room.

Digitally signed
TARUN by TARUN
YOGESH
YOGESH Date: 2019.06.01
15:57:56 +0530

Announced in the open Court (Tarun Yogesh)
On 25.05.2019 ADJ­03/South West
Dwarka /New Delhi

Page 24 /24 DOD: 25.05.2019

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation