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TMI Blog2011 (11) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff, it was prayed that the said gift deed be declared null and void and further since Kamlesh Kumari had sold, vide sale deed dated 29.7.2002, the said property to her daughter-in-law Sangeeta Bhatnagar, the wife of her son Basant Lal Bhatnagar; impleading the said two persons as defendant No. 2 and defendant No. 4 respectively, it was prayed that the sale deed be declared null and void. Possession of a room on the ground floor adjacent to the courtyard has been sought. 3. The suit has been dismissed vide impugned judgment and decree dated 14.9.2010. 4. The pedigree table of the family of Late Sh.Mool Chand Bhatnagar needs to be noted for a clear understanding of the dispute. It is as under:- 5. Highlighting that neither Kundan Lal nor his successors-in-interest or the four daughters of Late Sh.Sohan Lal and Sh.Kamlesh Kumari were impleaded as defendants, suit was filed, praying as noted hereinabove in para 1. It appears that the branch of Kundan Lal, the second son of Late Sh.Mool Chand was not impleaded as a party for the reason it was stated in the plaint that during his lifetime, Late Sh.Mool Chand had gifted property No. 13-F Kamla Nagar, to Smt.Rukmani Bhatn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en statement filed by said three defendants i.e. defendant No. 1, 2 and 4, it was pleaded that Late Sh.Mool Chand Bhatnagar had purchased the subject property out of his own personal funds vide sale deed dated 26.1.1945 and the question therefore of the same being purchased out of funds received by Late Sh.Mool Chand Bhatnagar after the partition took place on 15th August 1947 in respect of ancestral properties left behind in Pakistan did not arise. Admitting that Late Sh.Mool Chand had gifted property No. 13-F Kamla Nagar, to his second daughter-in-law, it was pleaded in the written statement that the gift deed dated 3.7.1953 was immune from any challenge since limitation prescribed under Article 58 of the Schedule to the Limitation Act 1963 was 3 years when the right to sue first accrues. Not disputing having signed a writing dated 13.11.1997, it was pleaded that it was drawn up as a will of Smt.Kamlesh Kumari and it was highlighted that the writing was captioned _Vaseeyat'. It was pleaded that since the plaintiff had the original document with him he interpolated the words _Parivarik Sampati Samjhota' in the caption after the word _Vaseeyat' interspacing the same i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighlighted that with respect to the claim for compensation in sum of ₹ 2,50,000/-qua property left behind on Multan Road Lahore, Late Sh.Mool Chand had stated of having received the same at a family partition between him and his brother. 12. The plaintiff appearing as PW-1 stated that the family settlement Ex.PW-1/3 dated 13.11.1997 was voluntarily made and he was put in possession of a room near the courtyard with respect to his share in the suit property and whenever he visited India he resided in the room. 13. Admitting that for the last many years i.e. since 1993 he was working in Abu Dhabi, PW-1 denied knowledge that his and his wife's names were entered in the electoral rolls at serial No. 635 and 636 showing their residence at B-22, Manas Vihar, ownership whereof he denied. He admitted that his daughters were studying in a school in Manas Vihar. He admitted that his elder daughter was married from B-22, Manas Vihar in the year 2002. He stated that he learnt about the gift deed dated 17.8.1953 only in the month of July 2003 and that he learnt of the room allotted to him under the family settlement on 13.11.1997 being amalgamated with an adjoining room when he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated to the period 1951. It is apparent that the consideration paid under the sale deed when the subject property was purchased by Mool Chand could not be from out of the compensation received in respect of properties left behind in Pakistan. Holding that Mool Chand Bhatnagar would be competent to execute the gift deed Ex.DW-1/B the learned Single Judge has held that evidence revealed that if not earlier, at least in the year 1997 when the stated family settlement took place, the plaintiff had knowledge of the existence of the gift deed and challenge thereto had to be within 3 years as prescribed vide Article 58 of the Schedule to the Limitation Act. Holding that the defendant No. 1 acquired valid title to the suit property under the gift deed dated 3.7.1953 it has been held that defendant No. 1 was empowered to sell the same and thus the sale deed dated 29.7.2002 has been upheld. Qua the family settlement dated 13.11.1997 it has been held that since the document seeks to partition immovable property and is not a memorandum of an oral family partition or of the oral partition being acted upon, the document was inadmissible in evidence and could not be looked into as the foundation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1/3 is proof of his knowledge of the existence of the gift deed. There is a reference to the same in the document. We note its contents. It reads as under:? Wasiyat/Pariwarik Sampatti Samjhauta Aaj Dinank 13/11/97 November maas san 1997 ko nimanlikhit batein nishchit hui. Pariwar ke sadasye Shri Sohan Lal Bhatnagar ji ke teeno putron dwara 83 UB Jawahar Nagar Delhi 7, jo ki dadaji Shri Mool Chand Ji wasiyat dwara Mataji Smt.Kamlesh Kumari ke naam kar di thi. Ab pariwar ke batwarein ke liye nimanlikhit baton par adharit hain. No. 1 = 83 UB Jawahar Nagar ke char barabar bhago me baanta jayega. Pehla Bhag - 83 UB Jawahar Nagar Delhi ka Shri Sohan Lal Bhatnagar aur Smt.Kamlesh Kumari ka hai. Jo ki 25% (1/4) bhag mana jayega. Upar likhit hissa pura jisko chahe de sakte hain. Kewal 25% (1/4) bhag ka hi hoga. Dusra Bhag - Shri Roshan Lal Bhatnagar, Shrimati Manju Manorama Bhatnagar ji ke pariwar ka hai. Jo ki (1/4) 25% bhag hoga. Shri Roshan Lal ji, Smt.Kamlesh Kumari ke bade putra hain. Tisra Bhag - Shri Mohan Lal Bhatnagar ji avam Shrimati Anita Bhatnagar ji ke pariwar ka hai. 1/4 bhag (25%) hoga. Shri Mohan Lal Bhatnagar ji, Smt.Kamlesh Bhatnagar ke dusre putra ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guishing and/or creating rights in immovable property, such settlements reduced to writing, would be inadmissible in evidence if the writing was not registered. 25. Thus, the learned Single Judge has correctly opined that Ex.PW-1/3 was inadmissible in evidence as admittedly the same is not a registered document. Thus, no claim could be founded thereunder. 26. We also find no evidence of the plaintiff being put into possession of any part of the suit property, much less pursuant to a family partition as recorded in Ex.PW-1/3. He has committed perjury when on oath he denied residing in B-22, Manas Vihar, from where admitted the marriage of his elder daughter was solemnized. He admitted that his daughters were studying in a school in Manas Vihar. The records of the Election Commission would show that the plaintiff and his wife were registered as voters with reference to their residence being at B-22, Manas Vihar. The oral testimony of the plaintiff lacks credibility as he admits what is convenient to him and denies the inconvenient. Three of his witnesses who claim to be meeting him at the room in the suit premises have the year when they met him there. That apart, there being i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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