SUSHIL KATARIA Vs. SHANI DEVI & ORS

JUDGEMENT

(1.) The learned counsel for the respondents appears on service of an advance copy of the appeal. The appellant has impugned the order dated 26.08.2017 dismissing his appeal against a decree of partition apropos property bearing no. 11/16, Ashok Nagar, New Delhi (suit property). The plaintiffs (respondents herein) had sought its partition on the plea that the suit property belonged to their father who had passed away on 22.10.1982. His children i.e. two sons and four daughters had relinquished all their rights in the property in favour of their mother viz. Mrs. Durga Devi. Upon the mother's demise, the plaintiffs had sought partition of the property.

(2.) The suit was contested by the appellant on the ground that he had become the owner of the property pursuant to his mother's demise on the basis of a registered Will and GPA dated 18.09.1997, as well as a subsequent registered Will dated 12.05.2000 in his favour. The appellant also claims that all his siblings had relinquished their rights by way of an affidavit dated 23.04.2001. A perusal of the said "affidavit" would show that it has been signed by four persons. It lacks the basic substance and format of an affidavit. The purported joint affidavit without an affirmation or verification is an oddity in law; the said document is of no evidentiary value. The appellant contends that the nomenclature of the document as an affidavit is a misnomer and that in substance it is a "family arrangement". Therefore, it should have been considered as a "family arrangement". However, the trial court disregarded the said document since it was unregistered.

(3.) During the lifetime of the mother, the whole property was rebuilt. The third and fourth floors were sold to third parties by the appellant on the basis of the registered GPA. The appellant continues to occupy the premises. Referring to the plaintiff's evidence viz. of Ms. Shani Devi (PW1), the learned counsel for the appellant submits that PW1 never objected to the sale of the two floors during their mother's life time; she claims to have been oblivious of any such transactions; this itself goes on to suggest that she like her other siblings, was never in touch with her mother; that they have now stepped forward to claim a share in the property. However, it had already been bequeathed by the mother to the appellant, by a registered Will, he being the only one of the six children who was taking care of her. Indeed, none of the plaintiffs raised any objection at the time of construction of the new building and its sale by the appellant during the lifetime of the mother. The appellant also refers to the evidence of his neighbour Mr. Kuljeet Kapoor (PW 2) who deposed that late Smt. Durga Devi, at the time of her death, was about 95 years of age; she was entirely visually impaired and speech deficient and could not understand or discern what was wrong or right; nor was she in a proper mental state; she was confined to bed and under the custody of the defendant (appellant). It is argued that interestingly, the said deponent never saw any medical records pertaining to late Smt. Durga Devi, and the impression which he gathered about her mental illness was of his own judgment without any corroboration. He nevertheless admitted that she could recognize him because of his loud voice. Therefore, the corollary to the evidence is that till the last, Smt. Durga Devi retained her powers of cognition and faculty of discernment despite her impairment of sight.