Delhi District Court
Anuradha Malhotra vs Sunita Vig on 27 May, 2023
IN THE COURT OF SH. ARUN KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-05 (CENTRAL)
TIS HAZARI COURTS, DELHI
CS DJ no. 2062/2018
CNR no. DLCT01-008396-2018
1. Anuradha Malhotra
2. Veena Soin
Both Residents of:
58/9, Second floor,
Old Rajinder Nagar,
Delhi-110060. .......Plaintiffs
Versus
Sunita Vig.
W/o Late Sh. Praveen Vig,
R/o 58/9, Ground floor,
Old Rajinder Nagar,
Delhi-110060 ........Defendant
Date of Institution of Petition : 12.06.2018
Date of Judgment : 27.05.2023
Suit for Declaration, Mandatory Injunction and Permanent
Injunction
JUDGMENT:
1. By this judgment, I shall dispose of the suit of plaintiffs for declaration, mandatory injunction and permanent injunction filed on 12.06.2018. Initially the present suit was filed by the plaintiffs against two defendants. While defendant no. 1 was the maternal aunt of plaintiff no. 1 and sister-in-law of plaintiff no.2, since plaintiff no.2 was married to Sh. Arun Aditya Malhotra who was the real brother of defendant no. 1 and was the son of Smt. Tripta CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 1 of 42 Malhotra, BSES Yamuna Power Ltd. was impleaded by the plaintiffs as defendant no. 2 in the suit.
2. However, since, during pendency of the present suit, the relief sought by the plaintiffs against defendant no. 2 in the suit was granted by defendant no. 2, on an oral request of Ld. Counsel for plaintiffs, name of defendant no. 2 was allowed to be deleted from the array of parties vide order dated 07.12.2018 and the amended memo of parties was thereafter filed by the plaintiffs on 07.01.2019.
3. Brief case of the plaintiffs as per the plaint is that they are residing at second floor of property bearing no.58/9, Old Rajinder Nagar, Delhi, which had been gifted to them by Late Smt. Tripta Malhotra, who was the grand mother of plaintiff no.1 and was mother-in-law of plaintiff no.2.
4. After the marriage of plaintiff no.2 with Sh. Arun Aditya Malhotra, according to plaintiffs, plaintiff no.1 used to reside at the ground floor of property no.58/9, Old Rajinder Nagar, Delhi and used to take care of Sh. Ashwani Malhotra, who was the brother of Sh. Arun Aditya Malhotra and was physically handicapped/incapable of taking care of himself. Sh. Arun Aditya Malhotra, according to plaintiffs, was last seen by his family on 01.05.1985, whereafter, he never returned to his family and consequentially plaintiff no.2 was allowed to remarry with the consent of her in-laws. After remarriage of plaintiff no.2 with Sh. Har Kishan Singh Soin, plaintiffs went to Canada to join him and until then they used to reside at the ground floor of the aforesaid property, while they were receiving the rental income from the second floor of the aforesaid property.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 2 of 42
5. Father-in-law of plaintiff no.2 viz. Sh. Rajinder Paul Malhotra, according to plaintiffs, had expired on 25.11.1993 and it was thereafter that plaintiff no.2 moved to Canada in September 1996, whereas, plaintiff no.1 joined her in Canada in May, 1997. Whenever, plaintiffs used to visit India, according to them, they had been staying on the ground floor of the aforesaid property along with Smt. Tripta Malhotra until 2003, when, the relation of Smt. Tripta Malhotra and the defendant no. 1 became estranged to the extent that she was not even allowed to enter the property. The matter was subsequently reconciled by Smt. Tripta Malhotra, who gave second floor of the aforesaid property to the plaintiffs and since the same was lying vacant for more than five years, the plaintiff no.2 got the same repaired and renovated at her own cost and expenses. Even the electricity meter on the second floor of the aforesaid property, according to plaintiffs, was installed in the name of Smt. Tripta Malhotra which was later on renumbered by the BSES.
6. In the year 2007, according to plaintiffs, they rented two rooms of the second floor and in October 2009, a third bed room was constructed on the second floor by the plaintiff no. 2 at her own cost and expenses without any objection from Smt. Tripta Malhotra or anyone else in the family, which remained unoccupied until 2010. In the last 7 years, according to plaintiffs, they had visited India regularly and during their visits, their primary residence had always been the second floor of the aforesaid property. In August 2016, according to plaintiffs, they came to know that Smt. Tripta Malhotra was not well and hence, they decided to visit her.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 3 of 42
7. In the year 2016, according to plaintiffs, Smt. Tripta Malhotra had severe lung infection and had difficulty breathing and was accordingly rushed to hospital several times. All the attempts of plaintiff no.2 to contact Smt. Tripta Malhotra and her extended family had failed due to defendant no. 1 as by the aforesaid time Smt. Tripta Malhotra had moved back to the suit property with defendant no.1. During none of the visits of the plaintiffs to Smt. Tripta Malhotra, according to them, there was any mention of gifting of the ground floor and second floor of the aforesaid property by her to defendant no. 1 nor she had expressed any such wish, however, during the last visit of plaintiff no.1 (sic plaintiff no. 2) to Smt. Tripta Malhotra, defendant no. 1 went into discussion with her while stating that her mother had given plaintiffs so much but now she will not let plaintiffs have any of it.
8. In May 2017, according to plaintiffs, they were not allowed to meet Smt. Tripta Malhotra by defendant no. 1 despite repeated attempts and it was only on 02.06.2017 at about 7 pm that plaintiff no.1 could meet her grand mother under tough resistance from defendant no. 1, however, her grand mother had difficulty recognising her. During the aforesaid visit, according to plaintiffs, it was evident that Smt. Tripta Malhotra was extremely weak and she showed signs of dementia. Compared to her last visit in September 2016, even her health, according to plaintiffs, seemed to have drastically declined and it seemed that she was restrained within the house.
9. It is further the case of the plaintiffs that all the three bed rooms of the second floor of the disputed property are on rent CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 4 of 42 and Smt. Tripta Malhotra had gifted entire second floor to the plaintiffs during her life time. Subsequently, during the life time of Smt. Tripta Malhotra, according to plaintiffs, they have received notice of Civil Suit no.627/17, filed by defendant no. 1 against the plaintiffs, through their tenants and thereafter, they filed their written statement in the aforesaid suit. The aforesaid suit for recovery of possession, according to plaintiff, had been filed by the defendant no. 1 on the basis of one registered gift deed dated 28.10.2016 which could not have been executed by Smt. Tripta Malhotra considering her deteriorating health and medical condition.
10. Upon inspection of the record at the office of Sub- Registrar-III, Asaf Ali Road, New Delhi, according to plaintiffs, they had come to know in the month of May 2018 that Smt. Tripta Malhotra had also executed another gift deed in favour of defendant no. 1 with respect to the ground floor of the aforesaid property and they had immediately applied for certified copy of the said gift deed dated 08.03.2016. Upon receipt of the aforesaid certified copy, according to them, they were shocked and surprised to see that signatures of Smt. Tripta Malhotra on the gift deed dated 08.03.2016 were different from the gift deed dated 28.10.2016 from which it was crystal clear that both the gift deeds were not executed by Smt. Tripta Malhotra and same were false and fabricated. Even photographs of Smt. Tripta Malhotra on both the gift deeds, according to plaintiffs, were found different.
11. It is further the case of the plaintiffs that had it been a case of voluntary gift of ground and second floor of the aforesaid CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 5 of 42 property by Smt. Tripta Malhotra to defendant no. 1, she would have gifted both the floors in one row and there was no need for her to execute two different gift deeds on different dates. Both the aforesaid gift deeds, according to plaintiffs, are thus false and forged documents which were not executed by any competent person or by Smt. Tripta Malhotra and she was not in a condition to execute any document in favour of any person due to her medical condition.
12. Besides, according to them, the defendant no. 1 had withdrawn the electricity connection in the name of Smt. Tripta Malhotra in connivance and in collusion with defendant no. 2 i.e. BSES and had been threatening the plaintiffs of dispossession from the suit property. Under the aforesaid circumstances, according to plaintiffs, they were constrained to file the present suit for declaration thereby declaring the gift deeds dated 28.10.2016 and 08.03.2016 as null and void, a decree of mandatory injunction directing the defendants to restore the electricity connection in the name of plaintiffs and a decree of permanent injunction restraining the defendants from interfering with peaceful enjoyment of the suit property by the plaintiffs and from dispossessing them from the ground and second floor of the aforesaid property besides from creating any third party interest in the same.
13. Upon receipt of the plaint, summons of the suit were directed to be issued to the defendants vide order dated 12.06.2018. Both the defendants appeared in response to the summons of the suit and filed their separate written statements on 12.07.2018.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 6 of 42
14. As has already been observed hereinabove, during pendency of the suit, name of defendant no. 2 was deleted from the array of parties vide order dated 07.12.2018 and hence, the stand taken by defendant no. 2 in its written statement is not material.
15. On the other hand, defendant no. 1 has objected to the maintainability of the present suit on the ground that the plaintiffs had no locus-standi to file the present suit against the defendant no. 1, which, even otherwise, is without any cause of action filed the present false and frivolous suit, without any cause of action in her favour. Besides, according to her, the present suit is also not maintainable as the plaintiffs have failed to seek any relief in respect of property in question.
16. On merits, the defendant no. 1 has denied the claim of plaintiffs that the suit property was ever gifted by Smt. Tripta Malhotra to the plaintiffs. Further, according to her, plaintiff no. 2 was married to Sh. Arun Aditya Malhotra, however, she had committed a number of cruelties upon him leading to dissolution of marriage between plaintiff no. 2 and Sh. Arun Aditya Malhotra vide a divorce decree dated 10.02.1993. Since, according to defendant no. 1, plaintiff no. 2 got divorced from her husband and had remarried, she has no right, title or interest in any of the properties of relatives of her ex-husband.
17. While stating that in the connected suit filed by the defendant no. 1 against the plaintiffs for recovery of possession of second floor of the property in question, the plaintiffs had nowhere alleged about gifting of the property in question by Smt. Tripta Malhotra to them and hence, all the averments made by CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 7 of 42 the plaintiffs in the present suit in this regard, according to her, are apparently false. Thus, while denying each and every averment made by the plaintiffs in their plaint, defendant no. 1 has prayed for dismissal of the suit of plaintiff with costs.
18. A replication to the aforesaid written statement of defendant no. 1 was thereafter filed by the plaintiffs on 15.11.2018, wherein, they have once again reiterated the averments made by them in the plaint and had denied the contrary averments made by the defendant no. 1 in her written statement.
19. It is significant to note that before filing of the present suit by the plaintiffs, defendant no. 1 had already filed a suit against the plaintiffs herein on 13.02.2017, seeking a decree for recovery of possession of the second floor of property no.58/9, Old Rajinder Nagar, Delhi, while claiming herself to be the owner of aforesaid property by virtue of registered gift deed dated 28.10.2016 executed by Smt. Tripta Malhotra in favour of defendant no. 1 herein, which gift deed is also under challenge in the present suit. The aforesaid suit was registered as CS DJ 627/2017 and is pending adjudication alongwith the present suit. After the defendants (plaintiffs herein) appeared in the aforesaid suit and filed their written statement, Issues were settled in the aforesaid suit simultaneously with the settlement of issues in the present suit on 15.11.2018. Vide order dated 15.11.2018 in the present suit, it was observed by Ld. Predecessor of this Court that the present suit is clubbed with the aforesaid suit for the purpose of evidence and hence, the evidence led by the parties in one case shall be read as evidence in both the cases.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 8 of 42
20. On the pleading of the parties, following issues were settled by Ld. Predecessor of this Court vide order dated 15.11.2018:-
1. Whether the plaintiffs are entitled to decree of declaration that Gift Deed dated 28.10.2016 is null and void? OPP.
2. Whether the plaintiffs are entitled to decree of declaration that Gift Deed dated 08.03.2016 is null and void? OPP.
3. Whether the prayer related to declaration of nullity of gift deed dated 08.03.2016 is not maintainable as no consequential relief has been claimed by the plaintiffs? OPD
4. Whether the plaintiffs are entitled to decree of permanent injunction, as prayed for? OPP
5. Relief.
21. Defendant no. 1, who was plaintiff in CS DJ No. 627/2017, has thereafter examined herself as PW1 i.e. as the sole witness in support of her case and tendered her evidence by way of affidavit Ex. PW1/A along with following documents:-
i) Ex PW1/1 (OSR): Copy of registered Gift deed dated 28.10.2016.
ii) Ex PW1/2: Site Plan of the suit property.
iii) Ex PW1/3: Legal demand notice dated 09.01.2017.
iv) Ex PW1/4(colly): Postal receipts regarding dispatch of legal demand notice.
v) Ex PW1/5: Letter dated 30.01.2017 of NDMC addressed to the defendant no. 1.
vi) Ex PW1/6 (OSR): House Tax receipt in respect of the suit property.
22. PW1 was duly cross-examined by Ld. Counsel for plaintiffs and was confronted with several photographs Ex.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 9 of 42 PW1/D1 to Ex. PW1/D8. She was also confronted with the letters mark PW1/X1 to Mark PW1/X3 written by the mother of the defendant no. 1 namely Smt. Tripta Malhotra.
23. No other witness was examined on behalf of the defendant no. 1. Thereafter, on a separate statement of Ld. Counsel for defendant no. 1(plaintiff in the connected suit), her evidence was closed vide Order dated 02.02.2019 passed in the connected suit.
24. Plaintiffs (defendants in the connected suit) have examined themselves as the only witnesses in their evidence. Plaintiff no. 1 has examined herself as DW-1 and tendered her evidence by way of affidavit Ex. DW-1/A along with following documents:-
i) Ex. DW1/1(colly): Rent agreement, water bills, electricity bills, house tax receipts and construction bills in respect of the suit property.
ii) Ex. DW1/2(colly): Letter written by late Tripta Malhotra to DW1.
iii) Ex. DW1/3(colly): Photographs of DW1 along with her mother and Late Tripta Malhotra.
iv) Ex. DW1/4(Colly): Copies of passports of plaintiff no. 1 showing her regular visits to India.
25. She was duly cross-examined by Ld. Counsel for defendant no. 1 and was confronted with a document Mark DW1/PA, besides, the documents which are part of Ex. DW1/1(colly) and the photograph Ex.DW-1/PX1. Moreover DW1 has produced 19 greeting cards during her cross- examination, which are Ex.DW1/PX2A to 2P.
26. Plaintiff no. 2(defendant no. 1 in the connected suit) has examined herself as DW2 and tendered her evidence by way of Ex.DW-2/A in her evidence along with medical certificate purportedly issued by Handa Nursing Home in respect of Smt. CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 10 of 42 Tripta Malhotra which is Ex.DW-2/1. She was duly cross- examined by Ld. Counsel for defendant no. 1(plaintiff in the connected suit) and discharged.
27. No other witness was examined on behalf of Plaintiffs (defendants in the connected suit) and hence, on the statement of Ld. Counsel for plaintiffs, their evidence was closed vide Order dated 30.10.2019 passed in the connected matter. Matter was thereafter adjourned for final arguments.
28. Final arguments on behalf of both the parties were thereafter heard simultaneously in both the connected matters. Besides, brief synopsis of written submissions has also been filed on behalf of the plaintiffs(defendants in the connected suit) on 12.05.2023 in the connected suit. Since after deletion of defendant no. 2 from the array of parties vide order dated 07.12.2018, there remained only one defendant, henceforth, any reference to defendant no. 1 shall be made as defendant.
29. It is submitted by Ld. Counsel for plaintiffs that the defendant has failed to prove due execution of registered gift deed dated 28.10.2016 and 08.03.2016 by Late Smt. Tripta Malhotra in her favour as per the provisions of Section 68 of the Indian Evidence Act, 1872 by examining at least one of the attesting witnesses to the said deeds, whereas, the pleadings as well as testimonies of plaintiffs regarding the two deeds being forged and fabricated and not bearing the signatures of Smt. Tripta Malhotra have remained uncontroverted, who have further deposed that the suit property was gifted by Late Smt. Tripta Malhotra to the plaintiffs under an oral gift.
30. Even otherwise, according to him, upon a comparison of CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 11 of 42 purported signatures of Smt. Tripta Malhotra on the registered gift deed dated 08.03.2016 with her alleged signatures on registered gift deed Ex. PW1/2, it is apparent that the purported signatures of Smt. Tripta Malhotra on the aforesaid two deeds are entirely different from each other. The aforesaid variation in the purported signatures of Smt. Tripta Malhotra on both the gift deeds, according to him, in the absence of production of any document containing admitted signatures of Smt. Tripta Malhotra by the defendant, showing the manner in which she used to sign, creates sufficient doubt about the due execution of gift deeds dated 28.10.2016 and 08.03.2016 by Smt. Tripta Malhotra.
31. Not only, according to him, the defendant has failed to produce any such document, but she has also failed to summon any witness from the bank of Smt. Tripta Malhotra alongwith her admitted signatures for comparison of her purported signatures on the two gift deeds dated 08.03.2016 and 28.10.2016. In fact, according to him, defendant has categorically stated during her cross-examination that the signatures on the alleged registered gift deed dated 28.10.2016 were done by Smt. Tripta Malhotra in the presence of brother of defendant namely Sh. Sudhir Malhotra and she could not even depose about the manner in which Smt. Tripta Malhotra used to sign.
32. Under the aforesaid circumstances, according to him, it was incumbent upon the defendant either to produce Sh. Sudhir Malhotra as a witness to prove the signatures of Smt. Tripta Malhotra on the registered gift deeds dated 28.10.2016 and 08.03.2016 or in the alternative to examine at least one of the attesting witnesses to the deeds. In support of his aforesaid CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 12 of 42 submission Ld. Counsel for plaintiffs has relied upon the judgments of Hon'ble Supreme Court in K Laxmanan Vs. Thekkayil Padmini & Ors.(2009) 1 SCC 354 and in Govindbhai Chhotabhai Patel & Ors. V. Patel Ramanbhai Mathurbhai AIR 2019 SC 4822.
33. Besides, according to him, a valid Gift requires the transfer of possession of the gifted property by the donor to the donee. Although, according to him, clause 2 and 13 of the gift deed dated 28.10.2016 state that the donor had handed over the peaceful, vacant and physical possession of the suit property to the Donee at the time of execution of the gift deed and the Donee had thereby accepted the same from the donor, however, during her cross-examination dated 07.01.2019, defendant has categorically admitted that she had never remained in physical possession of the second floor of the suit property which is the subject matter of the gift deed dated 28.10.2016 and in fact, it is the plaintiffs who are in possession of the same. He further submits that the defendant has further categorically admitted that even in the year 2016, when the registered gift deed was purportedly executed by Smt. Tripta Malhotra in favour of defendant, the plaintiffs were in physical possession of the suit property.
34. From the aforesaid admissions, according to him, it is apparent that no physical possession of the second floor of the suit property was ever handed over by the donor to the defendant. He submits that mere execution of a gift deed, in the absence of delivery of possession of the property, cannot make the gift complete. In the case in hand, according to him, admittedly the CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 13 of 42 possession of the second floor of the suit property had not been handed over by the donor to the defendant, although, a recital to the contrary has been incorporated in the gift deed dated 28.10.2016 and hence, the alleged gift was not complete.
35. Besides, according to him, even the acceptance of the gift is one of the pre-conditions of a valid gift in terms of Section 122 of the Transfer of Property Act, however, in the case in hand, the defendant cannot be said to have accepted the gift at least under the gift deed dated 28.10.2016, in as much as, admittedly the plaintiffs continued to be in possession of the second floor of the suit property even after 28.10.2016 and it was the plaintiff no. 2, who continued to collect the rent in respect of the same. The aforesaid facts, coupled with the fact that the cordial relationship between the plaintiffs and the donor has not been denied by the defendant, according to Ld. Counsel for plaintiffs, indicate that there was no valid acceptance of the gift by the alleged donee i.e. the defendant herein.
36. Under the aforesaid circumstances, according to him, both the gift deeds in favour of defendant are liable to be declared as null and void and defendant is liable to be restrained from creating any third party right, title or interest in the suit property on the basis of impugned gift deeds. Thus, he has prayed for decree of the present suit in favour of plaintiffs.
37. On the other hand, it is submitted by Ld. Counsel for defendant that the plaintiffs have failed to prove their locus standi to maintain the present suit, since they have no right, title or interest in the suit property after plaintiff no. 2 got divorced from her husband Sh. Arun Aditya Malhotra and remarried with CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 14 of 42 one Sh. Hari Kishan Singh Soin. He submits that even plaintiff no. 1 stood adopted by the second husband of her mother and hence, even she does not have any right, title or interest in the same. Moreover, according to him, the present suit at least to the extent it seeks declaration of nullity of registered gift deed dated 08.03.2016 is not maintainable, since the plaintiffs are admittedly not in possession of the property which is the subject matter of gift under the said deed and they have failed to seek the consequential relief of declaration of their right in the suit property and also for possession of the ground floor of the suit property.
38. He submits that the defendant has been able to prove her ownership over the suit property by tendering the copies of the registered gift deeds dated 08.03.2016 and 28.10.2016 in her evidence and since, there was no specific denial on the part of plaintiffs of execution of the same by Smt. Tripta Malhotra, the defendant was not required to examine any attesting witness to the gift deeds within the meaning of Section 68 of the Indian Evidence Act.
39. It is submitted by him that in view of the authoritative pronouncement of Hon'ble Supreme Court in Renikuntla Rajamma v. K. Sarwanamma (2014)9 SCC 445, delivery of possession of any immovable property is not an essential pre- requisite for making a valid gift in terms of Section 123 of the Transfer of Property Act, 1882 which supersedes the rule of ancient Hindu Law which might have required delivery of possession of the immovable property as an essential condition for completion of a gift.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 15 of 42
40. Once, according to him, the defendant has been able to prove her ownership over the suit property, it was incumbent upon the plaintiffs to prove that they had any right, title or interest in the suit property and the registered gift deed dated 28.10.2016 and 08.03.2016 were either forged or fabricated or were executed by Smt. Malhotra under undue influence of defendant. However, according to him, the plaintiffs have failed to lead even an iota of evidence regarding the same. Thus, according to him, the suit of plaintiffs is liable to be dismissed with costs.
41. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record, including the judgments relied upon by Ld. Counsels for the parties. My issue wise findings on the issues settled by Ld. Predecessor of this Court vide order dated 15.11.2018 are as follows:
Issue no. 3: Whether the prayer related to declaration of nullity of gift deed dated 08.03.2016 is not maintainable as no consequential relief has been claimed by the plaintiffs? OPD
42. As has already been observed hereinabove, a preliminary objection to the maintainability of the present suit has been raised by the defendant on the ground that the plaintiffs have failed to seek the consequential relief of possession of ground floor of the suit property and hence their suit, at least to the extent, the same seeks a declaration of nullity of registered gift deed dated 08.03.2016 is not maintainable.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 16 of 42
43. A bare perusal of the plaint shows that the plaintiffs have sought declaration of two gift deeds dated 08.03.2016 and 28.10.2016 purportedly executed by Smt. Tripta Malhotra in favour of defendant in respect of ground floor and second floor of the suit property respectively. While admittedly, the plaintiffs are in actual physical possession of second floor of the suit property which is the subject matter of gift under gift deed dated 28.10.2016, they are not in actual physical possession of the ground floor of the suit property which is the subject matter of gift under the second gift deed dated 08.03.2016. The plaintiffs have claimed themselves to be the owners of the entire suit property on the basis of an oral gift by Smt. Tripta Malhotra during her lifetime and also as natural legal heirs of her son Sh. Arun Aditya Malhotra.
44. The claim of plaintiffs as to their ownership over the suit property on the basis of an oral gift by Smt. Tripta Malhotra during her life time, in my considered opinion, is not sustainable in view of provisions of Sections 122 and 123 of the Transfer of Property Act, 1882 which have an overriding effect over the rules of ancient Hindu Law in view of the authoritative pronouncement of Hon'ble Supreme Court in Renikuntla Rajamma v. K. Sarwanamma (2014)9 SCC 445, relevant observations from which judgment shall be reproduced hereinbelow during discussion under subsequent issue.
45. So far as the claim of plaintiffs as to their ownership over the suit property being natural legal heirs of Sh. Arun Aditya Malhotra is concerned, in my considered opinion, the claim of plaintiff no. 2 in this regard is unsustainable, she having CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 17 of 42 admittedly obtained divorce from him and thereafter remarried with Sh. Hari Kishan Singh Soin. Although, Ld. Counsel for defendant had also sought to dispute the claim of plaintiff no. 1 over the suit property as natural legal heir of Sh. Arun Aditya Malhotra on the ground that she was adopted by the second husband of plaintiff no. 2, however, the aforesaid contention of Ld. Counsel for defendant is not only beyond pleadings but also not even an iota of evidence has been led by the defendant regarding alleged adoption of plaintiff no. 1 by second husband of plaintiff no. 2 except by way of a bald suggestion to DW-1 during her cross-examination, which suggestion stood denied by plaintiff no. 1.
46. Under the aforesaid circumstances, in my considered opinion, since the plaintiffs are admittedly in possession of one of the properties which is the subject matter of gift deed dated 28.10.2016 and plaintiff no. 1 would have been entitled to a share in both the ground floor as well as the second floor of the suit property being the legal heir of late Sh. Arun Aditya Malhotra (there being no pleadings or evidence of her adoption by second husband of plaintiff no. 2) but for execution of the two gift deeds in question, the suit filed by her for declaration of two gift deeds in question as null and void, being a suit under Section 31 of the Specific Relief Act, 1963, is maintainable even without seeking any consequential relief.
47. Issue no. 3 is thus decided in favour of plaintiffs.
Issue No. 1: Whether the plaintiffs are entitled to decree of declaration that Gift Deed dated CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 18 of 42 28.10.2016 is null and void? OPP.
48. Onus to prove the aforesaid issue was upon the plaintiffs, in as much as, in their plaint, the plaintiffs have alleged that the registered gift deed dated 28.10.2016 is totally false, frivolous and purported document in order to cause wrongful loss of the plaintiffs as the second floor of the suit property, which was the subject matter of gift under the said deed, was gifted by Smt. Tripta Malhotra to the plaintiffs during her lifetime and she never used to urge about the said gift deed in favour of defendant. Besides, according to them, when plaintiff no. 1 visited the house of Smt. Tripta Malhotra in June 2017, she found the mental health of Smt. Malhotra deteriorated to the extent that she was unable to recognize plaintiff no. 1 and considering her medical condition, it was clear that she could not have executed the said gift deed and the same was purported by the defendant under suspicious circumstances.
49. It has further been alleged by them in their plaint that after inspection of record of SR-III, New Delhi, they came to know tin May, 2018 that another gift deed in respect of ground floor of the suit property was executed by Smt. Tripta Malhotra in favour of defendant and upon obtaining a certified copy thereof, they were shocked to see that signatures of Smt. Tripta Malhotra on both the deeds were different making it clear that none of the gift deeds were executed by Smt. Tripta Malhotra and the same were false and fabricated. Moreover, according to them, if the same were to be voluntarily executed by Smt. Tripta Malhotra, she would have executed both the gift deeds at the first instance and CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 19 of 42 there was no requirement for execution of two different deeds on two different dates. Thus, according to them, both the gift deeds were false and forged documents since Smt. Tripta Malhotra was not even in a condition to execute the same in favour of defendant or any other person as she was confined to bed and her medical condition had worsened at that time.
50. It is submitted by Ld. Counsel for plaintiffs that the plaintiffs in the present case have placed on record a certified copy of registered gift deed dated 08.03.2016, in respect of ground floor of the property in question, which was also purportedly executed by late Smt. Tripta Malhotra in favour of the present defendant. He submits that a bare perusal of the registered gift deed dated 28.10.2016 alongwith registered gift deed dated 08.03.2016 shows that the signatures of late Smt. Tripta Malhotra in two deeds are altogether different when compared with each other. The aforesaid facts, according to him, clearly indicates that the registered gift deed dated 28.10.2016 relied upon by the defendant in support of her ownership over the suit property is forged and fabricated, in as much as, signatures on the same are not of late Smt. Tripta Malhotra.
51. It is further submitted by him that PW1, during her cross- examination, could not identify the signatures of alleged donor, which, according to defendant, had been signed by the donor in the presence of Sh. Sudhir Malhotra. However, according to him, the defendant has neither produced Sh. Sudhir Malhotra as a witness nor has she produced either of the attesting witnesses to the registered gift deed dated 28.10.2016, in terms of Section 68 of the Indian Evidence Act and hence, the registered gift deed CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 20 of 42 dated 28.10.2016 has not been proved by the defendant as per the applicable rules of evidence.
52. On the other hand, according to him, the testimony of DW1 and DW2 regarding the registered gift deed dated 28.10.2016 being forged and fabricated remained uncontroverted and the same has further been corroborated by comparison of purported signatures of the alleged donor on the registered gift deed dated 08.03.2016 vis a vis her purported signatures on the registered gift deed dated 28.10.2016. Thus, according to him, the plaintiffs have been able to discharge their onus to prove the aforesaid issue.
53. On the other hand, it has been alleged by Ld. Counsel for defendant that the plaintiffs have failed to lead even an iota of evidence regarding alleged forgery and fabrication of registered gift deed dated 28.10.2016 by the defendant. He submits that since the plaintiffs have failed to specifically deny the execution of registered gift deed dated 28.10.2016 by Smt. Tripta Malhotra, it was not mandatory for the defendant to examine at least one of the attesting witnesses to the same in terms of proviso appended to Section 68 of the Indian Evidence Act. He submits that the defendant has duly tendered the registered gift deed dated 28.10.2016 in her evidence, which is not only duly registered in the office of sub- registrar concerned as per the provisions of the Indian Registration Act, 1908, but has also been attested by two witnesses in terms of Section 123 of the Transfer of Property Act, 1882. Under the aforesaid circumstances, according to him, the defendant has been able to prove the same as per the applicable provisions of law of evidence and since the plaintiffs have failed CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 21 of 42 to prove that the same was either forged or fabricated, the present issue should be decided against the plaintiffs.
54. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record.
55. As has already been observed hereinabove, the plaintiffs are seeking the decree of declaration declaring the registered gift deed dated 28.10.2016 purportedly executed by Smt. Tripta Malhotra as null and void, copy of which has been tendered by defendant in her evidence as Ex. PW1/2. It is significant to note that it is Section 123 of the Transfer of Property Act, 1882, which regulates the mode of making a valid gift and the same inter-alia provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Moreover, Section 122 of the Act defines the gift as a transfer of certain existing movable or immovable properties made voluntarily and without consideration by one person called the donor to another called Donee and accepted by or on behalf of the Donee. It further requires that in order to constitute a valid gift, acceptance must be made during the lifetime of the donor when the donor is still capable of giving. It renders the gift void if the donor dies before acceptance.
56. Now, in the case in hand, a bare perusal of the registered gift deed dated 28.10.2016 shows that the same is not only purportedly signed by the donor and two attesting witnesses but the same has also been duly registered as per the provisions of Indian Registration Act, 1908. Moreover, the registered gift deed also contains a recital regarding acceptance of the gift by the CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 22 of 42 defendant and the defendant has also put her signatures on the registered gift deed as an acknowledgment of acceptance of the gift. Plaintiffs have sought to contend that the defendant has not been able to prove the aforesaid registered gift deed dated 28.10.2016 as per applicable rules of evidence, in as much as, none of the attesting witnesses to the registered gift deed has been examined by the defendant in her evidence.
57. Now, it is significant to note that it is Section 68 of the Indian Evidence Act which provides the manner in which a document, required by law to be attested, is to be proved. Since, it has already been observed hereinabove that a gift deed is required under section 123 of the Transfer of Property Act, 1882, to be attested by at least two witnesses, the same is required to be proved in the manner contemplated under Section 68 of the Indian Evidence Act, 1872.
58. Section 68 of the Indian Evidence Act makes it mandatory to examine at least one of the attesting witnesses to the document, which as per law is required to be attested, for the purpose of proving the execution thereof, however, such limitation is not applicable in respect of proof of execution of any document (other than a will) which has been registered in accordance with the provisions of Indian Registration Act, 1908 unless the execution thereof is specifically denied.
59. Thus, the answer to the question whether the registered gift deed dated 28.10.2016 has been duly proved by the defendant as per the provisions of Section 68 of the Indian Evidence Act or not, depends upon answer to the question whether the execution thereof has been specifically denied by the plaintiffs or not.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 23 of 42
60. Before proceeding to examine the aforesaid question, I would like to reproduce relevant pleadings of plaintiffs in their plaint qua the registered gift deed dated 28.10.2016, which are as follows:
"22. That the said gift deed filed by defendant no. 1 in the said suit is totally false, frivolous and is a purported document in order to cause wrongful loss to the plaintiffs as the said floor was gifted by Smt. Tripta Malhotra to the plaintiffs during her lifetime. Smt. Tripta Malhotra never used to urge about the said gift deed in favour of defendant no. 1.
23. That after receiving all the notices of the said suit, plaintiff no. 1 visited the house of Smt. Tripta Malhotra in June 2017 where the mental health of Smt. Tripta Malhotra was deteriorated so much that she was not able to recognize the plaintiff and the medical condition of Smt. Tripta Malhotra was declining day by day. Thus, from the aforesaid it is crystal clear that Tripta Malhotra could not have executed the gift deed dated 28.10.2016 which was registered on 31.10.2016 as the said gift deed was purported by the defendant no. 1 in the suspicious circumstances.
24. That apart from that after inspection from the Sub-registrar-III, Ansari Ali Road, New Delhi, plaintiffs were able to know in the moth of May, 2018 that Smt. Tripta Malhotra has also executed another gift deed in favour of defendant no. 2 with respect to the ground floor of the property bearing no. 58/9, Old Rajinder Nagar, New Delhi.
25. That immediately, plaintiffs through her counsel applied the certified copy of the said gift deed dated 08.03.2016 and was shocked and surprised after comparing the two false gift deeds that the signatures of Smt. Tripta Malhotra are different from the gift deed dated 28.10.2016.CS DJ no. 2062/18
Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 24 of 42
26. That hence, from the above it is crystal clear that both the gift deeds are not executed by Smt. Tripta Malhotra as the same are false and fabricated. Both the gift deeds bears different signatures opf Smt. Tripta Malhotra and also the photographs of Tripta Malhotra are different in both the gift deeds."
61. It is on the basis of the aforesaid pleadings that it has been alleged by Ld. Counsel for plaintiffs that the plaintiffs have specifically denied the execution of registered gift deed dated 28.10.2016 by late Smt. Tripta Malhotra making it mandatory for the defendant to examine at least one of the attesting witnesses to the registered gift deed dated 28.10.2016.
62. I do not find any force in the aforesaid submission of Ld. Counsel for plaintiffs. A meaningful reading of the aforesaid pleadings of the plaintiffs in their plaint qua the registered gift deed dated 28.10.2016 leaves no manner of doubt that primarily the plaintiffs have sought to dispute the registered gift deed dated 28.10.2016 on the ground that medical condition of Smt. Tripta Malhotra, during the relevant period was not such that she could have executed the gift deeds in favour of defendant. Primarily, they have sought to challenge the gift deeds by pointing out at certain suspicious circumstances such as i) signatures of Smt. Tripta Malhotra on both the gift deeds were different, ii) she was not in a fit medical condition to execute the gift deeds, iii) if she were to execute gift deeds in respect of ground and second floor of the suit property in favour of defendant out of her own volition, she would have executed the same at the first instance and there was no need for her to execute two separate gift deeds CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 25 of 42 on two different dates.
63. In fact, in the connected suit, plaintiffs have alleged that it was when she was under the influence of medication and was not in a sound disposing state of mind, that the defendant in order to usurp the suit property, used this opportunity to unduly influence and create a false and fabricated document for her illegal goal. It was under the aforesaid facts and circumstances that plaintiffs have alleged the registered gift deed dated 28.10.2016 to be a forged and fabricated document.
64. It is significant to note in this regard that the plea of plaintiffs in their plaint in the present suit and in their written statement in the connected suit regarding the registered gift deed dated 28.10.2016 being forged and fabricated document cannot be read in isolation, in as much as, if the same is so read, the plea of the plaintiffs regarding the said registered gift being forged and fabricated cannot co-exist with her plea of execution of the same by late Smt. Tripta Maholtra under undue influence of the defendant.
65. While taking the aforesaid view that the aforesaid pleading of the plaintiffs in their plaint in the present suit and in their written statement in the connected suit (since common evidence has been led on behalf of the parties in both suits which were clubbed for the purpose of trial vide order dated 15.11.2018) does not amount to specific denial of execution of registered gift deed dated 28.10.2016 by late Smt. Tripta Malhotra within the meaning of proviso to section 68 of the Indian Evidence Act, 1872, I draw support from the following observations of Hon'ble Supreme Court in Govindbhai Chhotabhai Patel v. Patel CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 26 of 42 Ramanbhai Mathurbhai, (2020)16 SCC 255 : 2019 SCC OnLine SC 1245 made in similar facts and circumstances, while dealing with similar pleadings and arguments:
"25. The argument of the learned counsel for the appellants is that the attesting witnesses of the gift deed are Bhikhabhai Ramabhai and Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and Vaid Alkaben Vinodchandra are the witnesses at the time of registration of the document. It is argued that the attesting witnesses of the document have not been examined which is a mandatory requirement to prove execution of the gift deed in terms of Section 68 of the Evidence Act. The High Court has held that the appellants have not denied specifically the execution of the gift deed, therefore, it was not necessary for the donee to examine one of the attesting witnesses.
26. Issue 1 framed by the trial court is whether the gift deed is fabricated. Such issue arises on the basis of averments made in the plaint wherein, the appellants have admitted the execution of the gift deed but alleged that donee has made unsuccessful effort for grabbing the property. The appellants have, inter alia, pleaded that Chanchalben, wife of the donor, died in August 1997. Thus, there was no reason for the donor to execute the gift deed as real nephews of the donor were taking complete control of the donor. The other ground of challenge was that the attesting witnesses have no relation with the donor nor are they friends of the donor. It was also alleged that the gift is not for religious reasons or to any religious trust or institution or for public use nor the consent has been sought by the donor from the appellants. The specific averments in the plaint are as under:
"(2) The deceased Chhotabhai Ashabhai who was the father of Plaintiffs 1 to 4, and Plaintiffs 1 to 4 were living in USA (America) since many years and the deceased Chhotabhai Patel CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 27 of 42 and the mother of Plaintiffs 1 to 4, Chanchalben wife of Chhotabhai Ashabhai who had expired in and around August 1997, and since August 1997, deceased Chhotabhai Ashabhai was living alone thus, taking advantage of his loneliness the defendant on 15-11-1997 executed one gift deed which was registered in the office of Sub-
Registrar, Padra at Sr. No. 1004 and made unsuccessful efforts for grabbing the said property thus, the plaintiffs are constrained to file this suit, on the grounds which are stated as under:
(a) The deceased Chhotabhai Ashabhai was not in any manner related to the defendant Ramanbhai Mathurbhai.
(b) The deceased Chhotabhai Ashabhai Patel and his wife Chanchalben were living in America since many years prior to 1997.
(c) Chanchalben the wife of deceased Chhotabhai Ashabhai had expired during the period of August 1997, thus, on 15-11-1997, there was no reason for Chhotabhai to execute the gift deed, not only that but the real nephews of the deceased Chhotabhai Ashabhai who were living at Ghayaj were taking complete care of deceased Chhotabhai Ashabhai, thus, outside their knowledge, at any time the deceased Chhotabhai had no reason to execute the deed.
(d) In the gift deed dated 15-11-1997, the witnesses that have signed (1) Bhikhabhai Ramabhai and (2) Karshanbhai Dhulabhai who were not having any kind of relations with the deceased Chhotabhai Ashabhai and/or they were not even related as his friends. There was no reason of making the gift deed in their presence.
(e) In the gift deed dated 15-11-1997 the details of the date of the unregistered will executed by deceased Chhotabhai Ashabhai is kept blank and the date and registration number of the CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 28 of 42 registered will is also kept blank, and in this manner, with incomplete details the gift deed is registered which is made hastily which supports the facts of the plaintiffs.
(f) In the gift deed dated 15-11-1997 it is clearly evident that the signature of the deceased Chhotabhai Ashabhai is forged, and in this manner on the basis of the forged signature the gift deed is registered, in this regard we are constrained to file the present suit.
(g) The gift deed dated 15-11-1997 which is contrary to the provisions of law, therefore, also by such gift deed the defendant does not acquire any rights, interests or claims on the said property ..."
27. The appellants refer to will dated 3-12-2001 said to be executed by the donor in their favour. But no issue has been framed in respect of the will propounded by the appellants. In fact, no attesting witness of the will has been examined. Therefore, the will relied upon by the appellants cannot be said to be proved.
28. The High Court held that the appellants have not led any evidence that signature of their father on the gift deed was forged as neither the specimen signature nor writings of their father for the purpose of comparing the disputed signature on the gift deed have been attempted. There is no report of an expert in respect of signatures of the donor on the gift deed nor any request was made for sending the document to the Forensic Science Laboratory. The High Court [Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2018 SCC OnLine Guj 4763] held as under: (Patel Ramanbhai Mathurbhai case [Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2018 SCC OnLine Guj 4763] , SCC OnLine Guj para 68) "68. In my view, the plaintiffs have miserably failed to prove any forgery. If it is the case of the plaintiffs that the signature of their father on CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 29 of 42 the disputed gift deed is forged, then the burden is on them to establish and prove by leading cogent evidence that the signature is forged by another. A mere doubt or assertion or an allegation of forgery by itself is not sufficient to even prima facie draw an inference of fraud.
The plaintiffs tried to rely upon the "will" said to have been executed by their late father just two days before his demise in the year 2001.
One of the cousins of the plaintiffs took out the "will" out of the blue and handed over to the plaintiffs. The plaintiffs tried to capitalise on this "will" because in the said "will", there is a thumb impression of the father of the plaintiffs i.e. the testator. The plaintiffs thereby tried to create a doubt in the mind of the courts below that the father was illiterate and was unable to put his signature. However, if the plaintiffs wanted to rely upon the "will", they should have produced the original and proved the same in accordance with law by examining one of the attesting witnesses to the said "will". The "will" has not even been exhibited, and therefore, there is no question of looking into the same. The entire approach of the trial court could be said to be erroneous and has led to a serious miscarriage of justice. I am of the view that the plaintiffs have practically led no evidence even to prima facie create a doubt that the signature of their father on the gift deed is forged. The plaintiffs could have produced the specimen signature or writings of their father, if any, for the purpose of comparing the disputed signature on the gift deed. The trial court could have been asked to seek an opinion of an expert in this regard by sending the document to the Forensic Science Laboratory. Nothing of this sort was done. All that has been asserted in the evidence is that the father had no good reason to execute the gift deed in favour of the defendant, more particularly, when the sons were taking good CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 30 of 42 care of their father. This hardly could be termed as evidence with regard to fraud or forgery. The plaintiffs have not even pleaded or deposed that their father was illiterate and was not able to put his signature. If the evidence on record is looked into, then the plaintiffs have in substance just expressed doubts as regards the signature of their father."
29. At this stage, we may reiterate that though the learned trial court has discussed the evidence on record but in view of the finding that the property is ancestral, no finding was recorded whether the gift deed is forged or not as per the issue framed. The first appellate court in a short judgment affirmed the finding of the learned trial court. The trial court has not returned any finding that the gift deed is forged. Therefore, the High Court was within its jurisdiction to decide Issue 1 on the basis of evidence led by the parties.
30. The appellants challenged the gift deed on account of probabilities as the witnesses were not related to the family or the friends or that the gift was not for religious or charitable purposes. The other challenge was on the ground of forgery or fabrication. The entire reading of the plaint does not show that there was any specific denial of execution of the gift deed."(Emphasis mine)
66. So far as the reliance by Ld. Counsel for plaintiffs on the judgment of Hon'ble Supreme Court in K. Laxmanan v. Thekkayil Padmini & Ors. (2009) 1 SCC 354 is concerned, as observed by Hon'ble Supreme Court in para 34 of its judgment in Govindbhai's case supra, the decision of the aforesaid case was based on categorical finding of Hon'ble Supreme Court that as a matter of fact plaintiff in the said case had specifically denied the execution of the gift deed in question by the donor, which is not so in the case in hand.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 31 of 42
67. Merely because, the signatures of executor/donor Smt. Tripta Malhotra on the registered gift deeds dated 08.03.2016 and 28.10.2016 are not the same, it does not mean that her signatures on the registered gift deed dated 28.10.2016 are forged and fabricated, in as much as, the plaintiffs have failed to admit either of the two signatures of Smt. Tripta Malhotra as her true signatures nor have they produced any other document having the admitted signatures of Smt. Tripta Malhotra.
68. Moreover, the fact of execution of two separate registered gift deeds by Smt. Tripta Malhotra, in respect of two different floors of the property in question, in favour of the present defendant can also not be the subject matter of adverse comment by the plaintiffs or by this Court, in as much as, being the exclusive owner of both the floors of the suit property, it was within her powers to execute separate gift deeds in respect of different floors at different points of time. Moreover, it is well settled legal position that suspicion, howsoever strong, may not take the place of proof.
69. Further, in my considered opinion, even if it is assumed for the sake of arguments that the plaintiffs have specifically denied the execution of gift deed dated 28.10.2016 in their pleadings and evidence and that the defendant has failed to prove the said gift deed as per the provisions of Section 68 of the Indian evidence Act, 1872, the aforesaid facts by themselves are not sufficient to entitle the plaintiffs to a decree of declaration in respect of the aforesaid gift deed as null and void, since the plaintiffs have failed to lead even an iota of evidence regarding forgery of the said gift deed otherwise than by way of their bald allegations.
CS DJ no. 2062/18Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 32 of 42
70. It is next sought to be contended by Ld. Counsel for plaintiffs that since admittedly the possession of the ground floor of the suit property was never handed over by the donor to the donee i.e. the defendant herein, pursuant to the execution of registered gift deed dated 28.10.2016, although the gift deed contains a recital to the contrary, the gift of the suit property by late Smt. Tripta Malhotra, in favour of defendant herein, can't be considered to be a valid gift in terms of Section 123 of the Transfer of Property Act, 1882 and hence the gift deed is liable to be declared as null and void.
71. I do not find any force in the aforesaid submission made on behalf of plaintiffs in view of the authoritative pronouncement of Hon'ble Supreme Court in Renikuntla Rajamma v. K. Sarwanamma (2014)9 SCC 445, wherein, it has been categorically held by Hon'ble Supreme Court that a bare reading of Sections 122 and 123 of the Transfer of Property Act, 1882 makes it abundantly clear that transfer of possession of the property covered by the registered document of gift, duly signed by the donor and attested as required, is not a sine qua non for making a valid gift in respect of an immovable property under the provisions of the Transfer of Property Act, 1882. Relevant observations of Hon'ble Supreme Court in this regard are being reproduced hereinbelow for ready reference:
"11. Sections 124 to 129 which are the remaining provisions that comprise Chapter VII deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and onerous gifts including effect of non-acceptance by CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 33 of 42 the donee of any obligation arising thereunder. These provisions do not concern us for the present. All that is important for the disposal of the case at hand is a careful reading of Section 123 (supra) which leaves no manner of doubt that a gift of immovable property can be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. When read with Section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the lifetime of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Act. A conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear that "transfer of possession" of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of the Transfer of Property Act, 1882.
12. Judicial pronouncements as to the true and correct interpretation of Section 123 of the TP Act have for a fairly long period held that Section 123 of the Act supersedes the rule of Hindu law if there was any making delivery of possession an essential condition for the completion of a valid gift.
13. A Full Bench comprising five Hon'ble Judges of the High Court of Allahabad has in Lallu Singh v. Gur Narain [AIR 1922 All 467] referred to several such decisions in which the provisions of Section 123 have been interpreted to be overruling the Hindu law requirement of delivery of possession as a condition for making of a valid gift. This is evident from the following passage from the above decision where the High Court repelled in no uncertain terms the contention that Section 123 of the TP Act merely added one more requirement of law, namely, attestation and registration of a gift deed to what was already enjoined by the Hindu law and that Section CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 34 of 42 123 did not mean that where there was a registered instrument duly signed and attested, other requirements of the Hindu law stood dispensed with:
"7. Dr Katju, on behalf of the appellant, has strongly contended that by Section 123 it was merely intended to add one more requirement of law, namely, that of attestation and registration, to those enjoined by the Hindu law, and that the section did not mean that where there was a registered document duly signed and attested, all the other requirements of the Hindu law were dispensed with. Section 123 has, however, been interpreted by all the High Courts continuously for a very long period in the way first indicated, and there is now a uniform consensus of opinion that the effect of Section 123 is to supersede the rule of Hindu law, if there was any, for making the delivery of possession absolutely essential for the completion of the gift. We may only refer to a few cases for the sake of reference, Dharmodas Das v. Nistarini Dasi [ILR (1887) 14 Cal 446] , Balbhadra v. Bhowani [ILR (1907) 34 Cal 853] , Alabi Koya v. Mussa Koya [ILR (1901) 24 Mad 513] , Madhavrao Moreshvar Pant Amatya v. Kashibai Kom Dattubhai [ILR (1910) 34 Bom 287] , Man Bhari v. Naunidh [ILR (1882) 4 All 40] , Balmakund v. Bhagwan Das [ILR (1894) 16 All 185] and Phul Chand v. Lakkhu [ILR (1903) 25 All 358] . Where the terms of a statute or ordinance are clear, then even a long and uniform course of judicial interpretation of it may be overruled, if it is contrary to the clear meaning of the enactment but where such is not the case, then it is our duty to accept the interpretation so often and so long put upon the statute by the courts, and not to disturb those decisions, vide the remarks of Their Lordships decisions, of the Privy Council in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur [(1916- CS DJ no. 2062/18
Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 35 of 42
17) 44 IA 65 : (1917) 5 LW 654 : AIR 1916 PC 182] . We are, therefore, clearly of opinion that it must now be accepted that the provisions of Section 123 do away with the necessity for the delivery of possession, even if it was required by the strict Hindu law."
14. The logic for the above view in Lallu Singh case [AIR 1922 All 467] flowed from the language of Section 129 of the TP Act which as on the date of the decision rendered by the High Court of Allahabad used the words "save as provided by Section 123 of the Act". Section 129 of the TP Act was, before its amendment in the year 1929, as under:
"129. Saving of donations mortis causa and Muhammadan law.--Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law or, save as provided by Section 123, any rule of Hindu or Buddhist law."
A plain reading of the above made it manifest that the "rules of Hindu law" and "Buddhist law" were to remain unaffected by Chapter VII except to the extent such rules were in conflict with Section 123 of the Transfer of Property Act. This clearly implied that Section 123 had an overriding effect on the rules of Hindu law pertaining to gift including the rule that required possession of the property gifted to be given to the donee. The decisions of the High Courts referred to in the passage extracted above from Lallu Singh case [AIR 1922 All 467] have consistently taken the view that Section 123 supersedes the rules of Hindu law which may have required delivery of possession as an essential condition for the completion of a gift. The correctness of that statement of law cannot be questioned. The language employed in Section 129 before its amendment was clear enough to give Section 123 an overriding effect vis-à-vis rules of Hindu law.
15. Section 129 was amended by Act 20 of 1929 CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 36 of 42 whereby the words "or, save as provided by Section 123, any rule of Hindu or Buddhist law" have been deleted. Section 129 of the TP Act today reads as under:
"129. Saving of donations mortis causa and Muhammadan law.--Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law."
The above leaves no doubt that the law today protects only the rules of Muhammadan law from the rigours of Chapter VII relating to gifts. This implies that the provisions of Hindu law and Buddhist law saved under Section 129 (which saving did not extend to saving such rules from the provisions of Section 123 of the TP Act) prior to its amendment are no longer saved from the overriding effect of Chapter VII. The amendment has made the position more explicit by bringing all other rules of Hindu and Buddhist law also under the Chapter VII and removing the protection earlier available to such rules from the operation of Chapter VII. Decisions of the High Court of Mysore in Revappa v. Madhava Rao [AIR 1960 Mys 97] and the High Court of Punjab and Haryana in Tirath v. Manmohan Singh [AIR 1981 P&H 174] , in our opinion, correctly take the view that Section 123 supersedes the rules of Hindu law insofar as such rules required delivery of possession to the donee.
16. The matter can be viewed from yet another angle. Section 123 of the TP Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word "transfer must be effected"
used by Parliament insofar as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 37 of 42 movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or "by delivery". The difference in the two provisions lies in the fact that insofar as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property."(Emphasis mine)
72. So far as the plea of Ld. Counsel for plaintiffs that the gift in question is not complete, for want of acceptance of the same by the defendant herein during the lifetime of the executor i.e. the donor, is concerned, it is significant to note that the last para of the registered gift deed clearly contains a recital to the effect that the defendant had accepted the aforesaid property and gift from the donor and the gift deed even bears the signatures of the defendant in acknowledgment of acceptance of the said gift. In my considered opinion, the aforesaid recital in the gift deed, coupled with the signatures of defendant at the bottom of gift deed acknowledging the acceptance of the gift, amounts to sufficient proof of acceptance of the gift of the suit property by the defendant from her late mother Smt. Tripta Malhotra within CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 38 of 42 the meaning of Section 122 of the Transfer of Property Act, 1882.
73. In view of the aforesaid discussion, in my considered opinion, plaintiffs have failed to discharge their onus to prove that either the gift under the registered gift deed dated 28.10.2016 is void for want of delivery of possession of the property to the donee or for want of acceptance of the gift by the donee or that the registered gift deed dated 28.10.2016 was either forged or fabricated. The plaintiffs are thus not entitled to a decree of declaration declaring the registered gift deed dated 28.10.2016 as null and void in their favour. While taking the aforesaid view, I derive support from the following observations of Hon'ble Gujarat High Court in Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2018 SCC OnLine Guj 4763, which stood affirmed by Hon'ble Supreme Court in Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai, (2020)16 SCC 255 : 2019 SCC OnLine SC 1245, a judgment relied upon by Ld. Counsel for Plaintiffs himself in support of his another plea:
"94. In my view, it will be an error on the part of this Court to understand and interpret the decision of the Supreme Court in Rosammal (supra) the way the Trial Court has understood. In Rosammal (supra), there was evidence on record to show that the gift deed was brought into existence fraudulently, as on the date of the execution, the donor was confined to bed due to paralysis. While the donor was confined to bed due to paralysis, the gift deed came to be executed, and that too, by forging the signature of the donor after influencing the Sub Registrar. In such circumstances, it was proved or rather established as regards the fraudulent gift deed. In such circumstances, the Supreme Court held that once CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 39 of 42 there is a denial by the plaintiff as regards the genuineness of the gift deed, then the proviso to Section 68 of the Evidence Act will not be attracted, and the main part of Section 68 of the Evidence Act would put an obligation on the party tendering the gift deed to atleast examine one attesting witness. In my view, the decision of Rosammal (supra) has something to do with the term "specific denial", as contained in the proviso to Section 68 of the Evidence Act. Rosammal (supra) should not be understood or interpreted as laying down as a principles of law or a proposition of law that once the plaintiff denies the execution of a document, then even if the plaintiff has not been able to establish or prove fraud or forgery, the entire onus would shift on the defendant to prove and establish the genuineness of the document.
95. Once again, at the cost of repetition, I state that Section 68 of the Evidence Act has been thoroughly misconstrued by the Courts below. The occasion for applying the rule of exclusion from evidence in Section 68 arises when a party seeking to rely upon a document requiring attestation, fails to prove it in a given manner. As observed by me earlier, the party will then not be able to use it as evidence. But this procedural disability against use of a document as evidence cannot by any stretch be regarded as an affirmative finding that the grounds of attack for avoidance of the deed as claimed in the original relief or cancellation subsisted. The plaintiff cannot succeed relying upon the weakness or a flaw in the case set up by the defendant. The law is that the plaintiff can succeed in the suit only on the strength of his own case." (Emphasis mine)
74. Issue no. 1 is thus decided against the plaintiffs.
Issue No. 2: Whether the plaintiffs are entitled to decree of declaration that Gift Deed dated CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 40 of 42 08.03.2016 is null and void? OPP.
75. All the contentions of Ld. Counsel for the parties, except the contention of Ld. Counsel for plaintiffs regarding possession of the ground floor of the suit property having not been passed on to the donee i.e. the defendant herein under the gift deed dated 08.03.2016, are identical to their contentions qua registered gift deed dated 29.10.2016, which have already been dealt with by this Court in detail while dealing with issue no. 1 hereinabove. The reasons given by this Court for decision of issue no. 1 against the plaintiffs mutatis mutandis apply to the decision of the present issue.
76. Thus, in view of reasons given during discussion under issue no. 1 hereinabove, even issue no. 2 is also decided against the plaintiffs.
Issue No. 4: Whether the plaintiffs are entitled to decree of permanent injunction, as prayed for? OPP
77. Onus to prove the aforesaid issue was upon the plaintiffs. Since, the plaintiffs are held to be not entitled to any decree of declaration of the two gift deeds dated 08.03.2016 and 28.10.2016 as null and void, in my considered opinion, they have failed to prove existence of any right, title or interest in the suit property or any legal right to continue in possession of second floor of the suit property, their license having already been terminated by the defendant as held by this Court in connected suit while holding the defendant entitled to a decree for recovery of possession of the second floor of the suit property, the CS DJ no. 2062/18 Anuradha Malhotra & Anr. v. Sunita Vig Judgment dated 27.05.2023 Page 41 of 42 plaintiffs, in my considered opinion, are not entitled to any decree of permanent injunction in their favour as prayed for in the plaint.
78. Issue no. 4 is thus decided against the plaintiffs.
Issue No. 5: Relief.
79. In view of my findings on issues no. 1, 2 and 4, in my considered opinion, plaintiffs are not entitled to any relief prayed for by them in the present suit.
80. The present suit of the plaintiffs for declaration, mandatory and permanent injunction is thus hereby dismissed. In the peculiar facts and circumstances of the present case, parties are left to bear their own costs.
81. Decree sheet be prepared accordingly.
Announced in the open court on this 27th day of May, 2023.
This judgment consists of 42 signed pages. ARUN Digitally signed
by ARUN KUMAR
KUMAR GARG
Date: 2023.05.27
GARG 15:58:07 +05'30'
(ARUN KUMAR GARG)
Additional District Judge-05 (Central)
Tis Hazari Courts, Delhi.
CS DJ no. 2062/18
Anuradha Malhotra & Anr. v. Sunita Vig
Judgment dated 27.05.2023 Page 42 of 42