Delhi District Court
Sh. Asha Khanna vs Mrs. Subhagya Wati on 24 September, 2019
Asha Khanna V. Subhagya Wati & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 26/2016
UNIQUE CASE ID NO.: 611753/16
IN THE MATTER OF :
Sh. Asha Khanna
W/o Mr. Ramesh Khanna
R/o R809, New Rajinder Nagar,
New Delhi110060. ....Plaintiff
VERSUS
1. Mrs. Subhagya Wati
Wife of Late Shri Kanhiya Lal Khattar
(Deleted vide order dated 01.11.2013)
2. Mr. Subhash Khattar (Deceased)
Through his LR
a) Smt. Vijay Laxmi Khattar
W/o Sh. Subhash Khattar
b) Ms. Raghvi Khattar
D/o Sh. Subhash Khattar
Suit No. 26/2016 Page 1 of 107
Asha Khanna V. Subhagya Wati & Ors.
c) Ms. Rachayata
D/o Late Sh. Subhash Khattar
All R/o Flat No.132C, SFS,
DDA Flats, Gulabi Bagh, Delhi7.
3. Mrs. Sunita Joneja
W/o Mr. M.P. Joneja
D/o Late Mr. Kanhiya Lal Khattar
R/o S298, Greater Kailash PartII,
New Delhi.
4. Mrs. Rekha Khattar
W/o Late Mr. R.K. Khattar
5. Mrs. Deepti Mishra
D/o Late Mr. R.K. Khattar
6. Mr. Rahul Khattar
S/o Late Mr. R.K. Khattar
All R/o 8, Dhawalgiri Coop. Housing Society,
Sector2, Plot No.31, Vashi,
Navi Mumbai400703. ....Defendants
SUIT FOR SPECIFIC PERFORMANCE OF AN AGREEMENT
TO SELL IMMOVABLE PROPERTY AND FOR RECOVERY
OF DAMAGES AND PERMANENT INJUNCTION FILED BY
THE PLAINTIFF AND COUNTERCLAIM FILED BY THE
Suit No. 26/2016 Page 2 of 107
Asha Khanna V. Subhagya Wati & Ors.
DEFENDANTS CLAIMING FOR RECOVERY OF
POSSESSION, DAMAGES FOR USE AND OCCUPATION/
MESNE PROFITS
Date of institution of the Suit : 07/04/2006
Date on which Judgment was reserved : 24/07/2019
Date of Judgment : 24/09/2019
:: J U D G M E N T ::
By way of present judgment, this court shall adjudicate
upon suit for specific performance of an agreement to sell
immovable property and for permanent injunction filed by the
plaintiff against the defendants and also the counterclaim filed by
the defendants for the relief of possession, damages etc.
CASE OF THE PLAINTIFF AS PER PLAINT
Succinctly, the necessary facts for just adjudication of
the present suit, as stated in the plaint, are as under:
(1) Late Sh. Kanhiya Lal Khattar (in Short Sh. K.L. Khattar), Son
of Late Sh. Dwarka Dass in Agreement to Sell dated
15.11.1996 duly registered, represented to the plaintiff that
he was the absolute owner of builtup property bearing no.
66, Double Storey, New Rajinder Nagar, New Delhi measuring
123.66 sq. yds. (Land underneath) and for his bonafide needs
Suit No. 26/2016 Page 3 of 107
Asha Khanna V. Subhagya Wati & Ors.
and requirements agreed to sell the property bearing no. 66,
Double Storey, New Rajinder Nagar, New Delhi measuring
123.66 sq. yds. (Land underneath) for a sum of
Rs.4,50,000/ (Rupees Four Lakhs Fifty Thousand Only) to
the plaintiff. At the time of Agreement to Sell, the plaintiff,
out of the total agreed sale consideration of Rs.4.50 Lakhs,
paid a sum of Rs.4,45,000/ to Sh. Kanhiya Lal Khattar and
the receipt whereof he admitted in the said Agreement to Sell
and the balance sum of Rs.5,000/ was to be paid by the
plaintiff to Sh. Kanhiya Lal Khattar at the time of execution
and registration of required Sale Deed. At the time of
execution of the said Agreement to Sell, Sh. Kanhiya Lal
Khattar delivered peaceful physical vacant possession of the
property, agreed to be sold to the plaintiff and since then, the
plaintiff is in possession thereof in partperformance of the
said Agreement to Sell. Sh. Kanhiya Lal Khattar also executed
a Possession Letter dated 15.11.1996 and a Will dated
15.11.1996 duly registered in favour of the plaintiff and a
General Power of Attorney and a Special Power of Attorney
dated 15.11.1996, both duly registered in favour of the
plaintiff to enable the plaintiff to beneficially use, enjoy and
hold the property agreed to be sold.
(2) Though, the balance sale consideration of Rs.5,000/ was
payable by the plaintiff to Sh. Kanhiya Lal Khattar at the time
of Sale Deed, but the plaintiff, on the request of Sh. Kanhiya
Suit No. 26/2016 Page 4 of 107
Asha Khanna V. Subhagya Wati & Ors.
Lal Khattar on his assurance and representation that he will
fulfill his part of Agreement to Sell, paid the said sum of
Rs.5,000/ also to him vide cheque no. 622504, dated
16.11.1996, drawn on Punjab National Bank, Rajinder Nagar
New Delhi against receipt. Sh. Kanhiya Lal Khattar, under
the Agreement to Sell, was to obtain permission to sell the
property from the Land and Development Office, Nirman
Bhawan, New Delhi or otherwise to get the property converted
into freehold and thereafter to execute the Sale Deed in
favour of the plaintiff. Sh. Kanhiya Lal Khattar also executed
other documents in favour of the plaintiff. Sh. Kanhiya Lal
Khattar, however, died before executing the Sale Deed in
favour of the plaintiff and the defendants claimed themselves
to be the only heirs and representatives of Sh. Kanhiya Lal
Khattar and inherited the entire Estate of Sh. Kanhiya Lal
Khattar, including the sale consideration aforesaid paid by the
plaintiff.
(3) The Defendants no. 1 to 4 also entered into an Agreement
with the son of plaintiff with respect to property no. 65 i.e. on
the first floor of the property agreed to be sold to the plaintiff.
The Defendants no. 1 to 4, while entering into the Agreement
with the son of the plaintiff, agreed to sell 50% share in the
land admeasuring 123.66 sq. yds also to the son of the
plaintiff, even though Sh. Kanhiya Lal Khattar had agreed to
sell the entire land measuring 123.66 sq. yds to the plaintiff
Suit No. 26/2016 Page 5 of 107
Asha Khanna V. Subhagya Wati & Ors.
and put the plaintiff into possession of the same. The plaintiff,
however, had no objection to surrender her rights with respect
to 50% share in the land admeasuring 123.66 sq. yds.,
subject, however, to the defendants no. 1 to 4 as legal
representatives of Sh. Kanhiya Lal Khattar completing the sale
in favour of the plaintiff. However, the defendants no.1 to 4
while wanting to receive the entire agreed sale consideration
from the son of plaintiff, started blackmailing the plaintiff,
requiring further gratification from the plaintiff for completing
the sale, even though, the plaintiff had paid the entire sale
consideration to the predecessor of the defendants. The
plaintiff, as such, was not willing to let go off the 50%
undivided share in the land admeasuring 123.66 sq. yds., the
whole of which had been agreed to be sold by the predecessor
of the defendants, to the plaintiff.
(4) The plaintiff approached the Land & Development Office,
being the lessor of the land underneath the property agreed
to be sold, to the plaintiff for mutation/ transfer of the
property in the name of plaintiff on the basis of the Will
executed by Sh. Kanhiya Lal Khattar in favour of the plaintiff.
The Land & Development Office, however, demanded an
affidavit of 'No Objection' to be executed by the defendants, for
transferring the property in favour of the plaintiff. The plaintiff
requested the defendants for the 'No Objection', but the
defendants illegally asked for consideration for the same also.
Suit No. 26/2016 Page 6 of 107
Asha Khanna V. Subhagya Wati & Ors.
(5) The plaintiff ultimately got issued a letter dated 19
September, 2005 to the defendants calling upon them to have
the property transferred in the name of plaintiff and informing
the defendants that upon the failure of the defendants to do
so, the plaintiff will approach the Court of law and also claim
damages from the defendants. The defendants gave a wrong
and illegal reply dated 28 September, 2005 to the said letter of
plaintiff refusing to have the property transferred in favour of
the plaintiff. The plaintiff sent a rejoinder dated 14 November,
2005 to the said reply of the defendants.
(6) The son of plaintiff has filed a suit against defendants no. 1 to
4 and against the plaintiff in the Hon'ble High Court of Delhi
being CS(OS) no. 1699 of 2005, inter alia, for specific
performance of Agreement to Sell in his favour and by an
order dated 13 December, 2005 in the said suit, the
defendants in the said suit have been directed to maintain
status quo in regard to the property in question in relation to
title and possession.
(7) The plaintiff under Section 19 of the Specific Relief Act is
entitled to Specific Performance of the Agreement by Sh.
Kanhiya Lal Khattar from the defendants. The defendants, as
the only legal heirs and representatives of Sh. Kanhiya Lal
Khattar, who had agreed to sell the property to the plaintiff
and who have inherited the sale consideration paid by the
plaintiff to Sh. Kanhiya Lal Khattar, are liable to complete the
Suit No. 26/2016 Page 7 of 107
Asha Khanna V. Subhagya Wati & Ors.
sale either by having the property transferred in favour of the
plaintiff on the basis of the Will of Sh. Kanhiya Lal Khattar by
furnishing a No Objection thereto or by obtaining the sale
permission from the Land & Development Office or by having
the land underneath the property converted into freehold and
thereafter, executing the Sale Deed in favour of the plaintiff.
The plaintiff has always been ready and willing to comply with
her part of the Agreement and has already paid the entire sale
consideration and is in possession of the property, agreed to
be sold.
(8) The plaintiff, however, because of the failure of the
defendants/their predecessor to complete the sale, is unable
to use and enjoy the property as beneficial owner and is being
deprived of title to the property and is thereby suffering loss
and damage. The plaintiff assesses the loss and damage till
now at Rs.4.50 Lakhs only and is entitled to further damages,
month by month, from the date of institution of the suit and
till the date of the defendants performing their part of
Agreement @ Rs.25,000/ per month. The plaintiff is unable
to renovate/reconstruct the property and/ or is unable to
raise loan/ finance against the same and is otherwise, being
deprived of any use of the property.
(9) The defendants are also not entitled to deal with the property
agreed to be sold to the plaintiff i.e. property no. 66, Double
Storey, New Rajinder Nagar, New Delhi measuring 123.66 sq.
Suit No. 26/2016 Page 8 of 107
Asha Khanna V. Subhagya Wati & Ors.
yds. (Land underneath) in any manner otherwise and are not
entitled to encumber or sell the same to any other person and
are liable to be restrained by a decree of permanent
injunction.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT
Summons for settlement of issues were issued to the
defendants no. 1 to 4 and Defendants no. 1 to 4 have filed their
joint written statement in the present case. Succinctly, the case of
the Defendants no. 1 to 4 is as under:
(a) No proper court fee has been paid. There is no privity of
contract between the plaintiff and defendants no. 1 to 4.
(b) The suit is bad for nonjoinder of necessary parties i.e. Sh.
Ramesh Khanna, husband of the plaintiff, in whose favour the
plaintiff obtained General Power of Attorney and Special
Power of Attorney to do/ get done certain acts for and on
behalf of Sh. Kanhaya Lal Khattar, as mentioned in Clauses 3,
9, and 10 of the General Power of Attorney, duly registered in
the Office of SubRegistrar and in the Special Power of
Attorney, duly registered in the Office of SubRegistrar.
(c) On merits, the contents of the plaint have been denied and it
has been submitted that the plaintiff has deliberately and
intentionally not disclosed the obligations/ duties cast upon
her husband i.e. in whose name the plaintiff obtained a
General Power of Attorney and Special Power of Attorney, both
dated 15.11.1996. GPA and SPA have been filed by the
Suit No. 26/2016 Page 9 of 107
Asha Khanna V. Subhagya Wati & Ors.
plaintiff herself in this suit and from their perusal, a duty has
been cast upon the plaintiff to get the requisite things done
from the time the GPA was executed and registered i.e. the
period/ limitation started running right from 15.11.1996. In
case, the plaintiff does not avail it, the plaintiff cannot hold
anybody else responsible for the same than herself. The
plaintiff has deliberately, intentionally and miserably failed to
adhere to the clauses of GPA and SPA, then it is the plaintiff,
who is to suffer for her own deliberate and intentional
neglect/ lapses. The plaintiff cannot be allowed to take
advantage of her own wrongs and as such, from the conduct
of the plaintiff, the suit has become hopelessly barred by time.
(d) Photocopy of the Lease Deed dated 31.01.1962 in favour of
Sh. Kanhaya Lal Khattar was made available to the plaintiff,
which clearly and candidly states that the land measuring
123.66 sq. yds. underneath is for both the tenements No. 65
and 66, New Rajinder Nagar, New Delhi110060, meaning
thereby that the land underneath is common to both the
tenements and is not divisible. The Will, if any, is against
consideration, which is against the provisions of law.
(e) Though, the amount of Rs.5,000/, as balance, was payable
by the plaintiff to Sh. Kanhaya Lal Khattar at the time of Sale
Deed, but the same was paid earlier through a post dated
cheque dated 16.11.1996 and that too, against the execution
of GPA and SPA in favour of Sh. Ramesh Khanna, the
Suit No. 26/2016 Page 10 of 107
Asha Khanna V. Subhagya Wati & Ors.
husband of plaintiff, meaning thereby, the cheque was given
earlier against a consideration of obtaining of the GPA and
SPA to secure the interests of the plaintiff and as such, the
clauses 3, 9 and 10 of the GPA and 1 and 2 of the SPA were
put into motion and it became the responsibility/ obligation of
the plaintiff herself to obtain requisite permission/ conversion
and execution of sale deed.
(f) The copy of Lease Deed dated 31.01.1962 was supplied to the
plaintiff and according to that, the land underneath the two
tenements was 123.66 sq. yds. The said land was common to
both the tenements. The plaintiff, by introducing such words,
is blackmailing and pressurizing the defendants no. 1 to 4 to
succumb to the plaintiff's illegal designs. There seems to be
collusion between the plaintiff, the mother and the son. The
plaintiff intends to strengthen the cases by introducing
falsities. The Defendants no. 1 to 4 had already performed
their part of obligation under the money receipt by way of
obtaining Mutation Certificate and Conveyance Deed in favour
of the defendants, the copies of which are already in
possession of the son of plaintiff, who has not performed his
part of obligation under the receipt/alleged agreement, by not
getting the Sale Deed executed, nor he has ever made his
intention clear that he is ready and willing to perform the
obligation and is evading his part of the obligation.
Suit No. 26/2016 Page 11 of 107
Asha Khanna V. Subhagya Wati & Ors.
(g) The plaintiff, her husband, to whom the plaintiff had got the
GPA and SPA from Sh. Kanhaya Lal Khattar, have not taken
care of their own interests, the plaintiff has to blame herself
only for which, the defendants no. 1 to 4 are in no way liable.
The maxim "Purchaser beware" is applicable to this case. The
poser, as put forth by the plaintiff, is to be replied by the
plaintiff alone as to why, the plaintiff kept sleeping over her
rights for about 9 (nine) long years and now, it has become
hopelessly barred by time/ limitation. The letter dated 19 th
September, 2005 was sent by the plaintiff with malafide and
dishonest intentions and the same was accordingly and
suitably replied vide reply dated 28th September, 2005. Since
the letter itself was absolutely incorrect and against the
provisions of law and as such, the rejoinder dated 14 th
November, 2005 has no meaning. It is the plaintiff alone, who
is to suffer for her negligent acts, deliberate and intentional
lapses and as such, is not at all entitled to any damages. The
plaintiff is liable to vacate the property in question and hand
over its peaceful and physical possession back to the
defendants.
REPLICATION AND ISSUES
The plaintiff has filed the replication controverting the
allegations/ contentions in the written statement of the defendants
no. 1 to 4 and contents of the plaint have been reiterated and
reaffirmed.
Suit No. 26/2016 Page 12 of 107
Asha Khanna V. Subhagya Wati & Ors.
COUNTERCLAIM FILED ON BEHALF OF THE DEFENDANTS
Counterclaim was filed by the defendants on the
following averments:
(1) The defendants have filed their Written Statement in the
case titled as Rishi Khanna Vs. Subhash Khattar & Ors.,
wherein it has been specifically and clearly claimed that the
defendants in counter claim alone are entitled to claim
damages/ occupation charges/ mesne profits in respect of
property bearing no. 66, Double Storey, New Rajinder
Nagar, New Delhi, which the plaintiff Smt. Asha Khanna
has since been enjoying the property without being entitled
to the same and as such, Smt. Asha Khanna (plaintiff
herein) is liable to vacate the property in question i.e.
property no. 66, Double Storey, New Rajinder Nagar, New
Delhi and handover the peaceful, vacant physical
possession of the same to the defendants/ claimants herein.
(2) Sh. Kanhiya Lal Khattar had acquired a builtup property
bearing no. 65 & 66, Double Storey, New Rajinder Nagar,
New Delhi vide Lease Deed dated 31.01.1962, registered on
14.02.1962 in the office of SubRegistrar, Asaf Ali Road,
New Delhi. The said Lease of the property was acquired
mostly against the adjustment of claims and compensation
of ancestral property left behind in Pakistan and small
amount of payment in cash was contributed. After the
death of Sh. Kanhiya Lal Khattar on 31.01.1997 and his
Suit No. 26/2016 Page 13 of 107
Asha Khanna V. Subhagya Wati & Ors.
elder son Sh. Rajinder Kumar Khattar on 08.06.2006, the
aforesaid property by operation of law have devolved on the
above named claimants/defendants being the legal heirs.
On 30.08.2005, Sh. Rishi Khanna, who is the son of Mrs.
Asha Khanna, asked the defendants to furnish the affidavits
individually stating therein that defendants have no
objection in respect of the transfer of property no.66 and he
stated that Smt. Asha Khanna has already obtained General
Power of Attorney, Special Power of Attorney etc. and copy
of Lease Deed from Late Sh. Kanhiya Lal Khattar and this
fact was again substantiated when Mr. Rishi Khanna again
asked for individual affidavit to be given by all the co
owners of the property bearing no.65 confirming therein the
validity and truth of the contents of Will dated 15.11.1996
alleged to have been executed by Late Sh. Kanhiya Lal
Khattar in respect of the property bearing no. 66 in the
absence of defendants. The proposal of Mr. Rishi Khanna
for giving affidavits was vehemently opposed there and then
as being baseless, wrongful, malafide and untenable in law.
(3) Prior to 30.08.2005, the defendants were believing that the
property no.66 has since been sold and transferred in
favour of Smt. Asha Khanna and the aforesaid demand of
Mr. Rishi Khanna disclosed the entire falsity and malafide
intention of both Mr. Rishi Khanna and the plaintiff. The
alleged documents i.e. Agreement to Sell, GPA, SPA and
Suit No. 26/2016 Page 14 of 107
Asha Khanna V. Subhagya Wati & Ors.
Will, all dated 15.11.1996 were wrongly got executed from
Late Mr. Kanhiya Lal Khattar in the absence of defendants
without their prior knowledge and none of the defendant
was present at that time. There is a clear stipulation in
para 1(c) of the Lease Deed dated 31.01.1962 that the
Lessee shall, before any assignment or transfer of the said
premises hereby demised or any part thereof, obtain from
the Lessor approval in writing of the said assignment or
transfer and since no such permission/ approval in writing
was obtained from the concerned Government authorities to
illegally deprive the Government Authorities of their dues in
the form of stamp duty, registration charges etc., the
aforesaid suit of Smt. Asha Khanna is not maintainable as
the alleged agreement to sell dated 15.11.1996 in respect of
the property no. 66 is/has become void abinitio.
(4) Smt. Asha Khanna cannot take the plea that she was
oblivious of the stipulation, which is a condition precedent
to any transfer or assignment of the premises in question
since document/ copy of Lease Deed was admittedly in her
possession and she read its contents and for which she
obtained GPA and SPA at the time of execution of alleged
Agreement to sell dated 15.11.1996 executed between Sh.
Kanhiya Lal Khattar and Smt. Asha Khanna in respect of
property no. 66 and this property could not be assigned/
sold without the prior consent and approval of the legal
Suit No. 26/2016 Page 15 of 107
Asha Khanna V. Subhagya Wati & Ors.
heirs, who had the right in this property. Two sons namely
Mr. Rajender Kumar Khattar (deceased) and Mr. Subhash
Chand Khattar had a birth right in this property and the
documents executed in respect of this property are nullity
in the eyes of law. Sh. Kanhiya Lal Khattar had agreed to
sell the property no. 66 alongwith entire land underneath,
which could even otherwise never be.
(5) The defendants have not handedover the peaceful, vacant
physical possession of the property no. 66 and after the
death of Sh. Kanhiya Lal Khattar, her possession has
become absolutely illegal and unauthorized and as such,
the plaintiff is liable to handover the peaceful and physical
possession of the property no. 66 to defendants and also to
pay damages @ Rs.5,000/ p.m. for the use and occupation
w.e.f. 15.02.2004 till the date of handingover the vacant &
peaceful possession thereof to the defendants. The
defendants further claim damages for the future use and
occupation from the date of filing the counter claim till the
time of handingover the vacant, peaceful and physical
possession of the premises @ Rs.500/ per day.
The plaintiff has filed the Written Statement and reply
to the counterclaim of the defendants on the following
averments:
Suit No. 26/2016 Page 16 of 107
Asha Khanna V. Subhagya Wati & Ors.
(1) The counterclaim is completely barred under law and is
liable to be dismissed as per provisions of Order 8 Rule 6A
CPC. The counterclaim has been filed much later and after
filing of the Written Statement by the defendants in the
main suit and also much later after the expiry of the time
limit, which is fixed for delivery and filing of Written
Statement and defence by the defendants. The defendants
had been granted time to file their Written Statement vide
order dated 01.05.2006 passed in the main suit and the
same was filed by the defendants in May, 2006. The
counterclaim was filed by the defendants in July, 2007.
(2) The defendants have not specifically mentioned in the
Written Statement about any grounds sought to be relied
upon for the purposes of supporting the counterclaim,
which is mandatory requirement of Order 8 Rule 6B CPC.
The counterclaim is even otherwise without any merits and
without any proper & legal cause of action. The counter
claim is liable to be dismissed and rejected under Order 7
Rule 11 CPC. There is no merit in the counterclaim, the
same is completely malafide, misconceived and counter
blast to the suit of the plaintiff. The defendants have not
taken any independent action and they have not sought any
relief of declaration in regard to the Agreement to Sell dated
15.11.1996 executed by Late Sh. Kanhaiya Lal Khattar in
favour of the plaintiff with various other registered
Suit No. 26/2016 Page 17 of 107
Asha Khanna V. Subhagya Wati & Ors.
documents. The counterclaim is not valued correctly and
properly for the purposes of pecuniary jurisdiction and
court fees.
(3) On merits, the contents of the counterclaim have been
denied and it has been submitted that since 1996, the
plaintiff has been in settled physical occupation and
possession of the suit premises without any interference
and disturbance from anybody and the plaintiff is not liable
to vacate the suit premises to the defendants on any
ground. The defendants have no right and authority either
to claim recovery of possession or damages against the
plaintiff. There is no cause of action in favour of the
plaintiff as the counter claim is barred by limitation.
The defendants have filed the replication/ rejoinder
controverting the allegations/ contentions in the written statement
of the plaintiff and contents of the counterclaim have been
reiterated and reaffirmed.
From the pleadings of the parties, following issues were
framed by Hon'ble High Court vide order dated 13/05/2008:
ISSUES
(1) Whether the plaintiff had completed all its obligations under
agreement dated 15th November, 1996? OPP
(2) Whether any obligation was yet to be performed by the
defendants under the agreement dated 15th November,
1996? OPP
Suit No. 26/2016 Page 18 of 107
Asha Khanna V. Subhagya Wati & Ors.
(3) Whether the plaintiff is entitled to the decree of specific
performance as claimed by the plaintiff? OPP
(4) Whether the plaintiff is entitled for a mandatory injunction in
favour of the defendants directing defendants to execute the
title documents in favour of the plaintiff? OPD
(5) Whether the suit of the plaintiff is barred by the limitation?
OPD
(6) Whether the plaintiff is entitled to damages/compensation to
the tune of Rs.4,50,000/ with future interest as claimed or
at any other rate? OPP.
(7) Whether the suit has not been properly valued for purpose of
Court fees and jurisdiction? OPD.
(8) Whether there is no privity of contract between plaintiff and
defendants? OPD.
(9) Whether the suit is bad for nonjoinder of Sh. Ramesh
Khanna who was General Power of Attorney of defendants?
OPD.
(10) Relief.
The defendants have also filed counter claim on or about
09 July 2007. In the counter claim, the following issues were
framed on 22.01.2009, which are reproduced as under:
ISSUES
1. Whether the defendants are entitled to possession of suit
property? OPD
Suit No. 26/2016 Page 19 of 107
Asha Khanna V. Subhagya Wati & Ors.
2. Whether the counter claim is barred by limitation? OPP
3. Relief.
That one additional issue was framed vide order dated
06.10.2010, which has been numbered as 2A and is reproduced as
under:
ADDITIONAL ISSUE
2A. If issue no.1 is decided in affirmative whether the
defendant / counter claimant entitled to damages / mesne
profits w.e.f. 15.02.2004 till the date of handing over the
vacant and peaceful possession of the said premises, if so, at
what rate? OPD
EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND
DOCUMENTS RELIED UPON BY THEM:
The plaintiff, in order to prove her case, led plaintiff's
evidence and got examined herself as PW1. PW1 has filed her
evidence by way of affidavit, wherein she reiterated and reaffirmed
the contents of the plaint. PW1 was crossexamined by counsel for
the defendants. PW1 in her testimony has relied upon the
documents:
(i) Agreement to Sell cum Receipt dated 15.11.1996 is Ex.PW
1/1.
(ii) Receipt of Rs.5,000/ is Ex.PW1/2.
Suit No. 26/2016 Page 20 of 107
Asha Khanna V. Subhagya Wati & Ors.
(iii) General Power of Attorney and Special Power of Attorney, both
dated 15.11.1996 are Ex.PW1/3 and Ex.PW1/4 respectively.
(iv) Possession Letter dated 15.11.1996 signed by Mr. K.L.
Khattar in favour of the plaintiff is Ex.PW1/5.
(v) True copy of notice dated 19.09.2005 and reply dated
28.09.2005 are Ex.PW1/6 and Ex.PW1/7 respectively.
(vi) Rejoinder notice dated 14.11.2005 is Ex.PW1/8.
(The documents Ex.PW1/6 to Ex.PW1/8 had already been marked
as Ex.P1 to Ex.P3 at the time of admission/denial of the
documents).
During crossexamination of PW1, following documents
were exhibited:
(i) The certified copy of the Receipt of Rs.3.00 Lakhs, which is
available in the record of case titled as Rishi Khanna Vs.
Subhash & Ors was marked as Mark PX1.
(ii) Passbook of plaintiff's account no. 15474 of Punjab National
Bank, Shankar Road Branch is Ex.PW1/DX.
The plaintiff also examined Sh. R.K. Kapur as PW2,
who relied upon the documents, which were already exhibited as
Ex.PW1/1 to Ex.PW1/5 and original Will Ex.PW2/1.
The plaintiff also examined Sh. Ramesh Khanna as
PW3. During crossexamination of PW3, the certified copy of the
Death Certificate dated 03.02.1997 of Late Sh. K.L. Khattar filed in
Suit No. 26/2016 Page 21 of 107
Asha Khanna V. Subhagya Wati & Ors.
the suit titled as Rishi Khanna Vs. Subhash Khattar & Ors. was
exhibited as Ex.PW3/D1.
The plaintiff also summoned and examined the
following witnesses:
(a) Sh. Naveen Gandas, Record Lifter, Department of Delhi
Archives as PW4.
(b) Sh. Daulat Ram, UDC, SRIII, Asaf Ali Road, New Delhi as
PW5, who proved on record the Will already exhibited as
Ex.PW2/1, dated 15.11.1996, which was transferred to the
Department of Delhi Archives and the copy of the same was
Ex.PW5/1.
(c) Sh. Sanjay Kumar, Peon from Punjab National Bank, Fire
Station, Shankar Road, New Delhi as PW6, who proved on
record the record of account opening form of alongwith copy of
ration card and statement of account of Smt. Asha Khanna
and the same are Ex.PW6/1 (Colly. 4 pages).
(d) Sh. Hira Lal, Preservation Assistant, Department Delhi
Archieve as PW7.
On the other hand, the defendants have examined Smt.
Sunita Juneja as DW1.
This Court heard final arguments, as advanced by
Ld. counsels for the parties. I have perused the material available
on record.
Suit No. 26/2016 Page 22 of 107
Asha Khanna V. Subhagya Wati & Ors.
ISSUE WISE FINDINGS
ISSUES NO.7 TO 9 OF THE SUIT
(7) Whether the suit has not been properly valued for purpose of
Court fees and jurisdiction? OPD
(8) Whether there is no privity of contract between plaintiff and
defendants? OPD
(9) Whether the suit is bad for nonjoinder of Sh. Ramesh
Khanna who was General Power of Attorney of defendants?
OPD
The Ld. counsel for the defendants, during arguments
and in the written submissions, categorically submitted that the
defendants are not pressing the aforesaid issues no.(7) to (9).
Accordingly, the said issues do not require any consideration and
the same are decided in favour of the plaintiff and against the
defendants.
ISSUE NO.5 OF THE SUIT
(5) Whether the suit of the plaintiff is barred by the limitation?
OPD
ARGUMENTS OF THE PLAINTIFF
Regarding this issue it is submitted that the defendants
have never disputed agreement to sell EX PW 1/1 or any other
document during the life time of Sh. K.L. Khattar or after his death.
Suit No. 26/2016 Page 23 of 107
Asha Khanna V. Subhagya Wati & Ors.
The defendants have never visited the suit property even during life
time of their father or thereafter.
The defendants were fully aware that their father Late
Sh. K.L. Khattar had executed agreement to sell EX PW 1/1 and
other documents and had received entire sale consideration which
have been inherited by the defendants after his death. The
possession also has been handed over to the plaintiff which fact
was completely in the knowledge of the defendants but they never
disputed the same and on the other hand defendants approached
the son of the plaintiff Sh. Rishi Khanna for sale of first floor of the
property no. 65 which he agreed to purchase for a total sale
consideration of Rs. 44 Lacs out of which Rs. 4 Lacs were paid in
advance and Rs. 40 Lacs were to be paid at the time of execution
and registration of sale deed.
The receipt cum agreement regarding first floor i.e.
property no. 65 was executed by the defendants on 15.5.2004,
meaning thereby there was no dispute between the parties till
15.5.2004. The dispute started for the first time when plaintiff
visited office of L & DO for mutation on which they said to get
affidavit of all the LR's of Sh. K.L. Khattar, which was
communicated to defendants vide letter dated 19.9.2005 EX P1,
and the said letter was replied vide EX P2 on 28.9.2005, which was
again replied by the plaintiff vide EX P3 which is dated
14.11.2005.
Suit No. 26/2016 Page 24 of 107
Asha Khanna V. Subhagya Wati & Ors.
For the first time vide EX P2 i.e. letter dated 28.9.2005,
defendants have refused to perform their part and refused to
comply with terms of agreement EX PW1/1. The limitation for filing
the suit starts from 28.9.2005 and under Article 54 of limitation
Act, the suit of the plaintiff is filed in time i.e. within limitation. In
view of above submission the suit of the plaintiff has been filed
within limitation.
ARGUMENTS OF THE DEFENDANTS
(1) So far as the question of limitation is concerned, the plaintiff
has claimed the suit to be not barred by time on account of
letter dated 19.09.2005, a letter issued by the plaintiff to the
defendants calling upon the defendants to have the property
transferred in the name of the plaintiff. This letter has been
proved as Ex. P1 or Ex. P1/6 which has been addressed to all
the initial defendants reiterating that Late Shri K.L. Khatter
had agreed to sell the property no. 66, double storey, New
Rajinder Nagar "together with land measuring 123.66 sq. yds.
underneath". According to the letter, the L & DO is
demanding affidavits by way of no objection to be executed by
all the defendants but allegedly the defendants were asking
for illegal consideration for executing the affidavits and
accordingly the said notice was issued.
(2) This letter was replied vide Ex. PW1/7 in which it was
specifically mentioned that:
Suit No. 26/2016 Page 25 of 107
Asha Khanna V. Subhagya Wati & Ors.
"It is surprising to note as to why you remained silent for
such a long period of over 8 years and 9 months
approximately which reflect malafide intention on your part.
It is evident from the alleged documents obtained by you
that you have illegally obtained the documents of will,
agreement to sell etc. from Late Shri Kanhaiya Lal Khatter in
connivance with your husband Ramesh Khanna and ors.
with malafide intention......"
It is further stated in the letter:
"On your obtaining of the alleged document of Will and
agreement to sell and because of coercive attitude of your
husband Shri Ramesh Khanna, Mr. Kanhaiya Lal Khatter
suffered heavily both physically and monetary and had
fallen sick and also suffered severe heart attack...."
It is further mentioned:
"We specifically refute and denied all your allegations made
against us which are absolutely false and baseless. We
have never asked you for any consideration... we have only
come to know about you through the documents of alleged
Will and agreement to sell."
There was a rejoinder from the plaintiff Ex. PW1/8 or Ex.P3
which was addressed only to defendant no. 14 denying the
contents of letter of defendants.
(3) The agreement to sell in question has been proved by the
plaintiff as Ex. PW1/1 which purports to be dated
15.11.1996. A perusal of this agreement would show that no
specific time has been prescribed for the performance of this
Suit No. 26/2016 Page 26 of 107
Asha Khanna V. Subhagya Wati & Ors.
contract and therefore, as has been submitted or may be
submitted, that the second part of Art. 54 of the Schedule of
Limitation Act, 1963 would apply. Assuming for a while but
certainly not admitting that the limitation would start when
the plaintiff had notice of the refusal of performance, the
natural question which arises for consideration is as to when
such refusal took place.
(4) As mentioned above, there is no specific date for performance
but then there is a definite point of time when the plaintiff
notices the refusal. It is humbly submitted that the demise of
Shri K.L. Khatter on 31.01.1997 was more than sufficient to
infer the refusal on the part of his legal heirs at that point of
time. Thereafter, the plaintiff has waited up to September,
2005, when the letter Ex. PW1/6 was addressed. It will be
fruitful to refer to the judgment of Ahmmadsahab Abdul
Mullah vs. Bibi Jaan reported in AIR 2009 SC 2193 that:
"...... when date is fixed it means that there is a definite
date fixed for doing a particular act. Even the second part
the stress is on 'when the plaintiff has noticed that the
performance is refused'. Here again, there is a definite point
of time when the plaintiff notices the refusal. In that sense,
both the parts refer to definite dates. So, there is no question
of finding out an intention from other circumstances."
In the light of the above observation, it is respectfully
submitted that the plaintiff in the present case should be
Suit No. 26/2016 Page 27 of 107
Asha Khanna V. Subhagya Wati & Ors.
deemed to have the notice of refusal immediately on the
demise of Shri K.L. Khatter.
(5) In case, this Hon'ble Court agrees with aforesaid submission
then the next legal proposition comes into play that the
plaintiff claiming specific performance has to file the suit
thereof, within a reasonable time. The defendants are
supported on this proposition by the judgment in Azhar
Sultana vs. B. Rajamani as reported in AIR 2009 SC 2157.
In view of the aforesaid submission the suit filed by the
plaintiff is timebarred. In the alternative it is submitted that
even if the suit is held to be held in time, on account of the
act and conduct of the plaintiff, in writing the letter Ex.
PW1/6 for the first time in September, 2005 is sufficient to
decline her the equitable & discretionary relief of specific
performance.
(6) In the case of Ranjeet Combine vs. B.M. Khanna reported in
86 (2000) DLT 687 our own Hon'ble High Court has observed
that delay would be a ground for refusing specific
performance and that equity will not assist where there has
been undue delay on the part of the party to contract. Here
also the long delay from 15111996 till writing letter dated
19092005 Ex PW1/6, remains unexplained and therefore
loss of equity in favour of the plaintiff. The plaintiff must be
deemed to have waived her rights under the contract, if any.
Suit No. 26/2016 Page 28 of 107
Asha Khanna V. Subhagya Wati & Ors.
In view of the above, the issue in hand ought to be answered
in favour of the defendants.
FINDINGS AND CONCLUSIONS OF THE COURT
In order to understand effectively the question of
limitation in the suit for Specific Performance, I have profit to refer
the Judgment of Hon'ble Supreme Court passed in case titled as
Madina Begum & Anr. Vs. Shiv Murti Prasad Pandey & Ors.
Civil Appeal No. 6687 of 2016 decided on August 1, 2016. The
paras no.3 to 5, 13 to 16, 18 and 19 are reproduced herein for apt
understanding:
"3. There was a dispute about the title of the
entire aforesaid land and to resolve that dispute,
Gulab Bai claiming to be the owner and in
possession of the entire land, filed Suit No. 479A
of 1994 in the Court of the Additional District
Judge in Jabalpur. The defendants in the suit
were Amar Singh and Jaswant Singh. The
prayer made by Gulab Bai in her plaint was for
a declaration with regard to her title and
possession. She also prayed for an injunction
restraining the defendants Amar Singh and
Jaswant Singh from interfering with her
possession.
"4. On 2nd August, 2001 the suit was decreed in
favour of Gulab Bai and thereafter on 3rd
September, 2001 she entered into an agreement
to sell 1.63 acres of agricultural land being the
disputed property to Madina Begum. The
consideration for the sale was Rs. 4,89,000/
out of which an advance of Rs. 1,25,000/ was
Suit No. 26/2016 Page 29 of 107
Asha Khanna V. Subhagya Wati & Ors.
paid by Madina Begum to Gulab Bai. This fact is
recorded in the agreement to sell.
"5. What we are concerned with in this appeal is
the interpretation of Clause 3 of the agreement to
sell which reads as follows:
"3 That Party no. 1 has sold 1.63
acres land at the rate of Rs.
3,00,000/ (Rs. Three lakh) per acre
and Party no. 1 Gulab Bai has
obtained Rs. 1,25,000/ (One lakh
twenty five thousand) as advance.
The rest of the amount of Rs.
3,64,000/ (Rs. Three lakh sixty four
thousand) would be paid by Party
no. 2 to Party no. 1 within the period
of six months from this date and
having received it the party no. 1 will
execute Benama Registry in favour of
Party no. 2 or any such person
specified by party no. 2 in one part or
many parts."
13. The Trial Court considered the issue whether
the suit filed by Madina Begum was barred by
time and answered it in the negative. It was held
in paragraph 38 of the decision rendered on 1st
February, 2011 as follows:
"38. On perusal of the record it is
gathered that agreement Ex. P1 was
executed on 03.09.2001 and
thereafter stay has been granted by
Hon'ble High Court in first appeal on
22.09.2001 but the first appeal was
Suit No. 26/2016 Page 30 of 107
Asha Khanna V. Subhagya Wati & Ors.
finally decided on 28.09.2006 vide
Ex. P5 since it was dismissed and in
this manner, the stay order had
become ineffective on 28.09.2006.
Thereafter, the plaintiffs have sent
notice to the defendants in August
2008 i.e. after two years from the
date of decision in the first appeal
which was dismissed on 28.09.2006
which was done within prescribed
period of three years. Therefore, it
cannot be said that the plaintiffs had
filed the suit beyond the period of
limitation with a view to harass the
defendants. Thus, issues No. 8 and 9
are being answered against the
defendants."
14. Even though the issue of limitation was
decided in her favour, the suit filed by Madina
Begum was dismissed on merits. Feeling
aggrieved by the dismissal of the suit on merits
Madina Begum preferred First Appeal No. 175 of
2011 in the High Court of Madhya Pradesh and
that led to the impugned judgment and order
dated 16th August, 2013. The Division Bench
hearing the appeal did not go into the merits of
the dispute between the parties but only
adverted to the issue of limitation and since it
was found that the institution of the suit was
barred by time (contrary to the conclusion of the
Trial Court) there was no necessity of
considering the merits of the case.
15. In coming to the conclusion that the suit was
barred by time, the High Court considered Article
Suit No. 26/2016 Page 31 of 107
Asha Khanna V. Subhagya Wati & Ors.
54 of Schedule 1 of the Limitation Act, 1963 (for
short, "the Act"). The discussion thereon was
brief and it reads as follows:
"Under Article 54 of the Limitation
Act, the prescribed period of
limitation for filing a suit of specific
performance of a contract is three
years and the period of three years
has to be calculated based on two
contingencies i.e. the date fixed for
performance of the contract or if no
such date is fixed, the date when the
plaintiffs had notice about refusal of
the performance by the defendants.
In this case, admittedly, a date for
performance is fixed i.e. six months
from the date of execution of the
contract and, therefore, as a specific
period for performance is fixed, the
period of limitation would be three
years w.e.f. 3.03.2002 i.e. the date
when the period of six months for
execution of the saledeed lapsed."
16. The High Court held that since the suit
was barred by limitation, the Trial Court
committed a grave error in recording a
finding that the suit was within limitation.
18. In Ahmadsahab Abdul Mulla (2) (Dead) v.
Bibijan and Ors.1 the following question was
considered by a three judge Bench of this Court:
"Whether the use of the expression "date" used
in Article 54 of the Schedule to the Limitation Act,
Suit No. 26/2016 Page 32 of 107
Asha Khanna V. Subhagya Wati & Ors.
1963 (in short "the Act") is suggestive of a
specific date in the calendar?"
19. While answering this question on a
reference made to the three judge Bench,
this Court considered the meaning of the
word "date" and "fixed" appearing in
Article 54. Upon such consideration, this
Court held that the expression "date fixed
for the performance" is a crystallized
notion. When a date is fixed it means there
is a definite date fixed for doing a
particular act. Therefore, there is no
question of finding out the intention from
other circumstances. It was reiterated that
the expression "date" is definitely
suggestive of a specified date in the
calendar. Paragraphs 11 and 12 of the
Report in this regard are of importance and
they read as follows:
"11. The inevitable conclusion is
that the expression "date fixed
for the performance" is a
crystallized notion. This is clear
from the fact that the second
part "time from which period
begins to run" refers to a case
where no such date is fixed. To
put it differently, when date is
fixed it means that there is a
definite date fixed for doing a
particular act. Even in the
second part the stress is on
Suit No. 26/2016 Page 33 of 107
Asha Khanna V. Subhagya Wati & Ors.
"when the plaintiff has notice
that performance is refused".
Here again, there is a definite
point of time, when the plaintiff
notices the refusal. In that sense
both the parts refer to definite
dates. So, there is no question of
finding out an intention from
other circumstances.
12. Whether the date was fixed
or not the plaintiff had notice
that performance is refused and
the date thereof are to be
established with reference to
materials and evidence to be
brought on record. The
expression "date" used in Article
54 of the Schedule to the Act
definitely is suggestive of a
specified date in the calendar.
We answer the reference
accordingly. The matter shall
now be placed before the Division
Bench for deciding the issue on
merits."
20. Quite independently and without reference to
the aforesaid decision, another Bench of this
Court in Rathnavathi and Another v. Kavita
Ganashamdas2 came to the same conclusion. It
was held in paragraph 42 of the Report that a
mere reading of Article 54 would show that if the
date is fixed for the performance of an
Suit No. 26/2016 Page 34 of 107
Asha Khanna V. Subhagya Wati & Ors.
agreement, then noncompliance with the
agreement on the date would give a cause of
action to file a suit for specific performance
within three years from the date so fixed. But
when no such date is fixed, the limitation of
three years would begin when the plaintiff has
notice that the defendant has refused the
performance of the agreement. It was further
held, on the facts of the case that it did not fall in
the first category of Article 54 since no date was
fixed in the agreement for its performance.
21. The Clauses of the agreement for
consideration in Rathnavathi were Clauses 2
and 3 and they read as follows:
"2. The purchaser shall pay a sum of
Rs. 50,000 (Rupees fifty thousand
only) as advance to the seller at the
time of signing this agreement, the
receipt of which the seller hereby
acknowledges and the balance sale
consideration amount shall be paid
within 60 days from the date of
expiry of lease period.
3. The seller covenants with the
purchaser that efforts will be made
with the Bangalore Development
Authority for the transfer of the
schedule property in favour of the
purchaser after paying penalty. In
case it is not possible then the time
stipulated herein for the balance
payment and completion of the sale
Suit No. 26/2016 Page 35 of 107
Asha Khanna V. Subhagya Wati & Ors.
transaction will be agreed mutually
between the parties."
22. As far as the present appeal is
concerned, the agreement between Gulab
Bai and Madina Begum did not specify a
calendar date as the date fixed for the
performance of the agreement.
Consequently, the view expressed in
Ahmadsahab Abdul Mulla and Rathnavathi
on the first part of Article 54 clearly
applies to the facts of the case. In taking a
contrary view, ignoring the absence of a
specified date for the performance of the
agreement and reversing the Trial Court,
the High Court has fallen in error.
23. It is not necessary for us to multiply
authorities on the subject particularly when
the issue has been conclusively settled by a
Bench of three learned judges of this Court
in Ahmadsahab Abdul Mulla and we see no
reason to take a different view."
(Portions bolded in order to highlight)
Now, coming to the facts of the present case, there is no
dispute between the parties that there is no fixed date for
performance. There is no dispute regarding execution of the
document Exhibit PW1/1. As per para 7 of EX PW 1/1, the
deceased Sh. K.L. Khattar was required to obtain permission from L
Suit No. 26/2016 Page 36 of 107
Asha Khanna V. Subhagya Wati & Ors.
& DO for converting the suit property from lease hold to free hold,
but the same has not been done by Sh. K.L. Khattar during his life
time. No doubt, the GPA and SPA were executed by Late Shri K.L.
Khattar in favour of the husband of the defendant, but it does not
mean that the prime responsibility rests upon the shoulder of
husband of the plaintiff. Moreover, the documents, which were
executed between the parties, although, not confer complete
ownership rights in stricto sensu but the same confers the right
under Section 202 of the Indian Contract Act, 1872 and Section 53
A of the Transfer of Property Act. The prime responsibility was
always remained on the part of either deceased Late Shri K.L.
Khattar or after his death upon the LR's of Shri K.L. Khattar in view
of Section 19 of the Specific Relief Act and also in terms of
Agreement Ex.PW1/1 as the expression 'first party' i.e. Sh. K.L.
Khattar also includes his LRs. It is also apparent that no time was
fixed by the parties to obtain permission in terms of para No.7 of
Exhibit PW1/1. The second part of the provision of Article 54 of the
Schedule appended to the Limitation Act, 1963 provides that "when
the plaintiff has notice that performance is refused."
There was no opportunity for the plaintiff to notice the
refusal of the performance and more so, when admittedly, some of
the LR's (who are defendants no. 1 to 4 in the present case) had
executed Receipt in the sum of Rs.4,00,000/ in favour of son of the
plaintiff Sh. Rishi Khanna for sale of first floor of the property no.
65 in the year 2004. The deceased Late Sh. K.L. Khattar or for that
Suit No. 26/2016 Page 37 of 107
Asha Khanna V. Subhagya Wati & Ors.
matter, the defendants have never pointedout/ given notice to the
plaintiff that they have applied for conversion of the suit property
from Lease Hold to Free Hold and the plaintiff is required to pay the
conversion charges in terms of Clause 7 of the Agreement i.e.
Ex.PW1/1. Furthermore, the suit property is one of the property of
the common Lease Deed dated 31.01.1962. There is another
property i.e. property no. 65, which is part and parcel of the said
Lease Deed dated 31.01.1962. The GPA & SPA, which were
executed in favour of the husband of plaintiff, pertaining only to
property bearing no. 66 and not pertaining to property bearing no.
65 and therefore, the husband of the plaintiff could not have moved
before the concerned authorities from Lease Hold to Free Hold of
the suit property. At the cost of repetition, there was no time fixed
by the parties for conversion from Lease Hold to Free Hold of the
suit property and neither Late Sh. K.L. Khattar nor the LRs of Sh.
K.L. Khattar had made any effort, prior to 2005, to get the property
converted from Lease Hold to Free Hold. The said efforts were also
made after agreement of sale of property no. 65 in favour of the
plaintiff. The Ld. counsel for the plaintiff has rightly pointedout
and argued that the limitation for filing the suit starts from
28.9.2005 and under Article54 of Limitation Act, the suit of the
plaintiff is filed in time i.e. within limitation. The arguments of the
defendants that the suit of the plaintiff is barred by Limitation sans
merit and is hereby rejected.
Suit No. 26/2016 Page 38 of 107
Asha Khanna V. Subhagya Wati & Ors.
Accordingly, issue no.5 is decided in favour of the
plaintiff and against the defendants.
ISSUE NO.2 OF THE COUNTER CLAIM
2. Whether the counter claim is barred by limitation? OPP
ARGUMENTS OF THE PLAINTIFF
Admittedly, Sh. K.L. Khattar died on 31.1.1997, the
defendants remained silent and did not initiate any action against
the plaintiff. This fact is admitted by the defendants in para no. 14
of the counter claim. In addition to this the defendants in the same
para no. 14 of their counter claim they have stated that they are
entitled to damages for use and occupation w.e.f. 15.2.2004.
In view of above, as per their own pleading, the cause to
initiate action by the defendants against the plaintiff arose initially
after death of Sh. K.L. Khattar w.e.f. 31.1.1997 and if the said date
is not to be considered, still then as per their own pleading the
plaintiff is in possession from 15.2.2004 as such the cause arose on
15.2.2004 to challenge the document EX PW 1/1, EX PW1/2 and
EX PW 1/5. Under Article 58 of limitation act any document /
instrument can be challenged within a period of 3 years when the
right to sue accrues. Admittedly as per the case of the defendants
they had knowledge from 15.2.2004, as such right to sue accrues
for cancellation of documents on the same date, as such could
have been filed till 14.2.2007, when admittedly the counter claim
challenging the documents have been filed in July 2007 as such the
Suit No. 26/2016 Page 39 of 107
Asha Khanna V. Subhagya Wati & Ors.
counter claim is barred by limitation. In view of above submission
the counter claim is liable to be dismissed on the ground of
limitation.
ARGUMENTS OF THE DEFENDANTS
(1) The counter claim by the defendants has been preferred vide
the pleadings dated 21.06.2007/ 09.07.2007. It may be
recalled that initially the original plaint was filed on
07.04.2006. Its written statement by defendants no. 14 was
filed on or about in 31.05.2006. According to the averments
made in the counter claim that the cause of action to file the
counter claim arose on 30.08.2005 when plaintiff's son had
asked the defendants to furnish affidavit. The fact is
specifically mentioned in para 17 of the counter claim.
Assuming for the while that cause of action arose on such
date, the ordinary period for filing the counterclaim/ suit
would be three years.
(2) As per Order VIII Rule 6A CPC the counter claim can be filed
by the defendants before the delivery of defence. It is
submitted that the counter claim, for all intents and purposes
is a suit by one who is a defendant in the suit filed by the
plaintiff. It has been held in the judgment of Southern
Ancillaries Pvt. Ltd. vs. Southern Alloy Foundaries Pvt.
Ltd. reported in AIR 2003 Mad 416 that the defendant can
make a counter claim even after filing the written statement
Suit No. 26/2016 Page 40 of 107
Asha Khanna V. Subhagya Wati & Ors.
but that should be before the commencement of recording the
evidence. In this case, the recording of evidence has
commenced with the filing of the affidavit of plaintiff on or
about 30.03.2009. it is also borne out from the record that the
issues were framed on 12.05.2008. Counterclaim was
preferred even much before that in 2007. Hence, the same is
within the period of limitation.
FINDINGS AND CONCLUSIONS OF THE COURT
In order to understand when the counterclaim is
deemed to be instituted, the provision of Section 3(b) of the
Limitation Act is reproduced herein:
"3(b) any claim by way of a set off or a counter
claim, shall be treated as a separate suit and shall
be deemed to have been instituted;
(i) in the case of a set off, on the same date as
the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on
which the counter claim is made in court."
The defendant has set up the case of counterclaim and
not the case of set off. The counterclaim is a separate suit, as per
the said provision of Section 3(b) of the Limitation Act and as per
the Section 3(b)(ii) of the Limitation Act, the counterclaim shall be
deemed to have been instituted on the date on which the counter
claim is made in the Court. The counterclaim is a separate suit
and for all intents and purposes, Section 3(1) of the Limitation Act
Suit No. 26/2016 Page 41 of 107
Asha Khanna V. Subhagya Wati & Ors.
is also applicable to the counterclaim. Section 3(1) of the
Limitation Act is reproduced herein for apt understanding:
"3. Bar of limitation. (1) Subject to the provisions
contained in sections 4 to 24 (inclusive), every
suit instituted, appeal preferred, and application
made after the prescribed period shall be
dismissed although limitation has not been set
up as a defence."
The aforesaid provision vividly depicts that every suit
has to be instituted within the prescribed period of limitation and in
case, the suit is not instituted within the prescribed period of
limitation, then the same shall be dismissed, although, the
limitation has not been set up as a defence. Therefore, it is a
bounden duty cast upon the Court to look whether the suit,
although in the form of counterclaim, has to be filed within the
prescribed period of limitation. The counterclaim was filed on or
about 09.07.2007. The prayer clause i) of the counter claim is
reproduced herein for apposite understanding:
"i) The Hon'ble Court may graciously be pleased to
pass a decree for recovery of possession of the
property bearing no. 66, Double Storey Flats,
New Rajinder Nagar, New Delhi, as clearly
shown by the red colour in the site plan annexed
with this counter claim/ premises in question in
favour of the defendants and against the
plaintiff, her employees, agents, officers,
representatives, assigns, nominees or any other
person claiming through the plaintiff by
Suit No. 26/2016 Page 42 of 107
Asha Khanna V. Subhagya Wati & Ors.
cancellation of the alleged Agreement to
Sell being vitiated and invalid and void."
(The bolded and underlined portion is added by hand)
The perusal of the aforesaid relief clearly speaks the
volume that the basic relief, which was sought by the
defendants/counterclaimant was cancellation of the alleged
Agreement to Sell being vitiated, invalid and void and aftermath of
the said relief is the relief of possession. The defendants/ counter
claimants were aware that the documents, which were executed in
favour of the plaintiff, may not be conferring absolute ownership
rights in stricto sensu but the said documents confer the rights in
terms of Section 202 of Indian Contract Act and Section 53A of the
Transfer of Property Act. The defendants/counterclaimants were
very well aware that without seeking the cancellation of the
Agreement i.e. Ex.PW1/1, they were not able to succeed in the
possession, as the relief of the possession is basically consequential
relief to the relief of declaration and therefore, by hand the
defendants have added the said relief in the aforesaid prayer clause.
Now, the question arises, when the defendants were
aware about the Agreement i.e. Ex.PW1/1. The para no.1 of the
plaint clearly mentions about the Agreement to Sell dated
15.11.1996 and other documents. The defendants in reply to para
No.1 clearly contended that the same is matter of record. The
Suit No. 26/2016 Page 43 of 107
Asha Khanna V. Subhagya Wati & Ors.
perusal of the crossexamination of DW1 clearly suggests that the
defendants were aware about the sale of the suit property to the
plaintiff. The DW1 has stated that her father had told her that he
had not received any sale consideration from the plaintiff Smt. Asha
Khanna in respect of the suit property. In case, father of the
plaintiff had not received any consideration from the plaintiff, then
why the father of DW1 had not taken any action against the
plaintiff during his life time and further, why the defendants or for
that matter, any of the LR's of Late Sh. K.L. Khattar remained a
mute spectator and audience for about 11 years after the death of
Late Shri K.L. Khattar. The defendants have not initially filed the
counterclaim with the written statement but the same was also
filed after more than one year from filing of the written statement.
It has been admitted by the defendants in their Written Statement
as well as evidence that the possession was with the plaintiff since
1996 as admittedly, Late Sh. K.L. Khattar had executed the
possession letter. Furthermore, para no.2 of the registered
Agreement to Sell Ex.PW1/1 also stipulates that the possession of
the suit property was handedover by Late Sh. K.L. Khattar to the
plaintiff. The knowledge of the documents was admittedly with Late
Sh. K.L. Khattar and the defendants were also aware about the
documents since beginning of the execution of documents and the
said knowledge can be attribute d to the defendants in view
of Section3 of the Transfer of Property Act also.
Suit No. 26/2016 Page 44 of 107
Asha Khanna V. Subhagya Wati & Ors.
There is force in the arguments of Ld. counsel for the
plaintiff that in view of Article 58 of Limitation Act, any document
/instrument can be challenged within a period of 3 years when the
right to sue accrues. Looking from the pleadings and evidence of
the parties, the right to sue accrues long back in the year 1996
when the said documents were executed between plaintiff and Late
Shri K.L. Khattar or immediately after 31.01.1997, when the
defendants alleged to have got right in the suit property but none of
the defendants have challenged the registered documents and more
particularly Exhibit PW1/1 within a period of three years. The
relief of possession is a consequential relief in terms of the aforesaid
prayer clause. Consequently, the counterclaim of the defendants
is barred by law of limitation. Accordingly, this issue is decided in
favour of the plaintiff and against the defendants.
ISSUES NO.1 TO 4 IN THE SUIT
(1) Whether the plaintiff had completed all its obligations under
agreement dated 15th November, 1996? OPP
(2) Whether any obligation was yet to be performed by the
defendants under the agreement dated 15th November,
1996? OPP
(3) Whether the plaintiff is entitled to the decree of specific
performance as claimed by the plaintiff? OPP
(4) Whether the plaintiff is entitled for a mandatory injunction in
favour of the defendants directing defendants to execute the
title documents in favour of the plaintiff? OPD
Suit No. 26/2016 Page 45 of 107
Asha Khanna V. Subhagya Wati & Ors.
ISSUES NO.1 AND 2A OF THE COUNTER CLAIM
1. Whether the defendants are entitled to possession of suit
property? OPD
2A. If issue no.1 is decided in affirmative whether the defendant /
counter claimant entitled to damages / mesne profits w.e.f.
15.02.2004 till the date of handing over the vacant and
peaceful possession of the said premises, if so, at what rate?
OPD
The aforesaid issue Nos.1 to 4 as framed in the suit and
Issues No.1 and 2A as framed in the Counterclaim are interrelated
and interconnected to each other and accordingly they are decided
together.
ARGUMENTS OF THE PLAINTIFF
(1) As per para 7 of EX PW 1/1, the deceased Sh. K.L. Khattar
was to obtain permission from L & DO for converting the suit
property from lease hold to free hold but the same has not
been done either by Sh. K.L.Khattar during his life time or by
his LR's after his death, on the other hand, the plaintiff has
completed all her obligations, as the entire sale consideration
has been paid and there was no other obligation to be
completed by the plaintiff. The plaintiff was only to pay
conversion charges on demand by the defendants and the
issue of conversion charges would come into play only when
defendants would apply for conversion of lease hold into free
hold, so this obligation was dependent upon the defendants.
Suit No. 26/2016 Page 46 of 107
Asha Khanna V. Subhagya Wati & Ors.
Since admittedly defendants have not applied for conversion
as such, the question of payment of conversion charges by the
plaintiff to the defendant would not arise. In view of above,
whatever obligation was to be done by the plaintiff, the same
has been complied with, as such the plaintiff has been able to
prove successfully this issue.
(2) Admittedly, as per para 7 of EX PW 1/1, the deceased Sh. K.L.
Khattar was to obtain permission from L & DO for converting
the suit property from lease hold to free hold but the same
has not been done either by Sh. K.L. Khattar during his life
time or by his LR's after his death. The defendants have not
till date converted the suit property from lease hold to free
hold. This obligation is yet to be performed by the defendants.
The DW1 has admitted in her cross examination at page2
recorded on 25.1.2019 that the suit property is not free hold
as on date and the signature of Late Sh. K.L. Khattar on
possession letter EX PW 1/5 have also been admitted by DW
1 on the same date. In view of above submission the
defendants have not performed their obligation of converting
the property from lease hold to free hold, which they were
obliged to do as para7 of EX PW 1/1.
(3) There is no hesitation in granting decree of Specific
Performance in favour of plaintiff and against the defendants,
more particularly, when the plaintiff is already in possession
of the suit property from 15.11.1996 till date. In addition to
Suit No. 26/2016 Page 47 of 107
Asha Khanna V. Subhagya Wati & Ors.
above every defendant has his own house and do not require
the suit property.
(4) The Specific Performance Act was amended vide amended Act
2018 w.e.f. 17.10.2018. In earlier specific relief Act, granting
of specific performance was the discretion of the courts but in
the amended specific relief act the word discretion has been
deleted. This amendment had taken place during the
pendency of the case and is very much applicable to the
present case, because we are neither in appeal nor in second
appeal. Reliance is placed upon judgment of the Hon'ble
Supreme Court wherein they have held that during the
pendency of suit amendment provisions can be made
applicable. The judgment is reported as Civil Appeal Nos.
188189 of 2018 @SLP (C) Nos. 1063810639 of 2013
titled as Danamma @ Suman Surpur Versus Amar and
others dated 1.2.2018.
(5) Hon'ble Allahabad High Court has also given a judgment on
the same issue. The said judgment is reported as First
Appeal No. 594/2018 decided by Hon'ble Justice Surya
Prakash Kesarwani on 3.5.2019. In view of above
additional submissions the suit is liable to be decreed.
ARGUMENTS OF THE DEFENDANTS
1. As is apparent, the burden of all the three issues is upon the
plaintiff. In this regard, the first salvo on behalf of the
Suit No. 26/2016 Page 48 of 107
Asha Khanna V. Subhagya Wati & Ors.
defendants is that it is the definite stand of the defendants
vide letter Ex. PW1/7 that the documents like Agreement to
Sell, GPA & SPA, Will, possession letter etc. have been
"obtained" by the plaintiff from K.L. Khatter. The dictionary
meaning of the word 'obtain' is stated to be "gaining
possession of, gains, procure, receive, get, require". The word
"obtained" fell for consideration before Hon'ble Supreme Court
in reference to proceedings under Section 125 Criminal
Procedure Code in the case of Zohara Khatun Vs. Mohd.
Ibrahim [AIR 1981 SC 1243] wherein it was observed:
"The word 'obtain' may well be used in the sense of
'procured with effort' and would certainly describe
correctly a situation where something is achieved by a
person through his exertion in spite of opposition from
others. According to Webster, again the word 'obtain'
signifies '(a) to gain or attain possession or disposal of,
usually by some planned action or method, (b) to bring
about or call into being etc."
2. That the documents were obtained by the plaintiff, is further
demonstrated by several other facts and circumstances. At
the outset, Ex. PW1/1 bears the date 15th day of November
1996 in which date "15th" and the month "November" have
been inserted by hand. This agreement pertains to the entire
land of 123.66 sq. yds. lying underneath the two tenements. It
is undisputed on record that the tenements with land
underneath were leased out by L& DO and therefore, the land
Suit No. 26/2016 Page 49 of 107
Asha Khanna V. Subhagya Wati & Ors.
underneath was common to both the tenements. It is
unconscionable and cannot be even remotely thought that a
person having agreed to sell one of the tenements would agree
to sell out the entire land underneath unless the sale is for
the whole of the property comprising of two tenements.
(3) It may be significantly noted that the plaintiff in her pleadings
has herself stated that she was ready to leave the claim of
50% of the land underneath because of the agreement to sell
property no. 65 to her son by defendants no.14. The plaintiff
has taken a false plea in her suit in para 4 that defendants
no. 14 agreed to sell 50% share of the land underneath
measuring 123.66 Sq. Yds. to her son, where as there is no
such contemplation in the document proved by her son in his
own suit being tried along with the present suit.
(A) Kindly consider her prayer in para 14(i) where she had
claimed specific performance of the agreement in
question with respect to "the property bearing no. 66,
double storey, New Rajinder Nagar, New Delhi
measuring 123.66 sq. yds." this prayer has been made
despite knowing that the same cannot be fulfilled or
materialized on account of the facts that the land
underneath was common to both the tenements and
according to the plaintiff herself there was an agreement
with her son for sale/ purchase of the tenement bearing
Suit No. 26/2016 Page 50 of 107
Asha Khanna V. Subhagya Wati & Ors.
no. 65. In this situation there could not have been any
such agreement of sale.
(B) In para 1 of agreement in question, the recitation is that
in consideration of aforesaid sum of Rs.4,50,000/ out
of which sum the second party has already paid a sum
of Rs. 4,45,000/ to the first party vide cheques no.
622501/02 dated 15.11.1996 drawn on Punjab National
Bank Rajinder Nagar, New Delhi and the receipt of the
same the first party hereby again admits and
acknowledges. In this paragraph it is to be seen that in
the word "cheques" alphabet "s" and the cheques no.
"622501/02" and then date "15.11.1996" and then the
name of the bank "Punjab National Bank, Rajinder
Nagar, New Delhi" all have been inserted in hand. These
insertions are not initialled by anybody i.e. either the
plaintiff or Late Shri Khatter. Then, in the second part of
para 1 on page 3 where the recitation is about the
payment of balance sum of Rs.5000/ at the time of
execution and registration of regular sale deed, after the
words "sale deed" there was a 'full stop', which has been
converted into a 'comma' and it follows by the words "In
r/o pop no.", which are mentioned in hand. In this
regard, the statement of the plaintiff in his cross
examination dated 01.08.2016 is that as far as she
remembers no addition or alteration was carried out in
Suit No. 26/2016 Page 51 of 107
Asha Khanna V. Subhagya Wati & Ors.
Ex. PW1/1. When she was shown para 1 of the
agreement on page 2 to she admitted that some portion
is hand written. When shown page 3 of agreement, she
admitted that on the top in first para and at the end of
the sentence there is something written in hand but
there is no knowledge as to who wrote it, when wrote it
and for what purpose. It has been specifically suggested
to the witness that Ex.PW1/1 was only a draft upon
which signatures of Shri Khatter had been obtained
fraudulently and upon misrepresentation.
(C) These insertions made by hand are sufficient to
demonstrate that this sale agreement along with other
documents were only proposed documents on which the
plaintiff somehow became successful in obtaining the
signatures of Late Shri K.L. Khatter. This by itself
renders the agreement illegal and void as not made with
free consent. The circumstances on record are sufficient
to lead to the conclusion that the signatures had been
obtained by playing some fraud and the same
documents have been converted into actual documents.
As per the settled law, fraud vitiates all solemn action.
Judgment in the case of S.P. Chengalvaraya Naidu vs.
Jagannath reported in AIR 1994 SC 853 can be safely
referred to.
Suit No. 26/2016 Page 52 of 107
Asha Khanna V. Subhagya Wati & Ors.
(D) As per Section 62 of the Contract Act, this agreement to
sell becomes void as certain insertions in respect of
material terms on the contract have been made and
there is nothing to suggest on record that such
insertions by hand were made by consent of the parties,
which consent is conspicuous by absence of initials or
full signatures of the parties to such hand written
insertions. It may also be appreciated that in the second
part of clause (i) where the words "in respect of property
no.", the actual no. of the property has not been
inserted, which further gives concrete support to the
submissions that the agreement was at a proposal stage,
when the signatures of Late Shri Khatter were obtained.
A formal and proper agreement was yet to be executed
but the same was not and therefore, there was no
concluded contract between the parties. The defendants
rely upon Maharshi Dayanand University vs. Anand
Cooperative House Building Society reported in AIR
2007 SC 2441.
(E) As per the judgment in case of Nathu Lal vs. Mt. Gomti
Kuar reported in AIR 1940 PC 160 any alteration by
way of eraser, interlineation or "otherwise" in material
part of the deed, without consent of the party liable
thereunder would render the deed as void. Even as per
Suit No. 26/2016 Page 53 of 107
Asha Khanna V. Subhagya Wati & Ors.
the judgment of Union of India vs. Uttam Singh
Dugal reported in AIR 1972 DELHI 110 when there is
variance with regard to material term of the agreement,
and there is no absolute acceptance, it would not result
into a legal contract. On this ground also,the alleged
sale agreement Ex. PW1/1 is void and cannot be
enforced.
(F) Another ground for vitiation of this agreement is that as
per the claim of the plaintiff, vide two cheques bearing
no. 622501/02 both dated 15.11.1996 drawn on Punjab
National Bank, Rajinder Nagar, Delhi a sum of Rs.
4,45,000/ has already been paid. If one goes by this
recitation in the deed Ex. PW1/1, then the ordinary
communication would be that the two cheques were
given prior to the alleged execution of the agreement or
to say that prior to 15.11.1996. This is not the case here
and nothing has been brought on record to show as to
when exactly the cheques were given.
(G) In this context, the kind attention the court is invited to
the cross examination of PW1 dated 25.08.2015, where
PW1 has deposed as under:
"The amount of Rs.4,45,000/ was paid on
15.11.1986 which was given by "cheque". "Cheque
was" signed by me. The "said cheque was" given to
Shri Kanhaiya Lal."
Suit No. 26/2016 Page 54 of 107
Asha Khanna V. Subhagya Wati & Ors.
Thereafter, a specific question has been put to the
witness. The question and its answer are reproduced:
"Q.Is it correct that you have not filed any
documentary evidence showing that the amount of
Rs.4,45,000/ was paid by "cheque" to Shri Kanhaiya
Lal?
A.I am not aware (volunteers: since the payment was
received by him that's why he has handed over the
possession of the suit property."
The witness is not aware if the payment was made
before the SubRegistrar at the time of registration of
Ex. PW1/1. Thereafter, another specific question was
put to the witness which is as follows:
"Q. You have stated in para 1 of Ex. PW1/1 that the
second party has already paid a sum of Rs.4,45,000/
to the first party, as mentioned in the para 1 of Ex.
PW1/1. On which date, the said payment was made?
As is apparent from the record the Hon'ble Court made
an observation that the question is not answered. This
demeanour of the witness goes a long way to show that
there is something doubtful about Ex. PW1/1 and the
payment of the sale consideration as is being claimed by
the plaintiff is doubtful. Conversely, it supports the
submissions of the defendants that the signatures of
Shri K.L. Khatter were "obtained" by the plaintiff, which
Suit No. 26/2016 Page 55 of 107
Asha Khanna V. Subhagya Wati & Ors.
obviously means by playing some fraud or some exertion
etc.
(H) When the cross examination of this witness was
resumed on 03.05.2016, she deposed that the payment
was made by means of "account payee cheque" from her
account. On that day she denied being in possession of
the counter foil of the cheque and also expressed her
helplessness in bringing the pass book of the account
from which she had issued the cheque. Further, the
witness denied the suggestion that she did not have
sufficient balance in her account on 15.11.1996 to issue
"the cheque" of Rs.4,45,000/. Here again, the plaintiff
is resolute in conveying that she had issued 'one' cheque
of Rs.4,45,000/ and this is confirmed by the very next
sentence that she does not remember as to when "the
said cheque was" got encashed and by whom. Further, a
specific question has been put to the witness "this
cheque" was never got encashed by Mr. K. L. Khatter to
which she replied that "it must have been got encashed
by Mr. Khatter" though she added later on that cheque
has been encashed by Mr. Khatter. Again, at the next
page, the witness stated that no payment was made to
Mr Khatter prior to the giving of "this cheque" of
Rs.4,45,000/. This continuous reference to the cheque
in singular would convey that only one cheque was
Suit No. 26/2016 Page 56 of 107
Asha Khanna V. Subhagya Wati & Ors.
issued but Ex.PW1/1 mentions of two cheques. Further
cloud of suspicion is writ large as the plaintiff neither in
her pleadings nor in her statement has ever mentioned
as to of what amount the each of the two cheques were.
(I) In her resumed cross examination dated 01.08.2016 (on
the first page) the witness is again very firm in deposing
that
"The cheque of Rs.4,45,000/ has been paid on
15.11.1996. it was paid at the time when agreement
was executed. It will be wrong to say that cheque of
Rs.4,45,000/ was paid prior to the execution of said
agreement Ex. PW1/1 vol. it was paid on the same
date."
This statement goes contrary to what has been
mentioned Ex. PW1/1 that the "second party has
already paid" a sum of Rs.4,45,000/, which, as already
submitted, would amount to the alleged payment
sometimes prior to 15.11.1996.
(J) In her resumed cross examination dated 01.08.2016 (on
the fourth page of that date) the witness brought the
pass book of her account no. 15474 of Punjab National
Bank, Shankar Road. This passbook did not have any
entry after 11.11.1996. The witness admitted that there
is no entry of encashment of cheque of Rs.4,45,000/ as
well as of Rs.5,000/. This passbook is Ex.PW1/DX on
Suit No. 26/2016 Page 57 of 107
Asha Khanna V. Subhagya Wati & Ors.
record. Admittedly by PW1 she had no document to
show that her account was debited after the cheque
being encashed. Even Ex. PW1/DX does not show any
debit entry to the tune of Rs.4,45,000/. It is not
understandable as to why plaintiff could not get the
relevant entries inserted in the passbook if the cheque
or the cheques pertaining to an amount of
Rs.4,45,000/ were got encashed and if so, by whom
and in which account?
(K) In this regard, it is respectfully submitted that even if for
a while it is admitted that the agreement Ex.PW1/1 was
executed and it was duly registered, the defendants by
necessary averment have denied the passing of
consideration and therefore, the onus was heavy upon
the plaintiff to prove that the money was paid. This
aspect was considered by the Hon'ble Allahabad High
Court more than one and a half century ago in the case
of Achobandil kuari vs. Mahabir Prasad reported in
8(1886) Allahabad 641 that where the defendants
admit the execution and registration of Sale Deed, but
denies the consideration, the onus lies upon the plaintiff
to prove that the consideration has been paid. Not only
this, but in the case of Bank of Baroda vs. Keyenkay
Agencies reported as 2002(8) AD (Del) 418, our own
Suit No. 26/2016 Page 58 of 107
Asha Khanna V. Subhagya Wati & Ors.
Hon'ble High Court has held that the consideration
must be real and not illusory.
(L) Under these circumstances it goes without showing that
since there is no proof of payment of consideration,
which the plaintiff was supposed to prove, the contract
itself becomes void. Reliance is placed upon Dawson's
Bank vs. Maung Mya Thwin reported in AIR 1939 PC
219 and Ran Bahadur Singh vs. Hanuwant Singh as
reported in AIR 1957 Rajasthan 29.
(4) It is respectfully submitted that forgoing will show that Shri
K.L. Khatter was made victim of some conspiracy and this
would render the whole transaction void ab initio because
there is no free consent and signatures were obtained and
sale consideration is not proved to have been paid to Shri K.L.
Khatter. It is apparent that the plaintiff along with PW2 the
property broker Mr. R.K. Kapoor have colluded with each
other in order to deprive the rights of Mr. KL. Khatter in
relation to the suit property and hence, the alleged
transaction is void. In other words, a fraud was played upon
Late Sh. Khattar and the documents were manipulated,
thereby vitiating the whole thing. The defendants rely upon
Commissioner of Customs vs. Essar Oil Ltd. reported in
2004 (7) SLT 273, where a misdeclaration of funds was held
to be fraudulent.
Suit No. 26/2016 Page 59 of 107
Asha Khanna V. Subhagya Wati & Ors.
(5) As to whether the plaintiff had completed all her obligations
under the agreement under 15.11.1996, the kind attention of
the Hon'ble Court is invited to clause (7) of Ex. PW1/1. By
virtue of this clause, it was the plaintiff who was to bear the
conversion charges. It is undisputed on record that Shri K.L.
Khatter has expired approximately within 2 and a half months
from the date of alleged execution of the agreement. In this
regard, it is pertinent to note that as per the statement of PW1
in her cross examination dated 01.08.2016. she does not
remember if according to the agreement the conversion
charges were to be paid by her. She admitted that till the date
of her cross examination she has not deposited the conversion
charges as per the agreement nor anybody else has deposited
on her behalf. She went on to add voluntarily that since Mr.
Khatter died within 2 months (which statement is otherwise
wrong as Mr Khatter died on 31.01.1997)because of that
reason conversion charges could not be deposited. It is
admitted by her that there was no agreement in case of death
of Mr. Khatter, she will not deposit the conversion charges.
(6) It is further pertinent to mention that the possession letter
Ex. PW1/5 allegedly came into being on 15.11.1996 in which
document also dated "15th" and the month and year reading
"Nov. 1996" are inserted in hand. Though, the signatures of
Late Shri K.L. Khatter are admitted, the signatures of the
plaintiff are missing at point B. In case, Shri K.L. Khatter had
Suit No. 26/2016 Page 60 of 107
Asha Khanna V. Subhagya Wati & Ors.
delivered the possession, as is being claimed by the plaintiff,
what forbade her to append her signature under the caption
"POSSESSION TAKEN. Thus, even on the aspect of delivery of
the possession and taking of the possession, the plaintiff
cannot rely upon. On the other hand, PW2 has been
specifically suggested that signature of Mr. Khatter was
obtained fraudulently by him and the plaintiff at the house
subsequently. This is affirmed by one more fact that
according to PW2 (at page 7 of crossexamination) after the
signing of the documents on that day they had not gone to
any other place except the office of SubRegistrar and after
returning from the office of SubRegistrar, the plaintiff went to
her house and Shri K.L. Khatter returned to his own house. If
it was so, for any reason this witness is to be believed, then at
what point of time the possession of the suit property was
delivered? This fact, when considered in the light of
signatures of the plaintiff are not on possession letter, convey
only one thing that the documents are manipulated and there
is no valid, binding and concluded contract between the
parties.
(7) The contention on behalf of plaintiff that it was Shri K.L.
Khatter who was to obtain permission from said L & DO or
otherwise to get the property converted into freehold, there is
no evidence on record to suggest that if any offer was made by
the plaintiff during life time of Shri K.L. Khatter for the
Suit No. 26/2016 Page 61 of 107
Asha Khanna V. Subhagya Wati & Ors.
payment of conversion charges or any such offer being made
to any of the defendants immediately after the demise of Shri
K.L. Khatter. It is borne out from the record that after
15.11.1996 and then after 31.01.1997, the plaintiff kept on
sleeping. She woke up from the slumber only on 19.09.2005
when letter Ex.PW1/6 was written by the plaintiff. Under
these circumstances, can it be said that the plaintiff had
completed all her obligations under the agreement in
question? The answer is simple No.
(8) It may be pertinently noted that as per the alleged sale
agreement Ex PW1/1, clause 9, it was the second party i.e.
the plaintiff who was to pay the cost of stamp and registration
charges. For reasons best known to her, no proposed draft of
sale deed was submitted either to late Sh. Khattar or to his
LRs nor the plaintiff ever paid the stamp duty for preparation
of the sale deed. This was in violation of Sec. 55(1)(d) of T.P.
Act and Sec. 29(c) of the Stamp Act. Due to this violation, the
plaintiff cannot be said to be ready and willing to perform her
part of the contract. In other words, she still had some
obligation to perform but she failed. The defendants are fully
supported by the judgment in case of Baruna vs.
Rajakishore reported in AIR 1983 Orissa 107.
(9) It is worthwhile to mention that as per the cross examination
of PW1 dated 01.08.2016, all the documents in question were
Suit No. 26/2016 Page 62 of 107
Asha Khanna V. Subhagya Wati & Ors.
prepared on the same date. According to her, the documents
were got prepared by Mr Khatter but she does not know from
where they were got typed. According to her, some papers
were signed in the office of Mr. Kapoor and some at the office
of SubRegistrar. These papers include GPA & SPA but she
does not remember the exact time when the papers were
signed in the office of Mr. Kapoor. This Mr. Kapoor was
examined as PW2, who has also confirmed that all the
documents including receipt were prepared in his office. First
he deposed that the receipt of Rs.2,45,000/ was
acknowledged in the agreement to sell with the corrected to
say that it was Rs.4,45,000/. The witness was specifically
queried and was asked to show the receipt prepared on the
day when the other documents like agreement, GPA, SPA were
prepared and the witness pointed out to the receipt Ex.
PW1/2. This receipt Ex. PW1/2 pertains to an amount of
Rs.5,000/ and is dated 16.11.1996.
(10) Further crossexamination of PW2 also renders the whole
deposition of PW1 & PW2 to be suspicious, when according to
PW2, the plaintiff had paid an amount of Rs.4,45,000/ to Mr.
Khatter but he does not remember whether it was a cheque or
a demand draft. However, in his further cross examination,the
witness denied having made any enquiry from the plaintiff as
to when and to how and where the payment has been made
because the payment was made in his presence. It is thus
Suit No. 26/2016 Page 63 of 107
Asha Khanna V. Subhagya Wati & Ors.
apparent that the witness is telling a lie and is deposing
falsely because on one hand he says that receipt Ex.PW1/2 is
the receipt of amount of Rs.4,45,000/ whereas in fact it is of
Rs.5,000/ only. He admits the hand written portion in para 1
on page 2 of Ex. PW1/1 in his own hand writing and
according to him the figure 622501/02 are the numbers of
two cheques which he had filled but simultaneously added
that this may be of a demand draft. He also does not
remember the face value of each of the two documents
described as cheques in Ex.PW1/1. When page 3 of Ex.PW1/1
was shown, the witness admitted that there is something
written in hand and in pencil which he is able to read as "in
r/o pop no." which was not inserted in his presence nor he
knows as to who has written these words and when and for
what purpose. It is also admitted that the insertion is not
initialled either by the plaintiff or by K.L. Khatter or by him or
Mr Chauhan, Advocate. Under these circumstances, what is
the authenticity of the document and what veracity or
truthfulness or credibility can be attached to the statement of
PW1 & PW2. All the more, PW2 can hardly be relied upon
because in his cross examination he has admitted that after
execution of these documents on the day mentioned therein
i.e. agreement to sell, Will, SPA & GPA and at the most the
possession letter, nobody had come to him thereafter, and
also no documents were prepared after that day. This
Suit No. 26/2016 Page 64 of 107
Asha Khanna V. Subhagya Wati & Ors.
document is belied by receipt Ex.PW1/2 which according to
the plaintiff's claim was executed on 16.11.1996 and which is
witnessed by PW2 himself.
(11) According to the statement of PW2 at the time of execution of
these documents, apart from himself, the plaintiff, her son
Rishi Khanna and Advocate were present. However,
immediately the witness denied the presence of Rishi Khanna,
but admits the presence of one more person/ witness.
According to the chief examination of the witness one Mr. H.V.
Chauhan, Advocate was present. The signatures of Mr.
Chauhan on the Will Ex. PW 2/1 are quite below from the
space where the second witness of the Will was supposed to
file. When PW2 was asked about this, he expressed his
inability to say anything. This aspect also renders the signing
of the document at the office of PW2. It may be appreciated
that vide letter Ex. PW1/7 written on behalf of the defendants,
it is undisputed fact that Shri K.L. Khatter was 84 years old
and his presence in the office of PW2 is highly doubtful and so
is the alleged execution of the document including Ex. PW1/1
in the office of PW2.
(12) The reliability of the statement of PW2 is again under cloud or
suspicion when he admitted his signature on the receipt dated
23.09.1996, the certified copy of which is marked PX1, but
denied if the receipt was executed by Shri Khatter. Further,
according to him, the market value in the year 1996 of the
Suit No. 26/2016 Page 65 of 107
Asha Khanna V. Subhagya Wati & Ors.
double storey quarter i.e. ground and first floor was 89 Lacs.
There is no explanation by this witness as to how and under
what circumstances he happened to append his signatures on
the receipt mark PX1 which is for a sum of Rs. 3 Lac for an
alleged transaction with Ramesh Khanna, the husband of the
plaintiff and for a sum of Rs.99 Lacs for the sale of property
double storey, Rajinder Nagar.
(13) With regard to the issue as to whether there was any
obligation which was yet to be performed by the defendant
under the agreement Ex. PW1/1, the kind attention of
Hon'ble Court has been invited to clause (7) of the
agreement Ex.PW1/1, by virtue of which Late Shri K.L.
Khatter was to obtain permission from L & DO or otherwise
to get the aforesaid property converted into freehold. No
doubt, this clause of the agreement, subject to what has
been submitted above it was Late Shri K.L. Khatter who
was to undertake this obligation. However, the plaintiff has
totally ignored and has not drawn the attention of this
Hon'ble court to the General Power of Attorney Ex. PW1/3
in which clause (3) & (10) read as under:
"3) to obtain permission to sell the aforesaid property
from Land & Development Office, Nirman Vihar Bhawan,
New Delhi or any other concerned authority under his
own signatures.
10) to get the leasehold rights of the said property
converted into freehold, to deposit conversion charges,
Suit No. 26/2016 Page 66 of 107
Asha Khanna V. Subhagya Wati & Ors.
to give statement, to produce documents and to follow
up the matter in all respects with the competent/
concerned authority, if the said property shall be
converted into freehold, then this General Power of
Attorney shall be applicable on freehold property and
the attorney can execute one sale deed or more than
one sale deed in respect of to said property."
Further attention is invited Special Power of Attorney
Ex. PW1/4 in which clause (1) reads:
"i) to get the leasehold rights of the said property
converted into freehold and in this respect to appear
and act in the office of Land & Development Office,
office of collector of stamps, sub registrar office or any
other concerned authority, to make application, to
make correspondence, to reply to the letters and
offices, to sign and submit requisite forms, prescribed
forms, affidavit, declaration, indemnity bond, surety
bond, undertaking, no objection, etc., to deposit
conversion charges, stamp duty or any other dues and
demands of the concerned authorities, to give
statements, to produce the documents under the sole
signatures."
(14) It is thus apparent that immediately after the execution of the
Lease documents of Late Shri K.L. Khatter also executed Ex.
PW1/4 and Ex. PW1/3 whereby and whereunder the
obligation bestowed upon him under clause (7) of PW1/1 was
given to Shri Ramesh Khanna, the husband of the plaintiff to
undertake all those acts of Late Shri K.L. Khatter. However, it
is pertinent to mention that PW3 Shri Ramesh Khanna has
Suit No. 26/2016 Page 67 of 107
Asha Khanna V. Subhagya Wati & Ors.
categorically admitted having not filed any application for
converting the property from leasehold to freehold and that for
the said purpose he has not deposited any fees nor he or the
plaintiff filed any document to show that they had gone to the
L & DO. Further, the witness has to go through the contents
of the documents Ex. PW1/3 and PW1/4 and further
admitted that from the day of the agreement from 15.11.1996
till date he has not obtained any permission from L & DO.
What he tried to improve is that LRs of Late Shri K.L. Khatter
refused to give NOC but he is unable to show any letter from L
& DO for obtaining affidavits by way of No Objection from LRs
of Late Shri K.L. Khatter.
(15) It is respectfully submitted that when principal has assigned
the obligation placed upon him, then by virtue of giving
authority by way of executing SPA & GPA, the agent i.e. the
power of attorney holder becomes authorized to do every
lawful thing which is necessary. This is clear from Section 188
of the Contract Act. It is but apparent that during the lifetime
when Ex,PW1/3 & PW1/4 were in force but attorney did not
act as per the authority. Yet the plaintiff is blaming the
defendants. In other words, the respectful submission is that
by virtue of execution of Ex.PW1/3 & Ex. PW1/4, nothing was
left on the part of Late Shri K.L. Khatter to undertake the
performance of any obligation on his part, till he was alive.
Suit No. 26/2016 Page 68 of 107
Asha Khanna V. Subhagya Wati & Ors.
After his demise, in January 1997, the plaintiff kept on
sleeping till September, 2005.
(16) It is further respectfully submitted that the defendants or any
one of them had no direct privity of contract with the plaintiff
and technically it can be said that there was no obligation on
the part of the defendants to be performed by them under the
agreement. However, since they are the legal heirs of the
deceased Late Shri K.L. Khatter, they are under obligation to
do what was supposed to be done by the deceased. In the
present case, however, the plaintiff and her husband being
attorney of Late Shri K.L. Khatter did not act at the relevant
time and then kept silence till midSeptember, 2005. There is
a long and unexplained delay on the part of plaintiff and her
husband, which disentitles the plaintiff on a specific
performance of contract, even if this Hon'ble Court comes to
the conclusion that the defendants were obliged to apply to
the L & DO to do the needful.
(17) With respect to the issue in hand, it is further submitted that
by virtue of Sec. 20 of Contract Act where both the parties to
an agreement are under a mistake as to a matter of fact
essential to the agreement, agreement itself is void. It is
undisputed on record that the suit property is a part of
property, which was allotted to Late Shri K.L. Khatter on lease
basis by L&DO. It is a composite property having tenement
no. 65 & 66, with undivided share with the land underneath.
Suit No. 26/2016 Page 69 of 107
Asha Khanna V. Subhagya Wati & Ors.
The plaintiff by virtue of her pleadings herself has shown that
only undivided 50% share in the land underneath could be
sold as there could not have been a sale of tenement no. 65
without the remaining 50 % undivided share in the land.
Despite this, the plaintiff has not only pleaded but has also
relied upon Ex. PW1/1 for the sale of entire land measuring
123.66 sq. yds. and she has also placed the decree in respect
of the entire land measuring 123.66 sq. yds.
(18) It is thus, apparent that vide agreement Ex. PW1/1 the entire
land of 123.66 sq. yds. could not have been sold by Late Shri
K.L. Khatter nor the plaintiff could have purchased it, for, that
would frustrate any agreement with regard to the tenement
no. 65. In other words, if the two tenements were to be sold
separately, and in case, the entire land beneath the tenement
no. 65 is proposed to be sold and purchased by the plaintiff
then nobody could purchase tenement no. 65. It is humbly
submitted that on facts and circumstances, it has to be
concluded that both the parties to the agreement were under
mistake of fact with regard to the land underneath, the
tenement and the mistake indubitably refers to a fact which is
essential to the agreement i.e. the corresponding undivided
share of the land underneath. Hence, the agreement is
absolutely void.
(19) It is humbly submitted that the defendants in this regard
relies upon the case of Kuchwar Lime & Stone vs. Sec. of
Suit No. 26/2016 Page 70 of 107
Asha Khanna V. Subhagya Wati & Ors.
State as reported in AIR 1937 Pat 65 wherein it was held
that where the agreement is under mutual mistake and
apprehension as to relative and respective rights of the parties
is an agreement on common mistake of fact and hence, void
and liable to set aside. To the same effect, is the judgment in
Ganga Retreat & Towers Ltd. vs. State of Rajasthan
reported in 2003 (12) SCC 91 wherein it was held that
mistake of essential fact avoids the agreement.
(20) It is also respectfully submitted that agreement is dated
15.11.1996 and now we are in the year 2019. About 22 years
have passed by. Original owner of the suit property namely
Shri K.L. Khatter died soon after the agreement on
31.01.1997. It would have been totally different had he been
alive and the plaintiff would have prosecuted her right
regarding the suit property under the agreement. After the
demise of Shri Khatter, naturally his legal heirs have got
natural and emotional sentiments attached with the suit
property. Further, over the period the price of the property
has spiralled to umpteen number of times. Granting of the
specific performance in favour of the plaintiff at this length of
time would not only hurt the sentiments of the defendants but
will also cause great hardship as even the grand children of
Late Shri K.L. Khatter have come of age and must be requiring
separate accommodation. Therefore, otherwise also it is not in
Suit No. 26/2016 Page 71 of 107
Asha Khanna V. Subhagya Wati & Ors.
the interest of justice and equity to grant the specific
performance of contract. This is without prejudice to the
submissions on merits, made above.
(21) In the last, it is submitted that the present agreement Ex.
PW1/1 cannot be held valid for the foregoing reasons and if
held so, the specific performance would not be ordered by the
Hon'ble Court. The defendants rely upon Mirahul
Enterprises vs. Vijaya Srivastav reported in 100(2002)
DLT 290 in support of this contention. In the said case, there
was only a provisional agreement and final price was to be
worked out on the basis of market value. There was no
consensus among the parties on value and hence it was held
that the specific performance cannot be ordered. In the
present case also the pleadings and the evidence would show
that there is no consensus on the exact measurement of land
underneath the suit property. It is not ascertainable as to
whether 50% of land was to be sold or the entire land of
123.66 Sq. Yds. was to be sold. If it was the entire land, then
the parties were under mistake of fact. Even otherwise, the
plaintiff has prayed for the specific performance of the entire
land, which otherwise is unconscionable as the defendants
would not be able to sell the other property bearing no. 65
without proportionate rights in the land underneath.
Suit No. 26/2016 Page 72 of 107
Asha Khanna V. Subhagya Wati & Ors.
Accordingly, all the three issues in hand need to be answered
against the plaintiff and in favour of the defendant.
(22) Regarding issue no.4, it is submitted that there is no such
prayer in the suit filed by the plaintiff and couched in a
language which is the language of this issue. Further, there
appears to be a typographical error in placing the onus of this
issue on the defendants whereas the body of the issue
specifically points that the burden is upon the plaintiff and
not upon the defendants. This issue, it is submitted, is totally
superfluous.
FINDINGS AND CONCLUSIONS OF THE COURT
The crux of the arguments of the defendants is that (i)
the documents were obtained from Late Shri K.L. Khattar by the
plaintiff, (ii) The consideration i.e. amount of Rs.4,50,000/ was not
paid to Late Shri K.L. Khattar, (iii) the conversion charges were the
liability of the plaintiff and the plaintiff has not completed her
obligation, (iv) the possession was illegally taken on 15.2.2004 and
prior to that, the plaintiff was not in possession, as in the
possession letter, there is no signature of the plaintiff, (v) No draft
Sale Deed was ever given to Late Shri K.L. Khattar and/or
defendants for execution of the Sale Deed, (vi) the husband of
defendant was the Power of Attorney holder of the deceased Shri
K.L. Khattar and he had not taken any steps for conversion during
the relevant time and the plaintiff had not taken any step for about
Suit No. 26/2016 Page 73 of 107
Asha Khanna V. Subhagya Wati & Ors.
9 years, (vii) The area mentioned in the Agreement Exhibit PW1/1
clearly reflects that the Agreement was vitiated by mutual mistake
and the same is void and (viii) the grant of Specific Performance is
discretionary and owing to the facts of the present case, no
discretion can be exercised.
In order to appreciate the arguments of the defendants,
it is first of all to be looked into whether the defendants have laid
down any foundation for the aforesaid arguments in their
pleadings. In para no.1 of the plaint, the plaintiff has mentioned the
reference to the following documents:
(i) Agreement to Sell cum Receipt dated 15.11.1996 (Ex.PW1/1).
(ii) Receipt of Rs.5,000/ (Ex.PW1/2).
(iii) General Power of Attorney and Special Power of Attorney, both
dated 15.11.1996 (Ex.PW1/3 and Ex.PW1/4 respectively).
(iv) Possession Letter dated 15.11.1996 signed by Mr. K.L.
Khattar in favour of the plaintiff (Ex.PW1/5).
(v) Will dated 15.11.1996 executed by Mr. K.L. Khattar and the
plaintiff is the beneficiary of the Will (Ex.PW2/1).
The defendants, in reply to para No.1 of the plaint, have
submitted that contents of para no.1 of the suit, which are a matter
of record, are not disputed. There is no mention in the entire
Written Statement that the aforesaid documents, as mentioned in
para no.1, were 'obtained' by the plaintiff. Moreover, the letter
Ex.PW1/7, on which reliance is placed by the defendant, nowhere
Suit No. 26/2016 Page 74 of 107
Asha Khanna V. Subhagya Wati & Ors.
disputes about the execution of aforesaid documents and the word
'obtained' in the said reply, which was given after about 9 years
from the execution of the aforesaid documents and after agreeing to
sell the property no. 65 to the son of defendant, was used in the
context that the area i.e. 123.66 sq. yds. in the land underneath
mentioned in the said documents was not in consonance with the
Lease Deed dated 31.01.1962. The defendants have nowhere
disputed the aforesaid documents in the entire written statement.
There is categorical mention of handing over the possession of the
suit property to the plaintiff in para no.1 of the plaint and the same
is also not disputed by the defendants. Moreover, in para no.6 in
the Preliminary Objections, it is submitted by defendants that the
plaintiff obtained General Power of Attorney and Special Power of
Attorney in the name of husband of the plaintiff to do/ get done
certain acts for and on behalf of Shri K.L. Khattar and clauses 3, 9
and 10 of the General Power of Attorney were reproduced in para
no.6 of the preliminary objections in the written statement in order
to demonstrate that there was no obligation which was left on the
part of the deceased Shri K.L. Khattar.
The word 'obtained', as mentioned in para no.6 of the
Preliminary objections in the written statement, also clearly
postulates that the same was mentioned in the 'positive sense' and
not in 'negative sense', as projected by the defendants in the
arguments. The reading of whole para no.6 of the Preliminary
Suit No. 26/2016 Page 75 of 107
Asha Khanna V. Subhagya Wati & Ors.
Submissions and written statement clearly suggest that the defence
of the defendants is encompassed to the following effect:
(a) The balance amount of Rs.5,000/ was paid through post
dated cheque dated 16.11.1996, although, the same was
required to be paid at the time of execution of the Sale Deed
and reason for payment of the balance consideration was that
the General Power of Attorney and Special Power of Attorney,
both dated 15.11.1996 (Ex.PW1/3 and Ex.PW1/4
respectively) were executed by Late Shri K.L. Khattar in favour
of the husband of plaintiff and therefore, there was no
obligation of Late Shri K.L. Khattar and/or defendants, who
are LR's to apply for conversion of the property from lease
hold to free hold and to execute the Sale Deed as the General
Power of Attorney dated 15.11.1996 was already executed in
favour of the husband of the plaintiff;
(b) The plaintiff has deliberately, intentionally and miserably
failed to adhere to the clause of General Power of Attorney and
Special Power of Attorney, then it is the plaintiff and plaintiff
alone, who is to suffer for her own deliberate & intentional
neglect/lapses and the suit of plaintiff is barred on account of
such lapses.
(c) The land measuring 123.66 sq. yds. underneath the
tenements was common and not divisible amongst the two
tenements i.e. properties bearing no. 66 and 65, Double
Storey, New Rajinder Nagar, New Delhi in terms of Lease Deed
Suit No. 26/2016 Page 76 of 107
Asha Khanna V. Subhagya Wati & Ors.
dated 31.1.1962 and the Will, if any, is against consideration,
which is against the provisions of law.
There was no pleading in the entire written statement
that:
(i) Late Shri K.L. Khattar had not executed the aforesaid
documents i.e. Exhibit PW1/1 to Exhibit PW1/5 and
Exhibit PW2/1. (On the contrary, there is categorical
admission if we scan the entire written statement as a
whole and particularly reply to para No.1 of the plaint
on merits).
(ii) No Consideration, as mentioned in the registered
Agreement Exhibit PW1/1 and Receipt Exhibit PW1/2,
was paid to Late Shri K.L. Khattar (On the contrary, it is
mentioned that Will, if any, is against consideration,
which is against the provisions of laws. Therefore,
receipt of consideration is admitted by the defendants in
the written statement. It is also mentioned that the
balance amount of Rs.5,000/ was paid prior to the date
fixed as the GPA & SPA were executed by the deceased
Sh. K.L. Khattar in favour of the husband of plaintiff).
(iii) The possession was not taken by the plaintiff in respect
of the suit property at the time of execution of the
aforesaid documents.
Suit No. 26/2016 Page 77 of 107
Asha Khanna V. Subhagya Wati & Ors.
(iv) There was mutual mistake in execution of the said
documents and the same are void documents.
The defendants have tried to builtup a totally new case
in the crossexamination of the plaintiff's witnesses and in the
arguments and there is no basis or foundation laid down by the
defendants in the entire written statement. The defendants have
also set up the totally new case of ancestral property in the
counterclaim in contradistinction from the written statement but
the Ld. counsel for the defendants have candidly admitted during
the course of arguments as well as in the cross examination of DW
1 that defendants are not disputing the ownership of Late Shri K.L.
Khattar and furthermore, the DW1 has failed to prove that the suit
property was not the property of Late Shri K.L. Khattar but the
same was ancestral property. There is no oral or documentary
evidence, which was produced by DW1 to such effect and in the
crossexamination also, DW1 has admitted the aforesaid fact and
furthermore, there is no scintilla or iota of evidence produced by the
defendants to support the said plea which was taken after one year
of filing of the written statement and after about 11 years from the
execution of the documents by Late Sh. K.L. Khattar. The said
pleas on the face of them appear to be afterthought.
The moot question, which arises for consideration, is
that whether by execution of the General Power of Attorney and
Special Power of Attorney dated 15.11.1996 i.e. Ex.PW1/3 and
Suit No. 26/2016 Page 78 of 107
Asha Khanna V. Subhagya Wati & Ors.
Ex.PW1/4 respectively by Late Shri K.L. Khattar in favour of
husband of the plaintiff, Late Shri K.L. Khattar and/or defendants
were relieved from their obligation to get the suit property converted
from lease hold to free hold property. The relevant clause no.7 of
Ex.PW1/1 is reproduced herein for apt understanding:
"7. That the First Party will obtain permission to
sell the aforesaid property from Land &
Development Office, Nirman Bhawan, New Delhi,
in favour of the Second Party or otherwise to get
the aforesaid converted into freehold, however
the conversion charges will be borne by the
Second Party."
There is no dispute that the First Party was Late Shri
K.L.Khattar and at page No.1 of the said Agreement, it clearly
envisages that "First and Second Party herein used shall mean and
include them, their heirs, successors, legal representatives,
administrators, nominees and assigns."
The obligation, which was cast upon Late Shri K.L.
Khattar, was equally the obligation of his heirs i.e. the defendants.
The said position is also clearly borneout from the bare perusal of
Section19 of the Specific Relief Act, 1963. After the death of Shri
K.L. Khattar, the defendants were required to comply the aforesaid
obligation. There is no dispute that Shri K.L. Khattar had expired
only after 21/2 months from date of execution of the aforesaid
documents. The plaintiff appears to be under bonafide impression
that Ex.PW1/3 and Ex.PW1/4 lost their efficacy and teeth after
Suit No. 26/2016 Page 79 of 107
Asha Khanna V. Subhagya Wati & Ors.
the death of Shri K.L. Khattar. Although, the Ex.PW1/3 and
Ex.PW1/4 were executed in favour of husband of the plaintiff but
simultaneously at the time of execution Exhibit PW1/1, the
aforesaid obligation was also cast upon the Late Shri K.L. Khattar
and thereafter, upon his heirs i.e. now the present defendants and
it is nowhere recorded in the Exhibit PW1/1 that the aforesaid
obligation was to be carried on through Power of Attorney holder
only. There was no time limit, which was prescribed to comply the
aforesaid obligation. The question of deposit of conversion charges
would pop up only when the initial documentations were completed
in all respects either by Shri K.L. Khattar and/or heirs of Shri K.L.
Khattar/ defendants after the death of Shri K.L. Khattar and they
were required to call upon the plaintiff to pay the conversion
charges but no such course of action was done at any point of time.
There is not a single document, which was placed on record by the
defendants to suggest that either Shri K.L. Khattar and/or
defendants have called the plaintiff to pay the conversion charges
and on such demand, the plaintiffs have failed to pay the same.
The General Power of Attorney and Special Power of
Attorney in favour of the husband of plaintiff were valid and
subsisting on account of Section202 of Indian Contract Act and
the law with respect to the same is enunciated by our Hon'ble High
Court in catena of Judgments. I have profit to rely upon relevant
paras no.6 to 10 of one of the Judgment of Hon'ble High Court of
Suit No. 26/2016 Page 80 of 107
Asha Khanna V. Subhagya Wati & Ors.
Delhi passed in Ramesh Chand Versus Suresh Chand RFA
No.358/2000 decided on 09.04.2012:
".........The summarization is that the documents
which were executed by the fatherSh. Kundan
Lal in favour of the respondent
No.1/plaintiff/son dated 16.5.1996 would not stricto sensu confer complete ownership rights, however, the said documents would create rights to the extent provided for by Section 202 of Contract Act, 1872 and ownership on account of devolution in terms of the Will after the death of the testator in terms of relevant provisions of Indian Succession Act, 1925. Of course, I hasten to add that so far as the facts of the present case are concerned, I am not giving the benefit of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882 to the respondent No.1/plaintiff inasmuch as learned counsel for the appellant is correct in arguing that the benefit of the said doctrine cannot be given as the physical possession of the property was not transferred to the respondent No.1/plaintiff by the fatherSh. Kundan Lal under the agreement to sell dated 16.5.1996.
7. Accordingly, even if we do not give the benefit of Section 53A of the Transfer of Property Act, 1882 to the respondent No.1/plaintiff, the respondent No.1/plaintiff however would be entitled to benefit of Section 202 of the Contract Act, 1872 and the fact that ownership had devolved upon him in terms of the Will executed by the father in his favour on 16.5.1996. The argument urged on behalf of the appellant by his Suit No. 26/2016 Page 81 of 107 Asha Khanna V. Subhagya Wati & Ors.
counsel that power of attorney, Ex.PW1/6 ceased to operate after the death of the father is an argument without any substance in view of the provision of Section 202 of the Contract Act, 1872 alongwith its illustration (which I have reproduced above) and which shows that power of attorney given for consideration operates even after the death of the executant.
8. Great stress was laid on behalf of the appellant to the fact that the respondent No.1/plaintiff had failed to prove the Will, Ex.PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance is placed on behalf of the appellant on the judgment of the Supreme Court in the case of Kashibai & Anr. Vs. Parwatibai & Ors. 1995 IV AD S.C. (C) 41 to argue that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, the same cannot be said to be proved. In my opinion, the judgment of the Supreme Court in the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to the facts of those cases where the disputes with Suit No. 26/2016 Page 82 of 107 Asha Khanna V. Subhagya Wati & Ors.
regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No.1/plaintiff as PW1. Once there is no cross examination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent No.1/plaintiff under a Will will not be a judgment in rem but only a judgment inter se the parties. Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant No.1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e. the brother of the parties to the present suit, Sh. Ram Swaroop deposed in favour of respondent No.1/plaintiff Suit No. 26/2016 Page 83 of 107 Asha Khanna V. Subhagya Wati & Ors.
as PW2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant No.1 as DW2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation.
9. Another argument very strenuously put forth on behalf of the appellant was that the documents dated 16.5.1996 executed by the father in favour of the respondent No.1/plaintiff were forged and fabricated documents created after the death of the father who died in the year 1997. In my opinion, this argument is totally without any merit for the reason that the documents being the agreement to sell, general power of attorney, receipt, etc. dated 16.5.1996 includes a registered document being the Will which was registered with the subRegistrar on the date of its execution i.e. 16.5.1996. Therefore, this argument that the documents were fabricated after the death of Sh. Kundan Lal in 1997, is therefore rejected.
10. Learned counsel for the appellant finally laid great stress on paras 18 and 19 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) and which read as under: "18. We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions Suit No. 26/2016 Page 84 of 107 Asha Khanna V. Subhagya Wati & Ors.
cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under Section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister, or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement Suit No. 26/2016 Page 85 of 107 Asha Khanna V. Subhagya Wati & Ors.
with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bona fide/genuine transactions."
These paragraphs were relied upon in support of the proposition that by these paras the Supreme Court in fact explained its earlier observations made in paras 12, 13, 14 and 16 of its judgment and that the Supreme Court did not intend to give any rights in immovable property. In other words, the argument was that in spite of paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) the documents being an agreement to sell under Section 53A or a power of attorney coupled with interest or a Will cannot create rights in an immovable property. In my opinion, this argument urged on behalf of the appellant really does not convey any meaning to me Suit No. 26/2016 Page 86 of 107 Asha Khanna V. Subhagya Wati & Ors.
inasmuch as the argument, if accepted, would mean that I am ignoring the binding observation/ratio of the Supreme Court given in paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra)."
There is another aspect of the matter that the General Power of Attorney and Special Power of Attorney were executed in respect of Property bearing No.66, Double Storey, Rajinder Nagar, New Delhi and the same was not executed in respect of tenement No.65, Double Storey, Rajinder Nagar, New Delhi. The Lease Deed dated 31.1.1962 was common in respect of both the tenements i.e. 65 and 66, Double Storey, Rajinder Nagar, New Delhi. The husband of the plaintiff could not have applied for conversion of the suit property from lease hold to free hold as the aforesaid Lease Deed was common in respect of both the tenements and Power of Attorney was executed only in respect of one tenement as the plaintiff had purchased only tenement by Exhibit PW1/1. Therefore, aforesaid obligation could only be complied either by Shri K.L. Khattar and/or heirs of Shri K.L.Khattar after his death and the husband of the plaintiff could not have utilized his powers to even fulfill the said obligation. Another question which arises for consideration is whether the agreement to sell can be entered into without any permission from the L&DO. I have profit to refer and rely upon paras no. 15 to 17 of the case bearing RFA No. 24/2008 Suit No. 26/2016 Page 87 of 107 Asha Khanna V. Subhagya Wati & Ors.
decided on 19th April, 2012 titled as B.L. Joshi & Anr. Versus Nitin Jain & Anr. Decided by Hon'ble High Court of Delhi: "5. The main issues which were decided by the Trial Court with respect to the entitlement to specific performance were issue nos. 4 and 5. With regard to these issues, the Trial Court has held as under: "15. Learned counsel for the defendants has contended that the suit property was taken by the defendants on lease basis from the Delhi Development Authority. Suit property cannot be sold to any one without seeking prior permission from the Delhi Development Authority. The agreement to sell Ex.PW1/1 was void document since transfer of suit property was prohibited as per the terms and conditions stipulated in the lease agreement executed between the Delhi Development Authority and the defendants. Thus, according to learned counsel for the defendants, decree for specific performance cannot be passed. As against this learned counsel for the plaintiffs has contended that there was no complete bar with regard to transfer of a leasehold property. Leasehold property can be transferred by the lessee after seeking permission of the lessor. Defendants are required to obtain requisite permission from the Delhi Development Authority and thereafter execute transfer documents. Defendants were aware that the suit property was a leasehold property and a Suit No. 26/2016 Page 88 of 107 Asha Khanna V. Subhagya Wati & Ors.
permission from the Delhi Development Authority for effecting transfer was required to be taken. Despite this defendants had agreed to sell the suit property to the plaintiffs, therefore, at this stage they cannot take any such plea that the suit property could not have been sold. Learned counsel has further contended that a decree of specific performance can be granted in respect of a leasehold property. He has placed reliance on a judgment rendered by the Hon'ble apex Court titled as Shri Vishwa Nath Sharma Vs. Shyam Shankar Goela & Anr. reported in 139 (2007) Delhi Law Times 91 (SC).
16. I have considered the rival contentions of both the parties on the above point and I do not find any force in the contentions of the learned counsel for the defendants. Defendants were aware at the time of executing Ex.PW1/1 that the suit property was a leasehold property and seller is required to take permission from the Delhi Development Authority before transferring the leasehold property to any third parties. Knowing fully well this fact they executed Ex.PW1/1, therefore, it is for the defendants to obtain requisite permission from the lessor for sale of the leasehold property. In case the Delhi Development Authority refuses to grant permission the plaintiffs may not be able to enforce the decree for Suit No. 26/2016 Page 89 of 107 Asha Khanna V. Subhagya Wati & Ors.
specific performance of contract but that by itself may not bar the Court to pass a decree for that relief. Thus, it cannot be said that a decree of specific performance of the contract cannot be granted in respect of leasehold properties. In para 12 of Shri Vishwa Nath Sharma's case, judgment cited supra, the Hon'ble apex Court has held as under: "The Privy Council in Motilal V. Nanhelal, AIR P.C. 287 laid down that if the vendor had agreed to sell the property which can be transferred only with the sanction of some Government authority, the Court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming, to convey to the purchaser within a certain time. This proposition of law was followed in Mrs. Chandnee Widya Wati Madden V. C.L. Katiyal, AIR 1964 SC 978, and R.C.Chandlok V. Chuni Lal Sabharwal, AIR 1971 SC 1238. The Privy Council in Motilal's case (supra), also laid down that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the vendee. Permission from the Suit No. 26/2016 Page 90 of 107 Asha Khanna V. Subhagya Wati & Ors.
Land and Development Officer is not a condition precedent for grant of decree for specific performance. High Court relied upon its decision in Mrs. Chandnee Widya Wati madden Vs. Dr. C.L. Katial (supra), and Maharo Saheb Shri Bhim Singhji V. Union of India, AIR 1961 SC 234m to substantiate the conclusive. IN Mrs. Chandnee Widya (supra), this Court confirmed the decision of the Punjab and Haryana High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale, the plaintiff may not be able to enforce the decree for specific performance of the contract but that was not a bar to the Court passing a decree for that relief. The same is the position in the recent case. If after the grant of the decree of specific performance of the contract, the Land and Development Officer refused to grant permission for sale and decree holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract."
(Portions bolded in order to highlight) Suit No. 26/2016 Page 91 of 107 Asha Khanna V. Subhagya Wati & Ors.
I have also profit to refer the paras no.8 and 12 of the Judgment passed by our Hon'ble High Court of Delhi in RFA No. 73/2018 decided on 24th January, 2018 titled as M/s Madhan and Company & Ors. Versus Punjab & Sind Bank & Ors.
"8. The stand of the DDA before the trial court was that the appellants/defendant nos. 1 to 3 and respondent no. 1/plaintiff have violated the terms of lease deed dated 2.6.1977 because they entered into the agreement to sell in violation of the terms of Clause 4(a) of the lease deed because no prior permission was taken for transfer of the suit property by the appellants/defendants nos. 1 to 3 to the respondent no.1/plaintiff. This stand of the DDA was clearly wholly misconceived and baseless inasmuch as Clause 4(a) bars the execution of the sale deed or a transfer document or any document of transferring ownership rights in the suit property and that this Clause 4(a) obviously does not prevent an agreement to sell being entered into. It is trite that in case a seller refuses to perform a contract/agreement to sell for an immovable property, and a suit for specific performance is filed by the proposed buyer, then a decree is passed that the proposed seller will execute the sale deed after taking the necessary permissions as required from the competent authority, and which permissions are Suit No. 26/2016 Page 92 of 107 Asha Khanna V. Subhagya Wati & Ors.
required as a prior event for transferring of the immovable property. Merely because there is required a prior permission to sell the immovable property, and which is not taken prior to the filing of the suit for specific performance, does not mean that the suit will not be maintainable because contract of such a nature is a contingent contract and that at the time of the passing of the decree in the suit for specific performance the courts will direct taking of permission from the competent authority as held by the Supreme Court in the case of Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and Others, AIR 1964 SC 978. Therefore, DDA was completely unjustified in contending that there took place any sale or that any sale deed was entered into between the appellants/defendant nos. 1 to 3 and respondent no. 1/plaintiff because there is only an agreement to sell and there is no sale/conveyance/transfer document.
12. As a result of the aforesaid discussion, the following conclusions can safely be drawn:
(i) There was a contract being an agreement to sell entered into between the appellants/defendant nos. 1 to 3 and the respondent no. 1/plaintiff when the respondent no. 1/plaintiff gave its acceptance letter Ex. PW1/4 dated Suit No. 26/2016 Page 93 of 107 Asha Khanna V. Subhagya Wati & Ors.
30.3.1977 accepting the offer terms of the appellants/defendant nos. 1 to 3 as contained in Ex.PW1/3 dated 8.1.1977 and 15.3.1977 for selling the suit property.
(ii) Appellants/defendant nos. 1 to 3 have already received Rs. 12,25,000/ out of the total sale consideration of Rs. 12,50,000/ way back in around the year 197778 and appellants/defendant nos. 1 to 3 had acted pursuant to the agreement to sell by constructing a building on the suit plot and handing over the suit plot and the building there on to the respondent no. 1/plaintiff. The respondent no.1/plaintiff had done all that was required to be done on its part under the contract showing that it was ready and willing to go through with the agreement to sell.
(iii) Permission was applied for by the appellants/defendant nos. 1 to 3 in terms of Clause 4(a) of the lease deed dated 2.6.1977 of DDA with the appellants/defendant nos. 1 to 3, and that DDA though objected in giving permission yet at no point of time an order was ever passed refusing to grant permission.
(iv) Contracts which require grant of previous permission by an authority before sale of an immovable property, such contracts are contingent contracts, and Suit No. 26/2016 Page 94 of 107 Asha Khanna V. Subhagya Wati & Ors.
while decreeing suits for specific performance for such contracts, in addition to the direction of execution of sale deed directions are issued that the proposed seller will take the necessary permission of the competent authority for selling of the property vide Mrs. Chandnee Widya Vati Madden (supra). Additionally, I note that in case a proposed seller refuses to apply for permission, then after passing of a decree, in execution proceedings there is a procedure provided in terms of Order XXI Rule 32 CPC whereby Courts appoint Court Commissioners to take necessary permissions or do all other acts which are required for execution of the sale deed.
(v) Defence/objections raised by DDA have no corelation to the intent and purpose of Clause 4(a) of the lease deed, for DDA to refuse to grant permission to sell the suit property.
(vi) There cannot be frustration of the contract being the agreement to sell entered into by the appellants/defendant nos. 1 to 3 with the respondent no. 1/plaintiff, inasmuch as frustration would have been if there was an order passed by the DDA refusing to grant permission which legally had become final, and admittedly there is no order passed by DDA refusing to grant permission.
Suit No. 26/2016 Page 95 of 107Asha Khanna V. Subhagya Wati & Ors.
(vii) Trial court by the impugned judgment has ensured that different situations and scenarios are taken care of whether it is required with respect to decree for specific performance or for execution of the sale deed since now the property is freehold, and trial court has as required by law and equity directed the respondent no.1/plaintiff payment of conversion charges and all other charges which have been paid by the appellants/defendant nos. 1 to 3 to DDA for converting the property from leasehold to freehold.
(Portions bolded in order to highlight) The Ld. counsel for the defendants has assiduously argued that it is a fit case where the discretion is not required to be exercised to decree the Specific Performance, more so, when the Agreement speaks the area of 123.66 sq. yds. in the land underneath but the said area was not only pertains to tenement in question i.e. no.66 on the ground floor but also the tenement bearing no.65 on the first floor and since there was mutual mistake, the agreement is void.
There appears to be bonafide mistake in recording the area in the land underneath and the same can be looked into from the reading of first recital at page no.2 of Exhibit PW1/1. The parties must have shown the copy of the registered Lease Deed Suit No. 26/2016 Page 96 of 107 Asha Khanna V. Subhagya Wati & Ors.
dated 31.1.1962 registered on 14.2.1962 to the document writer and in the Lease Deed, there is categorical mention about the area as 123.66 sq. yds. Both the tenements are built upon the area of 123.66 Sq. Yds. but the area charged for ground rent by the L&DO is 50:50 i.e. land underneath the said tenements. The document writer appears to have taken the details from the said Lease Deed but he has failed to take note of the fact that the Lease Deed dated 31.1.1962 not only pertains to the suit property but also to tenement no.65 on the first floor above the suit property. The area, on which the suit property is built up, is correctly described as the same is built upon 123.66 sq. yds but the land underneath belongs to both the tenements as they were given by One Lease Deed and charged as 50:50. The only question is the land underneath the said tenement. No doubt, Late Shri K.L. Khattar was having right in the area of 123.66 sq. yds. in the land underneath but the said right was attached to both tenements i.e. 65 and 66 and tenement no.66 is having 50% of the land underneath. Admittedly, on 15.11.1996 only tenement no.66 (on the ground floor) was sold to the plaintiff and it appears that the document writer was not able to decipher the area under the land underneath the tenement in question i.e. suit property and for this reason, it appears to have recorded 123.66 sq. yds. (Land underneath). The principle of "Nemo dat quod non habet" means no one can give what they do not have i.e. no one can transfer a better title than he himself has, is squarely applicable in the present case as Shri K.L. Khattar could Suit No. 26/2016 Page 97 of 107 Asha Khanna V. Subhagya Wati & Ors.
have given 50% in the land underneath i.e. 50% of 123.66 sq. yds. as the suit property was only for a tenement No.66. The said situation is catered by Section 18 of the Specific Relief Act, 1963 and the same is reproduced hereunder: "18. Nonenforcement except with variation.
--Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases, namely:--
(a) where by fraud, mistake of fact or mis representation, the written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contact;
(b) where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce;
(c) where the parties have, subsequently to the execution of the contract, varied its terms."
(The portion underlined and bolded in order to highlight) There appears to be clear case of mistake of fact and on account of mistake of fact, the area recorded is 123.66 sq. yds. (Land underneath) instead of proportionate area in the land underneath i.e. 50% of 123.66 sq. yds in the land underneath. The Suit No. 26/2016 Page 98 of 107 Asha Khanna V. Subhagya Wati & Ors.
argument of Ld. counsel for the defendants that on account of such mistake, the agreement becomes void sans merit and is hereby rejected. There was consensus adidem between the parties about the property to be sold and other aspects of the matter and the same has been candidly and categorically admitted by the defendants in the written statement and proved by the plaintiff.
Now, the question arises whether the Specific Performance can be enforced qua the Agreement to SellExhibit PW 1/1. The Ld. counsel for the plaintiff has argued that since the present case is not decided the Amendment would be applicable in the present case in terms of Judgments, as relied upon by plaintiff hereinabove. The legislation, in its wisdom by way of Amendment, has taken away the discretion of the Courts while passing the decree for Specific Performance. However, I am not going into the question in the present case whether the unamended Section 20 of Specific Relief Act is applicable or the amended Section 10 of the Specific Relief Act is applicable, as in the present case, there was nothing on the part of plaintiff to be complied and the transaction was completed in all respects. The transaction was not the stricto sensu confer absolute ownership right but the documents create the right to the extent, as provided under Section 202 of the Indian Contract Act, 1872 and Section 53A of the Transfer of Property Act. The payment of conversion charges was required to be given as and when Shri K.L. Khattar and after his death his heirs had shown their intention to get the property from lease hold to free hold Suit No. 26/2016 Page 99 of 107 Asha Khanna V. Subhagya Wati & Ors.
property. At any point of time, the defendants have not shown their intention to the plaintiff that they are going to get the property in question from lease hold to free hold. Although, the defendants have placed on record the copy of the Conveyance Deed dated 16 th August, 2005, whereby, the suit property including tenement no.65 was converted into free hold in favour of Sh/Smt. S.C. Khattar, Sunita Juneja (for 1/4th undivided share each), Smt. Sobhagya Wati (for 5/16th undivided share) and Sh. Rahul Khattar, Ms. Dipti Mishra, Smt. Rekha Khattar (for 1/16 th undivided Share each) (for self and GPA of Sh. Rahul Khattar and Ms. Dipti Mishra) but the defendants do not appear to have demanded the conversion charges from the plaintiff before applying the lease hold to free hold and thereafter also. There is no dispute that Smt. Sobhagya Wati, wife of Late Shri K.L. Khattar had expired and her share had devolved upon the present defendants in terms of Sections 15 and 16 of the Hindu Succession Act.
The present defendants are now possessed with the aforesaid Conveyance Deed and the suit property has already been converted from lease hold to free hold property. Therefore, the obligation, as mentioned in para no.7, had already been complied, however, the defendants in reply dated 28.09.2005 to the letter dated 19.09.2005 has neither disclosed nor demanded the amount of conversion charges from the plaintiff. The plaintiff was required to pay the conversion charges but when the defendants have not put the notice of the same to the plaintiff then where was the Suit No. 26/2016 Page 100 of 107 Asha Khanna V. Subhagya Wati & Ors.
question of paying the same by the plaintiff to the defendants. The defendants have also not placed on record the amount of conversion charges which they have spent at the execution of the Conveyance Deed dated 16.08.2005. Accordingly, in order to balance the equity, the plaintiff is directed to deposit the sum of Rs.2,00,000/ before this Court within a period of 15 days from passing of the Judgment with advance information to the defendants and after deposit thereof, the same be kept in the FDR in the auto renewal method. The defendants are directed to furnish the proof of the amount of conversion charges within a period of one month from passing of this Judgment with the advance copy to the other side and on furnishing the proof, the actual conversion charges be released to the defendants. If the amount deposited by the plaintiff found to be deficit, then the plaintiff will be directed to deposit the further amount on the application of the defendants. If the amount deposited by the plaintiff found to be in excess, then the same will be released to the plaintiff.
The present case is a fit case for passing of the decree of Specific Performance of Agreement to Sell dated 15.11.1996 - Exhibit PW1/1, however, with variation only to the effect that land underneath the suit property would be 50% of 123.66 sq. yds. and not 123.66 sq. yds., as mentioned in the Exhibit PW1/1 and since the entire consideration has already been paid, the defendants are directed to execute the Sale Deed in terms of Agreement to Sell Suit No. 26/2016 Page 101 of 107 Asha Khanna V. Subhagya Wati & Ors.
dated 15.11.1996 with variation, as mentioned above, within a period of three months from passing of this Judgment.
Accordingly, in view of discussions made hereinabove, the issues no.1 to 4 in the suit and issues no.1 and 2A in the CounterClaim are decided in the aforesaid terms in favour of the plaintiff and against the defendants. ISSUE NO.6 IN THE SUIT (6) Whether the plaintiff is entitled to damages/compensation to the tune of Rs.4,50,000/ with future interest as claimed or at any other rate? OPP ARGUMENTS OF THE PLAINTIFF The plaintiff has purchased the suit property on 15/11/1996 and since then, she is unable to renovate/reconstruct the property and cannot utilize or raise loan/finance against the same. The plaintiff has been deprived of enjoying the fruits of the suit property, as such, the plaintiff has suffered losses, which have been claimed by the plaintiff by way of damages against the defendants. The plaintiff has specifically deposed in her affidavit about the claim of damages but no cross examination has been done by the defendants on this point as such the same is deemed to have been admitted by the defendants. The defendants have not converted the suit property from lease hold to free hold. As such, the plaintiff is entitled for damages of Rs.4,50,000/ till the time suit is filed and thereafter, the plaintiff is entitled to a sum of Rs.
Suit No. 26/2016 Page 102 of 107Asha Khanna V. Subhagya Wati & Ors.
25000/per month from the date of filing of the suit and till the performance of agreement is not done by the defendants. ARGUMENTS OF THE DEFENDANTS (1) So far as, this issue is concerned PW1 in her affidavit in para 14 has only deposed that she is suffering losses and damages as the defendants are delaying the execution of title deeds, according to her she is unable to use and enjoy the suit property in the best and fullest manner and that she is unable to make any renovation, addition/ alteration and proper use of the property. According to her deposition, she is entitled to damages & compensation in addition to the relief of specific performance in the amount of minimum Rs.25 Lacs as on date and any other further amounts which the Hon'ble Court will award.
(2) The said deposition is totally vague. No evidence has been led by the plaintiff as to in what manner she is unable to use and enjoy the property particularly when she is already in possession. There is also no basis for the alleged amount of Rs.25 lakh as damages and compensation. 'Compensation' in legal sense may constitute actual loss or expected loss which has to be compensated to the successful parties. In other words, it is an equivalent for services. On the other hand, the word 'damage' has been interpreted as to give to plaintiff a compensation for loss and injury one has suffered. Thus, by and large compensation and damages are one and the same Suit No. 26/2016 Page 103 of 107 Asha Khanna V. Subhagya Wati & Ors.
thing. In this regard, the judgments in Lucknow Development Authority vs. M.K. Gupta [AIR 1994 SC 787] and Common Cause vs. Union of India [AIR 1999 SC 2979] may be fruitfully referred. It goes without saying that in order to claim the compensation and damages (which according to the defendants are synonymous), a claimant has to prove the actual loss or damage, whether tangible or intangible. The plaintiff has failed to established any actual loss or injury. So there is no question of awarding any damages/ compensation to the tune of Rs.4,50,000/ as claimed in the plaint. It is apparent that in the affidavit, the plaintiff has gone much beyond the pleadings, which otherwise is not permissible. The question of interest on the said amount on any rate thus, is nonest. The issue is liable to be answered against the plaintiff.
FINDINGS AND CONCLUSIONS OF THE COURT I am fully in agreement with the arguments advanced by the defendants, it is incumbent duty of the plaintiff to prove the damages but the plaintiff has not placed even scintilla or iota of evidence on record to prove this issue except the selfserving affidavit which is not sufficed to prove the damages, as claimed by the plaintiff. Moreover, this Court can take the judicial notice of the fact that the value of the property in question has been increased Suit No. 26/2016 Page 104 of 107 Asha Khanna V. Subhagya Wati & Ors.
multiple times from the year 1996 and the plaintiff is enjoying the possession of the property since 1996.
Accordingly, issue no.6 is decided in against the plaintiff and in favour of the defendants.
QUESTION OF PERPETUAL INJUNCTION Although, no issue was framed in this respect but the plaintiff has sought the relief in respect thereof. The Conveyance Deed dated 16.08.2005 has already been executed in favour of the defendants and there is definitely threat to the plaintiff that the defendants may not create any third party right of the suit property to some third party. Considering overall facts and circumstances of the present case and on the discussion made hereinabove, the plaintiff has also been able to prove the passing of this relief by cogent and convincing evidence.
RELIEF:
From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(i) The CounterClaim of the defendants is hereby dismissed. The Suit of the plaintiff is decreed in the following terms:
(a) The plaintiff is directed to deposit the sum of Rs.2,00,000/ before the Court within a period of 15 days from passing of this Judgment with the advance information to the defendants and after deposit thereof, the same be kept in the FDR in the auto renewal Suit No. 26/2016 Page 105 of 107 Asha Khanna V. Subhagya Wati & Ors.
method. The defendants are directed to furnish the proof of the amount of conversion charges within a period of one month from passing of this Judgment with the advance copy to the other side and on furnishing the proof, the actual conversion charges be released to the defendants. If the amount deposited by the plaintiff found to be deficit, then the plaintiff will be directed to deposit the further amount on the application of the defendants. If the amount deposited by the plaintiff found to be in excess, then the same will be released to the plaintiff.
If the defendants failed to furnish the actual proof within stipulated period, as mentioned hereinabove, thereafter, the amount deposited by the plaintiff will be released to the plaintiff.
(b) a decree of Specific Performance of Agreement to Sell dated 15.11.1996 -Exhibit PW1/1 in respect of builtup property bearing no. 66, Double Storey, New Rajinder Nagar, New Delhi is passed in favour of the plaintiff and against the defendants, however, with variation only to the effect that land underneath the suit property would be 50% of 123.66 sq. yds. and not 123.66 sq. yds., as mentioned in the Exhibit PW1/1 and since the entire consideration has already been paid, the defendants are directed to execute the Sale Deed in terms of Agreement Suit No. 26/2016 Page 106 of 107 Asha Khanna V. Subhagya Wati & Ors.
to Sell dated 15.11.1996 with variation, as mentioned above, within a period of three months from passing of this Judgment.
(c) a decree of permanent injunction is passed in favour of the plaintiff and against the defendants thereby restraining the defendants from selling or creating third party interest in respect of builtup property bearing no. 66, Double Storey, New Rajinder Nagar, New Delhi, however, with variation only to the effect that land underneath the suit property would be 50% of 123.66 sq. yds. and not 123.66 sq. yds., as mentioned in the Exhibit PW1/1.
(ii) In view of the facts of this case, the parties shall bear their own respective costs of litigation.
Decreesheet be prepared accordingly in terms of this judgment.
File be consigned to Record Room after due compliance. Announced in the open court on this 24th Day of September, 2019.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 26/2016 Page 107 of 107