Delhi District Court
Sh. Chander Shekhar vs Sh. Sunil Sanwaria on 14 May, 2018
IN THE COURT OF SH. FAHAD UDDIN: CIVIL JUDGE:
CENTRAL DISTRICT: TIS HAZARI COURTS: NEW DELHI
CS No.582/16
IN THE MATTER OF
1. Sh. Chander Shekhar
2. Sh. Romit Sanwaria
Both S/o Sh. Hari Chand Sanwaria
Both R/o E-16/936,
Bapa Nagar, Karol Bagh,
New Delhi-110005.
.... Plaintiff
Versus
Sh. Sunil Sanwaria
S/o Sh. Hari Chand Sanwaria,
R/o B-28 D Slum Flats (Avantika Enclave)
Mangol Puri, Delhi.
.....Defendant
Date of filing : 08.12.2009
Date of Institution : 09.12.2009
Date of pronouncing judgment : 14.05.2018
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
Case No. 582/16
Chander Shekhar VS. Sunil Sanwaria Page no. 1 of 29
JUDGMENT
Vide this judgment, I shall dispose of the present suit filed by the plaintiff for declaration and permanent injunction against the defendant. The brief facts necessary for the disposal of the present case may be described as under:
Plaintiff's case as per the plaint
1. The plaintiff submitted that the defendant is the real brother of the plaintiffs. The grandfather of the parties Sh.
Sitaram was the owner and in possession of property bearing no. E-16/936, Bapa Nagar, Karol Bagh, New Delhi- 05 consisting of one shop area measuring about 5'3" X 18'6" on the first floor and complete second floor without roof rights (hereinafter referred to as the suit property). The grandfather of the parties got expired in the year 1991. The grandfather of the parties had orally given the suit property to the defendant for use till the lifetime and after the death of the grandfather of the parties, the grandmother of the parties was taking care of the suit property and the family members of the parties were residing in the suit property. The plaintiff submitted that after a lapse of time, the behaviour of the defendant had Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 2 of 29 changed and he used to quarrel with the family members as well as with the grandmother and for this reason in order to keep peace between the family members it was settled that the defendant would leave the suit property and would reside in B-28, Slum Flats, Mangol Puri, Delhi which is also the joint property of the family members of the parties. Accordingly, the defendant left the suit property and let out his share to the plaintiff no.1 @3300/- p.m. in the year 2004.
2. It is the case of the plaintiff that the plaintiff no.1 was regularly paying the rent to the defendant but the defendant became dishonest and threatened the plaintiff no.1 to vacate the suit property or pay the rent @6600/- p.m and for this reason, the plaintiff filed a suit for permanent injunction against the defendant which is pending before the Ld. Civil Judge, Delhi. The plaintiff submitted that due to misbehavior of the defendant, the grandmother of the parties executed a Will, GPA, Mutual Agreement and Affidavit of transfer of the suit property in favour of her sons namely Hari Chand Sanwaria and Prem Chand Sanwaria in respect of the whole suit property and Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 3 of 29 by virtue of the said Will the suit property was given to Sh. Hari Chand Sanwaria, i.e the father of the parties on 22.12.2008. Thereafter, Sh. Hari Chand Sanwaria the father of the parties also executed the GPA, Agreement to Sell and purchase, possession letter, receipt and Will in respect of the suit property in favour of the plaintiffs on 14.09.2009 and in this manner the plaintiff became the absolute owner and in possession of the suit property. The plaintiff also applied for the mutation in respect of the suit property in their name on 18.11.2009 before the House Tax Department, MCD, Karol Bagh Zone on the basis of the documents executed by the father of the plaintiff's in their favour. The plaintiffs were also having the electricity connection in their names and also having a license from MCD for trading in the suit property. The plaintiffs are doing the business under the name and Style of M/s Exide Jeans in the suit property for a long time.
3. The plaintiff submitted that the defendant is pressurizing and harassing the defendant to vacate the suit property for last many dates. The plaintiff showed documents to the defendant and requested not to interfere Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 4 of 29 in the possession of the plaintiff but the defendant is adamant and kept harassing and threatened the plaintiffs to get the suit property vacated forcibly. The plaintiff alleged that on 25.11.2009 the defendant came with some goonda elements at the suit property and started throwing the goods/articles of the plaintiff and tried to get the suit premises vacated forcibly by throwing the goods of the plaintiff. However after hearing the hue and cry some respectable members of the locality had gathered and with their intervention the defendant and his associates could not succeed in their purpose. The defendant threatened the plaintiff that he would come again to get the possession of the suit property of the plaintiff. The plaintiff submitted that the defendant has no right, title or interest to intefere in the peaceful, use, occupation and enjoyment of the plaintiffs in the suit property. The defendant is adamant to fulfill his illegal acts and the plaintiffs are under an apprehension that the plaintiffs may be dispossessed by the defendant any time and under these circumstances, the present suit has been filed by the plaintiff for award of the following reliefs:-
a) a decree of declaration be passed in favour of the Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 5 of 29 plaintiffs thereby declaring that the GPA, Agreement to Sell and purchase, possession letter, receipt and will in respect of the suit property are genuine and on the basis of these documents the plaintiff be declared as the owner of the suit property.
b) a decree of permanent injunction be passed in favour of the plaintiff and against the defendant his associates, agents etc. thereby restraining them from interfering in the peaceful use and occupation of the plaintiffs in the suit property.
Defendant's case as per the written statement:-
4. The defendant filed a written statement to the suit of the plaintiff wherein he raised certain preliminary objection against the suit of the plaintiff. Some of which are as under:-
a) that the suit of the plaintiff is false and frivolous and an abuse of the process of law. The same has been filed simply for harassing and pressurizing the defendant.
b) the plaintiffs are not entitled to any relief as they have not come with clean hands before the court and have suppressed the true and material facts.
c) the suit of the plaintiff is without cause of action and has been filed on false and frivolous ground to defend their own illegal acts by the plaintiffs.Case No. 582/16
Chander Shekhar VS. Sunil Sanwaria Page no. 6 of 29
d) the suit of the plaintiff is liable to be dismissed as the defendant is the absolute owner of the suit property as the same was purchased by the defendant from his grandmother namely Smt. Parvati Devi on 14.01.2004 vide regd. Sale deed regd. as document no.608, addition book no.1, vol. no.10956 at pages 145 to 150 registered on 23.01.2004 and as such the defendant is the actual owner and the plaintiff no.1 is the tenant and the plaintiff no.2 is a trespasser in the suit property and the plaintiff no.1 is not paying the rent nor vacating the suit property. Plaintiff has filed the present suit in order to grab the property of defendant on the basis of false and fabricated documents.
The defendant also denied the case of the plaintiff on various grounds. The defendant denied that the grandfather of the parties had orally given the suit property to the defendant for use till the lifetime. The defendant submitted that the suit property was purchased by the defendant from the grandmother namely Smt. Parvati Devi vide regd. sale deed in the year 2004. The defendant submitted that the property no.B-28, Slum Flats, Mangol Puri was purchased by the defendant from his own income in the year 1996 and there is no title or interest of Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 7 of 29 the other family members of the defendant in the said property and it is wrong that the defendant was given the said property in order to keep peace between the family members as alleged by the Plaintiff. The defendant submitted that he had purchased the suit property in the year 2004 and after purchasing the same, the defendant let out the suit property to plaintiff no.1 @3300/- per month. The defendant submitted that the plaintiff was a habitual defaulter in paying the rent and the plaintiff no.2 was coined by plaintiff no.1 illegally and as such both the plaintiffs are in unauthorized possession of the suit property. The defendant further submitted that the Will, GPA, Mutual Agreement of transfer of the property were not executed on 22.12.2008 by the grandmother of the parties and the same are forged and fabricated documents and for this reason Sh. Hari Chand Sanwaria and Prem Chand Sanwaria were not the owner of the suit property. The defendant reiterated that the defendant had already purchased the suit property from his grandmother from Smt. Parvati Devi through regd. sale deed on 14.01.2004 which was regd. on 23.01.2004. For this reason, all the documents executed by Sh. Hari Chand Sanwaria on Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 8 of 29 14.09.2009 are forged and fabricated documents. The defendant submitted that the plaintiffs are not the owner and have no genuine documents in respect of ownership in their favour. The plaintiffs are continuously threatening the defendant to grab his property by way of forged and fabricated documents. The plaintiff no.1 was neither paying the rent nor handed over the peaceful possession of the suit property to the defendant. The defendant has every right, title or interest over the suit property being lawful owner of the suit property. The plaintiffs have filed the present suit without any cause of action in order to harass and humiliate the defendant and further to grab the suit property. Thus on these grounds the defendant has prayed for dismissal of the present suit as filed by the plaintiff with exemplary cost.
5. The plaintiffs also filed the replication to the written statement filed on behalf of the defendant wherein they denied the case of the defendant and reiterated their case as set out in the plaint. The plaintiff denied that the defendant is the absolute owner of the suit property and the same was purchased by the defendant from his Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 9 of 29 grandmother Smt. Parvati Devi on 14.01.2004 vide regd. Sale deed regd on 23.01.2004. The plaintiff submitted that the suit property was acquired by the grandfather of the plaintiffs and the same is not a freehold property and as such no sale deed can be executed in the eyes of law. Moreover, the plaintiff submitted that the grandmother Smt. Parvati Devi was not the owner of the suit property and as such the alleged sale deed, if any is not sustainable in the eyes of law and thus in these circumstances the plaintiffs have prayed for decree of the suit as prayed for in the plaint.
ISSUES
6. Vide order dt.03.07.2012 on the basis of the pleadings of the parties, the following issues had been framed for adjudication by the Court:-
Issue no.1:- Whether the suit is not maintainable in the present form? OPD Issue no.2:- Whether plaintiff is guilty of concealment and suppression of material facts? OPD Issue no.3:- Whether the plaintiff has not approached the court with clean hands? OPD Issue no.4:- Whether the suit is without any cause Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 10 of 29 of action? OPD Issue no.5:- Whether the plaintiff is entitled for decree of declaration and permanent injunction as prayed for? OPP Issue no.6:- Relief.
Plaintiff's Evidence
7. In order to prove the case of the plaintiff only one witness was examined on behalf of the plaintiff i.e PW1 Sh. Chander Shekhar who tendered his evidence by way of affidavit which is Ex.PW1/A and he relied upon the following documents:-
i)Site plan as Ex.PW1/1
ii)Copy of house tax receipt as Ex.PW1/2 (OSR)
iii)GPA, Will, Mutual Agreement, Affidavit all dt. 22.12.2008 as Ex.PW1/3 (Colly) (OSR)
iv)Death Certificate of Smt. Parvati Devi as Ex.PW1/4 (OSR.)
v)GPA Dt. 14.09.2009 as Ex.PW1/5 (OSR)
vi)Agreement to sell dt. 14.09.2009 as Ex.PW1/6(OSR)
vii)Possession letter, receipt and affidavit dt. 14.09.2009 as Ex.PW1/7 (Colly) (OSR)
viii)Copy of mutation of the suit property as Ex.PW1/8 (OSR)
ix) Copy of Election I Card of plaintiff no.1 as Ex.PW1/9 (OSR)
x)Copy of trade licence as Ex.PW1/10 (Colly) (OSR) Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 11 of 29
xi)Copy of electricity bill in the name of plaintiff no.1 as Ex.PW1/11 (OSR)
xii)Death certificate of Sh. Hari Chand as Ex.PW1/12 (OSR)
xiii)Copy of water bill of Sh. Sita Ram as Ex.PW1/13 (OSR)
8. The said witness was not cross examined by the defendant despite opportunity given by the court and it was observed vide ordersheet dt. 23.09.2015 that the defendant had failed to cross examine PW1 despite repeated opportunities given and for this reason the right of the defendant to cross examine PW1 was closed and the defendant was proceeded ex-parte ,vide the said order dt.23.09.2015. Thereafter on 23.11.2015 PE was closed. Defendant's Evidence
9. No evidence was brought on record on behalf of the defendant to disprove the case of the plaintiff. The defendant was proceeded ex-parte in the present matter on 23.09.2015 and ex-parte PE was closed on 23.11.2015. Thereon, the matter was fixed for ex-parte final arguments.
10. I have heard the ex-parte final arguments addressed by the Ld. Counsel for the plaintiff and have also perused the record of the case. On the basis of the submissions as Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 12 of 29 well as the material/evidence available on record., the issue wise findings of this court are as under:-
Issue no.1:-
Whether the suit is not maintainable in the present form? OPD
11. The Onus to prove this issue is on the defendant. In the preliminary objection no.1 of the written statement, the defendant submitted that the present suit as framed is not maintainable and deserves to be dismissed in the eyes of law. On the other hand in the replication, the Plaintiff denied these facts and submitted that the present suit has been filed by the Plaintiffs on the basis of a valid cause of action and the same is maintainable in accordance with law. In the present case no material averment has been made on behalf of the defendant as to how the present is not maintainable in its present form. The defendant was proceeded ex-parte vide order dated 23.09.2015 and no evidence has been led on behalf of the defendant in support of these submissions. Thus, in the facts and circumstances, it may be said the defendant has just raised a bald plea to the effect that the presnt suit is not maintainable in its present form. The defendant has failed Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 13 of 29 to discharge the onus of proof in respect of this issue and as no evidence has been led on behalf of the defendant , the said issue is decided against the defendant. On the basis of averments made in the plaint as well as evidence led on behalf of the Plaintiff, the present suit seems to be maintainable in its present form before this Court. Issue no.2:- Whether plaintiff is guilty of concealment and suppression of material facts? OPD And Issue no.3:- Whether the plaintiff has not approached the court with clean hands? OPD
12. Both these issues are being taken up together as they are interconnected and the onus to prove these issues is on the defendant. In preliminary objection no. 3 of the written statement, the defendant submitted that the Plaintiffs are not entitled to the relief as he has not come with clean hands before this Court and suppressed the true and material facts. On the other hand, the Plaintiffs in the replication denied these averments and submitted that the Plaintiffs have come to this Court with clean hands and all the true facts have been mentioned by them before this Court. On this issue also, no material averment has Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 14 of 29 been made on behalf of the defendant as to how the Plaintiffs have concealed the material facts from this Court which disentitles the Plaintiff to the relief claimed. As no evidence has been led on behalf of the defendant to prove his averments in respect of these issues, consequently these issues also are decided against the defendant. Issue no.4:- Whether suit is without any cause of action? OPD
13. The onus to prove this issue is also on the defendant. In preliminary objection no.4 of the written statement the defendant submitted that the suit of the Plaintiffs is without any cause of action and has been filed on false and frivolous ground to defend their own illegal acts by the Plaintiffs and as such the suit is not maintainable and is liable to be dismissed. In the replication, the Plaintiffs have denied these averments and submitted that the Plaintiffs have filed the present suit on valid cause of action arising against the defendant.
In the case of ICIC Bank Ltd v. K.P.
Murgesan 1, the Hon'ble High Court of
Delhi observed that:- Cause of action, as
commonly understood, is a bundle of facts which 1 FAO No. 216/2015 decided on 06.11.2015. Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 15 of 29 the plaintiff must prove, if traversed, to entitle him to a judgment, in his favour, by the concerned court. Cause of action has no relation whatsoever with the defence set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action".
14. Thus, if the case of the Plaintiff is seen in the light of the aforesaid position of law, it becomes clear that the Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 16 of 29 Plaintiff has a cause of action against the defendant in the present case. It is the case of the Plaintiffs that the suit property has been purchased by the Plaintiffs from their father by way of GPA , Agreement to sell and Purchase, Possession Letter, Receipt and Will on 14.09.2009. The defendant is the real brother of the Plaintiffs. The defendant is pressurizing and harassing the Plaintiffs to vacate the suit property. On 25.01.2009, the defendant came alongwith some goonda elements at the suit property and started throwing the goods and articles of the Plaintiffs and forcibly tried to get the suit property vacated. Thus, in these circumstances the present suit has been filed by the Plaintiffs for declaration and permanent injunction against the defendant. On the basis of the averments in the Plaint and evidence led on behalf of the Plaintiff, the Plaintiffs have a valid cause of action against the defendant. No such evidence has been brought on record by the defendant which may suggest that the Plaintiffs have no cause of action against the defendant. Hence, in the considered opinion of this court, the defendant has failed to discharge the burden of proof for this issue and consequently, this issue is decided against Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 17 of 29 the defendant.
Issue no.5:- Whether plaintiff is entitled for decree of declaration and permanent injunction as prayed for? OPP
15. It is the case of the Plaintiffs that the defendant is the real brother of the Plaintiffs. The grandfather of the parties Sh. Sita Ram was the owner and was in possession of the property bearing no. E-16/936, Bapa Nagar , Karol Bah, New Delhi-05, consisting one shop area measuring about 5'3" x 18'6" on the first floor and complete second floor without roof rights (Suit Property). The grandfather of the parties got expired in the year 1991. The grandfather of the parties had orally given the suit property to the defendant for use till life time and after the death of the grandfather of the parties, the grandmother of the parties took care of the suit property. After a lapse of time the behavior of the defendant got changed and due to misbehavior of the defendant the grandmother of the parties executed a will, GPA, Mutual Agreement and affidavit of transfer of the suit property in favour of her sons namely 1) Hari Chand Sanwaria and 2) Prem Chand Sanwaria in respect of the whole suit property and by Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 18 of 29 virtue of that will the suit property was given to Sh. Hari Chand Sanwaria i.e. the father of the parties on 22.12.2008. It is the case of the Plaintiffs that thereafter Sh. Hari Chand Sanwaria the father of the parties executed the GPA, Agreement to sell and Purchase , Possession letter, Receipt and Will in respect of the suit property in favour of the Plaintiffs on 14.09.2009 and in this manner the Plaintiffs became the absolute owner and also in possession of the suit property. The Plaintiffs also applied for the mutation of the suit property in their name on 18.11.2009 before the Collector, House Tax Department , MCD, Karol Bagh Zone, New Delhi on the basis of the documents executed by the father of the Plaintiffs in their favour. The defendant is pressurizing and harassing the defendant to vacate the suit property. On 25.11.2009 , the defendant came alongwith some goonda elements at the suit property and entered into the suit property and started throwing the goods/articles of the Plaintiffs and forcibly tried to get the suit premises vacated . It is the case of the Plaintiff that the defendant has no right, title or interest to interfere in the peaceful use, occupation and enjoyment of the Plaintiffs in the suit property.
Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 19 of 29
16. On the other hand the defendant has denied these facts and submitted that the defendant is the absolute owner of the suit property and the same was purchased by the defendant from his grandmother namely Smt. Parwati Devi on 14.01.2004 vide registered sale deed registered as document no. 608, addl. Book no.1 vol. no.10956 at pages 145-150 registered on 23.01.2004 and as such the defendant is the actual owner and the Plaintiff no. 1 is the tenant and the Plaintiff no.2 is the trespasser in the suit property. The Plaintiff is not paying the rent nor vacating the suit property. The present suit has been filed in order to grab the property of the defendant on the basis of false and fabricated documents.
17. It may be noted that in the case of 'Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. 2', the Hon'ble Supreme Court of India observed in para no. 16 of that judgment as under :-
"immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL 2 SPECIAL LEAVE PETITION (C) NO.13917 OF 2009 decided on 11.10.2011.Case No. 582/16
Chander Shekhar VS. Sunil Sanwaria Page no. 20 of 29 transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
18. In para no. 17 of that judgment, the Apex Court further observed that:-
"It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 21 of 29 number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship."
19. Moreover, in the case of 'Sh. Ramesh Chand v. Suresh Chand & Anr.'3 , the Hon'ble High Court of Delhi after referring to the judgment in Suraj Lamp Industries case (Supra) observed that :-"A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 3 RFA no. 358/2000 date of decision 09.04.2012. Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 22 of 29 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will."
20. The Hon'ble Delhi High Court in the said judgment in para no. 4 pleased to observe that:-
There is also one other aspect which needs to be clar-
ified before proceeding ahead and which is whether a power of attorney given for consideration would stand ex-
tinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:-
"Section 202. Termination of agency, where agent has an interest in subject matter.-
Where the agent has himself an interest in the prop- erty which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. Illustrations
(a) A gives authority to B to sell A's land, and to pay him-
self, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 23 of 29 cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
21. The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a com- mercial transaction which cannot be allowed to be frus- trated on account of death of the executant of the power of attorney.
22. The Hon'ble High Court further observed in para no. 8 of the said judgment that :- "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 regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really fur- thered an intent to transfer the rights in an immovable property by the testator to the beneficiary. The observa- Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 24 of 29 tions 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 devolv- ing upon the respondent No.1/plaintiff under a 'Will' will not be a judgment in rem but only a judgment inter se the parties."
23. Thus, in view of the afore mentioned judgments passed by the higher Courts , the summarization is that the documents i.e. GPA , Agreement to sell, Will, Affidavit etc. would not stricto sensu confer complete ownership rights, however, the said documents would create rights to the ex- tent provided for by Section 202 of Contract Act, 1872 and ownership on account of devolution in terms of the Will af- ter the death of the testator in terms of relevant provisions of Indian Succession Act, 1925. If a purchaser has been put in the possession of the suit property in pursuance of the documents executed by the seller ,the Purchaser is also entitled to the benefit of the provisions of section 53-A of transfer of Property Act.
24. Thus, applying these settled principles of law to the present case , it may be said that the Plaintiffs have ac- Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 25 of 29 quired ownership rights in the suit property by virtue of the documents executed by their father namely Hari Chand Sanwaria on 14.09.2009. Ex. PW-1/1 is the site plan of the suit property i.e property bearing no. E-16/936, Bapa Na- gar, Karol Bagh, New Delhi consisting of one shop area measuring 5'3" x 18'6" , first floor and complete second floor without roof rights. Ex. PW-1/3 is the GPA, will, Mutual agreement, affidavit dated 22.12.2008 (colly) , executed by Smt. Parwati Devi grandmother of the parties and by virtue of these documents the suit property was given to Sh. Hari Chand Sanwaria the father of the parties. Ex PW-1/5 is the GPA dated 14.09.2009 (OSR), Agreement to sell dated 14.09.2009 [Ex. PW-1/6 (OSR)] , Possession letter, receipt and affidavit dated 14.09.2009 [Ex. PW-1/7 (Colly)] by virtue of these documents the suit property was given by the father of the parties i.e. Hari Chand Sanwaria to the Plaintiffs herein. Ex . PW-1/8 is the copy of the mutation of the suit property (OSR) in the name of the Plaintiffs. Ex. PW-11 is the copy of the electricity bill in the name of the Plaintiffs in respect of the suit property. Thus, all these doc- uments collectively tend to show that though the Plaintiffs cannot be the classical owner of the suit property as would Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 26 of 29 an owner be under a duly registered sale deed, but surely the Plaintiffs have better rights/entitlement of possession of the suit property than the defendant in the present case. In fact, keeping in view the fact that Sh. Hari Chand San- waria has already died on 26.07.2010 as revealed from the death certificate of Sh Hari Chand Sanwaria (Ex. PW-1/12) , the Plaintiffs have become owners of the suit property by virtue of the registered Will dated 14.09.2009 (Ex.PW1/7). A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property. The facts of the present case show that the plaintiffs have undoubtedly better entitle- ment/title/rights in the suit property so as to protect their possession from any unlawful interference on the part of the defendant. Moreover, no such evidence or document has been placed on record on behalf of the defendant which may show that the documents relied upon by the Plaintiffs in support of their case are either false or fabri- cated documents. As the documents in question were exe- cuted by Smt. Parwati devi in favour of Sh. Hari Chand San- waria on 22.1.2008 and by Sh. Hari Chand Sanwaria in Case No. 582/16 Chander Shekhar VS. Sunil Sanwaria Page no. 27 of 29 favour of the Plaintiffs on 14.09.2009, the said transac- tions are not get affected by the judgment of the Hon'ble Supreme Court of India in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. 4 as the said judgment is prospective in operation as held by the Hon'ble Supreme Court of India in para no. 17 of that judgment. Conse- quently , the Plaintiffs have proved their case on the basis of preponderance of probabilities and are held entitled to the reliefs of declaration and permanent injunction as prayed for.
Relief:-
25. On the basis of this discussion, the suit of the Plaintiffs is hereby decreed for the reasons men-
tioned above. The Plaintiffs are held entitled to the reliefs prayed for:-
1. It is declared that the documents GPA dated 14.09.2009 (Ex. PW-1/5), Agreement to sell dated 14.09.2009 (Ex. PW-1/6), Possession Letter, receipt , registered will dated 14.09.2009(Ex. PW-1/7) were executed by Sh. Hari chand Sanwaria in favour of the Palintiffs and by virtue of the said documents 4 SPECIAL LEAVE PETITION (C) NO.13917 OF 2009 decided on 11.10.2011.Case No. 582/16
Chander Shekhar VS. Sunil Sanwaria Page no. 28 of 29 the Plaintiffs have acquired ownership rights in the suit property i.e. property bearing no. E-16/936, Bapa Nagar, Karol Bagh, New Delhi consisting of one shop area measuring 5'3" x 18'6" , first floor and complete second floor without roof rights.
1.The defendant his associates, agents etc. are therefore permanently restrained from interfering in the peaceful use and occupation of the Plaintiffs in the suit property as mentioned above.
2.The plaintiffs are also held entitled to the cost of the suit as per rules.
With these observations the suit of the Plaintiffs is disposed of. Decree sheet be prepared accordingly in favour of the plaintiffs.
File be consigned to Record Room after due compliance.
Announced in the open Court on this 14th day of May 2018. This judgment consists of 29 signed pages. Digitally signed by FAHAD
FAHAD UDDIN
UDDIN Date:
2018.05.17
16:49:29 +0530
(Fahad Uddin)
CJ-04, Central, THC/Delhi
14.05.2018
Case No. 582/16
Chander Shekhar VS. Sunil Sanwaria Page no. 29 of 29