Delhi District Court
Smt. Savitri Devi vs Smt. Sulekha Goel on 25 February, 2022
IN THE COURT OF MS. NEHA GARG
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
CNR No:DLCT030003132006
Suit No.597838/16
Smt. Savitri Devi
W/o Sh. Laxmi Narayan Goel
R/o B 4/52A, LIG Flats, Ashok Vihar,
Phase2, Delhi110052
Through General Power of Attorney
Sh. Sanjay Gupta
S/o Sh. Laxmi Narayan Goel.
.....................Plaintiff
Versus
Smt. Sulekha Goel
D/o Sh. Jagdish Prasad Aggarwal,
R/o Universal Health & Fitness Centre,
First Floor, Swarag Ashram Road,
Hapur Distt. Ghaziabad. ..................Defendant
Date of institution of suit :10.10.2006
Date of pronouncement of Judgment :25.02.2022
SUIT FOR DECLARATION, CANCELLATION WITH
CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION
JUDGMENT
1. The present judgment is in continuation of judgment dated 08.02.2017. The Ld. Predecessor of this Court had disposed off the present suit by judgment dated CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 1 of 13 08.02.2017 thereby dismissing the suit of plaintiff. Thereafter an appeal was filed by the plaintiff and the Ld. Appellate Court vide order dated 25.11.2019 had remanded back the present matter to this Court for giving findings on the additional issue framed vide order dated 01.06.2016. The operative part of the order dated 25.11.2019 passed by Ld. Appellate Court is as follows: "In these circumstances where no finding has been returned on the additional issue by the Ld. Trial Court, it is necessary to ask for the findings of the Ld. Trial Court on the said issues and the matter is remanded back. The Ld. Trial Court will be at liberty to review the final outcome of the suit, if due to the findings on the additional issue final result is changed..."
2. Hence, vide the present judgment, this Court shall give its findings on additional issue framed vide order dated 01.06.2016 and shall reassess the final outcome of the suit in light of the findings on the additional issue. The additional issue framed vide order dated 01.06.2016 is reiterated as follows: (6) Whether the plaintiff is entitled to the decree of cancellation of document i.e., Sale Deed dated 31.05.2002? OPP
3. The burden to prove the aforesaid issue is on the plaintiff. It is argued by Ld. Counsel for the plaintiff that for the purpose of deciding the issue of cancellation of sale deed, it is necessary that nature of contract between the parties is scrutinized. That in the present case there is a fiduciary relationship between the parties and defendant was holding a real and apparent authority over the plaintiff. Hence, as per Section 16 of Indian Contract Act 1872 (hereinafter referred to as 'the Contract Act'), the said contract, if any, was entered into under undue influence. Therefore, plaintiff has right to seek cancellation of alleged Sale Deed as the Sale Deed is a voidable at CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 2 of 13 the instance of the plaintiff. That plaintiff has duly proved by way of evidence that the Sale Deed was entered into on account of fraud as defined in Section 17 of the Contract Act as well as on account of misrepresentation as defined in Section 18 of the Contract Act. Ld. Counsel for plaintiff has further argued that defendant has taken a plea in her written statement that she was being tortured and that family of plaintiff demanded Rs. 3,00,000/. That it is the case of defendant that only on the receipt of Rs. 3,00,000/ the alleged Sale Deed was executed in favour of defendant. Ld. Counsel has argued that without admitting the receipt of such amount, it is assumed that the sale consideration is through this amount of Rs.3,00,000/, the alleged transaction is barred and is unlawful as such consideration is forbidden by law.
4. Plaintiff has sought cancellation of Sale Deed Ex. PW1/7 on the ground that the same has been induced by taking benefit of plaintiff's illiteracy. Apposite it to mention Section 31 of Specific Relief Act, 1963 (herein after referred to as 'the SRA'), which provides that a person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument may cause him serious injury, may apply to Court for its cancellation. Section 31 of SRA reads as follows: "31. When cancellation may be ordered. (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 3 of 13 whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
5. Thus, it is clear that under Section 31 of the SRA, a suit for cancellation of a written document can lie only at the instance of a person against whom the instrument is void and voidable and second who has reasonable apprehension that such instrument, if left outstanding, will cause him serious injury. The relief of cancellation u/S 31 SRA is a discretionary relief and is to be granted where the court considers it reasonable and proper to administer the protective and preventive justice asked for.
6. Before dwelling into the merits of the present issue, it is pertinent to mention here that defendant is the daughterinlaw of the plaintiff. It is the case of plaintiff that the plaintiff Smt. Savitri Devi was an illiterate lady and she has not attended any school. That she and her husband cannot read/write or understand English language. That the defendant convinced the plaintiff to purchase the garage of one Sh. Arun Kumar Batra, which was situated at the ground floor of the property adjacent to the property of the plaintiff. That on 31.05.2002, the defendant taking advantage of the illiteracy of the plaintiff and her husband, asked them to accompany her to the Registrar office to make Sale Deed of the garage. That plaintiff and her husband relying on the defendant, accompanied her and Sh. Arun Kumar Batra in his car to the office of Sub Registrar where the defendant and Sh. Arun Kumar Batra got signed from the plaintiff a number of set of documents already prepared by them and took fingers and thumb impression upon those documents related to sale. That it was subsequently in the month of July 2006, defendant came to know that that property of CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 4 of 13 the plaintiff has mischievously been transferred in the name of the defendant. That in conspiracy with Sh. Arun Kumar Batra, at the time of execution of Sale Deed dated 31.05.2002 for garage in favour of the plaintiff, defendant had mischievously and fraudulently got executed another Sale Deed on the same day i.e., 31.05.2002 from the defendant in respect of the Flat No. B5/52A, LIG Flats, Ashok Vihar, PhaseII, Delhi110052 (herein after referred to as 'the suit property'). It is the contention of plaintiff that on 31.05.2002, two Sale Deeds were got executed by the plaintiff. That by virtue of one Sale Deed, Garage pertaining to Flat No. B4/52B, LIG Flats, Ashok Vihar PhaseII, Delhi110052 was purchased in the name of late plaintiff and the other Sale Deed was with respect to Flat No. B5/52A, LIG Flats, Ashok Vihar, PhaseII, Delhi110052. It is the case of plaintiff that the second sale deed with respect to Flat bearing No. 52A was fraudulently got signed from the plaintiff. It is contended that the description of two Sale Deeds is similar, as one Sale Deed is in respect of garage for a consideration of Rs. 10,000/ and the other Sale Deed is with respect to a Flat for consideration of Rs. 1,00,000/. That the stamp duty is also similar being Rs. 1300/ in one and Rs. 13000/ in the second. That the defendant had kept quite for almost three years and on 03.03.2006, defendant left the suit property and got served a notice u/S.125 of CrPC on the elder son of the defendant. Ld. Counsel for plaintiff has argued that no explanation has been put forth by the defendant as to why the garage was purchased in the name of plaintiff and not in the name of defendant and as to why the plaintiff would purchase garage adjacent to her property in her own name and sell off her own property to the defendant. Ld. Counsel for plaintiff has further argued that plea of the defendant throughout has been that the Sale Deed was executed in her favour so as to secure her presence in the matrimonial home. However, in reply on merits, in the written statement it has been stated by defendant that the family members of the plaintiff were allowed to reside in the suit CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 5 of 13 premises merely on license basis.
7. Cancellation has been sought by the plaintiff pleading that the Sale Deed has been induced by fraud, undue influence and misrepresentation and is therefore liable to be set aside. Thus, what has to be determined is whether plaintiff has been able to establish the ingredients of fraud, undue influence and misrepresentation in order to be entitled to a decree of cancellation of Sale Deed Ex.PW1/7. Section 17 of the Con tract Act defines fraud as under:
17. 'Fraud' defined.--'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--
(1)the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2)the active concealment of a fact by one having knowledge or belief of the fact;
(3)a promise made without any intention of performing it; (4)any other act fitted to deceive;
(5)any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech.
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8. Undue influence as defined in Section 16 of the Contract Act is said to be a subtle species of fraud, whereby mastery is obtained over the mind of the victim by insidious approaches and seductive artifices. Section 16 of the Contract Act reads as under:
16. 'Undue influence' defined.--
(1)A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2)In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--
(a)where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b)where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3)Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the subsection shall affect the provisions of section 111 of the Indian Evidence Act, 1872
9. The first sub section defines undue influence as the use by one party to the con tract of his dominant position for obtaining an unfair advantage over the other party.
CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 7 of 13 Mere relationship is not sufficient for a Court to assume that one party was in a posi tion to dominate the will of the other. In Bishundeo Narain & Anr. v. Seogeni Rai & Jagernath, AIR 1951 SC 280, while dealing with the issue, this Court held:
"....in cases of fraud, 'undue influence' and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion"
10. The Privy Council in Poosathurai v. Kannappa Chettiar, AIR 1920 PC 65, reasoned that it is a mistake to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point influence alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, 'undue'.
11. In Afsar Shaikh & Anr v. Soleman Bibi & Ors, AIR 1976 SC 163, this Court held:
"The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. Subsection (3) of Section 16 contains a rule of evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves:
(a) that the party who had obtained the benefit was, at the material CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 8 of 13 time, in a position to dominate the will of the other conferring the benefit, and
(b) that the transaction is unconscionable, the burden shifts on the party benefiting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift."
12. Now coming to the merits of the present matter, plaintiff has averred that taking undue advantage of her and her husband's illiteracy, defendant in connivance of Sh. Arun Kumar Batra had fraudulently got executed the Sale Deed Ex.PW1/7 from the plaintiff. It is the case of the plaintiff that the family of the plaintiff was dependent on the defendant at the relevant point of time as her elder son Sh. Rajesh Goel, who is also the husband of the defendant, used to remain busy in his business and her other son namely Sh. Sanjay Gupta was living separately from the plaintiff. That at the time of the execution of Sale Deed in respect of the garage of the property adjacent to the suit property, defendant got signed from the plaintiff a Sale Deed in respect of the suit property in her own favour. Plaintiff has averred that she and her husband both accompanied the defendant and Sh. Arun Kumar Batra to the office of the Sub Registrar for execution of the Sale Deed in respect of the garage when the Sale Deed in respect of the suit property was fraudulently got executed by the defendant in her name. Ld. Counsel for plaintiff has argued that there is a fiduciary relationship between the parties and defendant was holding a real and apparent authority over the plaintiff It is an admitted fact between the parties that defendant is the daughterinlaw of the plaintiff.
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13. As stated earlier, mere relationship is not sufficient for a Court to assume that one party was in a position to dominate the will of the other. Merely because the de fendant was the daughterinlaw of the plaintiff will not lead to raising of the pre sumption that the defendant was in a position to dominate the will of the plaintiff. Subsection 2 of Section 16 of the Contract Act lays down a presumption that a per son is deemed to be in a position to dominate the will of the other where he stands in a fiduciary relationship to the another. A fiduciary relationship arises between parties when one of them stands in a position of trust to the other, or in such a position that the latter naturally reposes confidence in him, a confidence such that an influence grows out of that confidence. In order to establish the existence of a fiduciary rela tionship, it is necessary to show that one party relies on the other to such an extent that complete trust and confidence in the other enabling him to influence the other.
14. Merely because of the fact that defendant is an educated lady and is the daughterinlaw of the plaintiff, does not lead to the conclusion that a fiduciary relationship existed between the parties. Plaintiff admittedly has two sons i.e., Sh. Rajesh Goel and Sh. Sanjay Gupta, who have also deposed in favour of the case of the plaintiff as PW3 and PW2 respectively. As per plaintiff, on the date of execution of the Sale Deed Ex.PW1/6 i.e., the Sale Deed with respect to the garage of the Flat No. B4/52B, LIG Flats, Ashok Vihar PhaseII, Delhi110052, her elder son was out of station, however, plaintiff has not furnished any explanation as to why she did not consult her other son i.e., Sh. Sanjay Gupta before the execution of the Sale Deed Ex.PW1/6 and as to why Sh. Sanjay Gupta did not accompany the plaintiff for execution of an important document of Sale (Ex.PW1/6). It is not the case of the plaintiff that her sons are illiterate. As per plaintiff's own averments, she was accompanied by her husband to the office of the Sub Registrar. Plaintiff has not CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 10 of 13 examined her husband in support of her case which is a material omission on part of the plaintiff. It belies logic and common sense that plaintiff simply accompanied the defendant and a stranger Sh. Arun Kumar Batra, for execution of a Sale Deed Ex.PW1/6 and put her finger and thumb impression of papers, as asked by the defendant and Sh. Arun Kumar Batra without making any effort to ascertain the contents and nature of the document being signed. Plaintiff has taken the defence of her and her husband's illiteracy for cancellation of Sale Deed Ex.PW1/7, however, mere illiteracy will not be sufficient to make a person likely to be dominated by another. Even if the sake of argument it is assumed that the plaintiff had trusted the defendant as she was the daughterinlaw of the plaintiff, however, from the facts of the case it cannot be inferred that the sanctity of the trust existing between the parties was such that the defendant influenced the plaintiff so much so that the plaintiff was dissuaded from verifying/understanding the nature of the documents so signed by her. Plaintiff has not placed on record any positive piece of evidence to prove that in view of the relationship existing between the parties or in view of the alleged confidence reposed by her in the defendant, a relationship of complete trust and confidence existed between her and the defendant, enabling the defendant to influence the plaintiff into blindly executing documents without ascertaining the nature of the documents. Therefore, plaintiff has failed the prove the existence of fiduciary relationship between the parties. Hence, plaintiff has failed to prove that the Sale Deed Ex.PW1/7 is hit by fraud or undue influence.
15. Similarly, no case for misrepresentation is made out as plaintiff had the opportunity to ascertain the nature of the documents executed by her before the Sub Registrar. It is not the case of the plaintiff that the documents were executed hurriedly or she was not given enough time and opportunity to ascertain the contents and nature CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 11 of 13 of the documents executed by her before the Sub Registrar. Therefore, she had executed the Sale Deed Ex.PW1/7 consciously and had the time and opportunity to verify the nature of the documents so executed, hence no case of misrepresentation is made out.
16. Another contention on behalf of Ld. Counsel for plaintiff is that defendant has taken a plea in her written statement that she was being tortured and that family of plaintiff demanded Rs. 3,00,000/. That it is the case of defendant that only on the receipt of Rs. 3,00,000/ the alleged Sale Deed was executed in favour of defendant. Ld. Counsel has argued that without admitting the receipt of such amount, it is assumed that the sale consideration is through this amount of Rs.3,00,000/, the alleged transaction is barred and is unlawful as such consideration is forbidden by law. Ld. Counsel for plaintiff has failed to explain how he has assumed the sale consideration is through the amount of Rs.3,00,000/, which defendant claims to have been paid by her mother towards the demands made by the plaintiff. What has been averred by the defendant in her written statement is that she had paid an amount of Rs.3,00,000/ to the plaintiff and it was agreed between the parties that in order to secure the presence of the defendant in the suit property, plaintiff would execute the Sale Deed in favour of the defendant and that thereafter the Sale Deed Ex.PW1/7 in respect of the suit property was executed by the plaintiff in favour of the defendant against valuable consideration amount. Nowhere in the written statement, defendant has averred that the amount of Rs.3,00,000/ that was paid on the demands of the plaintiff, was the consideration for execution of the Sale Deed Ex.PW1/7. The Sale Deed Ex.PW1/7 itself mentions a consideration amount of Rs.1,00,000. It is also worth mentioning that plaintiff has in fact denied the receipt of the amount of Rs.3,00,000, therefore, the argument of the Ld. Counsel for plaintiff that CS SCJ No. 728/2018 Dalip Kumar vs Baby Page No. 12 of 13 consideration for the transaction of sale is forbidden by law and is unlawful, is unacceptable.
17. In view of the aforesaid discussion, plaintiff has failed to discharge the burden to prove the additional issue framed vide order dated 01.06.2016 and accordingly, the afore stated issue is decided against the plaintiff.
18. In view of the aforesaid findings on the additional issue, the judgment dated 08.02.2017 does not deserve any change/reversal or modification. The outcome of the suit of the plaintiff remains as has been embodied in the judgment and decree dated 08.07.2017. Considering the findings on the issues arrived at in judgment dated 08.02.2017 and in view of the findings of the additional issue, the suit of the plaintiff is dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance.
Announced in the open Court
on 25.02.2022 (NEHA GARG)
CIVIL JUDGE01/CENTRAL
TIS HAZARI COURTS/DELHI
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