Delhi District Court
Ms. Veena Verma vs Smt.Parul Verma on 26 October, 2013
IN THE COURT OF MS.RICHA PARIHAR, CIVIL JUDGE06 (CENTRAL),
TIS HAZARI COURTS, DELHI
CS no. 284/10/02
Unique Case ID No. 02401C0478552003
In the matter of:
Ms. Veena Verma
D/o. Late Shri H.C.Verma
R/o. House No.205,
Block AB, Shalimar Bagh,
Delhi. .........Plaintiff
VERSUS
1. Smt.Parul Verma
W/o. Late Shri N.K.Verma
R/o. House no.205, Block AB,
Shalimar Bagh, Delhi.
2. Master Dishant Verma
S/o. Late Shri N.K.Verma
R/o. House no.205, Block AB,
Shalimar Bagh, Delhi.
(Minor through his mother and natural
Guardian Smt.Parul Verma)
3. Mrs.Kamal Mohan
W/o. Shri Chander Mohan
R/o.C10/96, Sector5,
Rohini, Delhi110085. .......Defendants
DATE OF INSTITUTION : 23/08/2002
DATE OF RESERVING JUDGMENT : 24/10/2013
DATE OF PRONOUNCEMENT : 26/10/2013
Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 1 of 26
JUDGMENT :This is suit for declaration, partition and permanent injunction.
1. Case of plaintiff : 1.1 Plaintiff Ms. Veena Verma and defendant no.3 Mrs. Kamal Mohan are real sisters. Late Sh. N.K. Verma was real brother of plaintiff and Defendant no.3. Defendants no1 & 2 Smt. Parul Verma (wife) and Master Dishant Verma(son) are legal heirs of late Sh. N.K. Verma. 1.2 Plaintiff submits that she is unmarried woman and was wholly dependent upon her brother late Sh. N.K. Verma who used to support and maintain her. That defendant no.3 is married and is living at the address of Rohini given in memo of parties. That Father of plaintiff late Sh. Harish Chander Verma was allotted by DDA a plot bearing no. 205 in Block AG, measuring about 52.36 sq. meters, Shalimar Bagh. A registered perpetual lease was executed by DDA in favour of late Sh. H.C. Verma who raised construction on said plot and started living with his family.
1.3 Plaintiff further submits that Sh. H.C. Verma died on 13.03.1984 leaving behind following legal heirs :
a) Smt. Mohan Dulari Verma : Wife
b) Sh. Naresh Kumar Verma : son
c)Ms. Kamal Verma : daughter
d)Ms. Veena Verma : daughter That after demise of Smt. Mohan Dulari Verma 04.10.1984, the plaintiff, defendant no 3 and late Sh. N.K. Verma became lawful owner of suit property by way of inheritance. 1.4 That after death of their parents the late Sh. N.K. Verma being the only son and also being worldly wise became the head of the family was looking after the affairs of family . Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 2 of 26 1.5 That immediately after the death of the mother of plaintiff, late Sh. N.K. Verma represented to plaintiff that for the purpose of mutation of property in their name he shall get prepared the documents for the transfer of property in their name including defendant no3 being the legal heirs of Sh. H. C. Verma.
1.6 Plaintiff submits that she and defendant no3 were studying at that time . Plaintiff was of tender age of about 18 years and was naive and was not worldly wise. 1.7 That late Sh. N.K. Verma prepared some documents in month of November, 1984, took along plaintiff and defendant no3 and on fraudulent misrepresentation obtained their signature on documents. The plaintiff was not made aware about the contents of the documents which she signed, however late Sh. N.K. Verma claimed that signatures of plaintiff are necessary for transfer of property in their names. That the plaintiff being a naïve, innocent girl at that time believing the representation of her brother who was also the sole member in the family signed the documents.
1.8 Plaintiff further submits that she remained unmarried due to financial difficulties and plaintiff continues to reside in the suit property being the joint owner of same. That brother of plaintiff used to give a small monthly sum to plaintiff for her maintenance and the kitchen was joint. That brother of plaintiff had reported in his office that plaintiff was financially dependent upon him as she is unable to earn. That brother of plaintiff in this manner used to take financial benefits from his employer. That plaintiff being an unmarried lady has a right of maintenance.
Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 3 of 26 1.9 Plaintiff submits that her brother Sh. N.K. Verma died on 28.04.2001 and survived by defendants no1 and 2. After the death of Sh. N.K. Verma the attitude of defendant no1 has changed and she has started to threat and harass plaintiff to vacate the suit property as she claims to be absolute owner of suit property and that plaintiff has no right, title or interest in the same.
1.10 According to plaintiff she has 1/3rd share in suit property and being financially dependent on her later brother she also has a right of maintenance and defendants have no right to extend any threat to plaintiff.
1.11 That pursuant to threat and harassment of defendant no. 1, plaintiff sent a letter dated 20.07.2001 to DDA Vice Chairman to stop the mutation and conversion of the property in favour of defendant no1.
1.12 On 04.03.2002, plaintiff received a letter from DDA and after enquiries from DDA plaintiff came to know that her late brother had wrongly misrepresenting facts and by practicing fraud framed upon her had obtained her signatures on relinquishment deed which was registered as document no. 4076, Addl. book no1, vol. 4372, page 106 to 107 dated 20.11.1984.
1.13 That plaintiff was throughout under the impression that aforesaid document was transfer of property in her favour alongwith her sister and late brother. That plaintiff has been cheated by her late brother who by misrepresentation and taking undue advantage of the naivety, innocence and trust of the plaintiff, had fraudulently obtained her signature as relinquishment deed.
Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 4 of 26 1.14 Plaintiff further submits that she is not having any source of livelihood and has no house of her own except the suit property. That plaintiff was fully dependent upon her late brother for her maintenance. That defendant no1 and defendant no2 being legal heirs of late brother are under obligation to maintain plaintiff. That defendant no1 and defendant no 2 have also obtained money from the employer of Sh. N.K. Verma claiming themselves to be sole legal heirs whereas plaintiff has been deprived of all benefits paid by employer of her brother whereas plaintiff's brother had stated in his affidavit that plaintiff is financially dependent upon him.
1.15 Plaintiff submits that on 25.03.2001 defendant no1 and 2 have entered into an agreement to sell for sale of suit property. Defendant no1 has also taken money from purchaser of property and rest of the consideration shall be paid to her after handing over the possession of the suit property. That the aforesaid deal is to be completed by 08.04.2002. That defendant no1 is trying to forcibly evict the plaintiff from suit property and dispose off the same and deprive the plaintiff of her basic rights.
1.16 That defendant no. 1 is trying to usurp the property exclusively and after disposal of same is planning to go back to her parents house along with defendant no. 2. 1.17 Plaintiff submits that the cause of action for filing the present suit arose on 20/11/1984 when her Late brother fraudulently induced her to sign on the relinquishment deed, further arose in first week of March 2002 when plaintiff received letter from DDA and came to know about the cheating and fraud played upon her by her Late brother and again arose on 25/03/2002 when defendant no. 1 and defendant no. 2 have entered into agreement to sell Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 5 of 26 suit property with some persons and as defendant no. 1 and 2 are bent upon to sell the suit property hence cause of action is still subsisting and continuing one. Thus, plaintiff has filed present suit praying for following relief:
" PRAYER
(a) A decree of declaration thereby declaring the relinquishment deed dated 20/11/1984 registered as document No.4076 at pages 106 and 107 in Addl. Book I as null and void as the same has been obtained by fraud and practicing deception upon the Plaintiff.
(b) Further direct the Defendants no.1 and 2 not to mutate or transfer the suit property in their favour in DDA.
(c) Pass a decree of partition of the premises bearing no.205, Block AG, Shalimar Bagh, New Delhi between the coowners by metes and bounds.
(d) Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants no.1 and 2 thereby restraining the Defendants no.1 and 2, their agents, employees, assigns, servants, or any other persons acting on their behalf from selling, transferring, mortgaging or creating any third party interest in the suit property delineated in the Red colour in the site plan.
(e) Any other or further relief which tis Hon'ble Court may deem fit and proper may also be passed in favour of the Plaintiff and against the Defendants."
2. Stand of defendant no. 1 and defendant no. 2:
2.1 Defendant no. 1 and 2 in their written statement have taken the preliminary objections that suit for partition in present form is not maintainable being barred by limitation; that suit is barred under Section 23 of Hindu Succession Act; that suit is barred under Section 41 of Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 6 of 26 Specific Relief Act; that suit is liable to be dismissed as plaintiff has concealed material facts from Court;that plaintiff has no locus standi to file the present suit and has no right in present suit to claim the relief sought; that defendants no. 1 and 2 being rightful owners of suit property permanent injunction cannot be granted against lawful owner; that suit is not properly valued; that actual relief claimed by plaintiff can only be claimed by filing a suit of different nature and thus present suit is otherwise also barred ; that suit is beyond pecuniary jurisdiction as total value of suit property is 7.5 lakh as per stand of plaintiff, thus suit is liable to be dismissed under Order 7 Rule 11 CPC; that no irreparable loss and injury shall be caused to plaintiff by refusing the grant of relief as per the prayer clause; that suit is barred by Section 9 of CPC; that suit is not supported by appropriate affidavit; that suit is bad for non joinder and mis joinder of parties; that the suit property does not exist in the way it has been described in the suit petition and thus the suit is liable to be dismissed on this ground also.
That the injunction being equitable relief cannot be granted to plaintiff who herself is dealing in inequitable manner; that plaintiff has not complied with the provision under Order 7 Rule 14 CPC and Order 7 Rule 18 CPC; that suit of plaintiff is not maintainable as she is in collusion with defendant no. 3; that plaintiff has not specified her address along with the plaint. 2.2 In reply on merits, defendant no. 1 and 2 has denied the averments of the plaint. Defendants submit that they are the lawful owners at present of suit property as the lease hold rights in respect of the suit property now stand in the name of the defendant. It is not specifically denied that plaintiff was not wholly dependent upon her brother Late Sh. N. K. Verma who used to support and maintain her. It is not denied that Late Sh. Harish Chand Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 7 of 26 Verma, father of plaintiff, defendant no. 3 and Late Sh. N.K. Verma, was allotted plot bearing no. 205 in Block AG measuring about 52.36 sq. meters, Shalimar Bagh by Delhi Development Authority. However defendants submit that as on today defendants are the holders of lease hold rights in respect of suit property.
2.3 Defendant has not specifically denied that DDA had executed any lease deed in favour of Late Sh. H.C. Verma as alleged by plaintiff and submit that as on today it is the answering defendants who have all the lease hold rights of the suit property and appropriate mutations stood effected in the records of the DDA. Defendants further denied that Late Sh. H.C. Verma raised construction on the said plot as alleged by plaintiff. It is submitted that the construction on the plot was primarily raised by Late Sh. N.K. Verma, husband of defendant no. 1 from his own funds and a little help and guidance given to him by Sh. H.C. Verma. That the constructions on the first floor was exclusively raised by Sh. N.K. Verma after death of Sh. H.C. Verma and this fact has been concealed by the plaintiff.
2.4 Defendants has denied para 7 and 8 of the plaint however the denial is not specific. Defendants submit that both at the time of death of Sh. H.C Verma as well as at the time of death of Smt. Mohan Dulari Verma the widow of predeceased son was also alive and according to the Hindu Succession Act, she had also become one of the legal heirs of Sh. H.C. Verma and thereafter the legal heirs of Smt. Mohan Dulari Verma at the time of her death.
Defendants further submit that at no point of time the H.C. Verma was owner of the property which is the subject matter of the present suit. It is submitted that till Sh. H.C. Verma Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 8 of 26 was alive he was only having a lease hold right in the respective plot in his personal capacity and the funds for which were also contributed by Sh. N.K. Verma thus when Sh. H.C. Verma even at the time of his death was not enjoying the full ownership of the property then there exist no question becoming the ownership of the same by virtue of inheritance.
In para 9, defendant no. 1 admits that it was the husband of defendant no. 1 who was maintaining his sisters after the death of their parents and that defendant no. 1 also made arrangement for the marriage of defendant no. 3 and spent a huge amount on her marriage. It is denied that the deceased husband of defendant no. 1 committed any act which can be said to be fraud or fraudulent representation to plaintiff. Defendants no. 1 and 2 submit that plaintiff has made these remarks with the intention to bring disrepute to the husband of the defendant no. 1 which is bound to effect the self respect of defendant no. 1. In reply to para 13 defendants has not denied that plaintiff is continuing to reside in the suit property however submit that plaintiff is not the co owner of suit property. It is not denied that Late Sh. N.K. Verma made representation in his office that plaintiff is dependent upon him however it is submitted that the said representation was made by the Late Sh. N.K. Verma to help the plaintiff take medical benefit from his employer. It is denied that plaintiff has any right of maintenance from defendant no. 1. In reply to para 15, defendants has denied that they are threatening or harassing plaintiff. It is also denied that plaintiff has a right to live in the suit rd property as she is owner of the 1/3 share. Defendant denies that plaintiff was dependent upon her brother but submit that Late Sh. N.K. Verma maintained plaintiff to do social obligations.
Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 9 of 26 2.5 Defendant no.1 and 2 submit that plaintiff has no right of maintenance from them and submit that plaintiff is an invited guest in the suit premises and now has become the forced guest. Defendant denies any knowledge of the letter dated 20.07.2001 and submit no such letter is placed on record by plaintiff. Defendant further submit that plaintiff has filed with the list of document a letter dated 11.07.2001 which is addressed to Asst. Director DDA raising objections regarding the mutation in respect of suit property. That this letter nowhere mention the allegation of fraud and misrepresentation against late Sh. N. K. Verma as alleged by plaintiff in plaint and plaintiff and defendant no. 3 are acting in collusion with each other. 2.6 Defendant further submit that as per plaint the plaintiff has always been the resident of house no. 205, Block AG, Shalimar Bagh Delhi whereas the letter dated 11.07.2001 is filed by plaintiff gives the address of plaintiff and defednant no. 3 as identical and the same is C 10/96 Sector 5 Rohini Delhi. Even the second letter of DDA dated 18.02.2002 is addressed to the plaintiff at Rohini address.
2.7 Defendants no. 1 and 2 submit that plaintiff had appeared before the Sub Registrar of Delhi on 20.11.1984 and made relinquishment deed along with defendant no.3 in favour of Late Sh. N. K. Verma. That such transfer is valid mode of transfer as per law and therefore once this transfer is complete then it can not be annulled more specifically when the transaction was done 18 years ago and in name of person who is no more alive. Defendants deny having extended any threat or beating to plaintiff as alleged. It is specifically denied that late husband of defendant no.1either cheated the plaintiff or took undue advantage or otherwise fraudulently obtained the signatures of plaintiff on the relinquishment deed dated Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 10 of 26 20111984 as alleged.
2.8 Defendant no. 1 and 2 deny that plaintiff has no source of livelihood or that plaintiff was fully dependent upon her late brother for her maintenance. It is denied that the defendants are under obligation to maintain plaintiff being the legal heirs of her late brother. Defendants submit that plaintiff is an educated and financially independent lady. That the affidavit of late Shri N. K. Verma was given to draw the financial benefit from the employer and same has no value after the death of Sh. N. K. Verma.
2.9 Defendant no. 1 and 2 submit that the story of alleged sale of suit property is false and concocted one. That plaintiff has no cause of action and suit is under valued as the total value of the property as per plaint is more than 7.5 lacs and thus suit is beyond the pecuniary jurisdiction of this court. Defendant no. 1 and 2 submit that plaintiff is not entitled to the relief prayed hence the suit of plaintiff should be dismissed.
3. Defendant No. 3 has not contested the case and has not filed any written statement.
4. On the basis pleadings of the parties, following issues are framed on 29.01.2003:
(i) Whether the suit of the plaintiff is not maintainable as alleged in P.O. No.2 and 3?
(ii) Whether the plaintiff is entitled to declaration? (iii) Whether the plaintiff is entitled to partition? (iv) Whether the plaintiff is entitled to permanent injunction? OPP (v) Relief.
5. Plaintiff has led the evidence as PW1 and has been cross examined by ld. Counsel for defendant. Defendant has led the evidence through DW1 who is power of attorney holder of defendant no.1 . DW1 has been cross examined by ld. Counsel for plaintiff.
Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 11 of 26
6. I have heard the arguments as advanced by Learned counsels for both the parties and carefully perused the record. For relief of partition plaintiff has valued the suit on her 1/3rd share in the suit property thus the suit is properly valued for the purpose of Court fees and jurisdiction. My issue wise findings are as follows:
Issue No. 1 : Whether the suit of the plaintiff is not maintainable as alleged in P.O. No.2 and 3?
The onus to prove this issue has not been placed on any party. However as this objection is raised by defendant hence the onus to prove this issue should be on defendant. Defendant however has not proved these issues in evidence, however being legal objection same are discussed as follows:
Section 23 of Hindu succession act provides as follows: "23. Special provision respecting dwelling houses:Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwellinghouse only if she is unmarried or has been deserted by or has separated from her husband or is a widow." It is worthwhile to mention that Section 23 of Hindu Succession Act, 1956 has been repealed by the Hindu Succession(Amendment) Act, 2005 w.e.f.992005. The present suit was filed in year 2002 and thus it has to be seen whether this amendment shall be applicable Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 12 of 26 retroactively and to the cases pending trial when the amendment came into effect.
In the judgment of Hon'ble Kerala High Court in the case of Narayanan vs Meenakshi on 23 December, 2005, Equivalent citations: AIR 2006 Ker 143, 2006 (1) KLT 210 following questions of law have been decided :
"1) Whether a suit for partition at the instance of a daughter of the deceased could be defeated by invoking Section 23 of the Hindu Succession Act by the legal representatives of a deceased son of the intestate?
2) Whether Section 23 would be applicable in a case where the deceased intestate has left behind him only one male issue and whether it is necessary that there must be more than one male issues to invoke Section 23?
3) Whether the protection in favour of the male heir under Section 23 of the Hindu Succession Act would be available if he inducts a third party in the dwelling house or any portion thereof?
4) Whether omission of Section 23 of the Hindu Succession Act by the Hindu Succession Amendment Act, 2005 would have any impact on a suit for partition or appeal therefrom pending on the date of the commencement of the Hindu Succession Amendment Act, 2005?"
It has been held by the Hon'ble Kerala High Court that section 23 can not be invoked by the legal representatives of the 'male heir' and it has also been held that the amendment repealing the section 23 shall have retroactive effect. Relevant paras of the judgment are extracted as follows:
"14. The expression "male heir" in Section 23 does not include the legal representatives of such male heir. It is true that the legal representatives of a male heir would be entitled to the share which such male heir would have inherited. The legal representatives of the male heir could also claim partition Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 13 of 26 and separation of the fractional share of their predecessor. But that does not entitle the legal representatives of such male heir to claim the benefit under Section 23 of the Hindu Succession Act on the premise that their predecessor could have claimed such right or he was claiming such right in the pending litigation. It is true that class I heirs include son, daughter and widow of a predeceased son. Section 23 mentions "male heirs" which include other male heirs in class I as well. But such other male heirs in class I would be entitled to claim protection only in the event of the son of the intestate having predeceased the intestate. Such protection is not available to the aforesaid class I heirs if the son of the deceased intestate survived the intestate. Moreover, a widow, even of a predeceased son of the intestate, cannot claim the protection of Section 23 since she is not a male heir, to whom alone protection is provided under Section
23. The right of the male heir to resist partition invoking Section 23 of the Hindu Succession Act is absolutely personal to such male heir. Such right to resist partition is not heritable or alienable. Therefore, I hold that the additional appellant, the widow of the deceased, is not entitled to resist the suit for partition, claiming the benefit under Section 23 of the Hindu Succession Act.
15. The Hindu Succession Amendment Act, 2005, Act 39 of 2005, was enacted on the basis of the 174th report of the Law Commission. The representations made by the various women's organizations were considered by the Law Commission. Even at the time when the Hindu Succession Act, 1956 was Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 14 of 26 enacted, women's organizations had voiced the grievance that though the 1956 Act made commendable inroads into the erstwhile Hindu system of inheritance, still the gender discrimination against women was not fully done away with by the 1956 Act. As per Section 4 of the Hindu Succession Amendment Act, 2005 (Act 39 of2005), Section 23 of the Hindu Succession Act, 1956 is omitted. The question is whether the omission of Section 23 of the Hindu Succession Act in view of the commencement of Act 39 of 2005 during the pendency of a suit for partition or an appeal or second appeal therefrom has relevance in deciding the question whether the male heir or male heirs could resist the salt for partition under Section 23 of the Act. As held by the Supreme Court and this Court, the right to claim the benefit of Section 23 is personal to the male heir of the deceased Hindu intestate. Such a right is not heritable or alienable. Therefore, it cannot be said that cessation of such personal right during pendency of a suit for partition would not entitle the female heir to claim partition taking note of the subsequent events. If the contention that the state of affairs as we site date of the suit alone would be relevant is to be: accepted, then it would have the effect of indirectly holding that the personal right of the male heir to resist partition could be continued by his legal representatives, in case such male heir dies during the pendency of the suit. 1 have already held that the personal right of the male heir cannot be claimed by his legal heirs. Therefore, whenever the personal right of a male heir under Section 23 comes to an end, the right of the Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 15 of 26 female heir to claim partition cannot be defeated. In other words, a defeasible right of a male heir would get defeated the moment his personal right ceases. Such personal right of a male heir is taken away by the omission of Section 23 of the Hindu Succession Act, 1956, by the Hindu Succession Amendment Act, 2005. The effect of such omission would be retroactive.
16. In Lekh Raj v. Muni Lal and Ors. , the Supreme Court held:
The law on the subject Is also settled. In case subsequent everat or fact having bearing on the issues or relief 'in a suit or proceeding, to which any party seeks to bring on record, the court should not slut its door. All laws and procedures including functioning of courts, are all in aid to confer justice to all who knocks its door.
Courts should interpret the law not in derogation off justice but in its aid, Thus bringing on record subsequent event, which is relevant, should be permitted to be brought on record to render justice to a party....
In Pasupuleti Venkateswarlu v. The Motor and General Traders it was held by the Supreme Court thus:
If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, its brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy....
In Ramesh Kumar v. Kesho Ram 1992 Supp (2) SCC 623), it was held: Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 16 of 26 The normal rate is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing, on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief.
17. The Supreme Court in Lekh Raj's case quoted with approval the decision of the Supreme Court of the United States in Patterson v. State of Alabama, wherein it was held thus:
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or law, which has supervened since the judgment was entered.
The above decisions of the Supreme Court would fortify the conclusion that the omission of Section 23 of the Hindu Succession Act 1956, by the Amendment Act 39 of 2005 would have retroactive effect and the changed law could be taken note of and applied in pending litigations. Therefore, I am of the view that by the omission of Section 23 of the Hindu Succession Act, 1956 as per the Hindu Succession Amendment Act, 2005, the right of the male heir to claim the Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 17 of 26 benefit of Section 23 would get defeated even in pending litigations." The aforesaid judgment of Hon'ble Kerala High court is applicable to the present case and the legal objection raised by defendant nos. 1 and 2 are not maintainable as section 23 has been repealed with retroactive effect. Hence in my view present suit is not barred by section 23 (now repealed) of Hindu Succession act 1956.
Section 41 in The Specific Relief Act, 1963 provides as follows:
41. Injunction when refused. An injunction cannot be granted
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 18 of 26 mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter. Defendant has not proved how the suit is barred under section 41 of Specific relief Act and in my view this objection is not maintainable and suit is not barred under Section 41 of Specific Relief Act. Accordingly this issue is decided in favour of plaintiff and against the defendant no. 1 and 2.
Issue no. (ii) , (iii) & (iv):
Whether the plaintiff is entitled to declaration?
Whether the plaintiff is entitled to partition?
Whether the plaintiff is entitled to permanent injunction? OPP The onus to prove these issues was on plaintiff. Mark 'B' is the relinquishment deed and Mark 'C' is the perpetual lease both these documents are admitted by defendants. Ex. PW1/3 is the site plan.
From the evidence brought on record, it is proved that house was originally of Late Sh. H. C. Verma father of plaintiff, defendant no. 3 and their brother , Late Sh. N.K. Verma. DW1 has admitted in his cross examination "Mr H. C. Verma father of plaintiff was the original allottee of the suit property".
As Mr H. C. Verma had died intestate hence as per law plaintiff, defendant no. 3 and Late Sh. N.K. Verma had equal share in suit property being legal heirs. After death of Sh. N. Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 19 of 26 K. Verma suit property was mutated in favour of defendant no. 1 and 2 only vide Ex. DW1/2.
Mark 'A' is the letter of plaintiff to Assistant Director, DDA dated 11/07/2001 where in plaintiff had requested the DDA to stop the mutation of suit property in favour of defendant. Plaintiff has stated in this letter that her late brother Mr. N.K. Verma had concealed the fact of mutation of suit property in his name from plaintiff and defendant no.3 and that after his demise, his wife defendant no. 1 is harassing the plaintiff claiming herself to be sole owner of suit property. Ex. PW1/5 is the letter dated 18/02/2002 issued by DDA addressed to plaintiff and defendant no. 3 regarding furnishing of documents with the DDA. Ex. PW1/6 is the letter dated 04/03/2002 issued by DDA to plaintiff stating that " on perusal of the record furnished by the legal heirs it is seen that you have already relinquished their shares in favour of their brother so your request to transfer the share in above property cannot be acceded to you are therefore advised to approach the appropriate court of law to gain their share if there is any guidelines in this regard"
According to plaintiff she had signed Mark B believing the representation of her brother that the document was required to be signed to get suit property mutated in the name plaintiff, Late Sh. N. K. Verma as well as defendant no. 3. It is only after Ex Pw1/6 dated 04.03.2002 plaintiff came to know that Mark B was in effect the relinquishment deed signed by her and defendant no. 3 in favour of Late sh. N. K. Verma. Plaintiff has denied the suggestion that she had knowledge regarding the contents of the relinquishment deed at the time of its execution.
Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 20 of 26 Plaintiff has further deposed in her cross examination that : " I came to know about the fraud played by my brother Naresh regarding the relinquishment deed when the letter was received from DDA and it was in the year 2002. The House Tax of this amount was paid in lumpsum under one time payment scheme. I was not having the knowledge that in MCD record property was mutated in the name of Naresh. In the year 1984 I was 18 years plus and studying in B.A. IInd year"
Ld. Counsel for defendant had argued that plaintiff being educated adult was fully aware of the contents of the relinquishment deed and had voluntarily signed the same hence now plaintiff can not get it set aside by alleging the fraud. Even though plaintiff and defendant no. 3 were major and educated at the time of signing of the relinquishment deed dated 1984 it has to be seen by this Court if the consent of plaintiff and defendant no. 3 to said relinquishment deed was free.
Section 10 Of Indian Contract Act provides as follows:
"10. What agreements are contracts. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India and not hereby expressly repealed by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents."
Section 14 of Indian Contract Act defines 'Free consent':
14. " Free consent" defined. Consent is said to be free when it is not caused by
1) coercion, as defined in section 15, or Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 21 of 26
2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or
5)mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.
Section 16 of the Indian Contract Act defines undue influence as follows:
16. 1[ " 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 lie upon the person in a position to dominate the will of the other. Nothing in this sub section shall affect the provisions of section Ill of the Indian Evidence Act, 1872 . In para 9 of the written statement It has been admitted that plaintiff was dependent upon Late Sh. N.K. Verma. It is also not denied that Late Sh. N. K. Verma had given an affidavit to his employer that plaintiff was completely dependent on him. Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 22 of 26 It has been proved from the pleading of the parties as well as from the evidence brought on record that Late. Sh. N. K. Verma was looking after all the social obligations and had played a major role in marriage of Defendant no. 3. In fact a suggestion was put to plaintiff during cross examination that prior to his own marriage Mr. N. K. Verma was looking after the expenses of defendant no.3 and her husband as well along with the plaintiff. Thus it is proved that after the demise of parents late. Sh. N.K. Verma was acting as the head of family and thus it can not be denied that he was not in the capacity to influence or dominate the will of plaintiff and defendant no. 3 who were dependent on their brother Sh. N.K. Verma.
The plaintiff never demanded to get the property partitioned during the lifetime of her brother as she was living peacefully and was being maintained by her brother. This fact also shows that plaintiff must have believed the version of her brother that the relinquishment deed was in fact the paper for mutation of property in name of plaintiff, defendant no. 3 as well as Sh. N.K. Verma. Accordingly from the preponderance of probabilities in favour of plaintiff it is proved that plaintiff came to know about the fact that Mark B is in fact relinquishment deed after receiving letter of DDA i.e. PW1/6 dated 04.03.2002. Thus the suit filed in year 2002 for declaration of said relinquishment deed as null and void is well within limitation.
The sisters i.e. plaintiff and defendant no. 3 herein had relinquished their share in the property without any consideration in favour of Late. Sh. N.K.Verma. The sister had either implied or express assurance that their brother Sh. N. K. Verma is looking after them and maintaining them. During the lifetime of her brother plaintiff had the assurance that her Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 23 of 26 interest in property is secure and is being properly looked after by her brother. This assurance unfortunately gets denied to plaintiff after the death of her brother. Thus because of the said relinquishment deed the condition of plaintiff has become precarious as on one hand she will have to forego her share in the suit property and now after death of her brother his legal heirs have denied that they have any obligation to maintain her. Even the right and title of plaintiff in suit property has been denied by defendants. It is highly improbable and impractical that plaintiff will go and reside in house of her married sister. Eventually plaintiff has no where to go except to live in her parental house and is now at the mercy of defendant no. 1 and 2 who are receiving pension of Late. Sh. N.K. Verma and claiming to be exclusive owners of suit property.
Late Sh. N.K. Verma being the head and sole provider of family during his lifetime seems to have unduly influenced the will of sisters to sign the relinquishment deed in question in his favour . Considering the facts and circumstances of the case, the consent of plaintiff and defendant no. 3 while signing the relinquishment deed cannot be said to be free and seems to be unduly influenced by Late. Sh. N.K. Verma and also seems to be given under the pressure of dominantly prevalent patriarchal set up of the society. In my view, as the consent to said relinquishment deed dated 20.11.1984 is not free hence same is liable to be set aside under Section 19 A of Indian Contract act which provides as follows:
"Section 19A. Power to set aside contract induced by undue influence When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 24 of 26 Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the court may seem just."
Accordingly the Relinquishment deed in question is set aside and declared as null with no effect. As the relinquishment deed has been set aside hence the suit property will devolve upon the legal heirs of Late Sh. H. C. Verma. Thus Late. Sh. N.K. rd Verma, Plaintiff and defendant no. 3 have 1/3 share each in the suit property. As Sh. N. K. Verma is since deceased hence his 1/3 share in suit property will jointly devolve upon Defendant no. 1 and 2. Accordingly plaintiff is entitled to decree of partition. It is also proved that plaintiff is in possession of suit property hence she is also entitled to the relief of permanent injunction as prayed. Hence issue nos. 2, 3, and 4 are decided in favour of plaintiff and against defendant no. 1 and 2.
7. Relief: In view of findings on issue nos 1,2, 3 and 4 suit of plaintiff is decreed in her favour accordingly a decree of declaration is passed in favour of plaintiff and against defendant nos. 1 and 2 thereby setting aside the relinquishment deed dated 20/11/1984 registered as document No.4076 at pages 106 and 107 in Addl. BookI Vol. No. 4372 as null and void with no effect and no consequence. Further, the mutation in respect of suit property made by DDA/competent authority in favour of defendant no. 1 and 2 is also hereby set aside and the Competent Authority is directed to make necessary changes in the mutation in name of the coowners of suit property i.e. plaintiff,Defendant No. 3 and jointly defendant no 1&2 as per rules.
Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 25 of 26 A decree of permanent injunction is passed in favour of the Plaintiff and against the defendants no.1 and 2 thereby restraining the Defendants no. 1 and 2, their agents, employees, assigns, servants, or any other persons acting on their behalf from selling, transferring, mortgaging or creating any third party interest in the suit property as shown as Red colour in the site plan.
A preliminary decree of partition is passed. It is ordered that plaintiff, defendant no. 1 rd and 2 jointly and defendant no. 3 are entitled to 1/3 share each in the suit property i.e. the premises bearing no.205, Block AG, Shalimar Bagh, New Delhi being the coowners.
Put up for the consideration on the mode of partition of suit property on 20.11.13. No orders as to cost.
Decree sheet be prepared accordingly.
th Announced in open court on this day of 26 of October, 2013 (Richa Parihar) CJ06/Central 26/10/2013 Certified that it contains 26 (twenty six) pages signed by me.
(Richa Parihar) CJ06/Central 26/10/2013 Smt. Veena Verma vs. Smt. Parul Verma & Ors CS No. 284/10/02 Page No. 26 of 26