Delhi District Court
Bal Kishan Sharma vs Kanta Kumari Sharma on 28 February, 2024
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02:
NORTH ROHINI COURTS COMPLEX: DELHI
CNR No. DLNT01-006849-2018
CS DJ No. 571/18
IN THE MATTER OF:-
BAL KISHAN SHARMA
S/o Sh. Bhupender Kumar Sharma,
R/o C-208, Street No. 8, Majlis Park,
Delhi-110033
2. SMT. URVASHI SHARMA Age about 42 years
W/o Sh. Sunil Sharma
R/o D-19, Adarsh Nagar, L.K Road Delhi-33
3. SMT. POONAM SHARMA, age about 37 years
W/o Sh. Chandermouli Sharma
R/o C-24/B, E-12, Gaur Enclave-I, Shalimar Garden,
Sahibabad, Gaziabad, U.P.
........Plaintiffs
VERSUS
KANTA KUMARI SHARMA
W/o Late Sh. Bhupender Kumar Sharma
R/o C-208, Street no. 8,
Majlis Park, Delhi-110033
2. RAJEEV KUMAR SHARMA
S/o Late Sh. Bhupender Kumar Sharma
R/o C-208, Street No.8, Majlis Park,
Delhi-110033
3. RADHA GARG D/o Sh. Sukhdesh Kumar Garg,
CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 1 of 33
Digitally signed
VIKRAM by VIKRAM BALI
BALI Date: 2024.02.28
15:40:20 +0530
R/o A-998, A Block, Jahangirpuri, Delhi-110033
4. UMA MITTAL D/o Sh. Sukhesh Kumar
R/o A-998, A Block, Jahangirpuri,
Delhi-110033.
.....defendants
Date of institution : 24.07.2018
Date of Conclusion of Argument: 24.02.2024
Date of Order Judgment: 28.02.2024
SUIT FOR CANCELLATION OF RELINQUISHMENT DEED
DATED 19.02.2011 SALE DEEDS DATED 12.03.2018 (TWO SALE
DEED), GIFT DEED DATED 27.04.2018, DECLARATION OF
OWNERS 3/5TH SHARE, PARTITION SUIT IN RESPECT OF
SUIT PROPERTY NO. C-208, KHASRA NO. 12, MAJLIS PARK,
ADARSH NAGAR, DELHI-110033 AND DIRECT THE SUB
REGISTRAR PITAMPURA VI-A, DELHI-110036 TO CANCEL
THE SAID DOCUMENTS.
JUDGMENT
1. Vide this judgment, this court shall decide the present suit filed by the plaintiffs for cancellation of relinquishment deed dated 19.02.2011 sale deeds dated 12.03.2018 (two sale deeds), gift deed dated 27.04.2018, declaration of owners 3/5th share, partition suit in respect of suit property no. C-208, Khasra no. 12, Majlis Park, Adarsh Nagar, Delhi-110033 and direct the sub registrar Pitampura VI-A, Delhi-110036 to cancel the said documents. Digitally signed by VIKRAM VIKRAM BALI PLAINTIFFs' CASE BALI Date:
2024.02.28 15:40:38 +0530 CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 2 of 33
2. Facts as culled out from the record are that Sh. Bhupinder Kumar Sharma was the original owner of the suit property i.e. C-208, Majlish Park, Delhi-33 admeasuring 111 sq. yards. Sh. Bhupinder Kumar Sharma had purchased the suit property on 05.07.1971 from Mr. Sudarshan Kumar.
3. Sh. Bhupinder Kumar Sharma died on 18.11.2003. He is survived by a widow, two sons and two daughters.
4. The plaintiffs are son and two daughters of Sh. Bhupinder Kumar Sharma. They claim 3/5th share in the suit property
5. It is case of plaintiffs that on 09/05/18 they came to know that two floors of suit property have been sold by defendant no 1 to defendant no 3 and 4. In para 11 of the plaint it is further pleaded by plaintiffs that fraud, undue influence and misrepresentation was played by defendant no 1 and 2 as plaintiffs signatures for loan were taken on some papers, plaintiffs were told that since defendant no 2 is unemployed and loan for his business is needed. It is plaintiffs case that their signatures on relinquishment deed were taken fraudulently on 19/01/11 is void all subsequent documents executed by defendant no 1 i.e. Sale Deeds Dated 12.03.2018 (Two Sale Deed), Gift Deed Dated 27.04.2018 are void. Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:40:48 +0530 CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 3 of 33
6. It is plaintiffs' case that on pretext of getting loan for defendant no 2, relinquishment deed was got signed. Plaintiffs came to know about this on 09/05/18 .Defendant no 2 took loan by misrepresenting himself as owner of suit property. Plaintiff no 1 wrote letters dated 08.09.15,
28.09.15 and 14.09.16 to HDB Financial Services. Plaintiffs came to know about execution of sale deeds, gift deed and relinquishment deed on 09/05/2018, so cause of action accrued on this day.
DEFENDANTS CASE
7. Vide order dated 27.07.2023 amended written statements on behalf of defendant no. 1 and 2 and on behalf of defendant no. 3 and 4 was allowed, to be taken on record.
8. It is case of the defendants no.1 and 2 that relinquishment deed dated 19.02.2011 was executed by the plaintiffs in favour of D-1 i.e. mother of the parties.
9. It is the case of the defendant no. 1 and 2 that after relinquishment deed defendant no 1 had full right, title and interest in the suit property and sale deeds dated 12.03.2018 were executed in favour of defendant no. 3 (qua 3rd floor of the suit property) and 2nd floor of the suit property was jointly given to defendant no. 3 and 4. It is stated that sale consideration was duly paid and the defendant no. 1 mother of the parties was healthy at the time of execution of sale deed dated CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 4 of 33 Digitally signed VIKRAM by VIKRAM BALI Date:
BALI 2024.02.28 15:41:03 +0530 12.03.2018 and she affixed her thumb impression only because due to shivering she could not sign though she was mentally fit.CASE OF THE DEFENDANT NO. 3 AND 4
10. It is the case of the defendant no. 3 and 4 in the written statement that they are bonafide purchasers of the suit property for valuable consideration without notice of any dispute. ISSUES
11. Following issues were framed by the court vide order dated 11.04.2019.
1. Whether the plaintiff is entitled for cancellation of relinquishment deed dt. 19.02.2011 sale deed bearing No.3564 dt. 11.03.2018, another sale deed bearing no. 3565 dt. 12.03.2018, gift deed dt. 27.04.2018 alongwith direction to the Sub-Registrar to cancel these documents as prayed in prayer clause 1.1 to 1.5 of the plaint ? OPP
2. Whether the plaintiff is entitled for 1/5th share in the suit property as prayed in prayer clause 1.6 & 1.7 of the plaint ? OPP
3. Whether the suit of the plaintiff with regard to issue No.1 is not maintainable as being beyond the prescribed period of limitation ? OPD
4. Whether the suit is bad for misjoinder of the cause of action ? OPD Digitally signed VIKRAM by VIKRAM BALI
5. Relief. BALI Date: 2024.02.28 15:41:14 +0530 CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 5 of 33
12. PLAINTIFF EVIDENCE Sr. NO. Name of witness Remarks/documents tendered
1. PW1 Bal Kishan Sharma He tendered his evidence by way of affidavit Ex. PW 1/A and he relied upon the following documents:
1. Ex.PW1/1 site plan.
2. Ex.PW1/2 Relinquishment deed bearing registration no.
2455 book no. 1, Vol. no.
3347 on page 10 to 13 on 19.02.2011 with Sub-
Registrar VI-A (8pages)
3. Ex.PW1/3 Sale Deed bearing registration no.
3564, Book No. 1 Volume no. 7416, page no. 1-8 dated 12.03.2018 with S.R. VI-A Pitampura, Delhi-110036 for a consideration of Rs.
31,50,000/-(16 pages)
4. Ex.PW1/4 Sale Deed bearing registration no. 3565 Book no. 1, Volume no.
7416, page no. 9-16 dated
12.03.2018 with S.R. VI-A
Digitally signed
by VIKRAM
CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No.
VIKRAM 6 of 33
BALI
BALI Date:
2024.02.28
15:41:27 +0530
Pitampura, Delhi-110036 for
a consideration of Rs.
47,50,000/-(28 pages)
5. Ex.PW1/5 Gift deed
bearing registration no.
6063, Book no. 1, Volume
no. 7518, page no. 135-145
dated 27.04.2018 with S.R.
VI-A, Pitampura, Delhi-
10036 Ex. PW 1/6: property
booked by NDMC on
05.03.2013 (24 pages)
6. Ex. PW 1/6 rectified deed
in the name of Radha Garg
alias Radha bearing
registration no. 6562 Book
no. 1, Vol. No. 7537 on page
no. 178 to 182 dated
09.05.2018, 3rd floor
property bearing no. C-208,
Street no. 8, Majlis Park,
Delhi-110033(12 pages)
7. Ex.PW 1/7, Rectified
Deed in the name of Radha
Garg alias Radha & Uma
Mittal bearing Registration
no. 6563 Book No. 1 , vol.
no. 7537 on page no. 183 to
187 dated 09.05.2018, 2nd
floor property bearing no. C-
208, Street no. 8 Majlis Park,
Delhi-110033(12 pages)
CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 7 of 33
Digitally signed
by VIKRAM
VIKRAM BALI
BALI Date:
2024.02.28
15:41:40 +0530
8. Mark A Sale Deed no.
1729 Book No. 1, volume 16
pages 73 to 76 on 08.11.1955
in the office of S.R. Delhi(27
pages with Hindi Translation
from Urdu)
2. PW2 Mr. Shravan, record He proved the authority keeper with Dr. Umesh Mittal. letter Ex. P1. He brought the daily patient register w.e.f.
02.04.2018 to 13.11.2018.
On 08.05.2018 name of patient Smt. Kanta Sharma is at serial no. 13. The Copy of relevant portion of the said registers is Ex. PW 2/A.
3. PW 3 Sh. Ajeet Kumar He was the summoned extension assistance from BDO witness, record pertaining to office. L-37 was produced by him.
PE was closed on 24.05.2022.
13. DEFENDANT EVIDENCE Sr. No. Name of witness Remarks/documents tendered
1. DW1 Ms. Radha Garg She tendered her evidence by way of affidavit Ex. DW 1/A and she relied upon the documents i.e. sale deeds already Ex. PW 1/3 and Ex.
PW1/4 and the
correction/rectification deed are
already Ex.PW 1/6 and Ex. PW
CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 8 of 33
Digitally signed
VIKRAM by VIKRAM BALI
BALI Date: 2024.02.28
15:41:51 +0530
1/7 respectively.
DW 2 Akshay Dabas record He is a summoned witness and keeper brought the summoned record i.e. Relinquishment deed bearing registration No. 2455 in Book no. 1, vol. no. 3347 on pages 10 to 13 dated 102.2011 which his already Exhibited Ex.PW1/2.
DE was closed on 27.07.2023.
14. This court has heard counsel for the parties, perused court record and carefully considered rival submission of parties. ISSUE WISE ARGUMENTS AND FINDINGS ARE AS UNDER:
15. Issue no 1 is :
Whether the plaintiff is entitled for cancellation of relinquishment deed dt. 19.02.2011 sale deed bearing No.3564 dt. 11.03.2018, another sale deed bearing no. 3565 dt. 12.03.2018, gift deed dt. 27.04.2018 alongwith direction to the Sub-Registrar to cancel these documents as prayed in prayer clause 1.1 to 1.5 of the plaint ? OPP
16. Issue no 2 is :
Whether the plaintiff is entitled for 1/5th share in the suit property as prayed in prayer clause 1.6 & 1.7 of the plaint ? OPP Digitally signed VIKRAM by VIKRAM BALI Date:
BALI 2024.02.28 15:42:04 +0530 CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 9 of 33 Ld. counsel for the plaintiff has argued on these issues collectively under flowing heads:
Challenge to sale deed:
17. Regarding passing of consideration there is no averment in the written statement qua the amount of consideration. Reliance placed upon judgment of Hon'ble Supreme court in case titled as Kewal Kishan vs. Rajesh Kumar & Ors., dated 22.11.2021 to contend that a sale without price, is void (para 17).
18. It is further argued that at page 103 of the Trial Court Record it is shown that the consideration of 47.50 lakhs was paid through three cheques and a cash amount of Rs. 2 lakhs and similarly at page no. 119 of the Trial court record it is mentioned in the sale deed that consideration amount of Rs.31.50 lakhs was paid through two cheques and cash of Rs.50,000/-. It is argued that the account statement of Defendant No.1 (Mark O, Mark P mentioned at page no. 284 and 287) reflects that only two cheques i.e. one cheque of Rs.4.50 lakhs and another cheques of Rs.25 lakhs was reflected in the account and from this amount of Rs.23 lakhs approximately also was returned back to D no. 3, 4 and their father, friends and relatives. It is pointed out that at page no. 286 Rs. 4,50,000/- were paid to Sumit Kalra from account of defendant no.1 and 2. Further Rs. 25 lakhs were received by defendant no.1 on 07.04.2018.
19. It is argued that the defendant no.1 ought to have received Rs.47.50 lakhs plus 31.50 lakhs but only Rs. 29.50 lakhs were received CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 10 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:42:16 +0530 in account of which immediately around Rs. 23.39 lakhs were returned back to friends and relatives including defendant no. 3 and 4.
20. It is further argued that evidence of DW1 Radha Garg establishes that no source of income is proved to pay the sale consideration amount to defendant no.1.
21. It is further argued that defendant no. 1 did not appear as a witness before the court and an adverse inference needs to be drawn against her.
Challenge to sale deeds and gift deed on the point of incapacity of defendant no.1.
22. It is argued that the defendant No.1 is a literate lady. Despite this, she had thumb marked on sale deed and gift deed. It is further argued that it is averred in the sale deed dated 12.03.2018 that vendor out of her bondafide need and requirement has agreed to sell the property. No bonafide need and requirement has been averred in the written statement of the defendants No.1 & 2. Similar is the position regarding the other sale deed. The witness is Harish Kumar Dhiman who is not known to plaintiffs and the sale deeds are sham transaction. It is argued on the basis of medical document at page 193 of the court record that the defendant No.1 was discharged on 29.01.2018 and the sale deed is within two months approximately of this date and in no medical prescription the difficulty of shaking hands is mentioned.
23. It is further argued that there is mistake in sale deed. Rectification deed was presented on 08.05.2018 and on the same date the defendant CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 11 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:42:30 +0530 No.1 was under treatment and had visited a clinic of Umesh Mittal at page 204 of the court record.
Challenge To Relinquishment Deed
24. It is argued relying upon judgment of Hon'ble High Court of Delhi titled as Tripta Kaushik vs. Sub-Registrar dated 20.05.2020 that where relinquishment of any right by a co-owner is in favour of co-owner and not against all, the documents will be a gift not a release. It is further argued that even if it is taken for the sake of arguments that the documents is relinquishment deed in absence of stamp duty, the same cannot be a valid relinquishment deed and is barred from being read in evidence in terms of Section 17 of the Registration Act. It is further argued that in absence of acceptance by donee, the same cannot be considered even a valid gift.
25. It is further argued that plaintiffs have spent money on construction of the suit property so there was no occasion for them to relinquish their share.
Per contra Ld counsel for the defendant has argued on these issue that:
26. There is a presumption attached with the registered relinquishment deed. It is argued that in para 5 of the plaint, it is admitted case of the plaintiffs that suit property devolved upon legal heirs of Sh. Bhupender Kumar Sharma. It is further argued that if that be the case, the defendant No.1 was well within her rights to execute relinquishment deed. It is CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 12 of 33 Digitally signed by VIKRAM VIKRAM Date:
BALI BALI 2024.02.28 15:42:43 +0530 further argued regarding the judgment of Tripta Kaushik and it is clarified by counsel for the defendant by giving a hypothetical example that that in case there are say five co owners are their and three co- owners relinquish their share in favour of two other co owners, it will be a relinquishment deed and in case three co owners relinquish their share in favour of one fourth co owner and leave out the fifth co owner, it will be a gift deed. It is pointed out that in facts of present case two daughters and two sons relinquish their share in favour of their mother. No co- owner was left out, so the relinquishment deed is valid.
27. It is further argued that at best, the relinquishment deed can be impounded for payment of stamp duty.
28. It is further argued that in para no.18 of the plaint, it is claimed that defendant No.1 is unsound whereas, on the contrary in para no.11, it is stated that defendant No.1 played fraud and obtained sign of plaintiffs. It is further argued that averment in para No.11 of the plaint cannot stand together as fraud, undue influence and misrepresentation cannot go hand in hand.
29. It is further argued that particulars of fraud are required to be specifically mentioned in the pleadings as per order 6 Rule 4 CPC and the same has not been done.
30. It is further argued that in para 18 of the plaint, averment has been given that defendant No.1 is unsound. If that be so, she was required to be sued through next friend in terms of order 32 Rule 3 CPC.
Digitally signed by VIKRAM VIKRAM BALI BALI Date: 2024.02.28 15:42:54 +0530 CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 13 of 33
31. It is further argued that it is specific defence of the defendants No.1 & 2 that they required money for construction and loan was taken. No funds were provided by plaintiffs (para 7 of the amended written statements of the defendants No.1 & 2).
32. It is further argued that PW-1 in cross-examination dated 24.05.2022 admits that plaintiffs and defendants No.1 and 2 visited Sub- Registrar office, Prashant Vihar. It is volunteered .. We visited many times to different places for sanction of loan. It is argued that plaintiffs are literate persons and know that loans are not sanctioned in Sub- Registrar Office, therefore, the Relinquishment Deed is a valid registered document.
33. It is further argued that condition in the gift deed that defendant No.1 will reside in the suit property is in consonance with Section 23 (1) (I) of Maintenance and Welfare of Parents and Senior Citizen Act, 2007. REGARDING SALE CONSIDERATION
34. It is argued that if Relinquishment deed is valid, then, the defendant No.1 had full power of sale. Only defendant No.1 can challenge the sale and the plaintiffs have no locus standi. It is argued that only beneficiary can challenge sale deed. Reliance has been placed upon case titled as Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) Thr Lrs & Ors. dated 09.07.2020. Para 15.3 of which is relied upon to contend that even if prices not paid the validity of sale is not effected.
REGARDING CAPACITY OF DEFENDANT NO.1 CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 14 of 33 Digitally signed VIKRAM by VIKRAM BALI BALI Date: 2024.02.28 15:43:11 +0530
35. It is argued that in para 18 of the amended written statement, a specific stand is taken that defendant No.1 is an educated lady. Due to weakness and shaking hands some times, she thumb marks instead of signing. Reliance is placed upon document filed by the plaintiff to contend that the defendant No.1 was suffering from brain Hemorrhage (Mark H).
36. It is argued that in Hon'ble Supreme court in case titled as Bellachi (Dead) by L. R. (appellant) vs. Pakeeran (respondent), it has been held that a positive evidence regarding domination of Will/undue influence is required to be led. In the presence case, the defendant No.1 is not shown to have exercised undue influence over the plaintiffs.
37. It is further argued that Hon'ble Supreme court in case titled as Prem Singh and Ors., vs. Birbal and Ors., dated 02.05.2006 has held that presumption is attached to registered document. Onus is on the party challenging the registered document to rebut the presumption. It is argued that until and unless, the relinquishment deed is set aside, the defendant No.1 continues to be owner of the suit property. Since, defendant No.1 is not challenging sale deed, the plaintiffs cannot succeed.
38. It is further argued that DW-2 Sh. Akshay Dabas has clarified that Sub-Registrar makes necessary enquiries pertaining to particular document and only thereafter particular documents is registered.
FINDING OF THE COURT ON ISSUE NO. 1 AND 2CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 15 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:43:27 +0530
39. The following chronology of events is culled out from facts:
Date event Father of plaintiff no.1 namely 18/11/03 Bhupinder Kumar Sharma died His wife, two daughters and two sons succeeded to suit property Two daughters and two sons of 19/02/11 Bhupinder Kumar Sharma relinquished their rights in suit property in favour of their mother Mother of parties/defendant no 1 12/03/18 namely Kanta Kumari sharma sold second floor of suit property to Radha/defendant no 3 her daughter in law and Uma Mittal /sister of Radha/defendant no 4.
Mother of parties/defendant no 1 12/03/18 namely Kanta Kumari sharma sold third floor of suit property to Radha/defendant no 3 her daughter in law Mother of parties/defendant no 1 27/04/18 namely Kanta Kumari sharma gifted upper ground floor of suit property to Rajeev Kumar Sharma/defendant no 2 her son.
FINDINGS OF COURT ON CHALLENGE TO RELEASE DEED BY PLAINTIFF CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 16 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:43:41 +0530
40 Para 30 of case titled as Tripta Kaushik vs Sub Registrar Vi-A, Delhi & Anr Decided on 20 May,2020 is relied upon by plaintiffs. Same is as under:
".......30. From a reading of the above judgments, the test to determine whether an instrument can be considered as a Release/Relinquishment Deed can be summarized as under:-
a. In determining whether the document is a release or Gift/Conveyance, the nomenclature used to describe the document or the language which the party may choose to employ in framing the document, is not a decisive factor. What is decisive is the actual character of the transaction intended by the executants b. Determination of the nature of the document is not a pure question of law;
c. Where a co-owner renounced his right in a property in favour of the other co-owner, mere use of word like „consideration and transfer would not affect the true character of the transaction; d. What is intended by a Release Deed is the relinquishment of the right of the co-owner; e. Co-ownership need not be only through inheritance, but can also be through purchase; f. Where the relinquishment of the right by the co- owner is only in favour of one of the co-owner and not against all, the document would be one of Gift/Conveyance and not of "release"....." (emphasis is by this Court) Digitally signed by VIKRAM VIKRAM BALI BALI Date:
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41. Plaintiffs' counsel relies upon clause (f) to contend that where the relinquishment of the right by the co-owner is only in favour of one of the co-owner and not against all, the document would be one of Gift/Conveyance and not of "release" to contend document is at best a gift and no acceptance was done by donee so even gift is void.
42. In considered opinion of this court Clause (f) is not attracted to facts of present case as in facts of present case two daughters and two sons of Bhupinder Kumar Sharma relinquished their rights in suit property in favour of their mother. Thus all co owners relinquished their share in favour of sole remaining co owner their mother i.e defendant no
1. "Relinquishment means giving up of one's rights. In other words extinction of one's rights is relinquishment. The document dated 19/02/11 in considered opinion of this Court is a relinquishment deed".
43. Further argument that deed must be taken as a gift deed and in absence of acceptance same is void is also liable to be rejected as in considered opinion of this court the deed is a relinquishment deed. Further even if for sake of arguments it is considered to be a gift deed. The recitals in sale deed make it clear donee accepted title on basis of relinquishment deed and further acted upon relinquishment deed and conducted sale. So the argument of plaintiff that document dated 19/02/11 is void and without merit, hence, rejected. Digitally signed by VIKRAM VIKRAM BALI BALI Date:
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44. It has not been shown by plaintiffs how stamp duty is deficient. In absence of stamp duty, validity of relinquishment deed is not affected. Argument that Section 17 of the Registration Act applies to document deficiently stamped document is misconceived in law. The relinquishment deed was tendered by PW1 himself as PW 1/2 so it does not lie in his mouth to say stamp duty was not sufficient as this court has held that PW1 knew the nature of the document and there was not fraud upon plaintiffs. Executant is liable to pay stamp duty. Section 36 of THE INDIAN STAMP ACT, 1899 provides: Admission of instrument where not to be questioned. --Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The argument that relinquishment deed is vitiated due to deficient stamp duty is rejected.
45. Particulars of fraud are required to be specifically mentioned in the pleadings as per order 6 Rule 4 CPC. The same has not been done by plaintiffs. Further, PW-1 in cross-examination dated 24.05.2022 admits that plaintiffs and defendants No.1 and 2 visited Sub-Registrar office, Prashant Vihar. It is volunteered by him that we visited many times to different places for sanction of loan. PW-1 admits he was internal Auditor with LIC. In considered opinion of the court PW-1 is a literate person and is deemed to know that loans are not sanctioned in Sub- Registrar Office. The case of plaintiffs that the relinquishment deed was CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 19 of 33 Digitally signed VIKRAM by VIKRAM BALI BALI Date: 2024.02.28 15:44:16 +0530 got executed by fraud by giving an impression that same was for loan sanction in favour of defendant no 2 is neither proved not believable.
46. It was argued that in para 18 of the plaint, averment has been made that defendant No.1 is unsound. If that be so, she was required to be sued through next friend in terms of order 32 Rule 3 CPC. Per contra counsel for plaintiffs clarified that there is a difference between unsound for purpose of Order 32 CPC and not in sound mind as averred. No issue on this aspect was pressed by either of parties. Suffice to say that no evidence of unsound mind of defendant no. 1 is on record.
47. A frail argument was made on behalf of plaintiffs that in para 13 of plaint it is averred that release deed is of flat and not complete suit property. The argument is misleading. Ex PW1/2 relevant part at page 89 of court record shows that it is specifically mentioned below the table of names that relinquishment is qua above mentioned property. Details of which are mentioned at top of page 89 itself. Document is to be read as a whole. The argument of plaintiff deserves rejection and is rejected.
48. Even otherwise there is a presumption attached to a registered relinquishment deed. It is rightly argued that in para 5 of the plaint, it is admitted case of the plaintiffs that suit property devolved upon legal heirs of Sh. Bhupender Kumar Sharma. If this be the case, the parties were well within their rights to execute relinquishment deed.
Digitally signedVIKRAM by VIKRAM BALI BALI Date: 2024.02.28 15:44:29 +0530 CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 20 of 33 FINDINGS ON CHALLENGE TO SALE DEED BY PLAINTIFF
49. It is case of plaintiffs that since no consideration was paid or even if paid same was returned so sale is void. Counsel for the plaintiffs relies upon judgment of Hon'ble Supreme court in case titled as Kewal Kishan vs. Rajesh Kumar & Ors., dated 22.11.2021 to contend that a sale without price, is void (para 17). Their is no dispute with the law laid down by Hon'ble Supreme Court in this case. However it was held in the case relied by plaintiff that sale is void if sale deed qua immovable property is without price and no payment at future date is fixed. In present case at page 103 of the Court Record(Ex PW1/3) it is shown that the consideration of Rs. 47.50 lakhs was paid through three cheques and a cash amount of Rs. 2 lakhs was paid. Similarly at page no. 119 of the court record(Ex PW1/4) it is mentioned in the sale deed that consideration amount of Rs.31.50 lakhs was paid through two cheques and cash of Rs.50,000/-. Once Consideration Has Passed The Requirements UNDER Section 54 of Transfer of property Act stand fulfilled. It is specific defence of the defendants No.1 & 2 that they required money for construction and loan was taken. No funds were provided by plaintiffs. So source is proved.
50. What the seller does with the consideration amount after receipt is not concern of the court. The defendant no 1 may have returned part consideration to purchasers. Same is will of Mother/ defendant no 1.This act of defendant no 1 does not in considered opinion of the court vitiate CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 21 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:44:40 +0530 the sale. Further DW-1 Smt Radha has explained availability of funds sufficiently by explaining that since 2010 she was working as free lancer. She has her funds. Borrowed from her father. Took loan. Details of mode and quantum of payment finds mention in sale deeds itself.
51. Further this court had held Relinquishment deed is valid. The defendant No.1 had full power of sale. Defendant No.1 has not sided with plaintiffs. She is their mother. She has no grievance qua execution of the sale deeds. It is correct that plaintiffs being aggrieved may lay challenge to sale deed(Section 31 of The Specific Relief Act, 1963 allows for the same as argued by counsel for plaintiffs). But in considered opinion of the court keeping in view the totality of circumstances and facts the plaintiffs have not demonstrated any valid ground to seek setting aside of the sale deeds.
52. Reliance placed by defendants' counsel upon case titled as Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) Thr Lrs & Ors. Dated 09.07.2020 is accepted. Para 15.3 is rightly relied upon to contend that even if whole of the price is not paid the validity of sale is not effected.
FINDINGS ON CHALLENGE TO SALE DEEDS AND GIFT DEED BY PLAINTIFF ON GROUND OF INCAPACITY OF DEFENDANT NO 1.
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53. Tersely put it is case of plaintiffs that the defendant No.1 is a literate lady. Despite this, she had thumb marked on sale deed and gift deed. It is further argued that it is averred in the sale deed dated 12.03.2018 that vendor out of her bondafide need and requirement has agreed to sell the property, no such need was shown. Per contra it is defendants case that due to weakness and shaking of hands some times, she thumb marks instead of signing.
54. Medical record shows defendant no 1 suffered from brain hammerage(Mark H). This by itself does not mean defendant no 1 was mentally incapacitated to understand the nature of her acts. No evidence has been lead by plaintiffs to show mental capacity of defendant no 1. DW-2 has specifically stated registrar before registration makes necessary inquiries pertaining to particular document and only thereafter particular documents is registered.
55. Hon'ble Supreme court in case titled as Bellachi (Dead) by L. R. (appellant) vs. Pakeeran (respondent) dated 23.03.2009 has held that a positive evidence regarding domination of Will/undue influence is required to be led. In the present case, the defendant No.1 is not shown to have exercised undue influence over the plaintiffs.
56. Hon'ble Supreme court in case titled as Prem Singh and Ors., vs. Birbal and Ors., dated 02.05.2006 has held that presumption is attached to registered document. Onus is on the party challenging the registered CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 23 of 33 Digitally signed VIKRAM by VIKRAM BALI Date:
BALI 2024.02.28 15:45:07 +0530 document to rebut the presumption. The presumption has not been rebutted by plaintiffs.
57. The relinquishment deed has been upheld. The defendant No.1 had title over the suit property.
58. Plaintiffs counsel argued that gift deed is invalid being contingent as right of residence is reserved therein Per Contra it was argued by defendants counsel that condition in the gift deed that defendant No.1 will reside in the suit property is in consonance with Section 23 (1) (I) of Maintenance and Welfare of Parents and Senior Citizen Act, 2007.
59. In considered opinion of the court Ex PW1/5 at page no 145 of court record internal page 11 of gift deed point no 21 therein does provide that donor shall live in scheduled property and donee shall take care of her daily needs. It is not shown on behalf of plaintiff as to how this condition vitiates the gift deed. Condition in the gift deed that defendant No.1 will reside in the suit property is in consonance with Section 23 (1) (I) of Maintenance and Welfare of Parents and Senior Citizen Act, 2007 is accepted. Old aged mother sought to secure her rights by taking care of her residence and daily needs. Same does not vitiate the gift.
60. It is true that defendant no 1 did not step into witness box. The plaintiff, is required to stand on his own legs. The plaintiff in considered opinion of the court has failed to do so.
61. Plaintiffs suit cannot be decreed on basis of mere conjecture. On the principle of balance of probabilities this court is of considered CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 24 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:45:19 +0530 opinion that presumption attached with registered documents has not been rebutted.
62. keeping in view the totality of circumstances and facts issues no 1 and 2 are decided against plaintiffs as they have failed to discharge onus placed upon them.
ISSUE NO 3 IS :
63. Whether the suit of the plaintiff with regard to issue No.1 is not maintainable as being beyond the prescribed period of limitation ? OPD Ld. counsel for the defendants has argued on this issue that :
64. In para No.26 of the plaint, it is stated that cause of action arose on 05.12.2014 and 04.03.2015 when the loan was obtained by defendant No.2 after mortgaging the suit property. The suit filed on 23.07.2018 is barred by Limitation.
65. On the point of limitation the counsel for the defendant has argued that article 59 squarely applies. The relinquishment deed is dated 19.02.2011 and it was within the knowledge of the plaintiffs as is clear from averments in paras 11 and 17 of the plaint and hence the suit filed on 24.07.2018 is beyond three years prescribed under article 59.
66. It is further argued that documents at page no. 151, 154, 155 show that the date of these documents are 29.11.2014, 30.11.2014 and December 11.2014 receptively and suit filed on 24.07.2018 is beyond three years prescribed under article 59.
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67. It is further argued that perusal of para 26 of the plaint shows that cause of action arose on 05.12.2014 when loan was obtained from bank by mortgaging suit property and loan was used by defendant no. 2 for business purpose. Reliance is placed upon case titled as Saranpal Kaur Vs. Praduman Singh dated 28.03.2022 para 10 of which is relied to contend that when the party becomes aware of facts necessary to pursue legal proceedings the period of limitation commences.
Per contra Ld. counsel for the plaintiffs has argued on this issue:
68. That in para 11 of the plaint it is specifically mentioned that knowledge regarding relinquishment deed came on 09.05.2018. The suit is within limitation. Document at page no. 213 is relied upon to show that date of knowledge is 24.08.2015. It is stated that article 59 of limitation act itself states that time begins to run when facts entitling the plaintiffs to have the instrument set aside first become known to him.
FINDING OF THE COURT ON ISSUE NO. 369. Prayer clause is at page 16 & 17 of plaint. Prayers can be grouped in two categories. Category one: for cancellation of relinquishment deed dated 19.02.2011, sale deeds dated 12.03.2018 (two sale deed) and gift deed dated 27.04.2018.
70. Category two: for declaration of plaintiffs as owners of 3/5th share in respect of suit property no. C-208, khasra no. 12, Majlis Park, Adarsh Nagar, Delhi-110033.
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71. Following articles of limitation Act are attracted to the two categories of prayers made:
LIMITATION FOR CATEGORY ONE PRAYERS:
PART IV.--SUITS RELATING TO DECREES AND INSTRUMENTS Article Description of Period of Time from suit limitation which period begins to run
59. To cancel or set Three years. When the facts aside an entitling the instrument or plaintiff to have decree or for the instrument the rescission of or decree a contract. cancelled or set aside or the contract rescinded first become known to him.
LIMITATION FOR CATEGORY TWO PRAYERS:
PART III.--SUITS RELATING TO DECLARATIONS Article Description of Period of Time from suit limitation which period begins to run 58 To obtain any Three years. When the right other to sue first declaration. accrues.
Section 17 of the Limitation Act is also relevant. Same is as under:
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17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,-- (a) the suit or application is based upon the fraud of the defendant or respondent or his agent;
or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid;
or (c) the suit or application is for relief from the consequences of a mistake;
or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, 8 the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it;(emphasis is by the court) or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 28 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:46:15 +0530 know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.(emphasis is by the court)
72. Following are the crucial dates to that are required or be determined to pin point the starting point of limitation:
Firstly, as to when the right to sue first accrued to plaintiff? Secondly, as to When the facts entitling the plaintiffs to have the instrument or decree cancelled or set aside or the contract rescinded first become known to them?
Thirdly, as to when the plaintiffs discovered the fraud or the mistake or could, with reasonable diligence, have discovered it?
73. A careful perusal of paras 11,17 and 26 of the plaint reveal that it is plaintiffs case that on pretext of getting loan for defendant no 2 relinquishment deed was got signed. Plaintiff came to know about this on 09/05/18 (para 11).Defendant no 2 took loan by misrepresenting himself as owner of suit property. Plaintiff no 1 wrote letters dated CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 29 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:46:27 +0530 08.09.15,28.09.15 and 14.09.16 to bank.(para 17). Plaintiffs came to know about execution of sale deeds, gift deed and relinquishment deed on 09/05/2018, so cause of action accrued on this day (para 26).
74. Document at page no. 213(Mark G colly) a letter dated 08/09/2015 by BK Sharma to Bank authorities is a self serving document that does not extend limitation. Same cannot be relied upon by plaintiffs to show that date of knowledge of loan by Rajeev Kumar Sharma is 24.08.2015 only.
75. PW-1 in cross-examination dated 24.05.2022 admits that plaintiffs and defendants No.1 and 2 visited Sub-Registrar office, Prashant Vihar. It is volunteered by him that we visited many times to different places for sanction of loan. PW-1 admits he was internal Auditor with LIC. In considered opinion of the court PW-1 is a literate person. He is deemed know that loans are not sanctioned in Sub-Registrar Office. The case of plaintiffs that they came to know about relinquishment deed only on 09.05.2018 is neither proved nor believable. In considered opinion of the court plaintiffs would have come to now by reasonable diligence about alleged fraud on date of day of execution of relinquishment deed itself. The date of registered relinquishment deed is treated as date of knowledge of plaintiffs i.e. 19/02/11. The cause of action projected by plaintiffs that only on 09/05/18 they came to know about execution of sale deeds, gift deed and relinquishment deed is neither proved nor believable.
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76. Plaintiffs could have discovered the alleged fraud or could, with reasonable diligence, have discovered it on the date of relinquishment deed which is registered i.e. 19/02/11 when instead of loan documents, relinquishment deed was being got signed as alleged by plaintiffs.
77. The right to sue first accrued to plaintiffs when instead of loan documents, relinquishment deed was being got signed from the plaintiffs, as alleged by them.
78. The facts entitling the plaintiff to have the relinquishment deed set aside also arose when instead of loan documents, relinquishment deed was being got signed from the plaintiffs, as alleged by them.
79. Applying articles 58,59 read with Section 17 of Limitation Act make it clear that suit filed only on 24/07/18 is hopelessly barred by limitation. Issue no 3 is decided against the plaintiffs and in favour of defendant.
ISSUE NO 4 IS :
80. Whether the suit is bad for misjoinder of the cause of action ? OPD
81. Ld counsel for the defendant has argued on this issue that different documents in favour of different persons are challenged in same suit. So suit is bad for misjoinder of the cause of action.
82. Per contra Ld.counsel for the plaintiffs has argued on this issue that a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 31 of 33 Digitally signed VIKRAM by VIKRAM BALI BALI Date: 2024.02.28 15:46:53 +0530 same defendant or the same defendants jointly may unite such causes of action in the same suit.
FINDING OF THE COURT ON ISSUE NO. 483. ORDER 2 R 3 CPC is as under :
3. Joinder of causes of action (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2)Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.
84. Present suit filed by the plaintiffs for cancellation of relinquishment deed dated 19.02.2011, sale deeds dated 12.03.2018 (two sale deeds), gift deed dated 27.04.2018. For declaration as owners of 3/5th share, partition suit in respect of suit property no. C-208, Khasra no. 12, Majlis Park, Adarsh Nagar, Delhi-110033 and for directions to the sub registrar Pitampura VI-A, Delhi-110036 to cancel the said documents.
85. Defendants have a joint interest in main questions raised in the suit. Right to relief of plaintiff arises from same series of acts. If CS DJ No.571/18 Bal Kishan Sharma vs. Kanta Kumari Sharma Page No. 32 of 33 Digitally signed by VIKRAM VIKRAM BALI BALI Date:
2024.02.28 15:47:06 +0530 plaintiffs had brought separate suit against defendants, common issues of law and fact would have arisen. No prejudice is shown to have occurred to defendants. In considered opinion of the court the suit cannot be said to be bad for misjoinder of causes of action.
86. Thus issue no 4 is decide against defendants and in favour of plaintiffs.
RELIEF
87. In view of the findings on issue no. 1 to3 , the suit of the plaintiff is dismissed.
88. Defendants are held entitled to costs. Decree sheet be prepared accordingly. File be consigned to record room. Digitally signed by VIKRAM VIKRAM BALI Date:
BALI 2024.02.28
15:47:19
+0530
(Vikram Bali)
Addl. District Judge-02, North
Announced in the open Court. Rohini Court Complex, Rohini
(Order contains 33 pages) Delhi/28.02.2024
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