Delhi District Court
Champa Devi vs Shiv Kumar And Ans on 24 August, 2024
CS SCJ 555/17
CHAMPA DEVI Vs. SHIV KUMAR AND ANS.
IN THE COURT OF MS. KANIKA AGARWAL, CIVIL
JUDGE-01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 555/17
CNR No. :- DLST03-000987-2017
CHAMPA DEVI
W/o Sh. Kanhiya Lal
R/o H.No. 1073, Subhash Camp,
Dakshipuri, New Delhi
Presently residing at:-
H.No. 167, Subhash Camp,
Dakshinpuri, New Delhi ......PLAINTIFF
VERSUS
1. SHIV KUMAR
S/o Sh. Kanhiya Lal
R/o H.No. 167, Subhash Camp,
Dakshinpuri,
New Delhi ......DEFENDANT NO. 1
2. MAHENDER
S/o Sh. Kinje Lal
R/o 5/217, Dakshinpuri
New Delhi ......DEFENDANT NO. 2
Digitally
signed by
KANIKA
KANIKA AGARWAL
Page no. 1 of 39 AGARWAL Date:
2024.08.24
16:29:13
+0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 555/17
CHAMPA DEVI Vs. SHIV KUMAR AND ANS.
3. SMT. SHEELA DEVI
W/o Sh. Mahender Kumar
R/o 5/217, Dakshinpuri
New Delhi ......DEFENDANT NO. 3
Date of Institution : 19.05.2017
Date of Decision : 24.08.2024
Date of framing of issues : 31.07.2018
Date of final arguments : 22.07.2024
Decision : PARTLY DECREED
SUIT FOR POSSESSION, DECLARATION AND
PERMANENT INJUNCTION
JUDGMENT
1. This is the suit filed by the plaintiff for the reliefs of possession, declaration and permanent injunction. AVERMENTS OF THE PLAINT
2. Succinctly, the case of plaintiff is that she is the owner of shop/ jhuggi bearing no. 1073, Subhash Camp, Dakshinpuri, New Delhi (hereinafter referred to as "Suit Property"). It is stated that plaintiff was running the vegetable shop in the suit property but due to illness, she had asked the defendant no. 1 to give the suit property on rent in order to meet her expenses.
3. That in the month of March 2017, defendant no. 1 told the plaintiff that defendant no. 2 is ready to take the suit property on rent of Rs. 4000/- per month. In order to earn her livelihood, plaintiff agreed to give the shop on rent. It is stated that defendant Digitally signed by KANIKA AGARWAL KANIKA Page no. 2 of 39 Date:
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no. 1 and 2 had taken the thumb impression of the plaintiff on some papers on pretext that they are related to rent agreement and also assured the plaintiff that she would start receiving the rent from April 2017. That, defendant no. 1 had given one month rent in the first week of April, 2017.
4. That on 12.04.2017, defendant no. 1 and 2 approached the plaintiff and informed her that the papers on which the plaintiff had put her thumb impression earlier have been misplaced and therefore, they want to take thumb impression of the plaintiff on the new rent agreement. Having no reason to doubt, the plaintiff signed on the paper under the impression that they relates to lease.
5. It is averred that the plaintiff came to know from the neighbours that defendant no. 2 is claiming himself to be the owner of the property and also claims to change the electricity connection into his name and re-build the suit property. Upon enquiry as to the nature of the documents, defendant no. 1 and 2 did not give any satisfactory answer to the plaintiff. Subsequently, the plaintiff asked defendant no. 2 to vacate the suit property, however, the latter refused to vacate the property on pretext that he has purchased the suit property and paid Rs. 4,50,000/- to defendant no. 1 and remaining amount shall be paid within the period of one month. It is stated defendants in connivance with each other have taken the thumb impression of the plaintiff on some sale documents and have misused the same. A police complaint was also lodged before SHO Digitally signed by KANIKA AGARWAL KANIKA Page no. 3 of 39 Date:
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PS Ambedkar Nagar on 09.05.2016 but no action was taken by the police. Having left with no other option, the present suit is filed seeking following reliefs:-
(i) pass a decree of possession of the suit property / shop/ Jhuggi no. 1073, Subhash Camp, Dakshinpuri, New Delhi as shown in red colour in site plan;
(ii) pass a decree of permanent injunction thereby restraining the defendant, his associates, agents, servants etc. by re-built, selling or create third party interest in the suit property/ Shop/ Jhuggi no. 1073, Subhash Camp, Dakshinpui, New Delhi;
(iii) pass a decree of declaration thereby declare the document i.e. agreement to sale and purchase, GPA, Will, receipts, advance receipt cum agreement to sell and purchase, possession letter which is in the name of Sheela Devi i.e. defendant no. 3 cancel/ declare as null and void and also declare the plaintiff as the owner of the suit property bearing no. 1073, Subhash Camp, Dakshinpuri, New Delhi.
(iv) cost of the suit; and
(v) any other relief.
WRITTEN STATEMENT OF DEFENDANT NO. 1:-
6. Per contra, it is stated by defendant no. 1 is not in possession of the suit property hence, the present suit is not Digitally signed by KANIKA AGARWAL KANIKA Page no. 4 of 39 Date:
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maintainable against defendant no. 1. It is stated that present suit is not maintainable as the same is not verified by the plaintiff according to the Code of Civil Procedure as well as well as Delhi High Court Rules, hence, liable to be rejected. It is stated that the present suit is not maintainable as plaintiff has not come with clean hands and filed the present plaint with ulterior motive to harass and humiliate defendant no. 1. It is stated that defendant no. 1 has no possession, interest, right, title in the suit property. It is stated that there is no cause of action arose against defendant no. 1. It is further stated that by defendant no. 1 that he too was not aware of the actual nature and contents of the documents as he is also a semi-illiterate person having studied till Primary school (Hindi Medium). Defendant no. 1 states that he was completely oblivious of the fact that the defendant no. 2 has taken the thumb impression of plaintiff on sale documents instead of lease agreement. All the other averments of the plaint have been denied. Thus, it is prayed that suit of the plaintiff is liable to be dismissed. WRITTEN STATEMENT OF DEFENDANT NO. 2:-
7. It is stated by defendant no. 2 that present suit is liable to be dismissed under Order VII Rule 11 CPC as plaintiff has no cause of action against defendant no. 2. It is stated that plaintiff has not approached the court with clean hands and has concealed the material facts. It is stated that plaintiff has concealed that she has sold her property to Smt. Sheela Devi wife of Shri Mahendra Digitally signed by KANIKA KANIKA Page no. 5 of 39 AGARWAL AGARWAL Date:
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Kumar. It is stated that plaintiff has not made Smt. Sheela Devi as a necessary party. It is stated that plaintiff has got executed several documents in favour of Smt. Sheela Devi and this fact was well known to the plaintiff and her son Sh. Shiv Kumar/ defendant no. 1, however, due to malafide intention, plaintiff has filed the false and fabricated case against defendant no. 2. All the other averments of the plaint have been denied. Thus, it is prayed that suit of the plaintiff is liable to be dismissed. WRITTEN STATEMENT OF DEFENDANT NO. 3:-
8. It is stated by defendant no. 3 that present suit is liable to be dismissed under Order VII Rule 11 CPC as plaintiff has no cause of action against defendant no. 3. It is stated that plaintiff has not approached the court with clean hands and has concealed the material facts from the Hon'ble Court. It is stated that plaintiff has concealed the fact that she has sold her property to defendant no. 3. It is stated that fact is already in the knowledge of plaintiff and her son Sh. Shiv Kumar who has witnessed the sale documents but due to malafide intention of plaintiff and defendant no. 1, plaintiff has filed the false and fabricated case against defendant no. 3. All the other averments of the plaint have been denied. Thus, it is prayed that suit of the plaintiff is liable to be dismissed. REPLICATION
9. In replication, averments of the plaint have been reiterated and contents of the written statement have been denied.
Digitally signed by KANIKA KANIKA AGARWAL Page no. 6 of 39 AGARWAL Date: 2024.08.24 16:29:57 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 555/17 CHAMPA DEVI Vs. SHIV KUMAR AND ANS. ISSUES
10. From the pleadings of the parties following issues were framed by Ld. Predecessor of this court vide order dated 31.07.2018.
(i) Whether the plaintiff is entitled to relief of possession as prayed in prayer clause (a)? OPP
(ii) Whether the plaintiff is entitled to relief of permanent injunction as prayed in prayer clause (b) OPP
(iii) Whether the plaintiff is entitled to declaration as prayer in prayer clause (c)? OPP
(iv) Whether the present suit is not maintainable because plaintiff has approached the court with unclean hands and has suppressed material facts from the court? OPD
(v) Relief.
PLAINTIFF EVIDENCE
11. To prove her case, the plaintiff herself stepped into the witness box as PW-1 and tendered her affidavit as Ex. PW1/1. She placed reliance upon the following documents:
(i) Ex. PW1/A i.e. site plan;
(ii) Ex. PW1/B (OSR) (colly) i.e. document of the property (09 pages);
(iii) Ex. PW1/C (OSR) i.e. copy of aadhar card;Digitally signed by KANIKA AGARWAL
KANIKA Page no. 7 of 39 Date:
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(iv) Ex. PW1/D (OSR) i.e. copy of electricity bill;
(v) Mark PW1/E (colly) i.e. photographs of the property;
(vi) Ex. PW1/F (OSR) i.e. copy of complaint dated 09.05.2017;
(vii) Ex. PW1/G (OSR) i.e. postal receipt of the complaint sent to DCP and Commissioner of police; and
(viii) Mark PW1/H i.e. copy of FIR no. 536/2017.
12. PW1 during her cross-examination by defendant no. 1, she has stated that she does not remember when she purchased shop/ jhuggi bearing no. 1073, Subhash Camp, Dakshinpuri, New Delhi. It is stated by PW1 that she is the exclusive owner of the suit property and defendant o. 1 has no concern in any manner with the suit property. It is stated by PW1 that she had let out her shop to defendant no. 2 out of her own volition. It is stated by PW1 that she received rent two times against the let out of the suit property. It is denied by PW1 that she has filed false complaint against defendant no. 1 with police dated 09.05.2017. It is further denied by PW1 that FIR bearing no. 536/17 is falsely lodged against defendant no. 1. It is denied by PW1 that defendant no. 1 never commit any cheating upon the plaintiff. It is stated by PW1 that whatsoever transaction executed between plaintiff and defendant no. 2 either on rent deed, payment of rent, signing of documents etc, has no concern with defendant no. 1.
13. During her cross-examination by Ld. counsel for defendant no. 2 and 3, it is stated by PW1 that her son Sh. Shiv Digitally signed by KANIKA KANIKA AGARWAL Page no. 8 of 39 AGARWAL Date:
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Kumar is not residing with her and she is against her son Shiv Kumar. It is stated by PW1 that presently she is residing at H.No. 167, Subhash Camp, Dakshinpuri, New Delhi since last 10-15 years. It is stated by PW1 that she had purchased the suit property 10 years back and she do not remember how many documents were prepared at the time of purchase of the same due to lapse of time. It is stated by PW1 that she do not remember on which date she put her thumb impression on the documents.
14. It is by PW1 stated that Sh. Mahender had put her thumb impression on the document, however, she do not remember how many pages he had obtained her thumb impression. It is stated by PW1 that at that time, nobody were at home. It is stated that she had told this fact to her daughter-in-law Smt. Sangeeta. It is stated by PW1 that she had made a police complaint on the same day when Sh. Mahender had obtained her thumb impression forcefully. It is stated by PW1 that she had not told the said fact to her son Sh. Shiv kumar as they were not in talking terms, however, she had mentioned the said fact in her petition that Sh. Mahender had obtained her thumb impressions forcefully. However, she does not remember whether she had mentioned the fact that Sh. Mahender had taken her thumb impression in March 2017 in her plaint or affidavit of evidence. It is denied by PW1 that she is deposing falsely with respect to the same. It is stated that she do not remember whether defendant no. 1 and 2 were present when she had Digitally signed by KANIKA AGARWAL KANIKA Page no. 9 of 39 Date:
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again affixed her thumb impression on the second time. It is stated by PW1 that she had affixed her thumb impression forcefully on blank papers. It is stated by PW1 that at that time Smt. Sangeeta. It is stated by PW1 that she was not aware at that time that her thumb impression are being taken for sale of property. It is denied by PW1 that she has cordial relation with defendant no. 1 and it is because of this reason she is staying with him.
15. Further, Ms. Pooja Bhasin notary public was examined as PW2 and has relied upon documents i.e. Ex. PW2/P1 to Ex. PW2/P5. During her cross-examination by Ld. Counsel for defendant no. 2 and 3, it is stated by PW2 that the registration no. 10651 mentioned on the stamp on Ex. PW2/P1 to Ex. PW2/P5 are her correct registration number. It is denied by PW2 that stamp on Ex. PW2/P1 to Ex. PW2/P5 are her stamp. It is further denied by PW1 that the signatures on the said exhibits are the same signatures which she has submitted in the Ministry of Law & Justice. It is stated by PW2 that her name is shown in the stamp on the said documents. It is denied by PW2 that she has not shown any authentic document of her signature in Ministry of Law and Justice as signatures on the documents are correct.
16. Further, SI Naresh Kumar from PS Ambedkar Nagar has examined as PW3 who has relied upon the FIR no. 536/17 u/S 420 IPC PS Ambedkar Nagar as Ex. PW3/A. During his cross- examination, it is stated by PW3 that the file is assigned to him from Digitally signed by KANIKA AGARWAL KANIKA Page no. 10 of 39 Date:
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the previous IO ASI Pritam Singh and he does not know if any FIR was lodged against the plaintiff.
17. Thereafter, vide separate statement of Ld. counsel for plaintiff, plaintiff evidence was closed on 20.04.2019 and matter was fixed for defendant evidence.
DEFENDANT EVIDENCE
18. On the other hand, in support of their case, defendant no.1 examined himself as DW1 who tendered his affidavit of evidence as Ex. DW1/A.
19. DW1 was duly cross examined by Ld. Counsel for plaintiff. During his cross-examination, it is stated by DW1 that the suit property was in the name of his mother Smt. Champa Devi. It is stated by DW1 that the suit property was given to him on rent to look after it because his mother used to remain ill. It is stated by DW1 that in March, 2017, he had told his mother that he intended to give the suit property to Mahender on rent. It is stated by DW1 that he had taken the thumb impression of his mother on the papers by stating to her that the said papers were for the purposes of letting out the suit property to Mahender. It is stated by DW1 that as per asking of Mahender, Mahender and he had taken thumb impression of his mother again on some papers. It is denied by DW1 that he had obtained the thumb impressions of his mother intentionally and deliberately with an intention to cheat her as his mother had given the suit property to him for giving the same on rent. It is further Digitally signed by KANIKA KANIKA AGARWAL Page no. 11 of 39 AGARWAL Date:
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denied by DW1 that he with the connivance of other defendants had cheated the his mother by preparing the false and fabricated documents in regard to the sale of the suit property.
20. During his cross-examination by Ld. Counsel for defendant no. 2 and 3, it is stated that the new address of the suit property is 1073, Subhash Camp, New Delhi. It is stated by DW1 that the suit property was purchased in his name long ago. It is stated by DW1 that he do not remember whether he signed the advance receipt cum agreement to sell and purchase dated 01.03.2017 Ex.DW1/D2 (OSR) (colly) or not. It is stated by DW1 that he also do not remember whether he signed on receipt dated 01.03.2017 Ex.DW1/D3 (OSR) or not but it bears the thumb impression of his mother. It is stated by DW1 that documents Ex.
PW2/P1 to Ex. PW2/P5 bear his signatures. It is stated by DW1 that no document was prepared in respect of the receipt of rent of the suit property from Mahender. It is denied by DW1 that he with the connivance of his mother has filed a false and fabricated suit against defendant no. 2 and 3. It is stated by DW1 that he does not know whether any public person witnessed the document Ex.PW2/P1 to Ex.PW2/P5. DW1 cross-examination was concluded on 21.01.2020.
21. Thereafter, Smt. Sheela Devi (defendant no. 3) was examined as DW2 who tendered her affidavit of evidence as Ex. DW2/1. She has placed reliance upon documents which are already exhibited as Ex. DW1/D2 (colly) (OSR), Ex. DW1/3 (OSR), Ex.
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PW2/P1 (colly), Ex. PW2/P2 (colly) (OSR), Ex. PW2/P4 and Ex. PW2/P5 (colly) (OSR). She has further relied upon following documents i.e.
(i) Ex. DW2/A (OSR) i.e. copy of receipt; and
(ii) Mark A i.e. copy of FIR.
22. During her cross-examination, it is stated by DW2 that she signed her affidavit at Mark A and B at Champa's Devi house. It is stated by DW2 that Ex. PW2/P1 was prepared in court. However, the signatures on Ex.PW2/P1 at Mark A were signed at Champa Devi house. It is stated by DW2 that she does not know whether any FIR was registered against her husband and the same has been lodged by the plaintiff. It is stated by DW2 that the payment of Rs.2,50,000/- and Rs.2,00,000/- was paid in cash to Champa Devi and Shiva. It is stated by DW2 that Rs. 2,50,000/- and Rs. 4,50,000/- was paid in cash to Champa Devi and Shiv Kumar aka Shiva i.e. defendant no.1. It is stated by DW2 that she does not know whether any receipt of the payment has been filed by her. It is stated by DW2 that she does not know how full and final payment of Rs.2,00,000/- is recorded in the document. It is denied by DW2 that she is deposing falsely that consideration amount of Rs.7,00,000/- was paid. It is denied by DW2 that the plaintiff had not sold her shop to her. It is further denied by DW2 that because the suit property has not been sold as such neither her nor her husband asked the original chain of the suit property from the Digitally signed by KANIKA KANIKA AGARWAL Page no. 13 of 39 AGARWAL Date:
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plaintiff and the same are with the plaintiff. It is also denied by DW2 that the property paper have been false and fabricated as such she does not know from where the same has been attested. DW2 cross-examination was concluded on 26.03.2022.
23. Thereafter, Sh. Mahender (Defendant no. 2) was examined as DW3 who tendered his affidavit of evidence as Ex. DW3/1. During his cross-examination, it is stated by DW3 that the owner of the suit property was Smt. Champa Devi. It is stated by DW3 that the electricity meter was also on the name of Smt. Champa Devi. It is stated by DW3 that the MCD receipt Ex. DW3/P1 are in the name of Smt. Champa Devi. It is stated by DW3 that he does not take the previous chain of documents from Smt. Champa Devi. It is stated by DW3 that he has not issued any notice or filed a case against Smt. Champa Devi for taking the previous chain of documents. It is denied by DW3 that he has not purchased the property from Smt. Champa Devi as such he has not asked for previous chain of property documents.
24. It is stated by DW3 that at the time of execution of Ex. PW2/1 (colly), Smt. Champa Devi, Sh. Shiv Kumar, Smt. Sheela Devi and he were available and documents were prepared on 12.04.2017 and signed in the court. It is stated by DW3 that these documents were attested after sometime by Notary Public Pooja Bhasin. It is stated by DW3 that there is no thumb impression of Digitally signed by KANIKA KANIKA AGARWAL Page no. 14 of 39 AGARWAL Date:
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plaintiff in the place of testator. It is stated by DW3 that in receipts which was prepared on 12.04.2017, only Rs. 2 lacs were mentioned.
25. It is stated by DW3 that the amount of Rs. 7 lacs is not mentioned in Ex. PW2/P5 (colly). It is stated by DW3 that document Ex. DW1/D2 was prepared in the notary public office which is situated at Block no. 10. It is further stated by DW3 that at the time of preparing the documents, he was with defendant no. 1. It is stated by DW3 that he is not having any receipt in respect of balance amount of Rs. 4,50,000/-. It is stated by DW3 that an FIR is registered against him and defendant no. 1 which was lodged by plaintiff. It is stated by DW3 that the payment was made in cash and same has not been paid through bank account/ DD. It is stated by DW3 that the thumb impression on the document Ex. PW2/P1, Ex.
PW2/P2, Ex. PW2/P3, Ex. PW2/P4 and Ex. PW2/P5 are made by Smt. Champa Devi through rub the ball pen on her thumb. It is denied by DW3 that the plaintiff has not sold the suit property to defendant no. 2. It is further denied by DW3 that the suit property has been given by the plaintiff to him on rent. It is denied by DW3 that in lieu of rent agreement, he has taken the signatures of plaintiff on the property paper fraudulently with connivance of defendant no.
1. It is denied by DW3 that because the suit property has not been sold as such, the previous chain of documents were not asked by him. It is denied by DW3 that the original chain of documents are with the plaintiff. It is denied by DW3 that plaintiff has not sold the Digitally signed by KANIKA AGARWAL KANIKA Page no. 15 of 39 Date:
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suit property to the defendant as such no amount has been received by her. DW3 cross-examination was concluded on 27.04.2022.
26. Thereafter, Sh. Gajraj was examined as DW4 who tendered his affidavit of evidence as Ex. DW4/A. During his cross-
examination, it is stated by DW4 that the document Ex. DW1/D2 has been prepared at Gali no. 10 and same has been signed at the house of Smt. Champa Devi and after that they have again gone at the office situated at Gali no. 10 for attestation. It is stated by DW4 that the final paper of the property have been prepared in April 2017, however, he do not remember the exact date. It is stated by DW4 that he was not the witness of the document which were prepared in April 2017. It is stated by DW4 that the payment was made in his presence and two persons have witnessed the same. It is stated by DW4 that payment of Rs. 7 lacs was made in his presence and this was specifically mentioned in document prepared in April 2017. It is stated by DW4 that property document which prepared in April 2017 were got prepared by Smt. Champa Devi and Sh. Shiv Kumar at the office which is situated at Gali no. 10. It is stated by DW4 that these documents have been signed by all the persons at the house of Smt. Champa Devi. It is stated by DW4 that after signing these documents, they have gone at the office situated at Gali no. 10, Dakshin Puri, New Delhi for attestation. DW4 cross- examination was concluded on 08.06.2022.
Digitally signed by KANIKA AGARWALKANIKA Date:
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27. Thereafter, Sh. Raju was examined as DW5 who tendered his affidavit of evidence as Ex. DW5/A. During his cross- examination, it is stated that the document of property have been prepared in two times from the office situated at Gali no. 10, Dakshin Puri, New Delhi and both the time, he had gone with plaintiff and defendant and put his signature as a witness on both the documents. It is admitted by DW5 that he does not remember the name of notary public who has attested the property document. It is denied by DW5 that he had put his signatures as a witness after filing the present suit. It is further denied by DW5 that defendant has taken the property of plaintiff on rent. It is denied by DW5 that property documents have been fabricated by the defendant in connivance of each other. It is denied by DW5 that no payment was made by the defendant to the plaintiff.
28. Thereafter, vide separate statement of defendant no. 1 and Ld. Counsel for defendant no. 2 and 3, defendant evidence was closed on 08.06.2022 and matter was fixed for final arguments. FINAL ARGUMENTS
29. Final arguments advanced by both the parties were heard on 22.07.2024. The file has been carefully and minutely perused and my issue-wise findings with reasons thereof are as under: -
ISSUE NO. 1 Digitally signed by KANIKA AGARWAL KANIKA Date:
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Whether the plaintiff is entitled to relief of possession as prayed in prayer clause (a)? OPP AND ISSUE NO. 3 Whether the plaintiff is entitled to declaration as prayer in prayer clause (c)? OPP
30. Both these issues being interconnected are taken up together. The onus to prove issue no. 1 & 3 is upon the plaintiff. Vide prayer clause (c) of the amended plaint, the plaintiff has prayed for relief of declaration that (i) plaintiff be declared as owner of the suit property; and (ii) declaring that documents executed in favour of defendant no. 2 and 3 i.e. General Power of Attorney Ex. PW2/P1 (Colly), Affidavit Ex. PW2/P2 (Colly), Will Ex. PW2/P3, Possession Letter Ex. PW2/P4, Receipt Ex. DW2/A (OSR), Agreement to Sell and Purchase Ex. PW2/P5, Advance receipt- cum-agreement to Sell and purchase Ex. DW1/D2 (OSR) and Receipt Ex. DW1/D3 (hereinafter referred to as "sale documents") as being null and void.
31. To begin with, the case of the plaintiff is that she being an aged, uneducated women suffering from several health challenges owing to her advanced age had requested her son, defendant No. 1, to lease out the suit property to help cover her medical and day to day expenses. Subsequent to this, Defendant No. 1 had informed the plaintiff that Defendant No. 2 is interested in Digitally signed by KANIKA AGARWAL KANIKA Page no. 18 of 39 Date:
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taking the suit property on rent. However, Defendant No. 1, in collusion with Defendant No. 2, tricked the plaintiff into signing the sale documents qua the suit property which she believed were related to lease / rent agreement and thus she was misled into executing an Agreement to Sell Ex. PW2/5 and a General Power of Attorney Ex. PW2/1 in favour of defendant no. 2 with respect to the suit property. The plaintiff through her neighbors got to know that the Defendant No. 2 is claiming himself to be the owner of the suit property. Aggrieved thereby, the plaintiff has filed the present suit.
32. Defendant no. 1 has supported the case of the plaintiff by stating that he too was not aware of the actual nature and contents of the documents as he is also a semi-illiterate person having studied till Primary school (Hindi Medium). Defendant no. 1 states that he was completely oblivious of the fact that the defendant no. 2 has taken the thumb impression of plaintiff on sale documents instead of lease agreement.
33. Defendant no. 2 and 3 have taken a joint defence that plaintiff and defendant no. 1 were well aware of true nature and character of the sale documents since the inception. Defendant no. 2 and 3 alleges that plaintiff was paid the entire consideration amount of Rs. 7,00,000/- in presence of attesting witnesses and that the suit has been filed only to harass the defendants.
34. In this backdrop, the court shall determine the issue in hand. It is to be noted that plaintiff has asserted that she being an Digitally signed by KANIKA KANIKA AGARWAL Page no. 19 of 39 AGARWAL Date:
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illiterate woman had executed a sale documents (Ex. DW1/D2 (colly) (OSR), Ex. DW1/D3, Ex. PW2/P1 (colly) to Ex. PW2/P5 (colly) (OSR)) qua the suit property under misrepresentation and misunderstanding as to the true nature and character of the documents. Defendant no. 2 and 3 have not disputed the fact that plaintiff is an illiterate woman. It is also not in dispute that at the time of execution of documents, the plaintiff was around 68-year-
old and keeping unwell.
35. In terms of Section 104 and 105 of the Bharatiya Sakshay Adhiniyam, 2023, the burden of proof is often upon the party who desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts. However, in case of pardanashin and illiterate women who usually transact their business through males in their family, the onus lies upon the defendants to show that there has been no fraud or collusion in the transaction and that the documents were executed with a true understanding of its nature and character. Reliance is placed upon the judgment of Hon'ble Supreme Court of India in Mst. Kharbuja Kuer Vs. Jangbahadur Rai 1963 AIR 1203.
36. Applying the above stated principles to present case, where the plaintiff is an aged and illiterate woman and alleged to have executed the sale documents under fraud and mis- representation, therefore, the burden to prove that said sale documents were executed by the plaintiff with proper understanding Digitally signed by KANIKA AGARWAL Page no. 20 of 39 KANIKA Date:
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is upon the defendants. The court places further reliance upon judgment of Hon'ble High court of Madras in Chidambaram Pillai And Ors. vs Muthammal And Ors. (1993)1MLJ535 wherein the Hon'ble Court has held as follows:
"The pardah system as understood by the Courts in India is not the system of keeping a woman under a veil indoors in zenana, but in seclusion, away from the knowledge of the world, in the sense that they are not ordinarily allowed to interact with the malefolk and are kept away from social intercourse and communion with the outside world. The view of the Lahore Court in the case of Farid-ud-din, A.I.R. 1939 Lah. 309, had almost worked as an alarm for the courts to develop a sense that any strict meaning to pardah was going to exclude a greatly deprived section of the society from the protection cloak of the law, namely, the illiterate women and other women having such infirmities that they practically live without any social intercourse and communion with the outside world. The Judicial consensus, as we have already noticed, has been expressed thus:
The rules regarding transaction by the Pardanashin apply equally to illiterate women though they may not be in a strict sense Pardanashin.
A Pardanashin may not be illiterate, but she still may be ignorant in the sense that she has an imperfect knowledge of the world, and she is practically excluded from social intercourse and communion with the outside world. Her ignorance is the course of a social usage that womenfolk depend upon malefolk for transaction of their business with the outside world. Thus, not all women, but only those who are practically excluded from social intercourse and communion with the outside world fall in this category. If it is for this reason that they are taken as persons suffering from disabilities which make them dependent upon or subject to the influence of others, the illiterate women who, for the reason of social compulsion are required to move out to work in the fields and elsewhere for livelihood, cannot be said to be less disabled and deprived. Even if they are intelligent to know where to go and how to earn their livelihood, yet they cannot read anything nor write anything, and unless told about the contents by others, will not know what the document contains. To the extent the character, content and the effect of the document are concerned, she has to be presumed to be ignorant by sheer illiteracy, the curse which is still pervading the ancient society, particularly the women living in this part of the country, a fact about which, we think, we are competent to take judicial notice. We find Digitally signed Page no. 21 of 39 KANIKA by KANIKA AGARWAL AGARWAL Date:
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ourselves in complete agreement with the view that the special cloak of protection applied to Pardanashin women has to be applied to illiterate women as well. We have dilated to the rule of initial burden of proof in the case where allegations of undue influence and fraud are made and the principles that are borne in mind before the rule of onus probandi is applied. We have adverted to this aspect of the law for the purpose of keeping the distinction as to the law of burden of proof in the case of Pardanashin and illiterate woman or the case where the rule of non est factum is applied and a case otherwise falling in the category of cases of undue influence and fraud, in which the initial burden has to be discharged by the person making the allegations before the onus probandi is applied. In the former case, there is no burden of proof upon a woman, who alleges that she was ignorant of the character and the contents of the documents for the reason of illiteracy or she being a Pardanashin woman. It has to be presumed in such a case that she could have transferred her rights to the other only for the reason of fraud or undue influence. In the latter case, the burden shall be upon the person alleging undue influence and fraud. The onus will shift only when there is a clear pleading in this behalf with necessary particulars and the initial onus is discharged.
20. Adverting to the facts of this case, we notice that the plaintiff after the death of her husband needed a male or female helper to collect paddy from the lessee and to look after her other affairs and that in the plaint, she has alleged, she had no other relative except her brother, who was not in fact on good terms with her and "the 1st defendant, the daughter of her brother who had no connection with her father, was close to her (plaintiff) from 1974-75 onwards and helping her. The defendants told her to give her a registered power of attorney to collect the arrears of paddy from Arumugam. She suspected nothing foul and agreed to execute the power of attorney. The plaint also contains a statement that the 2nd defendant took her signature in the document which was made ready, the contents of the document were not read over to her, the 2nd defendant/respondent had taken her to the Office of the sub Registrar and instructed her that she need not talk before the Sub Registrar and asked her to state that she had no heir other than the 1st defendant. The plaintiff, it is said in the plaint, then put her thumb impression in the presence of the Sub Registrar. The Sub Registrar did not ask her anything from her. She did not purchase any stamp paper or pay any money for the registration charges. The 2nd defendant undertook to get the said document from the Sub Registrar's Office and the plaintiff believed the same. Two years after the registration of the said document, i.e., to say somewhere in Digitally signed Page no. 22 of 39 by KANIKA KANIKA AGARWAL AGARWAL Date:
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January, 1977, the defendants came and lived with the plaintiff. Even at that time, the plaintiff did not suspect the defendants. The plaintiff informed the lessee Arumugam that she had executed a power of attorney in favour of the defendants and that the leasehold paddy in question could be given to the defendants in future. The defendants stayed with the plaintiff about 61/2 months. The plaintiff did not suspect anything at that time. Later on, the defendants went and lived in some other house. The defendants stopped visiting the plaintiff after some time. The plaintiff came to know that the defendants did not collect the lease paddy from the said Arumugam and they did not supervise the land in question. She for the said reason went and asked the defendants to hand over the power of attorney stating that she would collect the lease paddy directly. The defendants at that stage only informed that she had executed a settlement deed in their favour on 23.01.1975 and that they had got the power to drive herout of the house. It is a case, in our opinion, of an illiterate woman moving the Court alleging that she acted only on the basis of there presentation of the defendants when she put her thumb impression on the document in the impugned settlement deed in the presence of the Sub Registrar. It is a case of an illiterate woman thus seeking the protection of law as she executed the document without knowing its true character and contents. Learned single Judge has fallen in error seeking any further pleadings and/or proof of undue influence and fraud from her. The burden in this behalf is upon the defendants. The impugned judgment for the said reason has to be set aside. Since both the courts below have fallen in error in this behalf and have not approached the case in the light of the correct law on the subject, unless evidence of the case is analysed afresh, it will not be possible to give any final verdict. It is a fit case, in our opinion, although the proceedings have taken quite a few years, for remand to the Court of Appeal below for a hearing and adjudication in accordance with law on the basis of the evidence already on the record."
37. It is thus abundantly clear that in case of a pardanashin or/and an illiterate women, the burden of proof is upon the party who asserts that sale/ transfer documents were validly executed by the plaintiff with complete knowledge of its character and contents.
38. The court shall now proceed to see if the defendant no. 2 and 3 have been able to discharge the burden. The defendant no. 2 Digitally signed by KANIKA Page no. 23 of 39 KANIKA AGARWAL AGARWAL Date:
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and 3 have examined themselves as DW2 and DW3 respectively. From the testimony of DW2, it is evident that apart from the fact the sale documents were executed in her favour, however, she had no other knowledge of the sale transaction as the sale transaction was done on her behalf by her husband/DW2. It is to be further noted that although DW2 /Sheela Devi states in her cross-examination dated 26.03.2022 that the entire consideration amount of Rs 7,00,000/- have been paid to the plaintiff and defendant no. 1, however, upon being asked by Ld. Counsel for plaintiff that if she has placed on record any receipt of payment of the said amount, the DW2 could not reply anything convincing.
39. At this juncture, it is also important to refer to documents relied upon by Defendant no. 2 and 3. It is apt to mention that it is an admitted position that two set of documents on two different dates were executed qua the suit property. Plaintiff avers that she had first executed sale documents (Ex. DW1/D2 and Ex. DW1/D3) in favour of defendant no. 2 in the month of March, 2017 under impression that they relate to lease agreement.
Subsequently, she executed another set of sale documents (Ex. PW2/1 to Ex. PW2/5) on 12.04.2017 under misrepresentation and upon asking of defendant no. 1 and 2 who had told her that previously executed documents have been misplaced.
40. It is to be seen that as per Advance Receipt-cum- Agreement to Sell dated 01.03.2017 Ex. DW1/D2 (colly) (OSR), Digitally signed by KANIKA KANIKA Page no. 24 of 39 AGARWAL AGARWAL Date:
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the defendant has allegedly bought the suit property from the plaintiff for an amount of Rs. 7,00,000/- out of which Rs. 2,50,000/- has already been paid and an amount of Rs. 4,50,000/- were be paid on or before 01.06.2017. It is thus clear that at the time of execution of Advance Receipt-cum-Agreement to sell 01.03.2017 Ex. DW1/D2 (colly) (OSR), the entire consideration was not paid.
41. Moving on to next set of documents which were executed in April, 2017, a combined reading of General Power of Attorney, Affidavit, Will, Possession letter and Receipt all dated 12.04.2017 (Ex. PW2/P1 to Ex. PW2/P5) demonstrate that the suit property is sold to defendant no. 3 for alleged consideration amount of Rs. 2,00,000/- which was already paid to the plaintiff at the time of execution of the documents.
42. Thus, discrepancy with respect to consideration amount in first set of documents ie. Advance Receipt-cum-Agreement to Sell (Ex. DW1/D2 (OSR)) on one hand and second set of documents i.e General Power of Attorney, Affidavit, Will, Possession letter and Receipt all dated 12.04.2017 (Ex. PW2/P1 to Ex. PW2/P5) on the other hand is evident. DW2 and DW3 have failed to furnish any cogent reason for the discrepancy in the consideration amount on the above stated documents. In the opinion of the court, the discrepancy in the consideration amount on sale documents executed in month of March and April, 2017 coupled Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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with there being no proof of payment of Rs. 7,00,000/- makes the transaction itself as dubious and doubtful.
43. Nevertheless, coming to testimony of DW3, he has also made a bald averment that the entire consideration amount was paid but fails to prove so by leading any cogent evidence. He further admits in his cross-examination dated 27.04.2022 that he did not collect the chain of documents from the plaintiff. In the opinion of the court, the inaction on the part of DW3 to collect previous chain of documents creates further doubt in their defense as any prudent person would collect the previous chain of documents either at the time of execution of document or payment of consideration amount.
44. Moving on, DW4 Gajraj who is an attesting witness to Advance Receipt-cum-Agreement to Sell (Ex. DW1/D2 (OSR)) states that he was present at the time of preparation of the said documents and payment of Rs. 7,00,000/- was made in his presence in April, 2017. In the opinion of the court, the testimony of DW4 cannot be relied upon in light of the fact that receipt dated 12.04.2017 (Ex. DW1/D3(OSR)) only states that the plaintiff has been paid consideration amount of Rs 2,00,000/-. Had the complete payment of Rs 7,00,000/- been paid to the plaintiff as on 17.04.2017, then the same would have been definitely mentioned in the sale documents.
45. The testimonies of the defendant's witness has been discussed to determine if consideration amount of Rs. 7,00,000/-
Digitally signed by KANIKA KANIKA AGARWAL Page no. 26 of 39 AGARWAL Date: 2024.08.24 16:32:39 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 555/17 CHAMPA DEVI Vs. SHIV KUMAR AND ANS.
was actually paid to the plaintiff or not as it helps the court to ascertain if plaintiff was aware of the actual nature of the transaction. However, from above it is clear that defendant no. 2 and 3 have miserably failed to prove the payment of Rs 7,00,000/- to the plaintiff.
46. Further, the defendants have not adduced any evidence either direct or circumstantial to prove that the contents of the sale documents were read over to the plaintiff at the time of execution or notarization of the documents or that the plaintiff was well aware of the nature of the documents. The defendants have pleaded that the plaintiff had sold the property as she required funds for her granddaughter's marriage, however, the said plea has also not been proved. Thus, the defendants have failed to prove that sale documents (Ex. DW1/D3, Ex. DW1/D2 (OSR) (Colly), Ex. PW2/P1 to Ex. PW2/P5) were explained to the plaintiff and that she duly understood the true nature, character and the intent of the documents.
47. It is also significant to mention that the plaintiff had initially filed suit against defendant no. 1 and 2 only. Defendant no. 3 Ms. Sheila Devi in whose name the sale documents were executed was not even part of the suit initially. She was subsequently impleaded vide order dated 05.09.2017 passed by Ld. Predecessor of this court. Thus, it is not far-fetched to assume or infer that the plaintiff was not even aware of the name of the person in whose Digitally signed by KANIKA KANIKA AGARWAL Page no. 27 of 39 AGARWAL Date:
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favour the documents were executed. This particular finding also makes the defence of the defendant as more suspicious.
48. To sum up, the court opines that the defendants no. 2 and 3 have miserably failed to discharge the burden upon them to prove that the sale documents were executed by the plaintiff with proper understanding of its nature and character. As a corollary, the court opines that documents Advance Receipt-cum-Agreement to Sell (Ex. DW1/D2 (OSR)), receipt dated 12.04.2017 (Ex.
DW1/D3(OSR)), General Power of Attorney, Affidavit, Will, Possession letter and Receipt all dated 12.04.2017 (Ex. PW2/P1 to Ex. PW2/P5) are void as they were executed by the plaintiff under misunderstanding as to its nature and character and thus are set aside as being null and void.
49. In so far as relief of declaration of ownership and possession is concerned, it is an admitted fact by the defendants that plaintiff was the erstwhile owner of the suit property. However, considering the law laid down by Hon'ble Supreme Court of India in Suraj Lamp & Industries Pvt. Ltd v. State of Haryana and Anr. AIR 2012 SC 206, it is abundantly clear that relief of declaration of ownership can only be granted on the basis of a registered sale deed. Evidently, the plaintiff has not filed any registered sale deed in her favour. The plaintiff has relied upon Agreement to Sell, General Power of Attorney and Affidavit all dated 10.02.2004 (Ex. PW1/B (OSR) (colly)) executed in her favour by one Mr. Madan Lal and Digitally signed by KANIKA AGARWAL KANIKA Page no. 28 of 39 AGARWAL Date:
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one affidavit dated 27.03.2003 (Ex. PW1/B (OSR) (colly)) executed by Sh. Shiv Kumar in favour of Mr. Madan Lal with respect to transfer of suit property.
50. Thus, the court is of the opinion that merely on the basis of Agreement to Sell and General Power of Attorney, the plaintiff cannot be declared as an owner of the suit property. Nevertheless, the plaintiff certainly has better rights over the suit property in light of above stated documents (Ex. PW1/B (OSR) (colly)). Reliance is placed upon the judgment of Hon'ble High Court of Delhi in Shri Ramesh Chand vs Suresh Chand & Anr. RFA No.358/2000 and Hardip Kaur vs Kailash & Anr. (RFA No.648/2006 decided on 18.05.2012).
51. In judgment of Hardip Kaur (Supra), the Hon'ble High Court of Delhi has observed that even though the purchaser of an immovable property by way of Agreement to Sale and General Power of Attorney may not be a classical owner of the property, however, he would by virtue of having paid the entire consideration amount and being put in possession of the property would have better rights qua the person who lacks any entitlement to reside in the property. The relevant paragraph from the judgment is quoted herein below:
"Applying the aforesaid principles of law to the facts of the present case, the findings of this Court are as under:-
(i) Vide agreement to sell dated 5th June, 1989, the plaintiff agreed to sell first, second and terrace floors of the suit property to Mohinder Kaur for a total consideration of Rs.
4,50,000/-. The plaintiff received the entire sale consideration Digitally signed by KANIKA Page no. 29 of 39 KANIKA AGARWAL AGARWAL Date:
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from Mohinder Kaur, handed over the vacant and peaceful possession to her and simultaneously executed the agreement to sell, receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney all dated 5th June, 1989. The plaintiff declared in the agreement that she is not left with any right, title or interest in the suit property. The plaintiff authorized defendant No.1 to make construction, additions and alterations in the suit property. The General Power of Attorney authorized the attorney to sell the suit property as well as to carry on additions and alterations. Clause 19 of the General Power of Attorney declared it to be irrevocable. The plaintiff also deposed on oath in her affidavit that she would not withdraw or cancel any of the documents under any circumstances. The agreement to sell, receipt, indemnity bond and affidavit are legal, valid and subsisting and have not been cancelled by the plaintiff. The plaintiff has no interest left in the suit property and, therefore, cannot claim the possession or mesne profits in respect of the suit property.
(ii) The agreement to sell „of itself‟ may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over of the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property" within the meaning of Section 202 of the Contract Act.
(iii) The words "an interest in property which forms the subject matter of the agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act.
(iv) The Power of Attorney has been conferred not for the benefit of the plaintiff but for the benefit of the agent representing the purchaser and not as representing the principal and, therefore, it is irrevocable. The reason to appoint Surinder Jit Singh, the son and nominee of the purchaser, obviously was that the attorney was regarded as a person interested in the purchaser rather than in the plaintiff whose interest was opposed to that of the purchaser. It is only in law that the attorney became an agent of the plaintiff. But this agency was only with a view to serve the purpose of the purchaser. His interest in this transaction was the same as that of the purchaser. It was, therefore, the interest of the attorney that the property which was the subject-matter of the agency should be conveyed by the plaintiff to the purchaser.Digitally signed by KANIKA AGARWAL
KANIKA Page no. 30 of 39 Date:
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(v) The Power of Attorney was granted only because an agreement to sell was entered in favour of the purchaser. The attorney no less than the purchaser was, therefore, interested in the subject-matter of the agency, namely, the suit property.
If the agency was to be terminated, prejudice would have been caused to the interest not only of the purchaser but also of the attorney.
(vi) The agreement to sell, General Power of Attorney, receipt, affidavit, will and indemnity bond executed contemporaneously constitute one transaction and they have to be read and interpreted together as if they are one document. The true nature of the transaction between the parties is the agreement to transfer the suit property by the plaintiff to defendant No.1. There is no clause in any of the documents that the plaintiff can claim back the possession of the suit property in any situation. Rather, the plaintiff has agreed not to cancel/revoke any document and not to claim back the possession under any circumstances. The plaintiff is, therefore, not entitled to recover the possession of the suit property. If the plaintiff was aggrieved by any unauthorised construction, the plaintiff‟s remedy was to seek injunction to stop the alleged unauthorized construction or to have approached the Municipal Authorities to take action against the unauthorized construction.
(vii) The plaintiff has argued that the purchaser and her attorney are two different persons in the eye of law. This may be so. But their interests are identical. It cannot be said that the attorney had no interest in the property which is the subject-matter of the agency. The interest does not mean ownership or title in the immovable property. It means an advantage or a benefit or a legally enforceable right. The Power of Attorney was executed only to facilitate the execution of the sale deed in favour of the purchaser and, therefore, the attorney was interested in the subject-matter of agency, namely, the suit property.
(viii) The object of giving validity to a Power of Attorney given for consideration even after death of the executants is to ensure that entitlement under such Power of Attorney remains because the same is not a regular or a routine Power of Attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the Power of Attorney.
(ix) The purchaser would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the plaintiff. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right Digitally signed by KANIKA AGARWAL KANIKA Page no. 31 of 39 Date:
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to the possession of the property than qua the person who is in actual physical possession thereof.
(x) All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from Mohinder Kaur. It was given to Surinder Jit Singh, son and nominee of Mohinder Kaur to ensure and secure the performance of the contract by the plaintiff in favour of Mohinder Kaur.
(xi) The General Power of Attorney dated 5 th June, 1989 is irrevocable in view of Section 202 of the Contract Act. The plaintiff, therefore, had no right to terminate the said General Power of Attorney. The General Power of Attorney is legal, valid and subsisting. The revocation of the General Power of Attorney by plaintiff is, therefore, of no consequence.
(xii) The defendants are protected by Section 53A of the Transfer of Property Act, 1882 and, therefore, the plaintiff is not entitled to the recovery of possession of the suit property.
(xiii) The mere fact that the defendants did not file a Counter-
claim or suit for specific performance cannot lead to a conclusion that they have given up all their rights in the suit property. It can, at best, be said that the defendants have lost the opportunity of perfecting their title but it would not entitle the plaintiff to claim the possession."
52. Thus, in light of principles as laid down by Hon'ble High Court in judgement as referred above, the plaintiff may not the dejure owner of the suit property owing to absence of registered sale deed in her favour, she nonetheless has superior rights to occupy the property as compared to the defendant no. 2 and 3 whose sale documents (Ex. DW1/D3, Ex. DW1/D2 (OSR) (Colly), Ex. PW2/P1 to Ex. PW2/P5) have already been held to be null and void.
53. Thus, the court is of the opinion that though the relief of declaration of ownership cannot be granted in favour of plaintiff, however, by virtue of documents Ex. PW1/B (OSR) (colly), she certainly has better rights/ entitlements over the suit property and is Digitally signed by KANIKA AGARWAL KANIKA Page no. 32 of 39 Date:
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thus entitled to relief of possession. Therefore, defendant no. 2 and 3 are directed to handover the possession of the suit property to the plaintiff within 60 days from today failing which the plaintiff can seek appropriate remedies for execution of the present judgment and decree.
54. At this stage, the court also deems it fit to discuss the legal objection taken by the Ld. counsel for defendant with respect to suit valuation and ad-valorem court fees. Plaintiff has filed the present suit for relief of declaration that the plaintiff be declared as owner of the suit property and that the sale documents i.e. Advance Receipt-cum-Agreement to Sell (Ex. DW1/D2 (OSR)), receipt dated 12.04.2017 (Ex. DW1/D3(OSR)), General Power of Attorney, Affidavit, Will, Possession letter and Receipt all dated 12.04.2017 (Ex. PW2/P1 to Ex. PW2/P5) executed in favour of the defendant no. 2 and 3 be declared as null and void along with consequential relief of possession and injunction.
55. In so far as relief of declaration to set aside the sale documents executed by the plaintiff in favour of D3 as being null and void is concerned, it is not in dispute that the plaintiff is one of the executant of the document and, therefore, in light of law laid down by Hon'ble Supreme Court of India in Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors AIR 2010 SCC 2807, the plaintiff is essentially seeking cancellation of document which in Digitally signed by KANIKA AGARWAL KANIKA AGARWAL Date:
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normal circumstances is to be valued as per the consideration amount of the document.
56. However, given the facts and circumstances of the present case, where the plaintiff has alleged that she had executed the documents under misrepresentation and without knowing the true intent and object of the document, therefore, she is not liable to value the relief as per the consideration amount in light of the settled position of law that documents which are void ab-initio are not required to be specially declared as null and void.
57. In this regard, the court deems it fit to place reliance upon judgment of Hon'ble High Court of Madhya Pradesh in Sunil Radhelia and Others vs Awadh Narayan and Others Vs. Chhotelal and Others WP No. 7582 of 2005 wherein it has been held as under:-
"Now in the light of aforesaid settled position by the Apex Court and Full Bench of this Court, the first question referred by the Division Bench may be examined. When the Plaintiff makes an allegation that the instrument is void and hence not binding upon him, and if a declaration simplicitor is prayed then he is not required to pay ad valorem Court fee and a fixed Court fee under Article 17, Schedule II of the Court Fees Act will be payable. This position is well settled by the Apex Court in Ningawwa (supra) and continued till the decision in Sneh Gupta (supra). The void document which is not binding upon the Plaintiff needs to be avoided and in this regard a declaration is sufficient. The Full Bench of this Court in Santoshchandra (supra), has clarified the position and we respectfully agree with the law laid down by the Full Bench in Santoshchandra (supra)."
58. Further, the court also deems it fit to place reliance upon the judgment of Hon'ble supreme court of India in Ramathal Digitally signed by KANIKA AGARWAL KANIKA Page no. 34 of 39 AGARWAL Date:
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And Ors. vs K.Rajamani (Dead) Through Lrs And Anr. CA No. 8830/2012 wherein it has been observed as follows:
"This decision was referred to with approval by this Court in Ningawwa vs Byrappa [(1968) 2 SCR 797 : AIR 1968 SC 956] . It was observed: (SCR pp. 800-01) "It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded." This would be a voidable transaction. But the position was held to be different if the fraud or misrepresentation related to the character of the document. This court held: (SCR p. 801) "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable." (emphasis supplied) However the House of Lords in Saunders v. Anglia Building Society [1971 AC 1004 : (1970) 3 All ER 961] reviewed the law and held that the essential features of the doctrine, as expressed by Byles, J. in Foster v. Mackinnon [ Chitty on Contracts, 25th edn., p. 341] , had been correctly stated. Lord Reid, however, observed: (AC headnote at p. 1005) "The plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing.""
19. The ingredients of the plea of non est factum as laid down not only in the case of Bismillah (supra) are existing in the present case, but also the three parameters as can be deduced from Saunders(supra) were in existence in the present case as well. The aforementioned test for a successful plea of non est factum requires that:
A. The person pleading non est factum must belong to "class of persons, who through no fault of their own, are unable to have any understanding of the purpose of the particular document because of blindness, illiteracy or some other disability". The disability must be one requiring the reliance on others for advice as to what they are signing. As Lord Pearson had aptly put: Digitally signed by KANIKA Page no. 35 of 39 AGARWAL KANIKA Date:
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"In my opinion, the plea of non est factum ought to be available in a proper case for the relief of a person who for permanent or temporary reasons (not limited to blindness or illiteracy) is not capable of both reading and sufficiently understanding the deed or other document to be signed. By "sufficiently understanding" I mean understanding at least to the point of detecting a fundamental difference between the actual document and the document as the signer had believed it to be." B. "The "signatory must have made a fundamental mistake as to the nature of the contents of the document being signed", including its practical effects. Lord Wilberfore has succinctly put this aspect:
"In my opinion, a document should be held to be void (as opposed to voidable) only when the element of consent to it is totally lacking, that is, more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended" C. The document must have been radically different from one intended to be signed. As Lord Reid Remarked in the judgement:
"There must, I think, be a radical difference between what he signed and what he thought he was signing or one could use the words "fundamental" or "serious" or "very substantial." But what amounts to a radical difference will depend on all the circumstances." All these three criteria are clearly pleaded and made out in the instant case as well.
20. In the present case, the defendant respondent had taken a plea which the High Court had given due consideration that the plaintiff appellant had not sought any relief either for declaration of the Power of Attorney as void as also the cancellation of the sale deeds. Law is well settled that where it is alleged that the document of sale is void, then no cancellation would be necessary and such a document can be ignored under law. Cancellation of a sale deed would be necessary only where it is alleged to be voidable on facts. The present case the fraudulent mis- representation was not only to the contents of the document but also to the character of the document. Thus, the reasoning given by the High Court contrary to the settled legal position cannot be sustained.
21. From a perusal of the plaint, it is more than clear that the plea of non est factum was well pleaded, in clear and strict terms. Whether or not the plaintiffs were able to prove it would be a different question but the fact that it was pleaded is more than apparent. The High Court was thus not right in recording the finding that plaintiffs did not plead with respect to the plea of non est factum."
59. As in the case before us, the plaintiff has also essentially made a plea of non-est factum , therefore the documents Digitally signed Page no. 36 of 39 KANIKA by KANIKA AGARWAL AGARWAL Date:
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executed by her are also void and thus she is not liable to pay ad- valorem court fees on the consideration amount as mentioned in those documents.
60. In so far as relief of declaration of ownership with consequential relief of possession is concerned, Section 7(4)(c) of the Court Fees Act, 1870 read with proviso prescribes that the court fee for relief of declaration and consequential relief is to be paid as per the market value of the suit property. The plaintiff has valued the suit for possession at Rs. 2,31,000/-. Since no evidence has been led by the defendant to controvert the valuation given by the plaintiff, therefore, the market value assigned to the suit property is taken to be true. Thus, the plaintiff has rightly valued his suit and paid ad- valorem court fees in accordance with law.
61. Hence, issue no. 1 is decided in favour of the plaintiff and against the defendants and thus plaintiff is entitled to relief of possession of suit property. Accordingly, directions are issued to the defendants to handover the possession of the suit property i.e shop/ jhuggi bearing no. 1073, Subhash Camp, Dakshinpuri, New Delhi (as shown in the site plan Ex. PW1/A) to the plaintiff within 60 days from today, failing which, the plaintiff is at liberty to pursue appropriate remedies for execution of the present judgment.
62. Whereas, issue no. 3 is partly decided in favour of plaintiff and against the defendants and thus, the sale documents namely Advance Receipt-cum-Agreement to Sell (Ex. DW1/D2 Digitally signed by KANIKA KANIKA AGARWAL Page no. 37 of 39 AGARWAL Date:
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(OSR)), receipt dated 12.04.2017 (Ex. DW1/D3(OSR)), General Power of Attorney, Affidavit, Will, Possession letter and Receipt all dated 12.04.2017 (Ex. PW2/P1 to Ex. PW2/P5) are declared as null and void and thus set aside.ISSUE NO. 2
Whether the plaintiff is entitled to relief of permanent injunction as prayed in prayer clause (b) OPP
63. The onus to prove issue no. 2 is upon the plaintiff. No evidence has been led by the plaintiff to show that defendant has attempted to create third party interest in the suit property. Accordingly, this issue is decided against the plaintiff and in favour of defendants.
ISSUE NO. 4Whether the present suit is not maintainable because plaintiff has approached the court with unclean hands and has suppressed material facts from the court? OPD
64. The onus to prove issue no. 4 is upon the defendant, however, no evidence has been adduced to prove that the plaintiff has approached the court with unclean hands and that she has suppressed the material facts from the court. Accordingly, this issue is decided against the defendant and in favour of plaintiff .
ISSUE NO. 4Relief.
Digitally signed by KANIKA KANIKA AGARWAL Page no. 38 of 39 AGARWAL Date: 2024.08.24 16:34:11 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 555/17 CHAMPA DEVI Vs. SHIV KUMAR AND ANS.
65. In light of the aforesaid discussion, the suit of the plaintiff is hereby partly decreed to the effect that :-
(i) It is declared that the documents namely Advance Receipt-cum-
Agreement to Sell (Ex. DW1/D2 (OSR)), receipt dated 12.04.2017 (Ex. DW1/D3(OSR)), General Power of Attorney, Affidavit, Will, Possession letter and Receipt all dated 12.04.2017 (Ex. PW2/P1 to Ex. PW2/P5) are null and void and thus set aside; and
(ii) The plaintiff is held entitled to relief of possession and there- fore, directions are issued to defendants to handover the posses- sion of the suit property i.e shop/ jhuggi bearing no. 1073, Sub- hash Camp, Dakshinpuri, New Delhi (as shown in the site plan Ex. PW1/A) to the plaintiff within 60 days from today, failing which, the plaintiff is at liberty to pursue appropriate remedies for execution of the present judgment.
66. Cost of the suit be also awarded.
67. Let decree sheet be drawn up accordingly.
68. File be consigned to record room after due compliance.
Digitally signedPronounced in open court: KANIKA
by KANIKA
AGARWAL
AGARWAL Date:
Dated: 24.08.2024 2024.08.24
16:34:21 +0530
(Kanika Agarwal)
CJ-01(South)Saket/New Delhi/24.08.2024 Note :-This judgment contains thirty nine pages and all the pages Digitally signed by KANIKA have been checked and signed by me. KANIKA AGARWAL AGARWAL Date:
2024.08.24 16:34:51 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/24.08.2024 Digitally signed by KANIKA AGARWAL Page no. 39 of 39 KANIKA Date:
AGARWAL 2024.08.24 16:34:55 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi