Delhi High Court
Ms. Manjeet Kaur & Anr. vs Mr. Devender Dagar & Anr. on 28 November, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th November, 2019.
+ CS(OS) 619/2019
MANJEET KAUR & ANR. ..... Plaintiffs
Through: Mr. Prateek Chaudhary, Adv.
Versus
DEVENDER DAGAR & ANR. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.16686/2019 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CS(OS) 619/2019 & IA No.16685/2019 (u/O XXXIX R-1&2 CPC)
3. The two plaintiffs have instituted this suit for the reliefs of, (i)
declaration as null and void and cancelation of the registered Gift Deed,
dated 6th February, 2014 executed by plaintiff no.1 Manjeet Kaur in favour
of defendant no.2 Rashmi Dagar, of freehold built up property bearing
no.48, ad-measuring 209 sq. mtrs. in Block-B, Pocket 10 of Sector 13
Dwarka Residential Scheme; (ii) recovery of possession of the property
subject matter of the Gift Deed; and, (iii) permanent injunction restraining
the two defendants from dealing with the property subject matter of the Gift
Deed and / or from making any additions, alterations or changes therein.
CS(OS) 619/2019 Page 1 of 10
4. It is the case of the plaintiffs in the plaint, that (i) the plaintiff no.2
Narender Dagar and defendant no.1 Devender Dagar are brothers; (ii) the
plaintiff no.1 and wife of defendant no.1 are sisters; (iii) the defendant no.2
is the daughter of defendant no.1; (iv) the plaintiff no.2 and defendant no.1
worked together as partners from 1991 till 2010, though essentially the
business was conducted by them in their own names and not in the name of
the firm; (v) there was a high degree of trust between the plaintiff no.2 and
the defendant no.1; (vi) in January, 2014, the defendant no.1 approached the
plaintiff no.2, stating that the defendant no.1 desired that the property
subject matter of the Gift Deed be gifted to the defendant no.2 on the
occasion of marriage of defendant No.2 and asked the plaintiffs for the said
gift to be made and in return offered a property of equivalent value of the
choosing of the plaintiffs, at a later date, in lieu of the property gifted; (vii)
in view of the high degree of trust, the plaintiff no.2 did not check the
contents of the Gift Deed and asked the plaintiff no.1 to execute the Gift
Deed and the plaintiff no.1 also mechanically executed the Gift Deed; (viii)
it was because of the said trust that the defendant no.1 was able to defraud
the plaintiffs by failing to include in the recitals to the Gift Deed about the
exchange of property; (ix) it has now become clear that the defendants
deliberately enacted a charade, solely for defrauding the plaintiffs by having
the Gift Deed executed; (x) the defendant no.1 never intended to fulfil the
agreement of giving a property to the plaintiffs in lieu of the gifted property;
(xi) that owing to the said trust, the plaintiffs, on 19 th June, 2013 and 8th
January, 2014 loaned monies to the defendant no.1 and his wife and which
have also not been repaid and a suit for recovery of Rs.1,90,83,000/- along
with interest is being filed against the defendant no.1 and his wife,
CS(OS) 619/2019 Page 2 of 10
contemporaneously with the present suit; (xii) on 13 th June, 2018, a final
show down took place between defendant no.1 and the plaintiff no.2, about
the inordinate delay on the part of the defendant no.1 to pay back the
borrowed amount and to transfer in favour of plaintiffs, property of
equivalent value of the property gifted; (xiii) it was then that the defendant
no.1 displayed his true colours by refusing to honour his agreement; (xiv)
paragraph 12 of the plaint is as under:
"12. The impugned Gift Deed was gotten executed by the Defendant No.1 by
making an Oral Agreement of exchanging equal value property against the Suit
Property with Plaintiff No.2. However, it is now self-evident that the Defendant
no.1 right from the inception had no intention to keep the said promise and for this
reason he deliberately did not include any recital to this effect in the body of the
impugned Gift Deed. The Plaintiff never checked the contents of the said Gift
Deed owing to blind trust Plaintiff No.2 had in Defendant No.1, while the Plaintiff
No.1 blindly did what the Plaintiff No.2 asked of her in executing the impugned
Gift Deed.";
(xv) the Gift Deed, being an instrument executed by fraud, to usurp the
property of the plaintiffs, needs to be set aside and declared as null and void
and struck off from the Register of the Sub-Registrar; (xvi) such was the
trust between the parties, that the plaintiff no.1, while executing the Gift
Deed, did not check whether the same contained a recital pertaining to
exchange as was agreed by the defendant no.1; otherwise there was no
reason for the plaintiff no.1 to execute the Gift Deed when the defendant
no.1 and his wife already owed monies to the plaintiffs; (xvii) in March,
2018, the plaintiffs identified Plot No.3, Sector 11, Dwarka in lieu of the
gifted property and informed so to the defendant no.1, but the defendant
CS(OS) 619/2019 Page 3 of 10
no.1 refused; (xviii) the cause of action paragraph 16 of the plaint is as
under:
"16. The cause of action for the present suit arose for the first time in the month
of March 2018 when the Plaint No.2 for the first time gave an ultimatum to the
Defendant No.1 that he must honour his agreement and transfer all the right(s)
/title(s)/interest(s) into an immoveable property of equivalent value. The Plaintiff
No.2 identified such a property as one bearing no. Plot No.3, Sector 11, Dwarka,
Delhi to the Plaintiff No.1 in lieu of execution of Gift Deed in favour of Defendant
No.2. It arose again on 13.06.2018 when the Defendant No.1 finally refused to
honour his agreement, and then again when subsequently the Plaintiffs for the first
time came into knowledge that the Defendant No.1 had deliberately and with Mala
fide intent failed to insert a recital into the said Gift Deed dated 06.02.2014 about
the intended exchange of equal value property. Later identified by Plaintiff No.2
as property bearing no. Plot No.3, Sector 11, Dwarka, Delhi with the Suit Property.
The cause of action arose when the lack of said recital was confirmed when the
Plaintiff subsequently sourced a certified copy of the said Gift Deed. And it
continually arises since that day.
It is herein stated that all the annexures annexed with the Plaint are all true
typed and true copies of the original documents";
(xix) the valuation paragraph 17 of the plaint is as under:
"17. In lieu of the relief(s) sought under para nos.(A), (B) and (C) of the prayer
para, which are those of declaration along with consequential relief, the present suit
is valued at Rs.3,20,00,000/- (Rupees Three Crores Twenty Lakhs Only) as it
pertains to one subject - matter the Suit Property i.e. property no.48 situation in
block B pocket 10 sector 13 of Dwarka Residential Scheme at Dwarka, Delhi
measuring about 209 sq mtrs as showcased in site plan annexed with the Plaint.
While for the relief of Permanent Injunction sought under para no.(D), it is
valued at fixed valuation of Rs.130/- (Rupees One Hundred and Thirty Only)
whereof a court fee(s) of Rs.13/- (Rupees Thirteen Only) is affixed.
CS(OS) 619/2019 Page 4 of 10
Thus, cumulatively court fee(s) of Rs.3,22,513/- (Rupees Three Lakhs
Twenty Two Thousand Five Hundred and Thirteen Only) is affixed on the Plaint,
while for the purpose of court fee(s) and jurisdiction the present suit is valued at
Rs.Rs.3,20,00,130/- (Rupees Three Crores Twenty Lakhs One Hundred and Thirty
Only)."
5. A perusal of the Gift Deed shows the valuation of the property subject
matter of gift, as Rs.2,27,49,100/-. The plaintiffs have however, without
regard to the said fact, valued the reliefs in the plaint at Rs.3,20,00,000/-.
6. It has been held in Suhrid Singh Vs. Randhir Singh (2010) 12 SCC
112, Anuradha Gupta Vs. Veena Devi 2017 SCC OnLine Del 9646, Kartar
Singh Vs. Delite Techno Build Pvt. Ltd. 2019 SCC OnLine Del 10730,
Manoj Kumar Gupta Vs. Sheela Devi 2014 SCC OnLine Del 4474 and
Tarsem Singh Vs. Vinod Kumar 2011 SCC OnLine P&H 8146 (DB) that
where the relief sought is by the executant of the document, it should be of
cancellation and ad valorem Court fees be paid thereon.
7. It is not at the ipse dixit of the plaintiffs that the relief of cancellation
of an instrument can be valued. Valuation has to be as per law.
8. However, that is not the end of the defects in the suit.
9. I have enquired from the counsel for the plaintiffs, how the suit
instituted on 2nd November, 2019 and re-filed on 13th, 16th, 19th and 21st
November, 2019, for cancellation of Gift Deed admittedly executed by
plaintiffs on 6th February, 2014, is within time.
10. The counsel for the plaintiffs has given two answers. Firstly, it is
stated that the plaintiffs have claimed the relief of possession, limitation
CS(OS) 619/2019 Page 5 of 10
whereof is 12 years. Secondly, it is stated that the plaintiffs have pleaded
that the fraud came to light only on 13th June, 2018.
11. It has been held in Raj Kumar Garg Vs. S.M. Ezaz
MANU/DE/3860/2012 (DB) and Ruma Kaur Vs. Joginder Singh Raina
2014 SCC OnLine Del 1449 that where the plaintiff would not be entitled to
the relief of recovery of possession without seeking the relief of declaration
as null and void of a document or cancellation of a document admittedly
executed by plaintiffs, merely because the limitation for the relief of
possession is more, would not make the suit within time if the suit is filed
after the expiry of limitation for the relief sought of declaration/cancellation,
inasmuch as the relief of possession in such cases is dependent on the
declaration/cancellation.
12. As far as the plea/contention of the fraud coming to light on 13 th June,
2018 is concerned, it may be recorded that as per the pleadings of the
plaintiffs, 13th June, 2018 was the date of final show down, when the
plaintiffs claim to have complained to the defendant no.2 about the
inordinate delay on part of the defendant no.1 in pay back of the borrowed
amount and in having a property transferred in favour of the plaintiffs in lieu
of the gifted property. The Limitation Act, 1963 under Part III of Schedule
thereof dealing with the suits relating to declaration, under Article 58
provides for limitation of three years for a suit for obtaining any other
declaration, commencing from when the right to sue first accrues, and under
Part IV dealing with suits relating to decrees and instruments, under Article
59 provides for a limitation of three years for a suit to cancel or set aside the
instrument, commencing from the date when the facts entitling the plaintiffs
CS(OS) 619/2019 Page 6 of 10
to have the instrument or decree cancelled become known to the plaintiffs.
Supreme Court, in Prem Singh Vs. Birbal (2006) 5 SCC 353 has held that
in a suit filed for cancellation of a transaction and when the plaintiff asserts
coercion, under influence, misappropriation or fraud, Article 59 would be
attracted.
13. Here, the claim of the plaintiffs is that the fraud was practised by the
defendant no.1 taking advantage of the trust between the parties and in not
incorporating in the Gift Deed, a clause/recital relating to exchange as
verbally agreed.
14. A perusal of the copy of the Gift Deed filed by the plaintiffs
(plaintiffs have not pleaded that no copy of this Gift Deed was available
with them or how the copy filed with the suit came into possession of the
plaintiffs and when; thus the plaintiffs are deemed to be in possession of the
copy, if not original, since the date of execution) discloses the same to have
been executed "without any force or compulsion from others due to her
natural love and affection being her niece". The claim of the plaintiffs
today, of the gift being on account of verbal agreement aforesaid of
defendant no.1 on the occasion of the marriage of the defendant No.2, is
inconsistent with the term of the registered document and no plea to the said
effect can be entertained by virtue of the bar of Sections 91 and 92 of the
Indian Evidence Act, 1872. Reference in this regard can be made to dicta of
this Court in Karan Madaan Vs. Nageshwar Pandey 2014 SCC OnLine Del
1277 affirmed by the Division Bench of this Court in Nageshwar Pandey
Vs. Karan Madaan 2016 SCC OnLine Del 816 (DB) and followed by
undersigned in Om Prakash Vs. IOCL Officers Welfare Society 2019 SCC
CS(OS) 619/2019 Page 7 of 10
OnLine Del 6719, Ved Prakash Gupta & Sons Vs. Prem Lata 2019 SCC
OnLine Del 6957, Mahender Kehar Vs. Skyland Builders Pvt. Ltd. 2019
SCC OnLine Del 7940 and, Tara Sikand Atwal Vs. Viraj Sikand 2019 SCC
OnLine Del 8185 , holding that suits containing pleas of oral agreement in
contradiction to the registered document are not to be entertained. For the
same reason, the plea of the plaintiffs, of discovery of fraud on 13 th June,
2018 and computing limitation therefrom is not available to the plaintiffs.
Even otherwise, the words used in Article 59 with respect to the date of
commencement of limitation are "when the facts entitling the plaintiff to
have the instrument ...cancelled....first become known to him". There is no
explanation that when the Gift Deed or copy thereof was in power and
custody of the plaintiffs, what prevented the plaintiffs from perusing the
same or reading the contents thereof, if not read at the time of execution.
Section 17 of the Limitation Act provides for commencement of the period
of limitation, when the suit is based on fraud of the defendant, to commence
from when the plaintiff has discovered the fraud or the mistake or could,
with reasonable diligence, have discovered it. In Life Insurance
Corporation of India Vs. Raghunath Prasad Almal 44 (1991) DLT 521, a
Division Bench of this Court held that the plaintiff is not permitted to
mechanically plead any date of discovery of the mistake as it deems fit in
the circumstances of the case. It was further held that it is open to the
opposite party to contend that the plaintiff could have discovered the
mistake had he been reasonably diligent. In Dilboo Vs. Dhanraji (2000) 7
SCC 702, the Supreme Court held that when a document is registered, the
date of registration becomes the date of deemed knowledge and in cases
where a fact could be discovered by due diligence, then deemed knowledge would be
CS(OS) 619/2019 Page 8 of 10
attributed to the plaintiff because a party cannot be allowed to extend the
period of limitation by merely claiming that he had no knowledge. In Raj
Kumar Rawala Vs. Manabendra Banerjee AIR 2004 Cal 294, it was held
that it depends upon the finding of the Court as to whether the allegations in
the petitions of fraud could have been discovered earlier in time with
reasonable diligence, and the onus lies on the petitioner to establish that it
could not be.
15. As far as the plea of the plaintiffs, of fraud, is concerned, the same is
negated by the plea of the plaintiffs of the Gift Deed having been executed
on the basis of an oral agreement of exchange of property of equal value.
Once, it is so, the remedy of the plaintiffs, if at all such an agreement was
enforceable, was to seek specific performance thereof and no case of fraud
is made out. If failure to perform obligation under the agreement was to
become fraud, there would be no suits for specific performance, and in all
such cases suits on the basis of fraud would be filed and which is not the
law. Reference can be made to Tara Sikand Atwal supra.
16. The present suit, as per the contents of the plaint, is thus deadwood
and does not deserve admission.
17. The counsel for the plaintiffs, who had been interrupting in between
the dictation, now states that the fraud became apparent only when the
intention of the defendant no.1 became clear on 13th June, 2018.
18. As aforesaid, the plaintiffs claim to have executed the Gift Deed on
the basis of an agreement and their remedy, if any permissible in law, is of
specific performance and not of negating the act done in performance of any
part of the obligation under the agreement.
CS(OS) 619/2019 Page 9 of 10
19. The suit is dismissed.
20. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 28, 2019 „gsr‟..
(corrected & released on 18th December, 2019) CS(OS) 619/2019 Page 10 of 10