Delhi High Court - Orders
Naresh Verma vs Shri Manoj Kumar Jain & Ors on 31 January, 2024
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 72/2024, I.As. 2208/2024, 2209/2024 & 2210/2024
NARESH VERMA ..... Plaintiff
Through: Mr. Madan Lal Sharma, Ms. Disha
Sharma, Ms. Tejaswini Verma,
Advs. (M. 9810693008)
versus
SHRI MANOJ KUMAR JAIN & ORS. ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 31.01.2024
1. This hearing has been done through hybrid mode.
I.A. 2209/2024 (for exemption)
2. This is an application seeking exemption from filing originals/certified/cleared/typed or translated copies of documents, left side margins, electronic documents, etc. Original documents shall be produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the Commercial Courts Act and the DHC (Original Side) Rules, 2018.
3. Exemption is allowed, subject to all just exceptions.
4. Accordingly, the application is disposed of.
CS(OS) 72/2024 and I.A. 2208/2024, I.A. 2210/2024
5. Issue summons and notice to the Defendants, through all permissible modes.
6. Let the written statement to the plaint be filed within 30 days. Along with the written statement, the Defendants shall also file an affidavit of CS(OS) 72/2024 Page 1 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 21:03:11 admission/denial of the documents of the Plaintiffs, without which the written statement shall not be taken on record.
7. The present suit has been filed by the Plaintiff-Shri Naresh Verma seeking declaration, possession and recovery of mesne profits, injunction etc.
8. The background of the present suit is that the Plaintiff-Shri Naresh Verma is the son of Late Shri. Hari Kishan Verma and Smt. Asha Devi Verma (hereinafter, 'the parents'). The parents of the Plaintiff were the joint owners of the suit property bearing no. 91, situated in the layout plan of Jain Cooperative House Building Society Limited, Bahubali Enclave, Karkardooma, Delhi-110092, measuring 309.83 sq. yds.
9. The Conveyance Deed dated 18th June, 1996 was standing in the name of the parents of the Plaintiff. As per the plaint, the parents acquired the suit property through the said Conveyance Deed and constructed the ground floor on it. The Defendant No. 2-Manju Verma is the wife of the Plaintiff's brother i.e. Late Shri. Mukesh Kumar Verma, and Defendant Nos. 3 and 4- Kartik Verma and Piyush Verma, respectively, are the children of the brother of the Plaintiff i.e. the nephews of the Plaintiff.
10. In the present suit, there are a total of four Gift Deeds executed by the parents during their lifetime:
An unregistered Gift Deed dated 16th October, 2004, executed by the original owners, gifting the first floor of the suit property to the Plaintiff.
A registered Gift Deed dated 29th June, 2006, transferring the entire first floor of the suit property to the Plaintiff.CS(OS) 72/2024 Page 2 of 5
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 21:03:11 A registered Gift Deed dated 12th July, 2006, transferring the entire ground floor to Shri Ashwani Kumar Verma, brother of the Plaintiff and youngest son of the parents.
A registered Gift Deed dated 10th March, 2014, transferring the entire second floor of the suit property to Smt. Manju Verma (wife of Late Shri Mukesh Venna), Piyush Verma, and Kartik Verma (sons of Late Shri Mukesh Verma) i.e Defendants Nos. 2 to 4.
11. The Plaintiff's case is that a registered Gift Deed was executed by the parents during their lifetime in favour of Defendant Nos. 2-4 which was registered dated 10th March, 2014. By way of the said Gift Deed dated 10th March, 2014, only the second floor was gifted in favour of Defendant Nos. 2 to 4. By a separate Gift Deed dated 29th June, 2006, the first floor was gifted to the Plaintiff and vide gift deed dated 12th July, 2006, the ground floor was gifted to Mr. Ashwani Kumar Verma. The rest of the suit property was joint property.
12. It is averred that despite the execution of three Gift Deeds, the suit property continued to be used as a family dwelling house. The original owners/parents covenanted in the Gift Deed dated 10th March, 2014 to ensure that the suit property remained within the family.
13. In the Gift Deed dated 10th March, 2014, executed in favour of the Defendant Nos. 2 to 4, the relevant clauses of the Gift Deed reads as under:-
"11. That after death of said Donees have full rights to sale/transfer the above said property without any objection of legal heirs of the Donors or other portion oner of the said property.
12. That the donees will give first option for sale/ transfer to family members on 15% down of market value for second floor, & thereafter 1/3 share i.e. rd CS(OS) 72/2024 Page 3 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 21:03:11 ownership rights on terrace of second floor remain in favour of donees & id donees disposes off second floor to other party then 1/3 share of donees on terrace of rd second floor will goes to Shri Naresh Verma and Shri Ashwani Verma."
14. As per Mr. Sharma, ld. Counsel appearing for the Plaintiff, the above clauses recognise a preferential right in favour of the family members to purchase the second floor and the roof rights of the second floor of the suit pro, if they chose to do so and the same could not be transferred to any third party. According to him, the covenant of pre-emption in the above Gift Deed dated 10th March, 2014 is integral, binding the Defendants to offer the property to family members before selling to outsiders.
15. The Plaintiff recently became aware that the second floor of the suit property was sold by Defendant Nos. 2 to 4 to Defendant No. 1-Mr. Manoj Kumar Jain, vide sale deed dated 29th January, 2021. However, Mr. Jain's family only moved into the suit property in February 2023. It is also averred that the Defendant No. 1 has also filed a suit for permanent and mandatory injunction bearing 'Civil Suit No.626/2023' titled as Manoj Kumar Jain v. Naresh Verma.
16. According to ld. Counsel Mr. Sharma, a clause granting preferential rights in a dwelling house to family members is fully enforceable under various provisions of the Transfer of Property Act, 1882 viz. Sections 10, 11, 14 of said Act. Further, the Gift Deed dated 10th March, 2014 ought to be considered as an onerous gift in terms of Section 127 of the Transfer of Property Act, 1882, imposing conditions on the sale of the property to maintain it within the family. He further places reliance on Section 22 of the Hindu Succession Act, 1956 which supports the right of pre-emption, CS(OS) 72/2024 Page 4 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 21:03:11 reinforcing the intention to keep suit property within the family. He further relies upon a decision of the Supreme Court in K. Naina Mohammed (Dead) Through Lrs. v. A.M. Vasudevan Chettiar (Dead) Through Lrs., (2010) 7 SCC 603, wherein such preferential rights have been recognised in favour of the family members. It is his case that in view of the precondition which was incorporated in the above Gift Deed, Defendant Nos. 2 to 4 could not have transferred and violated the said conditions.
17. Issue summons to all the Defendants.
18. Issue notice I.A. 2208/202. In order to avoid any further multiplicity proceeding and any conflict in findings by other Courts in proceedings which may be filed, this Court is of the prima facie opinion that status quo as to title and possession of the second floor and roof of the suit property shall be maintained by all the Defendants.
19. Ordered accordingly. Dasti.
20. Compliance under Order XXXIX Rule 3 within one week.
21. List before the Joint Registrar on 9th April, 2024.
22. List before the Court on 25th July, 2024.
PRATHIBA M. SINGH, J.
JANUARY 31, 2024 mr/dn CS(OS) 72/2024 Page 5 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 21:03:11