Delhi District Court
Inder Pal Singh Gill vs Surinder Singh Gill on 9 January, 2015
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IN THE COURT OF Ms. SUNENA SHARMA
Addl. Distt Judge - 04 (SE)
SAKET COURTS COMPLEX: NEW DELHI
CS No.437/2014
Unique Case ID No.02406C0068862014
Date of Institution : 22.03.2014
Received in this Court : 05.11.2014
Arguments concluded : 09.01.2015
Date of decision : 09.01.2015
Inder Pal Singh Gill
s/o late Sh Amrik Singh Gill
r/o 1402, F/13, Third Floor,
Govindpuri, Kalkaji,
New Delhi - 110019. ............... Plaintiff
V E R S U S
Surinder Singh Gill
s/o Sh Inder Pal Singh
R/o 386, Sector - 26,
Panchkula, Haryana
(Defendant already exparte
vide order dated 29.08.2014) .............. Defendant
J U D G M E N T
1. This is a suit filed by plaintiff against defendant, who is his son for seeking relief of cancellation of gift deed dated 15.01.2014 and permanent injunction in respect of third floor of premises bearing No.1402, F/13, Govindpuri, Kalkaji, New Delhi-110019 (hereinafter referred as the 'suit premises').
CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 2 of 11
2. At the outset, it is to note that instant suit was originally instituted by plaintiff before learned Civil Court for the relief of declaration and permanent injunction while valuing the suit at Rs.200/ and all the proceedings including exparte evidence was recorded before the Court of learned Judge, Small Cause Court-Additional Senior Civil Judge- Guardianship Judge:SouthEast District, Saket Courts, New Delhi. Vide order dated 31.10.2014 learned ASCJ, allowed the amendment application of plaintiff under Order 6 Rule 17 CPC and plaintiff amended the valuation clause and valued the suit at Rs.15.00 Lacs for the purpose of Court fees and jurisdiction, and also amended the title of the suit and incorporated the relief of cancellation of document in place of relief of declaration. Consequent to enhancing of suit valuation, the suit went out of the pecuniary jurisdiction of learned ASCJ and the case was placed before learned District Judge, SouthEast District, Saket Courts. Vide order dated 05.11.2014, learned District Judge, SouthEast District, Saket Courts, New Delhi assigned the case to this Court. This is all, how this exparte suit has come up before this Court pending at the stage of final arguments.
3. The facts of the case as per plaint in brief are as follows: Plaintiff is father of defendant living at the address given in memo of parties. The plaintiff was earlier working at Dubai and the education expenses of defendant were borne by plaintiff; however in the year 2009 due to maltreatment and misbehaviour of defendant, plaintiff had to return to India and settle in Delhi. Defendant always misbehaved with the plaintiff CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 3 of 11 and his wife while they had stayed at Dubai or even at India whenever defendant used to visit India. Several complaints were made by plaintiff against defendant for alleged beatings, harassment and torture, but no action was ever taken by police. It is averred that plaintiff had debarred defendant and his wife from all his movable and immovable properties vide publication dated 05.01.2011 in the newspaper 'The Statesman'. The wife of plaintiff and mother of defendant died on 22.04.2011. It is also averred that in the month of December 2013 defendant telephonically contacted plaintiff and told that he (defendant) had left Dubai and started working at Chandigarh on a monthly salary of Rs.2.50 Lacs for a multinational company, however he did not come to plaintiff to meet despite request of plaintiff. In the month of January, 2014 defendant came to plaintiff and assured that he would pay plaintiff Rs.25,000/ per month for day to day requirements of plaintiff and also felt guilty of his past conduct towards plaintiff. Defendant also told plaintiff that he (defendant) would get a mediclaim policy for plaintiff under which plaintiff can have medical treatment even in absence of defendant and also explained about welfare scheme launched by the employer of defendant for the benefits of parents of employee. It is also alleged that defendant dishonestly and fraudulently got prepared some documents and obtained signatures of plaintiff on the pretext that same are required as proof of authorising the defendant to take mediclaim policy and family welfare scheme launched by employer of defendant for the plaintiff. On the same day defendant also took the plaintiff to the office of Sub Registrar - V, New Delhi purportedly to get the CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 4 of 11 documents attested for mediclaim as required by the employer of defendant. It is also averred that on 17.03.2014 on the evening of Holi, defendant came to the house of plaintiff and misbehaved with him and scolded him and directed him to immediately vacate the suit property saying that plaintiff had already transferred the suit property in his (defendant) favour and also threatened him to face dire consequences. Thereafter, defendant threw some documents on the face of plaintiff and threatened to get him forcibly evicted from the suit property. Plaintiff took the documents to one of his friends and came to know that defendant had got a gift deed executed in his favour whereas infact plaintiff had never executed any such gift deed in favour of defendant or any other person nor had intended ever to do so. Gift deed was got executed by defendant in the guise of authorisation of mediclaim. It is also claimed that suit property is self acquired property of plaintiff and he is in possession and control thereof. With the help of one of his friends, plaintiff also visited the office of Sub Registrar - V, New Delhi and came to know that defendant had also got the gift deed registered on 15.01.2014. Suit property is still in possession of plaintiff but defendant is alleged to have threatened the plaintiff to create third party interest in the same and further to dispossess him forcibly from suit property. The cause of action is stated to have arisen on 15.12.2010 on the death of wife of plaintiff, on the date when the plaintiff debarred the defendant and got published the public notice in a newspaper on 05.01.2011; and also when defendant got prepared gift deed on the pretext of obtaining a mediclaim policy; in the month of March, 2014 when defendant threatened plaintiff to CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 5 of 11 forcibly dispossess him from the suit property and stated to be still continuing one. The suit property is stated to be situated within territorial jurisdiction of this Court and for the purpose of court fees and jurisdiction, the suit property has been valued at Rs.15.00 lacs for the relief of cancellation of gift deed and for the relief of permanent injunction at Rs. 130/. Hence, plaintiff is seeking relief of cancellation of gift deed dated 15.01.2014 registered vide registration No.470, Book No.1, Vol. No.13128, Pages 99 to 105 with Sub Registrar - V, New Delhi in respect of suit property and also for permanent injunction against defendant, his agents, servants, employees etc whosoever purported to be acting on behalf of defendant thereby restraining them from selling, alienating, dispossessing or creating any third party interest in respect of suit property, which is claimed to be presently in possession of plaintiff.
4. Upon receipt of suit, summons for settlement of issues were issued to defendant and process sent to defendant through registered post for 03.04.2014 was received back with 'left' report. Since, no other address was available with plaintiff, vide order dated 21.04.2014 defendant was ordered to be served through publication for 20.05.2014 on the application of plaintiff moved under Order 5 Rule 20 CPC. Upon service through publication and failure of defendant to appear despite service, defendant was proceeded exparte vide order dated 29.08.2014.
5. In exparte evidence, plaintiff himself entered into the witness CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 6 of 11 box and got examined himself as PW1 while filing his affidavit as Ex.PW1/A on 29.08.2014. He was also further examined on 12.09.2014 and he relied upon documents from Ex.PW1/1 to Ex.PW1/7. No other witness was examined by plaintiff and exparte evidence was closed on 12.09.2014 itself.
6. As already noted, it is only during course of ex parte final arguments, vide order dated 31.10.2014 suit of plaintiff was allowed to be amended and came to be assigned to this Court at the stage of final arguments.
7. I have heard arguments of learned counsel for plaintiff and gone through the records.
8. Before embarking upon the facts of the case, let us recapitulate the evidence of plaintiff in this case. PW1 Sh Inder Pal Singh Gill is plaintiff himself. He has filed his affidavit in evidence relying upon document i.e. Ex.PW1/1 is public notice dated 15.12.2010 published in the newspaper Statesman dated 05.01.2011 debarring the defendant; Ex.PW1/2 is the newspaper itself; Ex.PW1/3 the copy of death certificate dated 28.04.2011 of plaintiff's wife, who expired on 22.04.2011; Ex.PW1/4 is copy of complaint dated 21.03.2014 lodged by plaintiff with SHO, PS Govindpuri, New Delhi having the original receipt stamp vide DD No.17B dated 21.03.2014; Ex.PW1/5 is the copy of sale deed dated 27.04.2012 executed CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 7 of 11 in favour of plaintiff by erstwhile owner of suit property; Ex.PW1/6 is the gift deed dated 15.01.2014 purportedly executed by plaintiff in favour of defendant. As per PW1, original copy of gift deed Ex.PW1/6 was handed over to him by defendant only pursuant to notice sent to him (defendant) under Order 12 Rule 8 CPC; and Ex.PW1/7 is the copy of notice under Order 12 Rule 8 CPC with postal receipt. In the affidavit of evidence, the witness has reiterated the contents of the plaint on oath and reaffirmed the averments thereof, which are not being repeated for sake of brevity.
9. It is well settled proposition of law by numerous dictum of the Hon'ble Apex Court that plaintiff has to prove his case on merits even in ex parte cases. Unchallenged and uncontroverted testimony has to be sifted to check the claim of plaintiff and relief prayed for against the defendant, who preferred not to join the proceedings.
10. Plaintiff has filed instant suit under Section 31 of the Specific Relief Act, 1963 for the cancellation of gift deed Ex.PW1/6 which was allegedly got executed through him by the defendant in his (defendant's) favour by exercising fraud undue influence and misrepresentation. The relevant provisions of the Specific Relief Act, 1963 and Indian Contract Act, 1872 reads as under: "31. When cancellation may be ordered: (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 8 of 11 adjudged void or voidable; and the court may, in its discretion, so adjudge it and order is to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in this books the fact of its cancellation."
The portion of Sections 16 to 18 of the Indian Contract Act, 1872 reads as under: "16. 'Undue influence' defined: (1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(c) Where a person who is a position to dominate the will of another enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
17. 'Fraud' defined: 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 9 of 11 connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive; & (5) any such act or omission as the law specially declares to be fraudulent.
18. 'Misrepresentation' defined: "Misrepresentation" means and includes: (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without any intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."
11. Now, reverting to the case at hand, it is seen that the defendant got the gift deed Ex.PW1/6 executed in his favour from plaintiff on the pretext that the documentation is necessitated for the purpose of getting the benefit of mediclaim policy of employer of defendant. As per Section 19 of the Indian Contract Act, 1872 when consent to an agreement is caused by coercion, fraud, or misrepresentation, the agreement is a voidable at the option of the party whose consent was so caused. As per exception to CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 10 of 11 Section 19A, if such consent was caused by misrepresentation or by silence, fraudulent within the meaning of Section 17, the contract nevertheless is not voidable, if the party whose consent was so caused had the means of discoverying the truth with ordinary diligence.
12. The witness has categorically deposed on the lines of averments made in the plaint regarding misrepresentation and fraud played upon him by defendant who under the guise to get a mediclaim for plaintiff through his employee, got signature of plaintiff upon a gift deed Ex.PW1/6 and also got it registered at the office of Sub Registrar - V, New Delhi on 15.01.2014. The testimony of the witness has gone unrebutted and uncontroverted without any challenge as defendant has chosen not to appear or contest the suit of plaintiff despite service through publication.
13. The plaintiff has prayed for cancellation of gift deed Ex.PW1/6 and relief of permanent injunction in his favour against the defendant in respect of the suit property. The latter relief of permanent injunction has been claimed as at the time of filing of suit, plaintiff was not in possession of the alleged gift deed, however, during the pendency of suit, pursuant to notice under Order 12 Rule 8 CPC dated 30.08.2014 Ex.PW1/7, the original gift deed Ex.PW1/6 has come in the possession of plaintiff. Admittedly, the plaintiff is in possession of the suit property as well as the title documents of suit property, hence, there exist no reason for the plaintiff to seek the relief of permanent injunction for restraining the defendant from creating any CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill Page 11 of 11 third interest in respect of suit property. However, in view of his unrebutted testimony, plaintiff has been able to prove his entitlement for relief of cancellation of gift deed.
14. Having regard to the above discussions, the suit of plaintiff is partly decreed to the extent of cancellation of gift deed Ex.PW1/6 and the gift deed dated 15.01.2014 registered vide registration No.470, Book No.1, Vol. No.13128, Pages 99 to 105 with Sub Registrar - V, New Delhi in respect of suit property bearing No.1402, F/13, Third Floor, Govindpuri, Kalkaji, New Delhi-110019 in favour of defendant stands cancelled. Prayer of plaintiff for the relief of permanent injunction is however, rejected and suit to that extent is dismissed. No order as to cost.
A copy of judgment, decree as well as Gift Deed Ex.PW1/6 be sent to the Office of Sub Registrar V, New Delhi for making necessary endorsement in the records for cancellation thereof, as per rules.
Decree sheet be drawn accordingly and file be consigned to Record Room.
(Sunena Sharma) Addl. Distt Judge04/SouthEast Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 09.01.2015.
CS No.437/2014 Inder Pal Singh Gill v Surinder Singh Gill