Delhi District Court
Tejinder Kaur Kohli vs Kamla Kapoor Ors on 27 September, 2025
Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
IN THE COURT OF SH. JITEN MEHRA, DISTRICT
JUDGE-10: CENTRAL DISTRICT, TIS HAZARI COURTS:
DELHI.
CNR NO.:- DLCT01-000613-2008
CS DJ NO.:-615817/16
IN THE MATTER OF :-
TEJINDER KAUR KOHLI
D/o S. Harnam Singh Kohli,
R/o 107-B, LIG Flats,
Rajouri Garden, New Delhi.
...........Plaintiff
Versus
1. KAMLA KAPOOR
W/o Late Shri Inder Raj Kapoor
2. SANJAY KAPOOR
S/o Late Shri Inder Raj Kapoor
Both residents of: 271-A Shanti
Sager Carter Road, Bandra: (West),
Mumbai - 400050.
3. UDAI KAPOOR
S/o Late Shri Inder Raj Kapoor
4. NIKHIL KAPOOR
S/o Late Shri Inder Raj Kapoor
Both C/o M/s Chromewell Industries Pvt. Ltd.
Lot No. 49, Parsi Panchayat Road,
Andheri (East) Mumbai - 400069.
5. A. K. BOSE
6. PARTHA SARTHI BOSE
7. AMITABH BOSE
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Defendants nos. 5 to 7 are R/o
Bungalow No.99, (KRSNA KRUPA),
Sunder Nagar, New Delhi. 110003.
8. SENTINELS SECURITY PVT. LTD.
Having it's registered office at
40/92 & 40/93, Chitranjan Park,
New Delhi.
.........Defendants
SUIT FOR SALE OF MORTGAGE PROPERTY.
Date of Institution of the Suit : 25.07.2008
Date on which Judgment was reserved : 06.08.2024
Date of Judgment : 27.09.2025
::- J U D G M E N T -::
1. The plaintiff, Ms. Tejinder Kaur Kohli, has filed the
present suit for sale of an alleged mortgaged property, i.e. Plot
No. 99, Sunder Nagar, New Delhi and for recovery of loan
amount of Rs. 10,00,000/- alongwith interest of 12% p.a.
PLAINTIFF'S VERSION AS PER THE PLAINT
2. The plaintiff states that her father Late S. Harnam Singh
Kohli was an old friend of Late Sh. Inder Raj Kapoor, who was
the husband of the defendant no.1 and father of the defendants
no. 2-4.
3. As per the plaintiff, Late Sh. Inder Raj Kapoor used to visit
Delhi in connection with his business as well as court cases and
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on such occasions, would also meet with the plaintiff's father,
with whom he used to discuss his problems related to his family
and business.
4. In December, 1998 Late Sh. Inder Raj Kapoor came to
Delhi and sought financial help, in the form of a large sum of
money, from the plaintiff's father for his own treatment and
expenses for his court cases. The plaintiff's father expressed his
inability to lend the said amount. However, the plaintiff, looking
to the close friendship between her father and Late Sh. Inder Raj
Kapoor, became ready to advance a loan to him.
5. As per the plaintiff, she lent a sum of Rs. 10,00,000/-
(Rupees Ten Lakhs Only) on interest of 12% p.a. to Late Sh.
Inder Raj Kapoor, who executed a promissory note dated
01.12.1998 in her favour, which was witnessed by her sister
Annie Kohli and another so-called assumed sister Mrs.
Gurcharan Kaur.
6. Late Sh. Inder Raj Kapoor kept paying the monthly
interest amount till December, 1999 in cash to the plaintiff as and
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when he visited Delhi and met the plaintiff and her father.
7. Late Sh. Inder Raj Kapoor fell seriously ill in January,
2000 and he informed the plaintiff's father of his illness and also
expressed a desire to meet him and the plaintiff. Accordingly, the
plaintiff and her father visited him in Mumbai 4-5 times from
January, 2000 to May, 2000.
8. In April, 2000 Late Sh. Inder Raj Kapoor informed the
plaintiff and her father that he was suffering from prostate cancer
and his health was poor and indicated his desire to give some
security in lieu of the loan amount taken by him from the
plaintiff. The plaintiff asked for return of the loan amount,
however Late Sh. Inder Raj Kapoor stated that he could not repay
the same. It is further submitted that although Late Sh. Inder Raj
Kapoor paid the interest on the loan in cash uptil April, 2000 to
the plaintiff, he stated that he could not repay the loan back to
her.
9. On 29.05.2000, Late Sh. Inder Raj Kapoor is stated to have
executed a General Power of Attorney (GPA) in favour of the
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plaintiff to look after and contest an appeal, which he had filed
before the National Consumer Disputes Redressal Commission
(NCDRC). He also executed a separate Memorandum of Deposit
of Title Deeds to secure the loan of Rs. 10,00,000/- along-with
interest @ 12% p.a. The said two documents were also handed
over in Mumbai by Late Sh. Inder Raj Kapoor to the plaintiff on
29.05.2000 itself, in the presence of witnesses, along with the
original perpetual lease deed of the property no. 99, Block - 171,
Sunder Nagar, New Delhi ('suit property').
10. Thereafter, in June, 2000 when the plaintiff made a
telephone call in order to find out about the well-being of Late
Sh. Inder Raj Kapoor she was informed that Late Sh. Inder Raj
Kapoor had expired.
11. The plaintiff then informed the defendants no.1-4 of the
loan of Rs. 10,00,000/- taken by Late Sh. Inder Raj Kapoor and
also the execution of memorandum of deposit of title deeds and
handing over of the original perpetual lease deed of the suit
property, in which he had 1/4th share. As per the plaintiff, the
defendants no.1-4 acknowledged the same and also paid the
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interest to her in cash upto September, 2000.
12. However, after September, 2000 the defendants no.1- 4 did
not pay any interest on the loan amount to the plaintiff, who got
worried and demanded the repayment of the loan along with
interest, but the defendants no.1 - 4 did not care to pay the same.
The plaintiff also alleged that however, the defendants no.1-4
kept promising to her that the loan and interest would be repaid,
and also assured her that in any case, the loan was secured by
way of an equitable mortgage over the suit property. The plaintiff
claims that she kept on demanding the repayment of the loan and
interest, however the defendants no.1- 4 did not pay the same.
13. In the meanwhile, the plaintiff made enquiries about the
status of the suit property, and learnt that it had been sold by the
defendants no.1- 4, in collusion with the other co-owners, in
favour of the defendants no. 5 -7 who were occupying the same
at the time of the filing of the suit. The plaintiff submits that the
defendants no.5 - 7 did not care to find out, prior to the purchase
of the suit property, whether there was any encumbrance or lien
created by any of the co-owners of the suit property.
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14. The plaintiff also issued a legal notice dated 29.05.2008 to
all the defendants, seeking repayment of the loan from the
defendants no.1- 4 along with interest within 15 days. However,
there was no repayment done by the defendants no.1-4 and no
reply to the said notice was also given by them.
15. The plaintiff states that the defendants no.1- 4, being the
legal heirs of Late Sh. Inder Raj Kapoor, are liable to repay the
loan amount of Rs. 10,00,000/- along with interest @ 12% p.a. in
terms of the promissory note dated 01.12.1998 or in the
alternative the plaintiff seeks to recover the said loan amount
along with interest from the sale of the suit property under the
equitable mortgage by way of deposit of title deeds in her favour
vide the memorandum of deposit of title deeds dated 29.05.2000.
16. The plaintiff therefore seeks the following reliefs in the
suit:
(a) A decree for sale of the suit property and direct the
payment of the outstanding loan amount of Rs. 10,00,000/-
alongwith interest @ 12% p.a. from the proceeds of the
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sale;
(b) A decree of permanent injunction restraining the
defendants from transferring, alienating or creating any
third-party interest in the suit property;
(c) Costs of the suit.
DEFENDANTS' VERSION AS PER THEIR WRITTEN
STATEMENTS
Written statement of the defendants no.1-4
17. Initially, the defendants no.1,3 and 4 had filed a combined
written statement on 10.12.2008 and the defendant no.2 filed his
separate written statement on 28.01.2009.
18. Thereafter, the defendants no.1 - 4 moved an application
under Order 6 rule 17 of the Code of Civil Procedure, 1908
(CPC) seeking to amend their written statements, on the ground
that it contained some clerical mistakes in referring to the
documents filed by the plaintiff, which was allowed by the Court
vide order dated 25.10.2010.
19. Thereafter, the defendants no.1 - 4 filed a combined
written statement dated 25.10.2010, in which they raised the
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preliminary objections that the present suit was barred by
limitation and liable to be dismissed with cost. The present suit
was also stated to be an abuse of the process of the Court, filed
by the plaintiff with the intention to extort money from the
answering defendants. Further, it suffered from latches and the
plaintiff had also suppressed material facts and made false
statements on oath.
20. It was submitted that Late Sh. Inder Raj Kapoor could not
have created an equitable mortgage over the suit property,
without the consent of the original lessor, i.e. the Land and
Development Office (L&DO), rendering it unlawful and
unenforceable.
21. It was further submitted that without prejudice to the above
submission, an equitable mortgage could only have been created
by deposit of the original title deeds, and in the present case, the
plaintiff had refused inspection of the original title deeds of the
suit property and only provided a photocopy of the same for
inspection. It was asserted that the plaintiff was not in possession
of the original title deeds of the suit property, which had been
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executed in the name of the father of Late Sh. Inder Raj Kapoor,
i.e. Late Sh. Gauri Shankar Kapoor. Further, the document placed
on record along with the plaint as 'Annexure C' only pertained to
the plot of land and admittedly, there was a superstructure
thereon comprising of a two storeyed building, which was in the
occupation of tenants, at the time of the alleged creation of the
equitable mortgage.
22. In the reply on merits, the answering defendants admitted
that Late Sh. Inder Raj Kapoor was friends with the plaintiff's
father, i.e. S. Harnam Singh Kohli, but denied that he had any
relationship with the plaintiff. It was also denied that Late Sh.
Inder Raj Kapoor used to visit Delhi in connection with his
business as well as for his court cases and would meet with S.
Harnam Singh Kohli. It was also denied that in December, 1998
Late Sh. Inder Raj Kapoor approached Sh. Harnam Singh Kohli
for financial assistance as he was in financial difficulty. It was
submitted that he was never in any financial difficulty on account
of expenses for his treatment and court cases as alleged. It was
submitted that Late Sh. Inder Raj Kapoor used to own and travel
by Mercedes-Benz car and by Air. His financial health could also
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be ascertained from his balance sheets, profit and loss account
and bank accounts.
23. The answering defendants also denied that the plaintiff
gave a loan of Rs. 10,00,000/- to Late Sh. Inder Raj Kapoor on
interest of 12% p.a., in lieu of which Late Sh. Inder Raj Kapoor
executed a promissory note dated 01.12.1998. The said
promissory note was also stated to be forged and fabricated. It
was submitted that the plaintiff had taken undue advantage of the
trust reposed by Late Sh. Inder Raj Kapoor in her father S.
Harnam Singh Kohli and had misused blank signed papers of
Late Sh. Inder Raj Kapoor and forged the promissory note
thereon.
24. It was further submitted that since no amount had been
borrowed by Late Sh. Inder Raj Kapoor from the plaintiff, the
question of payment of any interest amount in cash to the
plaintiff also did not arise.
25. The answering defendants denied that Late Sh. Inder Raj
Kapoor was sick in January, 2000 and the plaintiff and her father,
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S. Harnam Singh Kohli's visits to Mumbai to meet him were also
denied. It was also denied that Late Sh. Inder Raj Kapoor
indicated to giving security for the loan taken by him from the
plaintiff or that any interest amount was paid by him.
26. The defendants stated that Late Sh. Inder Raj Kapoor had
executed a General Power of Attorney in favour of the plaintiff,
at her father's request, to look after an appeal filed by him before
the NCDRC. It was submitted that the advocate was appointed by
Late Sh. Inder Raj Kapoor and he had paid his fees as well.
Further, it was denied that any memorandum of deposit of title
deeds was executed by Late Sh. Inder Raj Kapoor to secure the
alleged loan of Rs. 10,00,000/- taken from the plaintiff.
27. It was also submitted that Late Sh. Inder Raj Kapoor was
not the sole owner of the suit property and hence, had no
authority to create the alleged equitable mortgage. It was also
submitted that a letter dated 12.05.2000 had been written by the
personal assistant (P.A.) of Late Sh. Inder Raj Kapoor to the
plaintiff, enclosing along with it a power of attorney executed by
him and a signed blank stamp paper of Rs. 10/- bearing no. 644
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dated 12.05.2000. The plaintiff is stated to have made use of the
said signed blank stamp paper to create the forged and fabricated
memorandum of equitable mortgage by deposit of title deeds.
Hence, it was denied that Late Sh. Inder Raj Kapoor had
executed the memorandum of of deposit of title deeds.
28. It was also denied that in the month of June, 2000 the
plaintiff telephoned to find out about the well-being of Late Sh.
Inder Raj Kapoor and was informed that he had expired. It was
also denied that after the death of Late Sh. Inder Raj Kapoor, the
plaintiff informed the defendants no.1 - 4 that he had taken a loan
of Rs. 10 lakhs from her along with interest @ 12% p.a. It was
reiterated that Late Sh. Inder Raj Kapoor had not executed any
memorandum of deposit of title deeds as alleged by the plaintiff.
It was also denied that the defendants no.1-4 acknowledged and
accepted to repay the loan amount along with interest and also
paid interest amount in cash for about five months, upto
September, 2000. The answering defendants also denied that
after September, 2000 they did not pay the interest on the loan
account by reiterating that no such loan had been taken by Late
Sh. Inder Raj Kapoor and no memorandum of deposit of title
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deeds had been executed by him as well. It was also denied that
the plaintiff kept demanding the repayment of the total loan
amount, along with interest from the defendants no.1-4.
29. Even otherwise, the alleged memorandum of deposit of
title deeds dated 29.05.2000 was stated to be an unregistered
document and hit by section 49 of the Registration Act, 1908 and
created on insufficiently stamped papers. It was also reiterated
that the present suit was hopelessly barred by limitation. The
answering defendants also denied receiving any legal notice
dated 29.05.2008, alleged to have been issued on behalf of the
plaintiff. The defendants also submitted that, even otherwise,
they were not personally liable to pay the debts of Late Sh. Inder
Raj Kapoor, since they had not received any estate from him. It
was submitted that the present suit be dismissed with exemplary
costs.
Written statement of the defendants no. 5-7
30. The defendants no.5-7 filed a combined written statement,
in which the preliminary objections were raised that the suit was
bad for misjoinder of parties and they were not the owners of the
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suit property. The present suit was also stated to be barred on
account of limitation as it was alleged that Late Sh. Inder Raj
Kapoor had executed a promissory note dated 01.12.1998 and the
plaintiff had made the demand for the return of the money in
June, 2000, while the present suit had been instituted in the year
2008. It was also denied that there was any cause of action in
favour of the plaintiff to institute the present suit.
31. Further, the plaintiff is stated to have undervalued the
present suit as she was seeking recovery of her loan of Rs.
10,00,000/- along with interest @ 12% p.a., and the sum of
interest itself was around Rs. 15,00,080/-, on which she was
liable to pay court fees.
32. The answering defendants also denied that Late Sh. Inder
Raj Kapoor had executed any promissory note in favour of the
plaintiff or that any loan was taken by him. The promissory note
was also stated to have been improperly stamped. It was
submitted that as per law, where documents are executed for
creation of an equitable mortgage, on the day when the title
deeds are delivered, such document is required to be
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compulsorily registered. However, the memorandum of deposit
of title deeds dated 29.05.2000 was stated to be an unregistered
document, required to be compulsorily registered and hence, not
enforceable in law.
33. It was further submitted that Late Sh. Inder Raj Kapoor
could not have created any equitable mortgage at all as the suit
property was a leasehold property, under a perpetual lease from
the President of India, and was against its terms and conditions.
Any assignment or transfer of the suit property required the
approval of the lessor. In the absence of any such written
approval, Late Sh. Inder Raj Kapoor could not have created a
mortgage over the suit property. Further, Late Sh. Inder Raj
Kapoor was only of the co-lessees of the suit property and could
not have created a mortgage over the entire property by himself.
The other co-lessees were stated to be Late Sh. Tilak Raj Kapoor,
Late Sh. Prithvi Raj Kapoor and Sh. Omkar Raj Kapoor. On the
death of Late Sh. Inder Raj Kapoor, Late Sh. Tilak Raj Kapoor
and Late Sh. Prithvi Raj Kapoor, their respective legal heirs have
been substituted in their place.
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34. It was further submitted that the legal heirs of all the
original co-lessees of the suit property had entered into an
agreement to sell with M/s NPMG Developers Ltd. and finally
sold the property to the defendant no.8, which was a private
limited company. It was also submitted that the defendant no.8
had demolished the earlier structure on the suit property and
rebuilt the same and therefore the mortgaged property itself no
longer existed, rendering the suit infructuous.
35. The plaintiff was stated to have forged and fabricated the
promissory note and mortgage deed. Further, it was submitted
that the plaintiff never informed the L&DO or the defendant
no.1-4 or any other co-owner of the same at any time. No public
notice was ever issued by her as well. It was further submitted
that the plaintiff had alleged to have given Rs. 10,00,000/- in
cash in the year 1998, which was in violation of the rules,
regulations and laws prevalent at the time.
36. In the reply on merits, the answering defendants denied the
version of the plaintiff with respect to the loan, execution of the
promissory note and the subsequent memorandum of deposit of
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title deeds by Late Sh. Inder Raj Kapoor for want of knowledge,
however submitted that the plaintiff be put to strict proof of the
same.
37. It was denied that the defendants no.5-7 had purchased the
suit property and it was reiterated that defendant no.8 was the
present owner. It was also submitted that the status of the
property had been converted from leasehold to freehold on the
application of the defendant no.8, and there was no notice, entry
or stipulation contained in any record maintained by the L&DO
or the concerned Sub-Registrar, Delhi or with any other authority
in respect of the alleged mortgage. Hence, no such right could be
enforced by the plaintiff against the suit property in the hands of
the defendant no.8.
38. Further, the answering defendants denied having
committed any offence of criminal breach of trust against the
plaintiff or that they had knowingly become a party to the
misdeeds of the defendants no.1-4 by purchasing the suit
property in question.
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39. The answering defendants denied the averments that the
plaintiff had approached the defendants no.1- 4 for repayment of
the loan amount for want of knowledge. The answering
defendants also denied the receipt of any legal notice from the
plaintiff and even otherwise, the content of the same were stated
to be false and frivolous, having no basis.
40. The defendants no.5-7 also sought dismissal of the present
suit.
Written statement of the defendant no.8
41. The defendant no.8, M/s Sentinels Security Pvt. Ltd., was
subsequently impleaded in the present suit vide order dated
22.04.2009, on an application moved by the plaintiff stating that
the suit property had been purchased by it. The defendant no.8
also raised similar preliminary objections as in the written
statement of the defendants no.5-7 and further added that the
defendant no.8 was a bona-fide purchaser of the suit property.
The plaint was also denied on similar grounds as that the written
statement of the defendants no.5-7. The answering defendant also
sought dismissal of the present suit.
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REPLICATION BY THE PLAINTIFF:
Replication to the written statement of the defendants no.1-4
42. The plaintiff denied the preliminary objections in the
written statement that her suit was barred by limitation and
submitted that the limitation period for sale of mortgaged
property and recovery of loan was 12 years under the Limitation
Act and the present suit had been filed within the period of
limitation. She also denied that the present suit had been filed by
her to extort money from the defendants or that it suffered from
latches and delay. She denied the suppression of any material
facts by her in the plaint.
43. The plaintiff further denied that no equitable mortgage
could have been created by Late Sh. Inder Raj Kapoor without
the consent/no-objection of the original lessor. She submitted that
Late Sh. Inder Raj Kapoor was a co-owners of the suit property,
having 1/4th share therein, and there was no bar on the creating
of a mortgage by one of the co-owners.
44. The plaintiff further submitted that after the death of the
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father of Late Sh. Inder Raj Kapoor, he along with his brothers
had become the owners of the suit property and the lease deed
dated 20.08.1962 was also executed in their favour. Hence, the
said perpetual lease deed dated 20.08.1962 was now the original
document of title, which had been deposited with the plaintiff by
Late Sh. Inder Raj Kapoor on 29.05.2000, to create a mortgage
over the suit property. The plaintiff submitted that at present, she
had only filed the coloured photocopy of the perpetual lease deed
dated 20.08.1962 and at the appropriate time, would also file the
original of the same. She denied that the equitable mortgage was
not enforceable and the present suit was liable to be dismissed.
45. In the reply on merits, the plaintiff specifically denied that
Late Sh. Inder Raj Kapoor had no relationship with her and
stated "It is submitted that Late Mr. Inder Raj Kapoor was having
very close friendship with the Father of the Plaintiff and he use to
treat the Plaintiff as his daughter being daughter of his fast
friend.".
46. The plaintiff specifically denied that the promissory note
dated 01.12.1998 was a forged and fabricated document or that
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she had utilized signed blank stamp papers and forged the
promissory note thereon. She further denied that Late Sh. Inder
Raj Kapoor had executed the GPA in favour of the plaintiff, at the
behest of her father and stated that the said GPA had been
executed by him out of his own free will. She also denied that the
memorandum of deposit title deeds had been forged by her. She
further denied that vide letter dated 12.05.2000, the P.A. of Late
Sh. Inder Raj Kapoor had sent the GPA as well as a blank signed
stamp paper of Rs. 10/- bearing No. 644. The receipt of any such
letter was denied by her.
47. The plaintiff stated in para no.19 of the replication that "...
It is further pertinent to state here that the memorandum of
deposit of the title deeds was duly executed by Late Mr. Inder
Raj Kapoor on the stamp paper of Rs. 10/- bearing No. 644 dt.
12.05.2000 and the same was given to the plaintiff by Late Mr.
Inder Raj Kapoor, when the plaintiff along with her father visited
Sh. Inder Raj Kapoor. This fact is also clear from the fact that the
GPA which is Annexure-B to the plaint, was executed on 29th day
of May 2000 and the same was also got attested by the Notary
Sh. M.M. Ansari, Advocate on 29.05.2000 itself and as such, the
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allegations that the PA of Late. Inder Raj Kapoor has sent the said
GAP along with the blank Rs. 10/- stamp paper bearing No. 644
on 12.05.2000 with his even dated Letter to the plaintiff are
totally false, fabricated, mischievous and concocted." (sic.). The
plaintiff further stated a new fact, not mentioned by her in her
plaint that "It is further pertinent to submit here that as the GPA
was executed on undervalued stamp paper of Rs. 10/- and as
such, three more stamp papers having value of Rs. 50/-, Rs. 20/-
& Rs. 20/- respectively were also purchased by Late. Mr. Inder
Raj Kapoor on 29.05.2000 itself for proper execution of the GPA
dt. 29.05.2000 in favour of the plaintiff...". She further stated
that the alleged letter dated 12.05.2000 was a fabricated
document and was not even addressed to the plaintiff. She also
denied making use of the signed blank stamp paper of Rs. 10/-
for fabricating the memorandum of deposit of title deeds thereon.
The plaintiff also denied that the memorandum of deposit of title
deeds mandatorily required registration or that it was under-
stamped.
48. The plaintiff denied the other averments of the defendants
no.1-4 as stated in the written statement and reiterated and re-
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affirmed the contents of the plaint as being true and correct.
Replication to the written statement of the defendants no.5-7
49. The plaintiff stated that the defendants no.5-7 were the
Directors of defendant no.8 company and in the physical
possession of the suit property and hence were proper parties.
She denied that the present suit was barred by limitation. It was
also denied that there was no cause of action in her favour to file
the present suit. She also denied that the suit had been
undervalued by her for the purpose of Court fees and jurisdiction.
50. The plaintiff also denied that the promissory note dated
01.12.1998 was not properly executed as per law and was not
properly stamped. It was also denied that the memorandum of
deposit of title deeds title deeds dated 29.05.2000 was required to
be registered. The plaintiff stated that all subsequent transfers of
the suit property were subject to the mortgage created over it in
her favour. With respect to the allegation that the plaintiff had not
informed the L&DO, or any other authority, or the public at
large, about the mortgage over the property and gave the reason
that there was no requirement under law for her to do so. She
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further stated that rather it was the duty of all the defendants to
enquire about the status of the property under the maxim of
'buyer beware'.
51. The plaintiff also denied that the giving of the loan in cash
was in violation of the rules and regulations and stated that the
payment of loan was made in cash to Late Sh. Inder Raj Kapoor
as he was in dire need of the same for his treatment etc.
52. The plaintiff further denied that the defendant no.8 had
become the owner of the suit property or that due diligence had
been exercised prior to the purchase. It was submitted that since
the perpetual lease deed dated 20.08.1962 was with the plaintiff,
no such due diligence was exercised. Further, all subsequent
transfers of the suit property were subject to the mortgage created
in favour of the plaintiff. The plaintiff denied all the other e
allegations made in the written statements under reply and
reaffirmed the content of the plaint as true and correct.
Replication to the written statement of the defendants no.5-7
53. The replication of the plaintiff to the written statement of
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
the defendant no.8 was along similar lines as the replication to
the written statement of the defendant no. 5-7, and hence the
contents are not being repeated here for the sake of brevity.
ADMISSION AND DENIAL OF DOCUMENTS
54. On 01.02.2011, the statement of the defendant no.2 was
recorded by the Court under Order X CPC. The ld. Counsel for
the defendants no.1,3 and 4 also admitted and denied the same
documents, as per the statement of the defendant no.2. The
following documents of the plaintiff were admitted/denied by the
defendants no.1-4:
a. Original demand promissory note dated 01.12.2008, Ex.
CW-1/A: signatures of Late Sh. Inder Raj Kapoor at point
X, on the document were denied.
b. Original memorandum of deposit of title deeds, Ex.
CW-1/B: signatures of Late Sh. Inder Raj Kapoor at point
X, on the document were admitted, however the contents
were denied.
c. General Power of Attorney dated 29.05.2000, Ex.
CW-1/C: the document as well as signatures of Late Sh.
Inder Raj Kapoor at point X, on the document were
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admitted.
d. Original perpetual lease deed dated 20.08.1962, Ex.
CW-1/D: the signatures of Late Sh. Inder Raj Kapoor at
point X on each page of the document were admitted.
e. Site plan, Ex. CW-1/E: the signatures of Late Sh. Inder
Raj Kapoor at point X on the document were admitted.
f. Addition to the perpetual lease deed dated 29.05.2000,
Ex. CW-1/F: the signatures of Late Sh. Inder Raj Kapoor
at point X on the document were admitted.
55. With respect to the documents of the defendants, the
plaintiff denied receiving the original letter dated 12.05.2000,
sent by the P.A. of Late Sh. Inder Raj Kapoor, i.e. Sh. Nilesh S.
Agrawal, Ex. CW-1/G.
ISSUES FRAMED
56. Upon completion of pleadings, the following issues were
framed vide order dated 01.02.2011:
1. Whether the plaintiff has suppressed material facts and
hence not entitled for the relief claimed? OPD.
2. Whether plaintiff is not entitled to enforce the equitable
mortgage allegedly executed in his favour? OPD.
3.Whether plaintiff is entitled for decree of sale of
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
mortgaged property i.e. Plot no.99, Sunder Nagar, New
Delhi for recovery of loan amount? OPP.
4. Relief.
(Sic.)
57. Vide order dated 27.07.2017, the following additional
issues were framed in the present suit:
1A. Whether plaintiff had never given sum of Rs.
10,00,000/- to Late Inder Raj Kapoor with interest and
whether the promissory note dated 01.12.1998 is forged
and fabricated? OPD
1B. Whether Late Inder Raj Kapoor had sent a power of
attorney along with a blank stamp paper of Rs. 10/-
bearing no. 644 on 12.05.2000, which was misused by
plaintiff and fabricated in mortgage deed/memorandum of
deposit of title deed, if so, to what effect? OPD
EVIDENCE ADDUCED BY THE PLAINTIFF
Evidence of the plaintiff as PW-1
58. The plaintiff Smt. Tejinder Kaur Kohli stepped into the
witness box as PW-1 and tendered her evidence by way of
affidavit as Ex. PW-1/AA on 23.05.2011 and 30.07.2012, in
which she reiterated the contents of the plaint, which are not
being repeated for the sake of brevity.
59. She relied on the following documents in support of her
case:
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
(a) Promissory note dated 01.12.1998 as Ex. CW-1/A.
(b) The memorandum of deposit of title deeds dated
29.05.2000 executed by Late Sh. Inder Raj Kapoor with
respect to the suit property in favour of the plaintiff as Ex.
CW-1/B.
(c) General Power of Attorney dated 29.05.2000 executed
by Late Sh. Inder Raj Kapoor in favour of the plaintiff as
Ex. CW-1/C.
(d) The perpetual lease deed of the suit property as Ex.
CW-1/D.
(e) The site plan annexed with the perpetual lease deed of
the suit property as Ex. CW-1/E.
(f) The addition to the perpetual lease deed of the suit
property as Ex. CW-1/F.
(g) The legal notice dated 29.05.2008 as Ex. PW-1/1.
(h) Postal receipts qua the said legal notice as Ex. PW-1/2.
(i) UPC Receipts qua the said legal notice as Ex. PW-1/3.
(j) A/D card qua the said legal notice as Ex. PW-1/4.
60. The plaintiff Ms. Tejinder Kaur Kohli was cross-examined
on 30.07.2012 by the ld. counsel for the defendants no.5-8 first,
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during which she stated that the flat at Rajouri Garden mentioned
by her as her address in Ex. PW-1/AA was owned by her and she
was residing there along with her mother. She stated that she was
not bearing the household expenses of the entire family and that
her sister Annie Kohli was bearing the same. She stated that she
was earning her livelihood by giving private tuitions at home.
She stated that she held the educational degrees of M.A.
(completed in the year 1997) and B.Ed (completed in the year
1993). She stated that in the year 1999, she along with her family
were residing at 38-D, Vikaspuri, Delhi, which was an MIG
(Middle Income Group) Flat. She stated that in the year 1998, her
family consisted of her father, mother, sister and her brother and
his wife and children.
61. She stated that in the year 1999, she was giving tuition to
around 20-25 children from classes III - V. She further stated that
however, during examination period in January to March, the
strength of the classes would increase to 25-30 children. She
stated that she was not an income tax assessee and took her
payment of tuition fees in cash from the students and used to
keep the money in her personal cupboard. She stated that her
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normal tuition timings were from 3:00 PM to 4:00 PM and from
5:00 PM to 6:00 PM and she would take an hour's rest in
between. She stated that she was involved in a litigation filed
against her paternal aunt (chachi). She stated that she used to
charge Rs. 250-300/- per month from each child, depending on
which class he was in. Further, an extra amount of Rs. 50-100/-
also used to be charged by her for 'extra charge'. She stated that
she used to earn about Rs. 10,000/- to Rs. 12,000/- per month
and was continuing to earn the said amount at present as well.
She stated that she used to maintain the records of her annual
earnings from tuitions in a book, however she did not have the
records with her anymore. She further stated that at present she
was not keeping such a record of her earnings from tuition as 'the
students are of higher classes'.
62. She reiterated that her father refused to give the loan to
Late Sh. Inder Raj Kapoor. She stated that in the last week of
September-December, 1998 Late Sh. Inder Raj Kapoor asked for
the loan of Rs. 10,00,000/- from her. She stated that she agreed to
give the said loan to him in November, 1998. She stated that in
November, 1998 when she consented to give the loan/money,
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Late Sh. Inder Raj Kapoor refused to take the money as he was
not carrying any 'briefcase etc.'. She further stated that she also
wanted to count the money and keep the bundles ready. She
stated that she knew how much money she had as she had
purchased a LIG (Lower Income Group) flat no. 107-B, Rajouri
Garden, Delhi in the year 1996. She stated that she had purchased
the said flat out of her own earnings for an amount of Rs. 80,000
to Rs. 90,000/-, as her family members also used to give money
to her. She deposed that she was left with around Rs.8,000-
9,000/- after giving the loan of Rs. 10,00,000/- to Late Sh. Inder
Raj Kapoor.
63. The plaintiff further stated that on 01.12.1998, Late Sh.
Inder Raj Kapoor made a landline telephone call to her father at
about 8:45 a.m., informing him that he would be visiting their
home. She deposed that she could not tell whether Late Sh. Inder
Raj Kapoor had arrived from Mumbai on that day itself or was
already in Delhi. She stated that no terms and conditions were
settled in November, 1998 with respect to the loan. She stated
that the terms and conditions were 'settled' on 01.12.1998 within
5-7 minutes, when the loan amount was disbursed. She stated
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that it was agreed that Late Sh. Inder Raj Kapoor would pay
interest @ 12% p.a. and if he failed to pay interest for three
months, he would pay quarterly extra interest on Rs. 30,000/-.
64. She stated that she used to change the denomination of the
currency from the Bank. She stated that she had no bank account
till date. She stated that the amount of Rs. 6,00,000/- was given
in currency bundles of denomination of Rs. 500/- and Rs.
4,00,000/- was given in currency bundles of denomination of Rs.
100/-. She stated that she had not kept the currency notes in the
said denomination especially for the loan and used to normally
keep her money in this manner. She stated that she used to keep
her money in a small locker in her cupboard.
65. She further deposed that her father was carrying on the
business of export of handicrafts and garments under the name
and style of 'M/s Gossmer Exports' from home itself, i.e. D-38,
Vikaspuri, Delhi. Thereafter, the further cross-examination of the
plaintiff was deferred.
66. The plaintiff was next cross-examined on 06.03.2013,
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
during which she stated that between January to May, 2000 she
went to Mumbai around 4-5 times along with her father and one
Mrs. Gurcharan Kaur Sabharwal. She stated that Mr. Inder Raj
Kapoor was sick but was mobile. She stated that he visited Mr.
M.M. Ansari, Advocate/notary public at Shanti Sagar, Mumbai,
where she was already present along with her father and Mrs.
Gurcharan Kaur Sabharwal. She stated that everybody signed the
promissory note Ex. CW-1/A in her presence. First, the document
Ex. CW-1/A was signed by Mrs. Gurcharan Kaur Sabharwal and
thereafter by her sister Annie Kohli and they also wrote their
addresses in her presence.
67. The plaintiff stated that the memorandum of deposit of title
deeds dated 29.05.2000, Ex. CW-1/B and general power of
attorney dated 29.05.2000, Ex. CW-1/C were signed by all
parties in her presence in Mumbai. She stated that the documents
were already typed and available with Late Sh. Inder Raj Kapoor.
She stated that on 29.05.2000, she did not visit the residence of
Late Sh. Inder Raj Kapoor and went straight to the
advocate/notary public Mr. Ansari's cabin/seat. She stated that
Late Sh. Inder Raj Kapoor had arrived five minutes earlier. She
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stated that Mr. Ansari asked Late Sh. Inder Raj Kapoor to sign in
a register maintained by him as a Notary Public. However, the
witnesses did not sign in the said register.
68. The plaintiff further admitted that she had never issued any
receipt towards the payment of any interest by Late Sh. Inder Raj
Kapoor during his lifetime. She also admitted that she had never
maintained any record of the interest paid by him. She further
stated that she could not remember as to how many times Late
Sh. Inder Raj Kapoor visited Delhi to pay the interest to her. She
stated that she also did not remember in which month Late Sh.
Inder Raj Kapoor last paid interest to her in the year 1999.
However, she stated that on his last visit he had paid an amount
of Rs. 20,000/- to her. She stated that the interest was paid to her
in cash only and she had never deposited the same in any bank as
she was not having any bank account. She stated that she used to
visit Punjab National Bank, East Patel Nagar to get her cash
notes exchanged and her brother also used to work there.
However, in the year 1999 her brother was not regularly going to
the bank as he was unwell.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
69. She denied the suggestions that the documents Ex.
CW-1/A to Ex. CW-1/C were forged and fabricated documents.
She also denied the suggestion that the plaintiff had misused the
blank stamp papers sent to her by Late Sh. Inder Raj Kapoor for
handling his case at the NCDRC, Delhi. She also denied the
suggestion that the document Ex. CW-1/D was cancelled by the
L&DO. She also denied the suggestion that the perpetual lease
deed Ex. CW-1/D was not an original document. She also denied
the suggestion that her father was not a witness because the
documents Ex. PW-1/A and Ex. PW-1/B were allegedly forged
later on after his death and volunteered to state that they were
genuine and had been prepared during his lifetime. She denied
the suggestion that the title deeds of the suit property had not
been mortgaged with her as collateral for an alleged loan.
Thereafter, the further cross-examination of the plaintiff was
deferred.
70. The plaintiff was next cross-examined on 13.08.2013,
during which she stated that she did not know how many times
Late Sh. Inder Raj Kapoor had visited her house, prior to the
giving of the loan. She stated that she knew Late Sh. Inder Raj
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Kapoor in the capacity of her father's friend and had no close
familiarity or friendship with him or his wife and children. She
stated that her mother also did not have any no close familiarity
or friendship with the family of Late Sh. Inder Raj Kapoor.
71. She stated that when her father expressed his inability to
loan the amount to Late Sh. Inder Raj Kapoor, he asked him to
speak to the plaintiff as the money belonged to her. Thereafter,
she spoke with Late Sh. Inder Raj Kapoor for about 10-15
minutes and she agreed to loan the amount as she had full trust
on him. She stated that she did not ask for any security from him
on that day and the amount was also not given on the said day.
She stated that she gave the loan amount on 01.12.1998 and
demanded a promissory note from him prior to advancing the
loan. She denied the suggestion that the promissory note Ex.
CW-1/A was not executed on Rs. 10 stamp paper. Thereafter, the
plaintiff's cross-examination by the ld. counsel for the defendants
no. 5-8 was completed and the further cross-examination of the
plaintiff by the ld. Counsel for the defendants no.1-4 was
deferred.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
72. The plaintiff was next cross-examined on 26.11.2013 by
the ld. counsel for the defendants no.1-4, during which she stated
that she gave the loan amount of Rs. 10,00,000/- to Late Sh.
Inder Raj Kapoor on 01.12.1998 at about 10:30 am to 10:45, and
again stated at about 11:00 am. She stated that the terms and
conditions were settled on 01.12.1998 itself at the house of the
plaintiff in the living room. At that time, Gurcharan Kaur, Annie
Kohli and her father were also present at home and her mother
was present in the kitchen. She stated that they also participated
in the discussion on the terms and conditions and they were also
recorded into writing on the promissory note, which was then
signed by Late Sh. Inder Raj Kapoor and the witnesses,
Gurcharan Kaur and Annie Kohli. She stated that her own father
did not sign the said document, owing to his close relationship
with Late Sh. Inder Raj Kapoor and because other two persons
had signed. She stated that she herself did not sign the document
Ex. PW-1/A on the said day. She further stated that the
promissory note Ex. PW-1/A was already prepared and typed, but
not before her. She stated that the entire process was completed
in one and a half hour. The plaintiff stated that Ex. PW-1/A was
handed over to her on 01.12.1998 itself. She stated that she did
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not remember thereafter when she met Late Sh. Inder Raj Kapoor
or spoke with him.
73. The plaintiff admitted that she did not have any
documentary proof regarding the payment of the interest on the
loan by Late Sh. Inder Raj Kapoor, and volunteered to state that
he used to pay the same in cash to her at Delhi. She stated that
Late Sh. Inder Raj Kapoor used to come to her residence to pay
for the same and used to inform either her or father in advance of
the same. She stated that she also did not remember the number
of times, Late Sh. Inder Raj Kapoor visited her for payment of
interest amount. She again admitted that no receipt was ever
issued by her for the payment of the interest amount and stated
that it was not asked for.
74. She denied the suggestions that Late Sh. Inder Raj Kapoor
never came to her house on 01.12.1998 and never executed the
same as well. Thereafter the further cross-examination of the
plaintiff was deferred on account of lack of time.
75. The plaintiff was next cross-examined on 04.04.2015,
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
during which she stated that the promissory note dated
01.12.1998, Ex. PW-1/A was executed on a stamp paper of Rs.
10/-. She stated that she had not offered the sum of Rs.
10,00,000/- to Late Sh. Inder Raj Kapoor, rather, he had
demanded the same from her on 01.12.1998. She stated that Late
Sh. Inder Raj Kapoor came to her house at about 10:00 am in the
morning and approximately within a period of 10 minutes, the
loan transaction was settled. She stated that at first Late Sh. Inder
Raj Kapoor talked to her father for the loan, who told him that
the money belonged to the plaintiff, and hence, he had settled the
terms and conditions with her. She stated that her mother was in
the kitchen, but her father was sitting with her at the time of
negotiations. She stated that the amount of interest of 12% p.a.
was also agreed upon in the presence of her father. She stated that
it was also agreed that the money would be given to Late Sh.
Inder Raj Kapoor after he had handed over a promissory note.
Accordingly, Late Sh. Inder Raj Kapoor then went out and got
the promissory note prepared and returned after 1 - 1.15 hours
with the promissory note. She further stated that her father was
aware that she had an amount of Rs. 10 lakhs with her and that is
why he had asked Late Sh. Inder Raj Kapoor to speak with her.
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76. She denied the suggestions that no loan amount was given
by her on 01.12.1998 to Late Sh. Inder Raj Kapoor and that the
promissory note was a forged and fabricated document. She
denied the suggestion that her father had refused to sign the
document as it was forged and fabricated and volunteered to state
that her father did not sign the same as it was a "transaction of a
loan in between the children and that is why, he merely avoided
to sign on the promissory note". She further stated that Mrs.
Gurcharan Kaur was not already aware of the fact that the
plaintiff was going to give a loan to Late Sh. Inder Raj Kapoor
and she was merely present in the house at that point in time and
hence she also signed the same. She further stated that Mrs.
Gurcharan Kaur was her 'Dharm sister' (assumed sister). She
stated that she did not discuss about the loan with Mrs.
Gurcharan Kaur on 01.12.1998, however her sister Annie Kohli
was aware about the factum of the loan of Rs. 10 lakhs.
77. She further stated that the first interest amount was paid by
Late Sh. Inder Raj Kapoor to her in the year 1999 in cash, but she
did not remember the exact date or month. She stated that she
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also did not remember the amount paid as the first interest on the
loan. She denied the suggestion that the defendants no.1 - 4 had
never paid any interest to her after the death of Late Sh. Inder Raj
Kapoor. She stated that an interest amount of Rs. 10,000/- had
been paid by them in cash in May, 2000 without any demand
from her. She stated that the said amount had been sent by them
to her residence in Delhi, through some messenger. Thereafter,
the interest was paid by them till September, 2000. She stated
that the interest for the months of June, July, August and
September, 2000 was together sent by the defendants no.1-4 to
her residence in Delhi, through some messenger. She stated that
she did not remember the name of the said messenger and did not
know him prior. She stated that the messenger also never asked
for any receipt from her. She stated that her sister Annie was not
present at the said time. She denied the suggestions that no such
interest was ever paid to her either by Late Sh. Inder Raj Kapoor
or the defendants no.1-4 or that no such loan was advanced by
her.
78. The plaintiff stated that she had disclosed the averments of
her statement in para no.15 of her evidence by way of affidavit,
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
with respect to the GPA having been executed on undervalued
stamp paper of Rs. 10/- and purchase of additional stamp paper
by Late Sh. Inder Raj Kapoor on 29.05.2000, to her lawyer at the
time of sending of the legal notice. She also admitted that the
said facts were not mentioned in the legal notice or even in the
plaint.
79. She also stated that she was not aware whether Late Sh.
Inder Raj Kapoor was contesting an appeal before the NCDRC,
Delhi or not, however stated that an attested GPA had been
handed over to her in Bombay.
80. Thereafter, the further cross-examination of the plaintiff
was deferred at the request of the ld. counsel for the plaintiff.
81. The plaintiff was next cross-examined on 10.09.2015,
during which she stated that she had gone through the contents of
the GPA dated 29.052000, Ex. CW-1/C, at the time when it was
handed over to her. She stated that Late Sh. Inder Raj Kapoor
was supposed to send the case file pertaining to the appeal before
NCDRC to her, however he never sent the case file due to his
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illness. Therefore, she did not act in pursuance of the said GPA,
Ex. CW-1/C, before the NCDRC.
82. The plaintiff also identified the signatures of her father on
the GPA, Ex. CW-1/C at point 'A', and stated that he had signed
in her presence. The other witness in the said GPA namely Mrs.
Gurcharan Kaur had also put her signatures as a witness on the
said GPA in her presence. She was then asked whether the
witnesses had put their signatures on Ex. CW-1/C in the presence
of the Notary Public, to which she stated that " Perhaps Notary
Public was sitting inside and both the witnesses had put their
signatures on the said GPA in the presence of Mr. Inder Raj
Kapoor". She further stated that the Notary Public put his stamp
on Ex. PW-1/C in her presence, and volunteered to state that the
execution of the document was got done by Sh. Inder Raj Kapoor
in her presence. She stated that Late Sh. Inder Raj Kapoor
'might' have put his signatures in the register maintained by the
Notary Public, but, both the witnesses did not put their signatures
in his register in her presence. Thereafter, a specific question was
put to the plaintiff "Q. Did the Notary had entered the execution
of the GPA and another documents in his register?", to which the
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plaintiff relied, "Ans. Prior to the reaching of mine at the spot,
the GPA and other documents were already got prepared by Sh.
Inder Raj Kapoor". She further stated that she did not know
whether in the year 2000, as per the laws in the State of
Maharashtra and Delhi, the GPA could not have been executed on
a stamp paper of Rs. 10/-.
83. She further stated that the stamp papers for Rs. 50/-, Rs.
20/- and Rs. 20/- all dated 29.05.2000 had already been
purchased by Sh. Inder Raj Kapoor and had not been purchased
in her presence. She stated that the additional stamp papers were
purchased on 12.05.2000 because the stamp paper of Rs. 10/-
purchased on 12.05.2000 was insufficient. She admitted that her
averment in para no.14 of the plaint relating to the attestation of
the general power of attorney, Ex. CW-1/C on 29.05.2000 by
Notary Public M.M. Ansari was not mentioned in her legal notice
or her plaint, and volunteered to state that the same had been
mentioned by her in her replication.
84. She denied the suggestion that Sh. N.S. Agarwal had sent a
letter Ex. CW-1/G to her along-with copy of the GPA and copy of
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the blank stamp paper bearing Sl. No. 644 dated 12.05.2000. She
also admitted that at that time she was residing at 38-D,
Vikaspuri Extension, New Delhi -18. She also admitted that
Annie Kohli was her elder sister and used to reside with her at
Vikaspuri, Delhi on 12.05.2000. She denied the suggestion that
the bank stamp paper bearing no. 643 and 644 dated 12.05.2000
were falsely notarized by her on 29.05.2000. She further stated
that the promissory note dated 01.12.1998, Ex. PW-1/A was got
typed by Late Sh. Inder Raj Kapoor from Delhi and not Bombay.
She stated that the same was got typed/prepared on her demand.
She stated that the stamp paper of Rs. 10/- on which the
promissory note was typed, was purchased from Delhi. She
stated that the stamp paper for Rs. 10/- bearing sl. No. 644 dated
12.05.2000 was typed in Bombay. She stated that the
memorandum of deposit of title deeds, Ex. PW-1/B was also
already got typed by Late Sh. Inder Raj Kapoor before she had
reached the office of the Notary Public.
85. She further denied the suggestion that the promissory note
dated 1.12.1998 Ex. CW-1/A and memorandum of deposit of title
deed dated 29.05.2000, Ex. CW-1/B had been forged and
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fabricated by her at Delhi. She also denied the suggestion that
Ex. CW-1/G along with the GPA and blank stamp papers bearing
Sl. No. 644 were received by her at her Vikaspuri residence at
Delhi.
86. She further stated that she had visited the suit property 1- 2
times after receiving the documents i.e. perpetual lease deed of
the suit property Ex. CW-1/D and its annexed site plan, Ex.
CW-1/E prior to the filing of the suit; and she found that the
structure of the property was not the same as depicted in Ex.
CW-1/E. She stated that she did not go inside the building of the
suit property and only saw it from outside. Further, she could not
tell how many floors were constructed on the said plot, however
big walls had been reconstructed. She stated that the property had
not been re-constructed in her presence and she had no occasion
to stop the same. She stated that she never visited the suit
property after the filing of the present suit.
87. The plaintiff also admitted that after the reading of the
perpetual lease deed Ex. CW-1/D, she came to know that Sh.
Inder Raj Kapoor was not the sole owner of the property in
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question, and was having only 1/4th undivided share in the same
along with his three brothers. She also admitted that no notice
was issued by her to the other brothers of Late Sh. Inder Raj
Kapoor, after she had read and received the perpetual lease deed
Ex. CW-1/D.
88. She also stated that the partition of the suit property
amongst the four brothers had not been shown in the site plan Ex.
CW-1/E. She stated that she did not personally meet the brothers
of Late Sh. Inder Raj Kapoor with respect to the partition of the
suit property. She stated that she also did not enquire from them
whether the property had been mortgaged by Late Sh. Inder Raj
Kapoor. She also stated that she never lodged any complaint
against Late Sh. Inder Raj Kapoor or the defendants no.1-4, when
found that the suit property had been reconstructed and was not
in the condition as per Ex. CW-1/E. She deposed that she visited
the suit property after Late Sh. Inder Raj Kapoor had expired in
the year 2000. She admitted that she did not lodge any protest or
complaint with the defendants no.1-4. Thereafter, the further
cross-examination of the plaintiff was adjourned to the post-
lunch session.
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89. In the cross-examination of the plaintiff in the post-lunch
session on 10.09.2015, she stated that as per her knowledge, the
suit property had been sold only once, i.e. to the defendants no.
5-8. She stated that she did not know the year in which the suit
property was sold. She stated that she came to know about the
fact of the sale of the suit property, when she visited the same and
enquired from the people in the vicinity. She stated that at the
time of the issuance of the legal notice and the filing of the suit,
she had informed her advocate of the fact of the sale of the suit
property. She admitted that Late Sh. Inder Raj Kapoor was
having a flourishing business in Bombay. She stated however,
that she did not know whether he enjoyed a very high standard of
living and used to travel in a Mercedes- Benz car. She denied the
suggestion that Late Sh. Inder Raj Kapoor never used to purchase
the stamp papers or get the same typed, and volunteered to state
that Late Sh. Inder Raj Kapoor himself purchased the stamp
papers and executed the documents, on which the present suit
had been filed. She denied the suggestion that the stamp papers
for Rs. 50/-, Rs. 20/- and Rs. 20/- were purchased by her her and
not Late Sh. Inder Raj Kapoor. She also denied the suggestion
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that the memorandum of deposit of title deeds dated 29.05.2000,
Ex. CW-1/B had been forged and fabricated by her at Delhi on
the stamp paper bearing Sl. No. 644 dated 12.05.2000, which had
been sent by the P.A. of Sh. Inder Raj Kapoor to her. She denied
the suggestion that the promissory note dated 01.12.1998, Ex.
CW-1/A and the memorandum of deposit of title deeds dated
29.05.2000, Ex. CW-1/B had been prepared at her instance, by
using the same typewriter.
90. A specific question was put to the witness that the general
power of attorney, Ex. CW-1/C had been typed on a computer, to
which she stated that she could not tell because the said GPA was
already typed when she reached the office of the Notary public.
She denied the suggestion that the seal and authentication of the
notary public on the said GPA was fake as the fact of the
execution of the GPA had not been entered into the register of the
Notary Public. She also denied the suggestion that the seal and
authentication of the Notary Public on the said GPA was fake as
it did not bear any registration number of the register maintained
by the Notary Public, which was mandatory. She also denied the
suggestion that the memorandum of deposit of title deeds dated
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
29.05.2000, Ex. CW-1/B had been fabricated by her on stamp
paper of Rs. 10/-, bearing Sl. No. 644, purchased on 12.05.2000
from Bombay, which had been sent to her by the P.A. of Late Sh.
Inder Raj Kapoor vide Ex. CW-1/G. She also denied the
suggestion that neither Late Sh. Inder Raj Kapoor nor his legal
heirs paid any interest to her. She also denied the suggestion that
the perpetual lease deed, Ex. CW-1/D and the site plan Ex.
CW-1/E were not the original copy and had not been handed over
to her by Late Sh. Inder Raj Kapoor.
91. She also denied the suggestion that after receiving the
original copy of the typed GPA on the stamp paper of Rs. 10/-
bearing Sl. No. 643 and blank stamp paper of Rs. 10/-, bearing
Sl. No. 644 which had the original signatures of Late Sh. Inder
Raj Kapoor at point X, she had fabricated the memorandum of
deposit of title deeds dated 29.05.2000, Ex. CW-1/B on the same.
She also denied the suggestion that she fabricated the demand
promissory note Ex. CW-1/A by purchasing stamp papers from
Delhi.
92. She further denied the suggestions that the alleged
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equitable mortgage deed was not enforceable on the date of the
filing of the suit. She also denied the suggestion that she had
intentionally and deliberately suppressed material facts in the
present suit. She also denied the suggestion that she was not
entitled to any decree for sale of the alleged mortgaged property
on account of the alleged loan. She denied the suggestion that
Late Sh. Inder Raj Kapoor did not purchase stamp papers of Rs.
10/- or that he had got typed the promissory note Ex. CW-1/A at
Delhi. She also denied the suggestion that she had committed
perjury with respect to Ex. CW-1/A and Ex. CW-1/B. She also
denied the suggestion that she had filed a false affidavit or that
she was deposing falsely. Thereafter, the plaintiff was discharged
as a witness on 10.09.2015.
Evidence of Ms. Annie Kohli, sister of the plaintiff as PW-2
93. The plaintiff next examined her sister Ms. Annie Kohli as
PW-2, who tendered her evidence by way of affidavit as Ex.
PW-2/A on 23.05.2011, in which she deposed that she was
currently residing at 18-B, Jyoti Building, Andheri (West),
Mumbai and was aged 58 years. She stated that on 01.12.1998,
the plaintiff gave a loan of Rs. 10 lakhs in cash to Late Sh. Inder
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Raj Kapoor in her presence at Delhi at her residence of 38-D,
Vikaspuri, New Delhi, as well as in the presence of Mrs.
Gurcharan Kaur. She stated that after receiving the amount of Rs.
10,00,000/-, Late Sh. Inder Raj Kapoor executed a promissory
note, Ex. PW-1/A, on a stamp paper of Rs. 10/- in her presence.
She stated that after Late Sh. Inder Raj Kapoor signed the same,
she along with Mrs. Gurcharan Kaur also signed on the same as
witnesses at points 'A' and 'B', respectively. She stated that at
that time she was residing in Delhi and later shifted to Mumbai.
She further deposed that Late Sh. Inder Raj Kapoor also agreed
to pay an interest of 12% p.a. on the loan amount.
94. Ms. Annie Kohli, PW-2 was cross-examined on
23.05.2011 by the ld. Counsel for the defendants no.1-4, during
which she stated that she was residing in Mumbai since the year
2001 and had gone there after the death of her brother, and prior
to that she was residing at 38-D, Vikaspuri, Delhi. She stated that
she had two sisters and one brother, who had expired. She stated
that she also had one 'assumed sister' Smt. Gurcharan Kaur, who
was residing at Subhash Nagar, Delhi. She stated that the
distance between Vikaspuri and Subhash Nagar was more than
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1.5 kms. She deposed that her father died around two years back
and her mother was still alive. She stated that after the death of
their father, her mother used to live sometimes with her and
sometimes with her other sister. She stated that she was married
in the year 1974 and the plaintiff was still unmarried. She stated
that her second sister was also unmarried. She stated that at
present, her mother was residing with the plaintiff. She stated that
the house at 38-D, Vikaspuri, Delhi was purchased in her name
and the plaintiff was residing there since her birth. She stated that
on 01.12.1998, her parents and the plaintiff were residing with
her. She deposed that her parents and herself were doing business
jointly. She stated that the plaintiff was earning her income from
taking tuitions at home. She deposed that the plaintiff had started
taking tuitions after passing 12th class and she had 15 - 20 or
sometimes 25 - 30 students at that time, however she did not
know how much tuition fees the plaintiff was charging from her
students. She stated that the plaintiff did not contribute towards
the house-hold expenses. She stated that she did not know
whether the plaintiff was an income-tax assessee and did not
know where the plaintiff kept her money. She stated that she also
used to support the plaintiff as she was well-off. She stated that
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
she knew Late Sh. Inder Raj Kapoor, who was a friend of her
father and used to come to their house several times. She stated
that Late Sh. Inder Raj Kapoor never stayed over-night at their
house.
95. She stated that on 01.12.1998, Late Sh. Inder Raj Kapoor
came to the house at 10:00 am and stayed there for about 30-45
minutes. She stated that Late Sh. Inder Raj Kapoor asked for
money infront of her and volunteered to state that Late Sh. Inder
Raj Kapoor had asked for money 4-5 times earlier as well,
however her father had expressed his inability to give him any
money stating that he had to get the plaintiff married. She stated
that she did not remember the dates on which Late Sh. Inder Raj
Kapoor had earlier asked for money and stated that he had asked
for money infront of her only one or two times. She stated that
she did not know whether Late Sh. Inder Raj Kapoor had come to
their house on that day specifically to receive money. She stated
that Gurcharan Kaur had also come on that day on her own and
volunteered to state that she used to visit their house frequently.
96. PW-2 further stated that she signed the promissory note
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Ex. CW-1/A in the drawing room, however neither her father nor
mother signed it. She stated that Late Sh. Inder Raj Kapoor
signed the promissory note first, after crossing out the revenue
ticket, which had already been affixed. She stated that she did not
know from where the stamp paper had been purchased and where
the same had been got typed from. She stated that the currency
notes were handed over by the plaintiff and the same were not
kept in the house, and then again stated that the plaintiff had
already kept the cash in the house in her cupboard, which was
brought out by her.
97. She further stated that Late Sh. Inder Raj Kapoor had three
sons, however they had never visited their house. She stated that
she did not receive any letter dated 12.05.2000 sent by Late Sh.
Inder Raj Kapoor through his P.A. Sh. N.S. Aggarwal along with
the document Ex. CW-1/G, which was handed over by her to the
plaintiff. She said that Late Sh. Inder Raj Kapoor expired on
21.06.2000. She stated that Late Sh. Inder Raj Kapoor had again
visited their house after taking the loan, but could not remember
the date or the number of visits.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
98. She denied the suggestions that no such amount of Rs.
10,00,000/- was ever given by the plaintiff to Late Sh. Inder Raj
Kapoor or that he had never visited their house, or that the
promissory note Ex. CW-1/A was also never signed by him in
front of her. She also denied the suggestion that Ex. CW-1/A was
a forged document created by the plaintiff along with her and the
other witness. She also denied the suggestion that she was
deposing falsely at the instance of the plaintiff. Thereafter, the
further cross-examination of PW-2 was deferred.
99. PW-2 was next cross-examined on 13.02.2012 by the ld.
counsel for the defendants no.5-8, during which she stated that
prior to her marriage, she used to reside with her parents at
Nawabganj, Delhi and after marriage she shifted with her
husband to Kishanganj, Delhi along with her mother-in-law.
100. She further stated that on 01.12.1998 at the time when Late
Sh. Inder Raj Kapoor came and left, she along with the plaintiff,
their parents and their so-called sister Mrs. Gurcharan Kaur were
present. She stated that she was not aware of the decision to loan
the money to Late Sh. Inder Raj Kapoor, prior to the said
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
meeting. She stated that the entire transaction of money took
place in the drawing room, at which time, she along with her
father and Mrs. Gurcharan Kaur were present and her mother and
the plaintiff were not present. She stated that the entire money
was not counted in front of her. She stated that she did not know
whether the stamp paper on which Ex. CW-1/A was drawn, was
there in the house or not in the morning. She stated that Late Sh.
Inder Raj Kapoor went outside and then the papers were brought.
She stated that the money was handed over after Ex. CW-1/A
was signed. She stated that Mrs. Gurcharan Kaur was present at
that time as she used to visit regularly. She stated that there was
no prior decision as to who would sign on Ex. CW-1/A and the
people present were asked to sign by Late Sh. Inder Raj Kapoor.
She stated that she had brought no document to show that she
residing at Vikaspuri, Delhi and denied the suggestion that she
was never permanently residing there.
101. She denied the suggestion that she had not signed Ex.
CW-1/A in the presence of Late Sh. Inder Raj Kapoor and had
never seen him signing it as well, or that he had never visited on
01.12.1998. She also denied the suggestion that Ex. CW-1/A was
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
a forged document. She further stated that her father did not sign
Ex. CW-1/A, "being a friend of Mr. Kapoor". She denied the
suggestion that their father had not signed on it as the document
was forged later on and he did not approve of the same.
102. She stated that Late Sh. Inder Raj Kapoor came to the
house at Vikaspuri, Delhi at about 10:00 a.m. and left by 10:30-
10:45 p.m. She stated that he again came after about 1.5 hour and
finally left after spending 1.5 hours. She stated that her mother
also did not sign Ex. CW-1/A as a witness as she said " let the
mater be remained between the children and Mr. Kapoor". She
said that at 10:30-10:45, Late Sh. Inder Raj Kapoor had left alone
and none accompanied him. She stated that till the time Late Sh.
Inder Raj Kapoor arrived at 10:00 am on 01.12.1998, she was not
aware that a loan was being given to him. She further stated that
although Late Sh. Inder Raj Kapoor used to visit their house at
Vikaspuri, Delhi frequently, she had only seen him visit once or
twice.
103. She stated that Mrs. Gurcharan Kaur came to their house
by cycle-rickshaw after dropping her children in school. She
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
stated that she did not know the mode of conveyance used by
Late Sh. Inder Raj Kapoor while visiting their house. She further
stated that Late Sh. Inder Raj Kapoor was an industrialist,
however did not know about his financial condition.
104. She stated that she was doing 'export business' along with
her father and the plaintiff used to take tuitions at home only. She
further stated that the loan amount belonged to the plaintiff
exclusively. Thereafter, the witness PW-2 was discharged as a
witness.
Evidence of Ms. Poonam Saini, Handwriting Expert as PW-3
105. The plaintiff next examined one Ms. Poonam Saini,
handwriting expert as PW-3, who tendered her evidence by way
of affidavit, Ex. PW-3/A on 16.12.2015, in which she deposed
that she was working as a handwriting and fingerprints expert for
over 7 years and had received training in this science from an
expert of Delhi Ms. R. K. Vij. She stated that she had done her
M.sc in Forensic Science and was a law graduate as well and had
given evidence in a large number of cases.
106. She deposed that she had examined the disputed signatures
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
of Late Sh. Inder Raj Kapoor on the demand promissory note
dated 01.12.1998 and compared it with his signatures on the
memorandum of deposit of title deed dated 29.05.2000 and the
second page of the GPA dated 29.05.2000 and his signatures on
the 'Plan of Land dated 28.06.1962' along with the Perpetual
Lease Deed dated 20.08.1962. She stated that the disputed
signature had been marked by her as 'Q-1' and the admitted
signatures as 'A-1' to 'A-13' on the photographic enlargements.
107. She deposed that in her opinion, the disputed signature of
Late Sh. Inder Raj Kapoor 'Q-1' on the demand promissory note
dated 01.12.1998 had been written by the writer of the
comparative signatures at A-1 to A-13. She stated that the reasons
for her opinion were given in her report dated 23.02.2015, which
was tendered in evidence as Ex. PW-3/1. She relied upon the
photographs of the signatures as Ex. PW-3/2 to Ex. PW-3/15 and
the negative CD as Ex. PW-3/16. She stated that she got the
photographs and the negative CD prepared from the colour lab
under her instructions, after taking the photographs from the
Court file.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
108. PW-3 was cross-examined on 16.12.2015 by the ld.
counsel for the defendants no. 1-4, during which she stated that
when she took the photographs of the documents Ex. PW-3/2 to
Ex. PW-3/15, the originals of which were not on the judicial file.
She stated that she had inspected the Court file and the date was
mentioned in the application filed for inspection. She stated that
the original documents were produced by the plaintiff in her
office for taking the photographs. She stated that she had
developed one photographs for each signature, but in the CD,
there was many photographs for a single signature and she had
developed the best photograph. She stated that she had checked
the quality of the photographs taken on her camera itself and then
got the best photograph developed. She stated that the camera
with which she had taken the photographs was in her chamber
and she could produce the same. She denied the suggestion that
the photographs and negative CD Ex. PW-3/2 to Ex. PW-3/15
and Ex. PW-3/16 were not of the same disputed and admitted
documents. She also denied the suggestion that she had given a
false report and affidavit at the instance of the plaintiff.
Thereafter, she was discharged as a witness.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
109. The plaintiff finally closed her evidence on 27.01.2016 in
the affirmative, and the matter was listed for the evidence of the
defendants.
EVIDENCE LED BY THE DEFENDANTS
Evidence led by the defendants no.1-4.
110. Sh. Nilesh S. Agrawal, the personal assistant (P.A.) of Late
Sh. Inder Raj Kapoor was examined as D1W1, who tendered his
evidence by way of affidavit as Ex. D1W1/A on 01.11.2017.
111. In his evidence by way of affidavit, Ex. DW-1/A, Sh.
Nilesh S. Agrawal deposed that he was the P.A. of Late Sh. Inder
Raj Kapoor during his lifetime. He stated that Late Sh. Inder Raj
Kapoor was the founder of M/s Chromewell Industries Pvt. Ltd,
Mumbai and also remained as its Managing Director, throughout
his life, till his death on 21.06.2000. He deposed that at present,
he was the P.A. of the defendant no.2.
112. He deposed that Late Sh. Inder Raj Kapoor maintained a
high standard of living and was leading a 'royal' life and was also
the owner of a Mercedes-Benz car, which was used by him for all
his personal visits. He stated that Late Sh. Inder Raj Kapoor used
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
to travel by air domestically and internationally, and used to stay
in the costliest five-star hotels.
113. He deposed that Late Sh. Inder Raj Kapoor had sufficient
money and was financially sound, which was also known to the
plaintiff and her father. He stated that Late Sh. Inder Raj Kapoor
was the founder and Managing Director of M/s Mercury
Batteries Pvt. Ltd. and was also a drawing monthly salary from
there. Late Sh. Inder Raj Kapoor was also the owner/partner of
1/4th share of Kohinoor Cinemas, Dadar, Mumbai and a lifetime
member of Delhi Gymkhana Club, Delhi and Otter's Club at
Bandra, Mumbai. He deposed that the financial health of Late Sh.
Inder Raj Kapoor could also be ascertained from his balance
sheets, profit and loss accounts and his bank accounts, which
could be produced, if required by the plaintiff.
114. He deposed that Late Sh. Inder Raj Kapoor was admitted
to Breach Candy Hospital, Mumbai in 1998 for a serious illness,
however he was not treated properly and subjected to gross
negligence by the attending doctors. In this connection, Late Sh.
Inder Raj Kapoor had filed a consumer complaint against Breach
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Candy Hospital before the Hon'ble State Consumer Disputes
Redressal Commission, Mumbai (SCDRC). Thereafter, feeling
aggrieved of the order dated 20.02.1999 passed by the SCDRC,
Mumbai, he filed an appeal before the NCDRC, Delhi titled as
'Inder Raj Kapoor vs Breach Candy Hospital & Research Center,
Bombay and Ors'.
115. He further deposed that as the health of Late Sh. Inder Raj
Kapoor was failing, he was finding it difficult to attend to the
said appeal filed by him before the NCDRC. Accordingly, Late
Sh. Inder Raj Kapoor held a discussion with his fast friend in
Delhi, i.e. Sh. Harnam Singh Kohli, who suggested to him to
send a typed GPA in favour of his daughter/plaintiff. Late Sh.
Inder Raj Kapoor accordingly sent a signed GPA in favour of the
plaintiff on a Rs. 10/- stamp paper along with another signed
blank stamp paper of Rs. 10/-, for the execution of any other
document, if needed urgently for the purpose of the appeal.
116. He deposed that on the instruction of Late Sh. Inder Raj
Kapoor, he had purchased and sent an undated, typed and signed
GPA on a stamp paper of Rs. 10/- in the name of the plaintiff, for
its notarization at Delhi. He deposed that he had purchased two
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non-judicial stamp papers of Rs. 10/- bearing serial numbers no.
643 and 644 respectively dated 12.05.2000 from Andheri (East),
Mumbai in the name of M/s Chromewell. He stated that the GPA
was typed over one stamp paper with one additional sheet and
Late Sh. Inder Raj Kapoor signed on the same in the place of
Executant. Further, Late Sh. Inder Raj Kapoor also put his
signatures on the other blank stamp paper of Rs. 10/- bearing Sl.
No. 644. He also took a photocopy of the said GPA and blank
stamp paper and sent the same to the plaintiff along with a
covering letter, signed by him at Point 'A', through a special
messenger by hand, which were already on the record as Ex.
CW-1/G (Colly).
117. He further deposed that Late Sh. Inder Raj Kapoor never
required any financial assistance or the alleged loan amount of
Rs. 10,00,000/- for any purpose. He deposed that Late Sh. Inder
Raj Kapoor did not execute the demand promissory note Ex.
PW-1/A, and the same did not contain the signatures of Late Sh.
Inder Raj Kapoor at point 'A'.
118. He further stated that a person of Late Sh. Inder Raj
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Kapoor's status would have never gone personally to purchase
stamp papers at an unknown place in Delhi and also get the same
typed from an unknown place.
119. He further deposed that Late Sh. Inder Raj Kapoor was too
ill on 01.12.1998 to have even gone to Delhi and was present in
Mumbai on the said date.
120. He deposed that the alleged memorandum of deposit of
title deeds dated 29.05.2000, Ex. PW-1/B, had been forged by the
plaintiff by using the bank stamp paper bearing Sl. No. 644 dated
12.05.2000, which had been sent by him to the plaintiff, under
the instruction of Late Sh. Inder Raj Kapoor.
121. He further stated that Ex. CW-1/D, Ex. CW-1/E and Ex.
CW-1/F were not the original documents and seemed to be
coloured Xerox copies, as the suit property had already been sold
out by using the original title deeds.
122. He further stated that no amount was ever paid by Late Sh.
Inder Raj Kapoor to the plaintiff as interest, as claimed.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
123. He deposed that in January, 2000 Late Sh. Inder Raj
Kapoor fell seriously ill and was not even in a position to go to
Court at Andheri (East), Mumbai on his own and further that it
was against his nature as well. He deposed that the plaintiff's
version of Late Sh. Inder Raj Kapoor having gone to Andheri
(East) on 12.05.2000 to purchase two stamp papers and again on
29.05.2000 for purpose of purchasing three stamp papers was
false.
124. The witness D1W1 relied on the following document:
a. Ex. CW-1/G, i.e. the carbon copy of letter dated
12.05.2000, along with the annexures, i.e. GPA on stamp
paper of Rs. 10/-, bearing Sl No. 643 dated 12.05.2000 and
copy of one blank stamp paper of Rs. 10/- bearing Sl. No.
644 dated 12.05.2000.
125. It is pertinent to mention that at the time of tendering of
Ex. D1W1/A, an objection was taken that certain facts in the
affidavit were beyond pleadings, which was objection was
decided by the Court to be taken into consideration at the time of
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
appreciation of evidence.
126. Sh. Nilesh S. Agrawal, D1W1 was cross-examined on
01.11.2017, during which he stated that he had been working as a
P.A. for Late Sh. Inder Raj Kapoor since the year 1984 and his
duties included looking after all his day-to-day work as well as
that of the company. He stated that at present also he was
employed with the company. He stated that there was a computer
in the company in the year 1999 itself. He stated that he had
'little bit' of knowledge relating to the operation of computers.
He deposed that at that time, writing work was taking place on
computer as well as typewriter. He stated that he did not know
how to write on a typewriter. He stated that the suit property was
never in dispute, except some litigation in the High Court with
respect to the occupation by certain tenants. However, he did not
know since when the said litigation was pending, and again
stated that as per his memory, it was pending in the year 1984,
when he had joined the services of Late Sh. Inder Raj Kapoor
and remained pending till his death in the year 2000. He stated
that Late Sh. Inder Raj Kapoor used to come to Delhi in respect
of his litigation with the tenant in the suit property, but did not
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know the name of the advocate engaged by him. He stated that he
was also not aware as to the number of cases pending with
respect to the dispute with the tenants or any other details. He
deposed that however, he was aware of one litigation instituted
by Late Sh. Inder Raj Kapoor before the SCDRC, Mumbai.
127. He further deposed that Late Sh. Inder Raj Kapoor was a
Managing Director in M/s Chromewell Industries Pvt. Ltd.,
however did not know what salary he was drawing in the year
1999/2000 in the said capacity from the Company. He deposed
that there was no loan liability of M/s Chromewell Industries Pvt.
Ltd., from any bank or financial institution and volunteered to
state that there may be loan liability of the family members of
Late Sh. Inder Raj Kapoor in their individual capacity. He stated
that he could bring the balance sheet dated 31.03.2017 of the
company to show that there was no loan liability of the Company.
He stated that during the years 1998 to 2000, there were certain
loan liabilities of the company and he could bring the balance
sheet for the said years. He denied the suggestion that Late Sh.
Inder Raj Kapoor was residing at 49, Parsi Panchayat Road,
Andheri East, Mumbai as tenant and volunteered to state that it
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was occupied by M/s Chrome Well Industries Pvt. Ltd as a
tenant. Thereafter, the further cross-examination of the witness
was deferred.
128. The witness D1W1 was then next cross-examined on
05.12.2017, during which he stated that he had sent the letter Ex.
CW-1/G to the plaintiff and her sister Annie Kohli through
courier, however the receipt of the courier had not been placed on
record since it was destroyed in the office on account of the
floods in Mumbai in the year 2005. He deposed that he did not
know whether Late Sh. Inder Raj Kapoor knew the plaintiff and
her father.
129. He denied the suggestion that Ex. CW-1/G had been
prepared after the institution of the present suit, in collusion with
the defendant no.2. He admitted that the condition of Late Sh.
Inder Raj Kapoor in January, 2000 was good and he also used to
come to the Company office. He stated that he could not tell the
registration number of the Mercedez- Benz registered in the
name of Late Sh. Inder Raj Kapoor. He denied the suggestion
that no such car was registered in his name or that of the
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Company. He stated that he did not have registration papers as
well and the same stood sold to the defendant no.1.
130. He was then asked as to why there was a typed document
annexed with the letter Ex. CW-1/G, while the letter itself was
handwritten, to which he replied that the typed document was the
GPA dated 12.05.2000, which was prepared on the office
computer as per the instructions of Late Sh. Inder Raj Kapoor.
Then he was called by Late Sh. Inder Raj Kapoor to his house,
who gave him the typed document along with a blank stamp
paper of Rs. 10/- and also signed both of them in his presence
and instructed him to send them to Annie Kohli immediately.
Then he prepared the covering letter at home. He denied the
suggestions, that no such document was typed or handed over to
him to be sent to Annie Kohli or that he did not write any such
letter. He further stated that he never had any other
communication with the plaintiff.
131. The witness was also shown the document Ex. D1W1/P1,
on which he admitted his signatures at point A. He further stated
that he did not know if Late Sh. Inder Raj Kapoor was in regular
contact with the plaintiff and her father.
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132. He denied the suggestion that he did not have any
knowledge about the present suit or that he was giving false
evidence to the effect that the demand promissory note did not
bear the signatures of Late Sh. Inder Raj Kapoor.
133. He stated that his assertion in para no.18 of his evidence by
way of affidavit that Ex. PW-1/A and Ex. PW-1/B were typed on
the same typewriter was not based on any expertise, rather on his
observation of the document only. He further stated that his
assertion in para no.19 that documents Ex. PW-1/D, Ex. PW-1/E
and Ex. PW-1/F were coloured xerox copies was also not based
on any expertise but only his observation of the document only.
134. He further stated that he could not say whether Late Sh.
Inder Raj Kapoor had purchased additional stamp papers of Rs.
90/- along with two stamp papers of Rs. 10/- in Mumbai,
however he had purchased two stamp papers of Rs. 10 each in
Mumbai. He stated that the after the demise of Late Sh. Inder Raj
Kapoor, the proceeding at NCDRC came to an end.
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135. He stated that he could not tell as to when the litigation
with respect to the eviction of tenants from the suit property was
disposed-off as it was a joint property and not an individual case
of Late Sh. Inder Raj Kapoor.
136. He denied the suggestion that the demand promissory note
contained the signatures of Late Sh. Inder Raj Kapoor. He stated
that it was not in his knowledge whether the demand promissory
note was typed on 01.12.1998 at Delhi. At this stage the Court
also made an observation that the witness was being prompted by
his counsel. The witness stated that he did not know what
documents were executed at the time of the sale of the suit
property by the defendants no.1-4 to the defendants no.5-8.
Thereafter, the further cross-examination was deferred.
137. Sh. Nilesh S. Agrawal, D1W1 was then next cross-
examined on 22.02.2018, during which he stated that Late Sh.
Inder Raj Kapoor had three brothers, the name of one of whom
was Sh. Onkar Raj Kapoor and did not know the names of the
other brothers as he had met them occasionally. He stated that he
did not have any knowledge whether Late Sh. Inder Raj Kapoor
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
had the right to mortgage the suit property. He stated that it was
also not within his knowledge whether Late Sh. Inder Raj Kapoor
had made any payment of interest to the plaintiff. He denied the
suggestion that Late Sh. Inder Raj Kapoor had made
arrangements for payment of money to the plaintiff at Delhi. He
stated that the expenses of his travel to Delhi from Mumbai for
deposing in the present case was paid for by Chromewell
Industries. He denied the suggestion that he was deposing falsely
at the behest of the defendant no.2.
138. The witness D1W1 was also cross-examined by the ld.
counsel for the defendants no.5-8 very briefly on 23.04.2018,
during which he admitted that the suit property was a joint family
property held between Late Sh. Inder Raj Kapoor and his three
brothers.
Evidence led by the defendants no.5-8
139. Sh. Sanjay Goswami, Record Attendant in the office of the
Sub-Registrar-V, Mehrauli, Delhi was summoned as witness
D5W1, who brought the summoned record, i.e. Registered sale
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
deed dated 31.03.2004, bearing registration no. 3844 in Book No.
1, Vol No. 3928 at pages 91-123, with respect to the suit property
executed in favour of the defendant no.8. He stated that in the
absence of the certified copy of the same, he could not identify it
and it was exhibited as Mark X. The original record was placed
on record as Ex. D5/W1 (OSR).
140. The witness D5W1 was also cross-examined by the ld.
counsel for the plaintiff on 08.12.2016 itself, during which he
stated that was in the said office for the past one year and was not
working there at the time of the registration of the sale deed and
was not aware about the documents which were taken at the time
of registration of the sale deed and volunteered to state that it had
been done by the Sub-Registrar concerned. He stated that he was
not aware whether any GPA had been annexed with the sale deed.
141. The defendants no.5-8 next summoned Ms. Sujata Wadera,
Superintendent, Land and Development Office, Delhi as
summoned witness D5W2, who brought the summoned record,
i.e. copy of the agreement for lease dated 25.03.1952 executed
on behalf of the President of India in favour of Sh. Gauri Shankar
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Kapoor as Ex. D5W2/A (OSR); the perpetual lease deed dated
25.03.1952 as Ex. D5W2/B (OSR); the plan of the land lease as
Ex. D5W2/C (OSR); Mutation letter dated 16.051962 as Ex.
D5W2/D (OSR); the perpetual lease deed dated 20.08.1962 as
Ex. D5W2/E (OSR) and the plan of the land as Ex. D5W2/F
(OSR). The substitution letter dated 05.04.2002 issued by the
Deputy Land and Development Officer on behalf of the President
of India as Ex. D5W2/G (OSR). The conveyance deed dated
15.01.2003 converting the property to freehold as Ex. D5W2/H
(OSR). She deposed that the document was executed on
25.03.1952 and Sh. Gauri Shankar Kapoor was mentioned as the
'intended lessee' as he was required to raise the construction
within two years. She deposed that the perpetual lease deed dated
20.08.1962, Ex. D5W2/E (OSR) was executed as construction
had been raised on the land in question.
142. The summoned witness D5W2 was cross-examined by the
ld. Counsel for the plaintiff on 05.12.2-17 itself, during which
she stated that a leasehold property is converted to freehold by
filling a form and submitting it, which is then put to scrutiny and
on the payment of the requisite charges. She stated that original
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
documents were required only when the conveyance deed is to be
executed. She stated that on conversion to freehold, the perpetual
lease deed is then converted into the conveyance deed. The
witness was then shown the documents Ex. CW-1/F, Ex. CW-1/E
and Ex. CW-1/D. She stated that the documents Ex. CW-1/D and
Ex. CW-1/E were present in her file. However, stated that the
document Ex. CW-1/F was present in her file, but the signatures
at point X in her file were different. She was then asked whether
the said documents, Ex. CW-1/D, Ex. CW-1/E and Ex. CW-1/F
were originals or not, to which she stated that she did not know
and could neither affirm nor deny the same.
143. The summoned witness D5W2 was also cross-examined
by the ld. Counsel for the defendants no.1 - 4 on 05.12.2-17
itself, in which she stated that the perpetual lease document was
always prepared in four sets and one copy of the same was
placed in the official file. She stated that signatures of the parties
are also obtained on the perpetual lease deed. She also stated that
after signatures had been affixed, no new signatures could be
added or removed. She deposed that the signatures on the
document Ex. CW-1/F appeared not to tally with the same on her
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
file. She again reiterated that she could not comment whether the
documents Ex. CW-1/D, Ex. CW-1/E and Ex. CW-1/F were
originals or xerox coloured copies. Thereafter, she was
discharged as a witness.
144. The defendant no.6, Sh. Partha Sarthi Bose stepped into
the witness box as D5W4 and tendered his evidence by way of
affidavit on 10.10.2022 in which he deposed that he was the Joint
Managing Director of the defendant no.8 company. He deposed
that the defendant no.8 was the absolute owner of the suit
property, having purchased the same vide a registered sale deed
dated 31.03.2004, after due diligence and inspection of all the
records and was a bona fide purchaser. He also categorically
stated that he was in possession of the original perpetual sale
deed and could produce the same in Court, if directed. He stated
that there was no application, notice, entry or stipulation found in
any records with the L&DO or the Sub-Registrar Delhi of the
alleged mortgage in favour of the plaintiff with respect to the suit
property. Rather, the due diligence conducted prior to the
purchase of the suit property revealed that:
a. By virtue of a perpetual lease deed dated 25.03.1952, the
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
President of India, through the L&DO granted lease hold
rights in respect of the residential plot of the suit property
to one Sh. Gauri Shankar Kapoor, who constructed a
double storey building on the said land.
b. The said Sh. Gauri Shankar Kapoor expired intestate on
28.10.1958, leaving behind his four sons, namely Sh. Tilak
Raj Kapoor, Sh. Prithvi Raj Kapoor, Sh. Inder Raj Kapoor
and Sh. Onkar Raj Kapoor. Hence, the suit property
devolved on all his sons in equal shares.
c. The leasehold rights in respect of the aforesaid plot of
land was also mutated by the L&DO in the joint names of
all four legal heirs vide the L&DO letter no.
Allot.4/171(99)/60 dated 16.05.1962. Further, vide an
indenture dated 20.08.1962, the L&DO transferred the
Leasehold rights to the plot of land in favour of the
aforesaid four brothers.
d. On 29.08.1991, Sh. Tilak Raj Kapoor expired intestate
leaving behind Smt. Kamal Mohini Kapoor (widow), Sh.
Gopal Raj Kapoor, Sh. Shiv Raj Kapoor and Sh. Vishnu
Raj Kapoor, who succeeded to his 1/4th share in the suit
property equally.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
e. On 17.12.1991, Sh. Prithvi Raj Kapoor also expired
intestate, leaving behind Smt. Sushila Kapoor (widow), Sh.
Sanjeev Raj Kapoor, Sh. Rajesh Raj Kapoor and Ms. Priya
Kapoor, who succeeded to his 1/4th share in the suit
property equally.
f. On 21.06.2000, Sh. Inder Raj Kapoor also died intestate,
leaving behind Smt. Kamla Kapoor (widow/defendant
no.1), Sh. Udai Kapoor (son/defendant no.3), Sh. Sanjay
Kapoor (son/defendant no.2) and Sh. Nikhil Kapoor
(son/defendant no.4), who succeeded to his 1/4th share in
the suit property equally.
g. Hence, the plot of land and superstructure of the suit
property came to be absolutely owned by: (i) Sh. Onkar
Raj Kapoor; (ii) Lrs of Late Sh. Tilak Raj Kapoor; (iii) Lrs
of Late Sh. Prithvi Raj Kapoor and (iv) Lrs of Late Sh.
Inder Raj Kapoor, having 1/4th undivided share therein
(vendors).
145. He stated that all the aforesaid co-sharers of the suit
property entered into four separate registered agreements to sell
with M/s N.P.M.G Developers Ltd., for sale of the entire said
property (including the leasehold rights).
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
146. Thereafter, the aforesaid plot of land was converted to
'freehold' by the L&DO in the joint names of the vendors and a
registered conveyance deed dated 25.01.2003 was also executed
by the L&DO in favour of the vendors . He deposed that he was
also in possession of the original conveyance deed dated
25.01.2003 and submitted that he could produce the same in
Court, if directed to do so.
147. Thereafter, the vendors and the confirming party executed
a registered sale deed dated 31.03.2004 in favour of the
defendant no.8, which was now the lawful and absolute owner of
the same.
148. He deposed that the due diligence and verification
conducted in the records of the L&DO etc., did not reveal the
creation of any alleged mortgage having been created by Late Sh.
Inder Raj Kapoor. There was no notice, entry or stipulation in
any record with the L&DO or Sub-Registrar, Delhi in respect of
the suit property. He also stated that there was no record of any
request by Late Sh. Inder Raj Kapoor or any of the other co-
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
owners seeking permission to create a mortgage over the suit
property as well and that the defendant no.8 was therefore a bona
fide purchaser of the suit property and denied that there was any
collusion.
149. He further stated that in the year 2005, the defendant no.8
demolished the existing super-structure on the suit property and
constructed a new building from its own funds.
150. The defendant no.6/D5W4 relied on the following
documents in support of his case:
a. Copy of the registered sale deed dated 31.03.2004
executed in favour of the defendant no.8 company as Ex.
D5W-4/1 (OSR).
151. The defendant no.6/D5W4 was cross-examined by the ld.
Counsel for the plaintiff on 10.10.2022, during which he deposed
that he was residing at the suit property since the year 2008 and
was the Joint Managing Director of the defendant no.8 company.
He stated the suit property was being utilized as a shared office
cum residence. He stated that he did not remember whether the
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
notice dated 03.04.2017 under Order 12 rule 8 CPC was received
by him and confirmed that the address mentioned therein was his
correct address. He stated that the signatures at point B on the
same did not belong to him. He denied the suggestion that he had
no authority to depose in the present suit or that there was no
board resolution to this effect as well. Thereafter, the further
cross-examination of the witness was deferred due to lack of
time.
152. The defendant no.6/D5W4 was next cross-examined by the
ld. Counsel for the plaintiff on 16.03.2023, during which he
deposed that he had not brought the authority letter in his favour
and volunteered to state that he had not been asked to produce
the same. He denied the suggestion that he had not produced the
board resolution or authority letter in his favour as there was
none. He denied the suggestion that there was no completion
certificate issued by the competent authority and stated that he
did not remember the date of the issuance of the completion
certificate, but could check his records and produce the same.
The witness also produced the original perpetual lease deed dated
23.05.1952 and stated that he will have to check his records
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
whether he also had the original lease deed dated 20.08.1962. He
stated that the copy of the original perpetual lease deed dated
20.08.1962 had been already exhibited as Ex. D5W2/H. He was
then asked whether any NOC had been taken from the Kapoor
family before commencing the new construction in the year
2005, to which he stated that the permission was taken by the
technical team.
153. He denied the suggestions that the defendant no.8 was not
the bona fide purchaser and in connivance with the defendants
no.1-4 had purchased the suit property. He also denied the
suggestion that the construction was done without the requisite
permissions, in the absence of the perpetual lease deed dated
20.08.1962 or that the site plan had not been passed. He also
denied the suggestion that no due diligence was done by the
defendants no.5-8. He also denied the suggestion that the
defendants no.5-8 were aware of the fact that the suit property
had been mortgaged with the plaintiff by Late Sh. Inder Raj
Kapoor. He denied the suggestion that he had not brought all the
original documents as demanded in the notice under Order 12
rule 8 CPC and stated that he did not receive the said notice.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Thereafter, the witness was discharged.
154. Vide separate statement of the ld. Counsel for the
defendants no.5-8, the defendants closed their evidence on on
16.03.2023 and the matter was listed for final arguments.
ARGUMENTS OF THE PARTIES
Arguments of the ld. Counsel for the plaintiff
155. The Ld. counsel for the plaintiff, Ms. Indira Marla, has
argued that the original demand promissory note dated
01.12.1998, executed by Late Sh. Inder Raj Kapoor in favour of
the plaintiff, has been placed on record as Ex. CW-1/A and the
signatures of Late Sh. Inder Raj Kapoor have been proved by the
sister of the plaintiff Ms. Annie Kohli/PW-2, who was witness to
the same.
156. She has further argued that the memorandum of deposit of
title deeds dated 29.05.2000, Ex. CW-1/B already stands proved
as the signatures of Late Sh. Inder Raj Kapoor have been
admitted by the defendant no.2 in his statement under Order X
CPC recorded on 01.02.2011. Further, the General Power of
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Attorney, Ex. CW-1/C has also been admitted by the defendant
no.2 in his statement under Order X CPC. The perpetual lease
deed dated 20.08.1962, Ex. CW-1/D has also been admitted by
the defendant no.2. The site plan, Ex. CW-1/E and addition to the
perpetual lease deed, Ex. CW-1/F have also been admitted by the
defendant no.2.
157. Ld. Counsel for the plaintiff has further argued that the
cross-examination of the plaintiff by the defendants no.1-4 and
the defendants no.5-8 did not elicit any material inconsistency.
Rather, the defendants no.1-4 have introduced a completely new
defence for the first time during the cross-examination of the
plaintiff/PW-1 on 10.09.2015 that the demand promissory note,
Ex. CW-1/A and the memorandum of deposit of title deeds, Ex.
CW-1/B were typed on the same typewriter at Delhi, which
question was also disallowed by the Court at that time. The said
defence also does not find mention in their written statement and
is therefore beyond pleadings.
158. It is further argued that the defendants no.1-4 were also
granted permission to examine a hand-writing expert, however
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
no expert evidence was led by them and instead multiple
frivolous applications were filed by them.
159. The ld. Counsel for the plaintiff has further argued that the
expert witness Ms. Poonam Saini, PW-3 has also proved her
report as Ex. PW-3/1 and she has only been cross-examined by
the ld. Counsel for the defendants no.1-4 and no cross-
examination was carried out on behalf of the defendants no.5-8,
despite opportunity given.
160. The ld. Counsel for the plaintiff has further argued that the
defendant no.2/Sh. Sanjay Kapoor filed his evidence by way of
affidavit on record, however did not step into the witness box.
Further, the P.A. of Late Sh. Inder Raj Kapoor, i.e. Sh. Nilesh S.
Agrawal was examined as D1W-1, who relied on Ex. CW-1/G
(Colly), i.e. carbon copy of an alleged letter dated 12.05.2000
alongwith annexures, i.e. GPA executed by Late Sh. Inder Raj
Kapoor and one blank stamp paper of Rs. 10/- bearing Sl no. 644,
signed by him at point X. He was confronted with Ex. D1W1/P1
(OSR), i.e. Letter dated 29.06.2000 sent by him to the plaintiff.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
161. The ld. Counsel for the plaintiff has further argued that
with respect to the issue no.1, i.e. "Whether plaintiff has
suppressed material fact and hence not entitled for the relief
claimed? OPD, the onus of the said issue was on the defendants,
who have not led any evidence to prove the same, whereas the
plaintiff has proved her case in her favour and withstood the
extensive cross-examination by the defendants. The plaintiff has
duly proved the giving of the loan, the execution of the
promissory note Ex. CW-1/A and the memorandum of deposit of
title deeds Ex. CW-1/B. On the other hand, the witness D1W1
Nilesh S. Agrawal has given contrary statements as to how he
had sent the letter dated 12.05.2000. In his evidence by way of
affidavit, it is stated that it was sent by special messenger by
hand, whereas in his cross-examination dated 05.12.2017, he has
asserted that it was sent by courier and the receipt of the same
was since lost. There is no explanation as to why the said letter
was sent to Annie Kohli and not the plaintiff. Further, he could
not depose anything with respect to the financial status of Late
Sh. Inder Raj Kapoor or his earnings. He stated that he had no
communication with the plaintiff and thereafter admitted that he
had sent the letter Ex. D1W1/P1 to her. Further, he also gave
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
contrary statements with respect to the purchase of stamp papers.
The witness also has not deposed anywhere that no money was
ever lent by the plaintiff to Late Sh. Inder Raj Kapoor. The
defendants have also not been able to explain as to how the
plaintiff was in possession of the original perpetual lease deed
dated 20.08.1962. In light of the above, the issue no.1 is liable to
decided against the defendants.
162. With respect to the issues no.2 and 3, i.e. " 2. Whether
plaintiff is not entitled to enforce the equitable mortgage
allegedly executed in his favour? OPD" and "3. Whether Plaintiff
is entitled for decree of sale of mortgaged property i.e. Plot
No.99, Sunder Nagar, New Delhi for recover of loan amount?
OPP", the ld. Counsel for the plaintiff has argued that the suit of
the plaintiff is within limitation, by relying on article 62 of the
Limitation Act, 1963. Further, the mortgage of deposit of title
deeds, Ex. CW-1/B did not require any registration and the
decision of the Hon'ble Supreme Court in Rachpal Maharaj vs.
Bhagwan Das Daruka and Ors. was relied upon. It was further
submitted that with respect to the contention of the defendants
that the prior permission of the lessor/L&DO had not been taken
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
as required under clause 13 of the lease deed, it was submitted
that the property was admittedly made freehold and hence the
said clause did not apply anymore. Even otherwise, it was
submitted that lack of prior permission was not a condition
precedent for grant of decree. The decisions of the Hon'ble High
Court of Delhi in Vinod Singh vs. Smt. Phutori Devi; SBI vs
Narender Anand and Ors. were relied upon. It was also submitted
that as per section 48 of the Transfer of Property Act, 1881 the
subsequent purchaser was bound by the mortgage created in
favour of the plaintiff. The decision of the Hon'ble High Court of
Delhi in Punjab National Bank vs Orkids and Ors, 2000 (53)
DRJ 231 was relied upon.
163. The ld. Counsel for the plaintiff has further argued that the
promissory note, Ex. CW-1/A also was sufficiently stamped as
per article 49 of the Indian Stamp Act, 1889 which only required
a stamp duty of 25 paise on a demand promissory note exceeding
Rs. 1,000/- whereas it in the present case, it had been executed on
a stamp paper of Rs. 10/-. The decision of the Hon'ble High
Court of Delhi in R. Gowrishanker and Ors vs. Narain Jewellers,
bearing CS (OS) No. 1588/2001, decided on 26.08.2009 was
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
relied upon.
164. The ld. Counsel for the plaintiff has further argued that
even the contention of the defendants no.5-8 with respect to the
suit property having been redeveloped fails as the charge over the
land still subsisted in favour of the plaintiff. Further, the plaintiff
has also duly valued the present suit and paid the appropriate
court fees thereon.
165. With respect to issues no.1A and 1B, i.e. "1A. Whether
plaintiff had never given sum of Rs. 10 lacs to late Inder Raj
Kapoor with interest and whether the promissory note dt
01.12.98 is forged and fabricated? OPD" and "1.B Whether late
Inder Raj Kapoor had sent a power of attorney along with a blank
stamp paper of Rs. 10 bearing No. 644 on 12.05.2000 which was
misused by Plaintiff and fabricated in mortgage
deed/memorandum of deposit of Title Deeds, if so to what effect?
OPD", the onus of the said issues was on the defendants no.1-4,
who have miserably failed to prove the same. The witness D1W1
Nilesh S. Agrawal has made contradictory statements with
respect to the mode in which the letter dated 12.05.2000 was sent
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
by him to the plaintiff. Further, the original of the said letter has
also not been produced, and there is no explanation as to why it
has been sent to Annie Kohli instead of the plaintiff.
166. Hence, it is submitted that the plaintiff has duly proved her
case and is entitled to the reliefs sought by her in the plaint.
Arguments of the ld. Counsel for the defendants no.1-4
167. Sh. Mohd. Ali, ld. counsel for the defendants no.1-4 has
argued that where a separate memorandum of deposit of title
deed is executed, evidencing the deposit of the title deeds and
also incorporating the terms of the bargain, it is required to be
compulsorily registered under section 17 of the Registration Act.
He relied on the following judgments in support of his
submissions:
a) State of Haryana & Ors vs. Narvir Singh, (2014) 1 SCC
105.
b) Sh. Ishwar Dass Malhotra vs Sh. Dhanwant Singh and
Ors, (1984) 26 DLT 377.
c) Madan Lal Sobti vs RSIDIC LTD., (2006) 135 DLT
554.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
d) Rachpal Maharaj vs. Bhagwan Das Daruka & Ors,
(1950) SCC 195.
e) United Bank of India vs. Lekhram Sonaram and Co and
Ors., AIR 1965 SC 1591.
f) Allahabad Bank vs Shivganga Tubewell, AIR 2014 Bom
100.
g) Hubert Peyoli vs Santhavilasathus K. Sivadasam , AIR
1998 Ker 344.
h) Rangabati vs United Bank of India, AIR 1961 Pat 158.
168. It is submitted that in the present case, the alleged
memorandum of deposit of title deeds, Ex. CW-1/B, represents a
complete bargain as the terms of the mortgage have been reduced
into writing. The complete details of the property along with the
details of it's registration have been mentioned. It has been
executed on a non-judicial stamp paper of Rs. 10/- in order to
make it authentic and enforceable. It mentions the principal loan
amount and the rate of interest @ 12% p.a. . The document Ex.
CW-1/B thus represents an integral part of the transaction and is
a complete contract, which itself creates the rights and liabilities
and reduces the terms of the contract. Further, the present suit has
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
been filed on the basis of the memorandum of deposit of title
deeds and not the promissory note.
169. It is further submitted that as per para 13 of the perpetual
lease deed dated 20.08.1962, Ex. CW-1/D, it is specifically
provided that the lessee is required to obtain the approval in
writing before any assignment or transfer of the premises. In the
present case, it is an admitted fact that no such approval or
permission had been taken by Late Sh. Inder Raj Kapoor to
create the alleged mortgage in favour of the plaintiff. The suit
property in question was a leasehold property at the relevant time
and thus governed by the terms of the lease deed, Ex. CW-1/D.
170. It is further argued that Late Sh. Inder Raj Kapoor was
only having 1/4th undivided share in the suit property and could
not have created the mortgage without obtaining the consent of
the other co-owners. The provisions of section 7 read with
section 44 of the Transfer of Property Act, 1881 were relied on. It
is also submitted that the perpetual lease deed dated 20.08.1962,
Ex. CW-1/D clearly records that Late Sh. Inder Raj Kapoor was
only a co-owner of the said property, which was well within the
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knowledge of the plaintiff and also admitted by her in her cross-
examination. Further, the plaintiff has also prayed for the sale of
the entire suit property, despite having the knowledge that Late
Sh. Inder Raj Kapoor only had 1/4th undivided share therein.
Hence, the suit of the plaintiff was liable to be dismissed on this
ground alone.
171. It is further submitted that the plaintiff had only placed on
record a Xerox copy of the perpetual lease deed dated 20.08.1962
and hence no relief could be granted on the said basis. Moreover,
the suit property at present had been sold to the defendant no.8,
who had completely redeveloped the same by constructing a
multi-storey building.
172. It was also submitted that the alleged cash loan of Rs.
10,00,000/- by the plaintiff to Late Sh. Inder Raj Kapoor was in
violation of section 296SS of the Income Tax Act, 1961. Even
otherwise, the plaintiff had no financial capacity to lend such a
huge amount as she has admitted that she was only earning from
tuitions given to about 25-30 children, earning about Rs. 300/-
per child, i.e. approximately around Rs. 10,000/- to Rs. 12,000/-
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per month. The plaintiff was also admittedly not an income tax
payee/assesse and did not even have a bank account. Hence, it
was impossible for her to have lent such a huge amount. Further,
the plaintiff has also failed to show any documentary proof of
any interest having been paid to her, either by Late Sh. Inder Raj
Kapoor of the defendants no.1-4 at any time.
173. Moreover, the plaintiff had the knowledge that Late Sh.
Inder Raj Kapoor only had 1/4th undivided share in the suit
property and at no time communicated the fact of the alleged
mortgage having been created over the suit property to any of the
other co-owners.
174. It was also submitted that the plaintiff had filed the present
suit on the basis of forged documents. The stamp paper of Rs.
10/-, on which Ex. CW-1/B has been typed, was purchased by
D1W1 Neelesh S Agrawal himself and sent to the plaintiff.
175. It was submitted that in light of the above, the suit of the
plaintiff be dismissed with cost.
Arguments of the ld. Counsel for the defendants no.5-8
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176. Sh. Abhay Raj Verma and Sh. Arjun Rekhi, ld. counsels for
the defendants no.5-8 have argued that the suit of the plaintiff be
dismissed as it is barred by limitation and further, no title deeds
of the suit property as such were deposited with the plaintiff. The
defendants no.8 company had also purchased the same vide sale
deed dated 31.03.2004, Ex. D5W1/1, in good faith and for valid
consideration. It is submitted that the plaintiff has filed the
present suit on the basis of an alleged promissory note dated
01.12.1998, Ex. CW-1/A and hence the suit will be governed by
Article 35 of the Limitation Act, 1963 which prescribes a
limitation period of three years from the date of the bill/note.
Hence, the limitation period stood expired on 30.11.2001.
Reliance was placed on the judgment of the Hon'ble High Court
of Madras in S.K. Rajendran vs. K. Sathivel,
MANU/TN/2371/2011, in which it was held that where a suit
was based on a promissory note, and a subsequent unregistered
memorandum of deposit of title deeds, the limitation period was
only three years.
177. It was further submitted that the alleged memorandum of
deposit of title deeds was allegedly executed on 29.05.2000, i.e.
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less than a month before the death of Late Sh. Inder Raj Kapoor.
Further, the said memorandum of deposit of title deeds required
mandatory registration. The judgment of the Hon'ble Apex Court
in Rachpal Maharaj vs. Bhagwandas Daruka, 1950 SCC Online
SC 13, was relied upon. Moreover, the alleged memorandum of
deposit of title deeds, Ex. CW-1/B refers to a perpetual lease
deed dated 15.12.1962, whereas there was no such document of
that date relating to the suit property in existence. Further, the
document in possession of the plaintiff was merely an indenture
to the original perpetual lease deed dated 25.03.1952, Ex.
D5W2/A, which was in possession of the defendants no.5-8. The
site plan of the property relied upon by the plaintiff, Ex. CW-1/E
was also at variance with the plan of the land, i.e. Ex. D5W2/C
and Ex. D5W2/F as produced by the summoned witness from the
Land and Development Office.
178. It was also submitted that the plaintiff had failed to plead
or other-wise establish that the alleged mortgage deed was
created in one of the territories specified in section 58 (f) of the
Transfer of Property Act. The promissory note was also not
properly executed or stamped.
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179. It was also submitted that no mortgage could have been
created in favour of the plaintiff without the prior permission of
the concerned authority as the suit property was a lease hold
property. There was also no record of any mortgage in the
records of the L&DO or the concerned Sub-Registrar. The
defendant no.8 was a bona fide purchaser of the suit property and
hence entitled to the protection of section 53 of the Transfer of
Property Act. The defendants no.5-8 relied on the following
judgments in support of their arguments:
a) Rajeswari and Co. vs. The Union of India, 1972 SCC
OnLine Mad 138.
b) Baldev Raj Jaggi vs. National Agricultural Cooperative
Marketing Federation of India Ltd., ILR (2014) II Delhi
1022.
c) Showtech Stone International Pvt. Ltd vs. Deputy
Commercial Tax Officer-I, 2014 SCC OnLine Hyd 666.
d) V.M. Salim vs. Fathima Muhammed, 2011 15 SCC 756.
180. It was further submitted that as the plaintiff has forged
documents in her favour, she was not entitled to any relief.
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Further, the judgments relied upon by the plaintiff did not have
any application to the case at hand.
181. I have heard the arguments of the parties and have perused
the entire record and shall now proceed to decide the issues
framed in the present suit.
ISSUE-WISE FINDINGS ALONGWITH REASONS
Issues no.1A, 2 and 3
182. I shall first decide issues no.2 and 3, which are reproduced
below for the sake of convenience:
1A. Whether plaintiff had never given sum of Rs.
10,00,000/- to Late Inder Raj Kapoor with interest and
whether the promissory note dated 01.12.1998 is forged
and fabricated? OPD
2. Whether plaintiff is not entitled to enforce the equitable
mortgage allegedly executed in his favour? OPD.
3.Whether plaintiff is entitled for decree of sale of
mortgaged property i.e. Plot no.99, Sunder Nagar, New
Delhi for recovery of loan amount? OPP.
183. The plaintiff's case is that she had given a sum of Rs.
10,00,000/- to Late Sh. Inder Raj Kapoor as a loan, along with
interest @ 12% p.a., on 01.12.1998, in lieu of which a
promissory note dated 01.12.1998 (Ex. CW-1/A) was also
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executed by him in her favour.
184. At the outset, I must point out that the defendant no.2 has
denied the signatures of his father Late Sh. Inder Raj Kapoor at
point 'X' on the promissory note, Ex. CW-1/A in his statement
recorded by the Court under Order X of the CPC dated
01.02.2011. Hence, it was incumbent upon the plaintiff to prove
that Late Sh. Inder Raj Kapoor had executed the said promissory
note dated 01.12.1998, Ex. CW-1/A in favour of the plaintiff, or
in the alternative that she had given an amount of Rs. 10,00,000/-
in cash to Late Sh. Inder Raj Kapoor on 01.12.1998.
Whether the plaintiff has proved the execution of the demand
promissory note dated 01.12.1998, Ex. CW-1/A by Late Sh. Inder
Raj Kapoor.
185. In order to prove the signatures of Late Sh. Inder Raj
Kapoor on the demand promissory note, Ex. CW-1/A, the
plaintiff mentioned the names of both the witnesses, i.e. her own
sister Annie Kohli (PW-2) and a so-called 'assumed sister' Mrs.
Gurcharan Kaur. However, only her sister Annie Kohli was
examined as PW-2 and the other witness Mrs. Gurcharan Kaur
was not examined by her, despite being mentioned as a witness in
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the list of witnesses dated 24.02.2011, filed by her.
186. Although a promissory note is not a document which
requires compulsory attestation by any witness, however where
such a document is attested by witnesses, their evidence is to be
led in order to prove the execution of the document. It would be
appropriate at this stage to discuss the evidence led by the
plaintiff and her sister Annie Kohli (PW-2), with respect to the
facts leading to the execution of the promissory note dated
01.12.1998, Ex. CW-1/A.
187. The plaintiff has stated in para no.5 of her evidence by
way of affidavit, Ex. PW-1/AA, that it was in December, 1998
that Late Sh. Inder Raj Kapoor had asked her father, S. Harnam
Singh Kohli for financial help, and on his inability, the plaintiff
became ready to advance a loan to Late Sh. Inder Raj Kapoor
"looking to the close friendship between Late. Inder Raj Kapoor
and her father".
188. However, during the plaintiff's cross-examination dated
30.07.2012 by the ld. counsel for the defendants no.5-8, she
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improved her version and vaguely stated that "In the last week of
September-December, 1998 Mr. Kapoor asked for loan from me.
I gave my consent to give loan to Mr. Inder Raj Kapoor in the
last week of November, 1998". The plaintiff has further stated in
her cross-examination dated 04.04.2015 that her sister Ms. Annie
Kohli was aware of the factum of loan of Rs. 10,00,000/-.
However, Annie Kohli (PW-2), however stated in her cross-
examination dated 13.02.2012 that prior to 01.12.1998, she was
not aware of the decision of the plaintiff to loan the amount of
Rs. 10,00,000/- to Late Sh. Inder Raj Kapoor. During her cross-
examination dated 23.05.2011, she also stated that she was not
aware on 01.12.1998 that Sh. Inder Raj Kapoor had come to their
house on that day specifically to receive money. It seems
unnatural that the plaintiff would not even confide in her own
real sister, who was also admittedly giving her money from time
to time, that she was going to loan such a huge amount of Rs.
10,00,000/- to Late Sh. Inder Raj Kapoor, which was her entire
life savings at that time.
189. Further, even if the plaintiff's version is assumed to be
correct, it also seems out of place that the plaintiff's own father,
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
S. Harnam Singh Kohli, did not sign the promissory note dated
01.12.1998, Ex. CW-1/A, as a witness even though it was him
who was admittedly a close friend of Late Sh. Inder Raj Kapoor
and had been approached first for the said loan,. Further, the
plaintiff's father was also allegedly present in the house at the
time of the disbursal of the loan on 01.12.1998 and the
discussions also having taken place in his presence. The plaintiff
has also admitted during her cross-examination dated 13.08.2013
that she only knew Late Sh. Inder Raj Kapoor in the capacity of
her father's friend and had no close familiarity or friendship with
him or his wife or children. In the cross-examination of the
plaintiff dated dated 04.04.2015 she stated that "It is wrong to
suggest that the promissory note Ex. CW-1/8 on record has been
forged and fabricated by me later on. It is wrong to suggest that
my father refused to sign the promissory note merely because the
same was forged and fabricated. Vol. My father merely stated
that was a transaction of loan in between the children and that is
why, he merely avoided to sign on the promissory note ". Again
during her cross-examination dated 26.11.2013, the plaintiff
stated "My father did not sign the document because of (h)is
close relationship Shri Inder Raj Kapoor and because other two
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have signed". The said explanation of the plaintiff is not
convincing and raises doubts since it was the plaintiff's father
who was the friend of Late Sh. Inder Raj Kapoor. Further, Late
Sh. Inder Raj Kapoor had first approached the plaintiff's father
for the loan, who declined citing his inability to give the same. It
was the plaintiff's father who suggested to Late Sh. Inder Raj
Kapoor to approach his daughter for the loan. The plaintiff's
father was present at the time of the giving of the loan and the
terms and conditions were also discussed in his presence. The
plaintiff herself had no personal relationship with Late Sh. Inder
Raj Kapoor and only knew him through her own father. It seems
completely unnatural and against the course of natural expected
conduct that the plaintiff's father would avoid to sign on the said
document as a witness. Hence, the omission of the father of the
plaintiff as a witness on the promissory note, Ex. CW-1/A raises
doubts on the authenticity of the said document.
190. Further the plaintiff has stated in her cross-examination
dated 30.07.2012 that "I gave my consent to give loan to Mr.
Inder Raj Kapoor in the last week of November, 1998. In
November, 1998 when I consented to give money to Mr. Inder
Raj Kapoor refused to take the delivery as he was not carrying
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any briefcase etc. There was no other reason not to hand over the
money on that day. I also wanted to count the money and keep
the bundles ready". Hence, as per the plaintiff's own version she
was ready to hand over the money to Late Sh. Inder Raj Kapoor
in the last week of November, 1998 itself; however has then
stated that "The terms and conditions were settled on first
December, 1998 when the loan amount of disbursed.".... "On
1/12/1998 the terms and conditions for loan were discussed in 5
to 7 minutes. It was agreed that he would pay the interest at 12%
per annum and if he fails to pay the interest for 3 months, he will
pay quarterly extra interest on Rs. 30,000/-". The above
statements of the plaintiff are inconsistent when judged in the
light of conduct expected from a reasonable person in the place
of the plaintiff. It again seems improbable that the plaintiff was
ready to hand over her entire life savings of Rs. 10,00,000/- in
the last week of November, 1998 itself, however would then
supposedly wait till 01.12.1998 to discuss the terms and
conditions and the interest amount thereon and also would
demand the execution of a promissory note from Late Sh. Inder
Raj Kapoor on 01.12.1998. The said fact also casts further doubt
on the version of the plaintiff.
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191. Although the plaintiff's own sister Ms. Annie Kohli
(PW-2) has deposed that she was present at the time of the
execution of the promissory note, Ex. CW-1/A and that Late Sh.
Inder Raj Kapoor has executed the same in her presence and the
loan of Rs. 10,00,000/- was also given by the plaintiff in her
presence; the testimony of a witness is to be weighed by the
Court and also must be supported by the surrounding facts of the
case. While it is correct that the testimony of witness is not to be
rejected merely because they are related to the plaintiff, however,
the evidence led by such witness must inspire confidence and
must be corroborated by the supporting and surrounding facts of
the case. As already pointed out, there are material
inconsistencies and improbabilities in the version of the plaintiff
and that of her sister Annie Kohli PW-2, with respect to the
execution of the promissory note dated 01.12.1998, Ex. CW-1/A
by Late Sh. Inder Raj Kohli. Further, the plaintiff has not
examined the other witness to Ex. CW-1/A, i.e. Ms. Gurcharan
Kaur, their so-called 'assumed sister' despite having named her
in the list of witnesses. In fact, an adverse inference is liable to be
drawn against the plaintiff for not examining the said witness Ms.
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Gurcharan Kaur as per section 114 (g) of the erstwhile Indian
Evidence Act, 1872 presently section 119 (g) of the Bhartiya
Sakshya Adhiniyam, 2023.
192. The plaintiff has also led the evidence of a handwriting
and fingerprint expert, PW-3 Ms. Poonam Sahni, having her
chamber/office at Tis Hazari Court itself, who deposed that she
had examined the signatures of Late Sh. Inder Raj Kapoor on Ex.
CW-1/A and compared the same with his admitted signatures on
the memorandum of deposit of title deeds, Ex. CW-1/B and the
GPA, Ex. CW-1/C as well as the perpetual lease deed dated
20.08.1962, Ex. CW-1/D. She relied on her report prepared in
this regards as Ex. PW-3/1. The said expert witness stated that
she was an M Sc. in forensic science and also a law graduate and
had received training in this field from 'an Expert of Delhi Ms.
R. K. Vij' and had worked as a handwriting expert and fingerprint
expert for over 7 years. However, did not mention from which
institute she had received the aforementioned degrees or the year
in which she was awarded the same. Further, no copy of her
professional degrees was also placed on record by her. She
further stated that she had given opinion/evidence in a large
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number of cases in different courts of law, however no details of
the same were also provided by her. No educational or
professional qualifications of the said Ms. R. K. Vij were also
placed on record by her.
193. She admitted in her cross-examination dated 16.12.2015
that when she took the photographs of the documents Ex. PW-3/2
to Ex. PW-3/15, the originals were not in the judicial file and the
same had been produced by the plaintiff.
194. In her report Ex. PW-3/1, she mentioned at page no.2 that
"I have very carefully examined and compared both the set of
signatures with the aid of necessary scientific instruments and
prepared their enlarged photographs", however did not reveal
anywhere in her report as to what the said 'necessary scientific
instruments were'. She herself quoted one Mr. M.K. Mehta from
his book titled "Identification of Handwriting and Cross-
Examination of Experts" at page 65 that "The handwriting of
certain individuals undergoes a gradual change whilst that of
others shows a rapid change with the passage of time, and it is
also affected by physical and muscular weakness intervening
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between the date of an earlier writing and the date of the
subsequent one. The standards of a remote period may not,
therefore, contain the similar traits and the conclusion may well
be erroneous. It is, therefore, desirable that as far as possible the
standards written close to the period of the disputed writing
should be available for comparison". She has then gone on to
opine "(b) The examination of disputed signature shows that this
has been written with good speed and flow and by a skilled
writer. The line quality of disputed signature is food and free
from defects of forgeries like suspicious hesitation, tremor,
unnecessary pen lifts etc." in conclusion, the said PW-3 has
opined " On the cumulative effect of the reasons stated above, I
am of the opinion that the disputed signatures of Inder Raj
Kapoor, (Q-1) on demand promissory note
195. The Hon'ble Apex Court has held in the decision of State
of H.P. v. Jai Lal and Ors., (1999) 7 SCC 280 that Section 45 of
the Evidence Act which makes opinion of experts admissible,
lays down that when the court has to form an opinion upon a
point of foreign law, or of science, or art, or as to identity of
handwriting or finger impressions, the opinions upon that point
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of persons specially skilled in such foreign law, science or art, or
in questions as to identity of handwriting, or finger impressions
are relevant facts. Therefore, in order to bring the evidence of a
witness as that of an expert it has to be shown that he has made a
special study of the subject or acquired a special experience
therein or in other words that he is skilled and has adequate
knowledge of the subject. Hence, an expert witness has to first
satisfy the Court with respect to their professional qualifications
and experience in the given field. However, in the present case,
the witness PW-3 has not placed on record any of her
professional degrees or the details of the cases in which she has
deposed.
196. Further, the expert witness PW-3 has not disclosed as to
what scientific instruments were used by her in making the
comparison of the disputed signature of Late Sh. Inder Raj
Kapoor.
197. The Hon'ble Apex Court has held in the decision of Magan
Bihari Lal vs State of Punjab, bearing C.A. No. 22 of 1976,
decided on 15.12.1977 that the evidence of an expert is just an
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opinion and is not a substantive piece of evidence. Rather, it must
be substantially corroborated by other evidence. The Courts must
exercise caution while accepting the testimony of an expert
witness.
198. In the decision of Murari Lal v. State of M.P., (1980) 1
SCC 704, the Hon'ble Apex Court has observed that the evidence
of a hand-writing expert is merely an opinion and further the
science of identification of hand-writing is an imperfect science,
which is subject to human error and is fallible and the Courts
must exercise caution, while accepting the same. It has been held
as follows:
4. We will first consider the argument, a stale argument often heard,
particularly in Criminal Courts, that the opinion-evidence of a
handwriting expert should not be acted upon without substantial
corroboration. We shall presently point out how the argument cannot
be justified on principle or precedent. We begin with the observation
that the expert is no accomplice. There is no justification for
condemning his opinion-evidence to the same class of evidence as
that of an accomplice and insist upon corroboration. True, it has
occasionally been said on very high authority that it would be
hazardous to base a conviction solely on the opinion of a
handwriting expert. But, the hazard in accepting the opinion of any
expert, handwriting expert or any other kind of expert, is not because
experts, in general, are unreliable witnesses -- the quality of
credibility or incredibility being one which an expert shares with all
other witnesses -- but because all human judgment is fallible and an
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expert may go wrong because of some defect of observation, some
error of premises or honest mistake of conclusion. The more
developed and the more perfect a science, the less the chance of an
incorrect opinion and the converse if the science is less developed
and imperfect. The science of identification of finger-prints has
attained near perfection and the risk of an incorrect opinion is
practically non-existent. On the other hand, the science of
identification of handwriting is not nearly so perfect and the risk is,
therefore, higher. But that is a far cry from doubting the opinion of a
handwriting expert as an invariable rule and insisting upon
substantial corroboration in every case, howsoever the opinion may
be backed by the soundest of reasons. It is hardly fair to an expert to
view his opinion with an initial suspicion and to treat him as an
inferior sort of witness. His opinion has to be tested by the
acceptability of the reasons given by him. An expert deposes and not
decides. His duty "is to furnish the Judge with the necessary
scientific criteria for testing the accuracy of his conclusion, so as to
enable the Judge to form his own independent judgment by the
application of these criteria to the facts proved in evidence" [ Vide
Lord President Cooper in Davis v. Edindurgh Magistrate, 1953 SC
34 quoted by Professor Cross in his Evidence] .
5. From the earliest times, courts have received the opinion of experts.
As long ago as 1553 it was said in Buckley v. Rice-Thomas [(1554) 1
Plowden 110] :
"If matters arise in our law which concern other sciences or faculties,
we commonly apply for the aid of that science or faculty which it
concerns. This is a commendable thing in our law. For thereby it appears
that we do not dismiss all other sciences but our own, but we approve of
them and encourage them as things worthy of commendation."
6. Expert testimony is made relevant by Section 45 of the Evidence Act
and where the Court has to form an opinion upon a point as to identity of
handwriting, the opinion of a person "specially skilled" "in questions as to
identity of handwriting" is expressly made a relevant fact. There is nothing
in the Evidence Act, as for example like Illustration (b) to Section 114
which entitles the Court to presume that an accomplice is unworthy of
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credit, unless he is corroborated in material particulars, which justifies the
court in assuming that a handwriting expert's opinion in unworthy of credit
unless corroborated. The Evidence Act itself (Section 3) tells us that "a fact
is said to be proved when, after considering the matters before it, the Court
either believes it to exist or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case, to act upon the
supposition that it exists". It is necessary to occasionally remind ourselves
of this interpretation clause in the Evidence Act lest we set an artificial
standard of proof not warranted by the provisions of the Act. Further, under
Section 114 of the Evidence Act, the Court may presume the existence of
any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct, and public and private
business, in their relation to facts of the particular case. It is also to be
noticed that Section 46 of the Evidence Act makes facts, not otherwise
relevant, relevant if they support or are inconsistent with the opinions of
experts, when such opinions are relevant. So, corroboration may not
invariably be insisted upon before acting on the opinion of an handwriting
expert and there need be no initial suspicion. But, on the facts of a particular
case, a court may require corroboration of a varying degree. There can be no
hard and fast rule, but nothing will justify the rejection of the opinion of an
expert supported by unchallenged reasons on the sole ground that it is not
corroborated. The approach of a court while dealing with the opinion of a
handwriting expert should be to proceed cautiously, probe the reasons for
the opinion, consider all other relevant evidence and decide finally to accept
or reject it.
(Emphasis supplied)
199. In the present case, the facts surrounding and leading to
the execution of the disputed document, Ex. CW-1/A raise doubts
on the execution of the same by Late Sh. Inder Raj Kapoor.
Hence, I am of the considered opinion that the testimony of the
expert evidence, Ms. Poonam Saini (PW-3) adds little weight to
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the evidentiary scales in favour of the plaintiff.
200. Hence, in light of the above reasons, I find that the plaintiff
has failed to prove that the promissory note dated 01.12.1998,
Ex. CW-1/A was executed by Late Sh. Inder Raj Kapoor.
Whether the plaintiff has otherwise proved that she had given a
loan of Rs. 10,00,000/- to Late Sh. Inder Raj Kapoor on
01.12.1998.
201. Accordingly, it now remains to be seen whether the
plaintiff has otherwise proved that she had given a loan of Rs.
10,00,000/- to Late Sh. Inder Raj Kapoor on 01.12.1998. The
plaintiff has stated in her cross-examination dated 30.07.2012
that she was a home tutor and was giving tuition to around 20-25
children, which would increase to about 25-30 children around
the time of examinations. She has stated that she used to charge
an amount of Rs. 250-300/- per month from each child, and
would charge an extra Rs. 50-100/-. Even if the version of the
plaintiff is accepted to be correct, the monthly earning of the
plaintiff, at best, comes to only around Rs. 12,000/- per month
(30 children x Rs. 400/- per child). Further, the plaintiff has also
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
stated that in the year 1996, she had purchased an LIG flat
bearing no. 107-B, Rajouri Garden, Delhi out of her own
earnings, for an amount of Rs. 80,000 - Rs. 90,000/-. Even if it is
assumed that the entire amount was being saved by the plaintiff,
and she was also financially supported by her sister, her modest
monthly earning raises a big question mark on the financial
capacity of the plaintiff to have lent a huge amount of Rs.
10,00,000/- in cash to Late Sh. Inder Raj Kapoor on 01.12.1998.
202. The plaintiff has also admitted in her cross-examination
dated 30.07.2012 that she was not an income tax assesse and had
never paid income tax. Further, that she used to maintain an
annual record of her earnings from tuitions, however she did not
have the said records with her anymore. She also admitted that at
present also she was earning the same amount from her tuitions,
but when asked for the records, she stated that she was not
maintaining the same by giving a vague explanation that since
"the students are of higher classes". It seems improbable that
despite the passage of more than fourteen years, the plaintiff
would be earning the same amount from her alleged home
tuitions. The plaintiff has also stated that she was receiving all
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
the amounts from her earnings from home tuitions in cash and
used to keep the said money in her personal cupboard. The
version of the plaintiff that she would keep such a huge amount
of Rs. 10,00,000/- in her cupboard seems improbable, when
tested on the balance of probabilities. Any reasonable person, in
possession of such a large amount of Rs. 10,00,000/-, which
represented their entire life savings, would keep the same safely
deposited in a bank account and would not keep it lying around
in their cupboard at home in cash. The plaintiff has also not even
deposed any details as to what amounts were given to her by her
family members over time.
203. Further, during her cross-examination dated 06.03.2013,
the plaintiff has also admitted that she did not execute any
receipts for any alleged interest amounts paid to her by Late Sh.
Inder Raj Kapoor or the defendants no.1-4 at any time. She also
admitted that she had never maintained any record of any interest
amount paid to her. She also could not tell how many times Late
Sh. Inder Raj Kapoor had visited Delhi to pay the interest to her
or even in which month in the year 1999, interest was last paid to
her by Late Sh. Inder Raj Kapoor. The plaintiff has also admitted
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
during her cross-examination dated 26.11.2013 that she did not
have any documentary proof of payment of interest by either
Late Sh. Inder Raj Kapoor or the defendants no.1-4.
204. Further, during her cross-examination dated 04.04.2015,
the plaintiff has stated that the first interest amount was paid by
Late Sh. Inder Raj Kapoor in the year 1999 in cash, but she could
not remember the exact date or month. She also could not
remember the amount paid as the first interest on the alleged
loan. She stated that an interest amount of Rs. 10,000/- had been
paid by the defendants no.1-4 in cash in May, 2000 and the same
was sent to her at Delhi through some messenger, which fact had
not been mentioned by her in her plaint or evidence by way of
affidavit, Ex. PW-1/AA. She also did not state in her plaint or
evidence by way of affidavit, Ex. PW-1/AA that the interest for
the months of June, July, August and September, 2000 was sent
by the defendants no.1-4 to her through some messenger. She
also otherwise admitted that she did not even know the name of
the said messenger.
205. It seems highly improbable that the plaintiff, who had
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
allegedly lent the amount of Rs. 10,00,000/- on an interest of
12% p.a. and insisted on a written promissory note from Late Sh.
Inder Raj Kapoor, would then be so causal in keeping track of the
interest amounts paid thereon and not even insist on any
documentary proof with respect to their payments in the form of
any receipts.
206. Hence, I find that the plaintiff has also failed to otherwise
prove that she had the financial capacity to lend an amount of Rs.
10,00,000/- in cash to Late Sh. Inder Raj Kapoor or that the said
amount was ever given on loan by her to Late Sh. Inder Raj
Kapoor on 01.12.2008.
Whether a valid mortgage over the suit property could have been
created by Late Sh. Inder Raj Kapoor in favour of the plaintiff by
deposit of title deeds.
207. Although the plaintiff has failed to prove the existence of
a prior debt, I shall momentarily keep the same aside and
examine whether a valid equitable mortgage could have been
created by Late Sh. Inder Raj Kapoor in favour of the plaintiff. It
is also an admitted fact that the suit property was a leasehold
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
property, for which a agreement for lease dated 25.03.1952, Ex.
D5W2/A (OSR) and perpetual lease deed, Ex. D5W2/B (OSR),
were executed in the name of the President of India in favour of
Late Sh. Gouri Shankar Kapoor. It is also not in dispute that Late
Sh. Gouri Shankar Kapoor expired intestate on 28.10.1958,
leaving behind his four sons namely, Sh. Tilak Raj Kapoor, Sh.
Prithvi Raj Kapoor, Sh. Inder Raj Kapoor and Sh. Onkar Raj
Kapoor. The said leasehold rights thus devolved on all the above
persons in 1/4th equal shares. Further, vide an indenture deed
dated 20.08.1962, Ex. CW-1/D, the L&DO transferred the
leasehold rights in favour of all the four brothers. Hence, at the
time of the alleged creation of the mortgage, Late Sh. Inder Raj
Kapoor was only having 1/4th undivided share therein and could
not have created a mortgage over the entire suit property as
claimed by the plaintiff. Further, the plaintiff has also admitted in
her cross-examination dated 10.09.2015 that after reading the
perpetual lease deed dated 20.08.1962, Ex. CW-1/D that Late Sh.
Inder Raj Kapoor was not the sole owner of the property in
question and he was only having 1/4th share therein. She also
admitted that she did not issue any notice to the other co-owners
of the property at any time or even enquire from them whether
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
the property had been mortgaged by Late Sh. Inder Raj Kapoor
with their consent.
208. Further, it is also an admitted fact that the original
agreement for lease deed dated 25.03.1952 and perpetual lease
deed, Ex. D5W2/B (OSR) executed in the name of Late Sh.
Gouri Shankar Kapoor was not deposited with the plaintiff and
she is only in possession of a later indenture deed 20.08.1962,
Ex. CW-1/D, whereby the leasehold rights over the suit property
stood devolved upon Late Sh. Inder Raj Kapoor along with his
three brothers. In the absence of the original agreement for lease
dated 25.03.1952 and perpetual lease deed, Ex. D5W2/B (OSR)
executed in the name of Late Sh. Gouri Shankar Kapoor having
been deposited with the plaintiff, it cannot be said that the
complete 'documents of title to immovable property' as required
under section 58 (f) of the Transfer of Property Act, 1882 were
deposited with the plaintiff, so as to create a mortgage by way of
deposit of title deeds.
209. Further, a bare perusal of the perpetual lease deed, Ex.
D5W2/B (OSR) executed in the name of Late Sh. Gouri Shankar
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Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
Kapoor as well as the later indenture deed 20.08.1962, Ex.
CW-1/D reveals that it is specifically provided that prior to any
assignment of transfer of the premises, the lessee was required to
obtain from the Lessor it's approval in writing for the same.
Admittedly, no such prior approval by Late Sh. Inder Raj Kapoor
taken from the L&DO, with respect to creation of the mortgage
in favour of the plaintiff has been placed on record. Hence, even
as per the terms of the lease, no mortgage by deposit of title
deeds could have been created without the prior written
permission of the Lessor/L&DO. The relevant clauses of the two
lease deeds are reproduced below:
Perpetual lease deed executed in the name of Late Sh. Gouri Shankar
Kapoor, Ex. D5W2/B (OSR):
2. The Lessee for himself, his heirs, executors, administrators and
assigns covenant with the Lessor in manner following (that is to say)
-
...
(13) The Lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lessor or the Chief Commissioner of Delhi or such officer or body as the Lessor may authorise in this behalf approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs of the Lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefor.
Perpetual lease deed 20.08.1962, Ex. CW-1/D III. The Lessee for himself, his heirs, executors, administrators and assigns covenants with the Lessor in manner following (that is to CS DJ no.615817/2016 Page 123/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors say) -
...
(13) The Lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lessor or such officer of body as the Lessor may authorise in this behalf approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs of the Lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefor.
210. The judgment of the Hon'ble High Court of Delhi in Vinod Singh vs Phutori Devi, C.S. (OS) No. 2904/1996, decided on 10.02.2006, relied upon by the plaintiff pertains to passing of a decree in a suit for specific performance, in which it was held that permission from the DDA is not a condition precedent and is therefore distinguishable on facts. The judgment of SBI vs Narender Anand, 2001 SCC OnLine Del 1550 also does not support the proposition as canvassed by the plaintiff.
Whether the memorandum of deposit of title deeds dated 29.05.2000 is compulsorily registrable under the Registration Act, 1908.
211. It would be useful to reproduce the contents of the memorandum of deposit of title deeds dated 29.05.2000, Ex.
CS DJ no.615817/2016 Page 124/139Tejinder Kaur Kohli vs. Kamla Kapoor and Ors CW-1/B at this stage:
*** MEMORANDUM OF DEPOSIT OF THE TITLE DEEDS WITH MISS TEJINDER KOHLI D/o S. HARNAM SINGH KOHLI, R/o FLAT NO. 38-D, VIKASPURI EXTN., PKT-A, OUTER RING ROAD, NEW DELHI - 110018 This is to confirm that I, Inder Raj Kapoor, S/o Sh. Gauri Shankar Kapoor, C/o CHROMEWELL INDUSTRIES P. LTD, at Plot No. 49, Parsee Panchayat Road, Bombay deposited with Ms Tejinder Kaur Kohli, on 29.05.2000, the Perpetual Deed relating to my Property Plot No. 99, Block No. 171, measuring 0.179 Acres, situated in New Capital of Delhi now known as Sunder Nagar, registered as No. 8815, in Additional Book No.1, Volume No. 905, on pages 178 to 181 on 15.12.1962, with an intent to create an equitable mortgage over the said property in her favour as Security for the due payment of Rs. 10,00,000/- (Rupees Ten Lacs only) along with interest @ 12% per annum given to me as loan, as per Demand Promissory Note dated 1.12.1998.
I hereby agree to execute at my cost in your name whenever required by you, a registered mortgage over the said property in such form and with such powers of sale etc. as may be required securing the above loan.
Yours faithfully (Inder Raj Kapoor) ***
212. The Hon'ble Supreme Court has held in the decision of State of Haryana v. Narvir Singh, (2014) 1 SCC 105 that where the terms and conditions of the bargain are reduced into writing CS DJ no.615817/2016 Page 125/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors in the form of a memorandum of deposit of title deeds, which is the sole evidence of the transaction, the same would require registration under the Registration Act. It has been held as follows:
"10. A mortgage by deposit of the title deeds is sanctioned by law under Section 58(f) of the Transfer of Property Act in specified towns, the same reads as follows:
"58.'Mortgage', 'mortgagor', 'mortgagee', 'mortgage money' and 'mortgage deed' defined.--(a)-(e)***
(f) Mortgage by deposit of title deeds.--Where a person in any of the following towns, namely, the towns of Calcutta, Madras and Bombay and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title deeds."
11. A mortgage inter alia means transfer of interest in the specific immovable property for the purpose of securing the money advanced by way of loan. Section 17(1)(c) of the Registration Act provides that a non- testamentary instrument which acknowledges the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extension of any such right, title or interest, requires compulsory registration. A mortgage by deposit of title deeds in terms of Section 58(f) of the Transfer of Property Act surely acknowledges the receipt and transfer of interest and, therefore, one may contend that its registration is compulsory. However, Section 59 of the Transfer of Property Act mandates that every mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument. In the face of it, in our opinion, when the debtor deposits with the creditor title deeds of the property for the purpose of security, it becomes a mortgage in terms of Section 58(f) of the Transfer of Property Act and no registered instrument is required under Section 59 thereof as in other classes of mortgage. The essence of a mortgage by deposit of title deeds is the handing over, by a borrower to the creditor, the CS DJ no.615817/2016 Page 126/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors title deeds of immovable property with the intention that those documents shall constitute security, enabling the creditor to recover the money lent. After the deposit of the title deeds the creditor and borrower may record the transaction in a memorandum but such a memorandum would not be an instrument of mortgage. A memorandum reducing other terms and conditions with regard to the deposit in the form of a document, however, shall require registration under Section 17(1)(c) of the Registration Act, but in a case in which such a document does not incorporate any term and condition, it is merely evidential and does not require registration.
12. This Court had the occasion to consider this question in Rachpal Mahraj v. Bhagwandas Daruka [1950 SCC 195 : AIR 1950 SC 272] and the statement of law made therein supports the view we have taken, which would be evident from the following passage of the judgment: (AIR p. 273, para 4) "4. A mortgage by deposit of title deeds is a form of mortgage recognised by Section 58(f) of the TP Act, which provides that it may be effected in certain towns (including Calcutta) by a person 'delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon'. That is to say, when the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under Section 59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under Section 17 of the Registration Act, 1908, as a non-testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title deeds and yet may not be registrable."
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13. This Court while relying on the aforesaid judgment in United Bank of India Ltd. v. Lekharam Sonaram & Co. [AIR 1965 SC 1591] reiterated as follows: (AIR p. 1593, para 7) "7. ... It is essential to bear in mind that the essence of a mortgage by deposit of title deeds is the actual handing over by a borrower to the lender of documents of title to immovable property with the intention that those documents shall constitute a security which will enable the creditor ultimately to recover the money which he has lent. But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. It follows that in such a case the document which constitutes the bargain regarding security requires registration under Section 17 of the Registration Act, 1908, as a non-testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. If a document of this character is not registered it cannot be used in the evidence at all and the transaction itself cannot be proved by oral evidence either." ...
14.5. By way of abundant caution and at the cost of repetition we may, however, observe that when the borrower and the creditor choose to reduce the contract into writing and if such a document is the sole evidence of the terms between them, the document shall form an integral part of the transaction and the same shall require registration under Section 17 of the Registration Act."
213. The Hon'ble High Court of Delhi in Ishar Dass Malhotra v.
Dhanwant Singh, 1983 SCC OnLine Del 284 : AIR 1985 Del 83 :
(1984) 26 DLT 377 has held that where a memorandum of deposit of title deeds mentions the amount of loan, rate of interest and details of the property in respect of which 'equitable CS DJ no.615817/2016 Page 128/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors mortgage' is stated to have been already created, the same is compulsorily registrable. The relevant portion is reproduced below as follows:
"8. The expression 'equitable mortgage' does not find mention in the T.P. Act, 1882. S. 58(f) of the Act describes mortgage by deposit of title deeds. It is as good as any other mode of creating a legal mortgage whereunder there will be transfer of interest in the property mortgaged to the mortgagee. The expression 'equitable mortgage' which is known in the English law is loosely used to mean a mortgage by deposit of title deeds. Rather it can be said that in India a mortgage by deposit of title deeds is commonly known as an equitable mortgage but its incidents are not the same as that of an equitable mortgage under the English law. In K.J. Nathan v. S.V. Maruthi RaoAIR 1965 SC 430, distinction between an equitable mortgage, as understood in the English law, and the mortgage by deposit of title deeds has been brought out by the Supreme Court. Subba Rao, J., (as his Lordship then was) speaking for the Court, observed as under:--
"Under this definition (referring to S. 58(f) of the T.P. Act) the essential requisites of mortgage by deposit of title deeds are, (i) debt, (ii) deposit of title deeds and (iii) an intention that the deeds shall be security for the debt. Though such a mortgage is often described as an equitable mortgage, there is an essential distinction between an equitable mortgage as understood in English law and the mortgage by deposit of title deeds recognised under the T.P. Act in India. In England an equitable mortgage can be created either, (1) by actual deposit of title-deeds in which case parol evidence is admissible to show the meaning of the deposit and the extent of the security created, or (2) if there be no deposit of title-deeds, then by a memorandum in writing, purporting to create a security for money advanced : see White and Tudor's Leading Cases in equity, 9th edition Vol. 2 at P. 77. In either case it does not operate as an actual conveyance though it is enforceable in equity; whereas under the T.P. Act a mortgage by deposit of title deeds is one of the modes of creating a legal mortgage whereunder there will be transfer of CS DJ no.615817/2016 Page 129/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors interest in the property mortgaged to the mortgagee. This distinction will have to be borne in mind in appreciating the scope of the English decisions cited at the Bar. This distinction is also the basis for the view that for the purpose of priority it stood on the same footing as a mortgage by deed".
It will thus be seen that a mortgage by deposit of title deeds is like any other mortgage and there is a transfer of interest in the property mortgaged to the mortgagee. The question, therefore, of the subsequent purchaser having bought the property subject to a mortgage by deposit of title deeds bona fide, with or without notice, is of no relevance. The subsequent purchaser cannot avoid the mortgage by leading evidence to show that he made all reasonable inquiries to find out if the property was subject to a mortgage by deposit of title deeds or not. S. 48 of the T.P. Act does not admit of any such exception. According to this section, when a person purports to create, by transfer at different times, rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. Further, proviso to S. 48 of the Registration Act enacts that a mortgage by deposit of title deeds shall take effect as against any mortgage deed subsequently executed and registered relating to the same property. Thus, a subsequent sale cannot have priority over a mortgage by deposit of title deeds created before the sale. In my view, therefore, the trial Court fell in an error in holding that Harjeet Singh Dhanjal the subsequent purchaser of the mortgaged property; was not liable on the ground that he took all reasonable care and acted in good faith.
9. Before us the argument proceeded on a different line. It was argued by Mr. C.B. Thanai, learned counsel for Harjeet Singh Dhanjal, that the memorandum (Ex. P-2) was compulsorily registrable under S. 17 of the Registration Act and as the same was not registered, it was in-admissible in evidence and any oral evidence was barred under S. 91 of the Evidence Act. At the time when P-2 was put in evidence it was objected to on the ground of admissibility. The trial Court has not touched this point in its judgment. It is a legal point, and a vexed one. The law relating to registration of a document, like in the instant case, is to be found in S. 59 of the T.P. Act and Ss. 17(b), 48 and 49 of the Registration Act.
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10. There have been quite a number of cases in the High Courts all over the country, some of which reached the Privy Council and the Supreme Court, in which a mortgage, alleged to have been effected by deposit of title deeds, has been accompanied by a written document, and in which a question has arisen as to whether that document was of such a character as to require registration. The decision in each case has turned upon the nature of the document in question. It is, therefore, unnecessary to multiply the authorities, and it would be sufficient if reference is made to some of the cases decided by the Privy Council and the Supreme Court and also to one decision of this Court.
11. In M. Subramanian v. M. L.R.M.. LutchmanAIR 1923 PC 50, it was held that if the memorandum was of such a nature that it could be treated as the contract for the mortgage which the parties considered to be the only repository and appropriate evidence of their agreement, it would be the instrument by which equitable mortgage was created and would come within S. 17 of the Registration Act. Lord Carson, speaking for the Board, observed:--
"Turning to the document itself, one is led to the same conclusion. "We hand you herewith title deeds, etc.... This please hold as security, etc.... Please also hold this as further security." Their Lordships have no doubt therefore that the memorandum in question was the bargain between the parties, and that without its production in evidence the plaintiff could establish no claim, and as it was unregistered it ought to have been rejected."
In Rachpal Mahraj v. Bhagwandas Daruka1950 SCC 195 : AIR 1950 SC 272, the Supreme Court dealt with question of registration of the memorandum given along with the titled deeds. Patanjali Sastri, J. (as his Lordship then was) who spoke for the Court, stated the law as under:--
"When the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under S. 59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the documents will be the sole evidence of its terms. In such a case the deposit and the CS DJ no.615817/2016 Page 131/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under S. 17 Registration Act 1908 as a non- testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. The time factor is not decisive. The documents may be handed over to the creditor along with the title deeds and yet may not be registrable......"
In Sundarachariar v. Narayana AyyarAIR 1931 PC 36 dealing with a memorandum which consisted of a list of the title deeds and contained a recital that 'As agreed upon in person, I have delivered to you the undermentioned documents as security'-the Privy Council held that it recorded particulars of documents which, it stated, had been delivered as security in pursuance of an agreement reached in person. It did not state what were the terms of the agreement nor did it indicate the nature of the matter for which the deeds were deposited as security. Since the memorandum in question did not embody the terms of the agreement between the parties, it was held, that it did not require registration. In Hari Shankar v. Kedar NathAIR 1939 PC 167, the Board was of the opinion that:
--
"....... Where, as here, the parties professing to create a mortgage by deposit of title deeds contemporaneously enter into a contractual agreement, in writing, which is made an integral part of the transaction and is itself an operative instrument and not merely evidential, such a document must under the statute be registered."
In United Bank of India v. Lekharam S. and Co. AIR 1965 SC 1591 the Supreme Court examined the question as to whether the memorandum required registration. It held that:--
"Applying the principle to the present case, we consider that the letter at Ex. 7(a) was not meant to be an integral part of the transaction between the parties. The letter does not mention what was the principal amount borrowed or to be borrowed. Neither does it refer to rate of interest for the loan. It is important to notice that the letter CS DJ no.615817/2016 Page 132/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors does not mention details of title deeds which are to be deposited, with the plaintiff-bank. We are, therefore, of the opinion that the view of the High Court with regard to the construction of Ex.7(a) is erroneous and the document was not intended to be an integral part of the transaction and did not, by itself, operate to create an interest in the immovable property. It follows, therefore, that the documents Ex.7(a) did not require registration under S. 17 of the Registration Act."
In V.G. Rao v. Andhra BankAIR 1971 SC 1613, Hegde, J., while dealing with the law relating to the nature of a memorandum given along with the deposit of title deeds or one filed thereafter, held as under:--
"Therefore, the crucial question is : Did the parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document? If so, the document requires registration. If on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document being merely evidential does not require registration."
In Parkash Dev v. New Bank of India AIR 1968 Delhi 244 a Division Bench of this court held that where the memorandum itself constitutes the bargain, registration is necessary.
12. The question which falls for determination is whether the memorandum (Ex. P-2), having regard to its true construction and the circumstances in which it came into existence and passed into the hands of Malhotra, is an instrument which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, in respect of the property sought to be mortgaged. The memorandum has been reproduced above. It is of the same date on which the loan was raised and a pronote (Ex. P-1) was written by Dhanwant Singh in favour of the plaintiff Malhotra. Though this memorandum refers to the creation of an equitable mortgage it gives the particulars of the bargain/contract between the parties. Also, though it refers to a past transaction, if a reference is made to the statement of Malhotra, it shows that he admits that the pronote (Ex. P-1) and the memorandum (Ex.
CS DJ no.615817/2016 Page 133/139Tejinder Kaur Kohli vs. Kamla Kapoor and Ors P-2) 'were written at one and the same time at my house'. The document was contemporaneously written and cannot be said to record a past transaction. Applying the principles enumerated in the decisions mentioned above, the memorandum (Ex. P-2) contains the terms of the contract between the parties. It mentions the amount of loan, rate of interest and details of the property in respect of which 'equitable mortgage' is stated to have been already created. In my view, the answer would be in the affirmative, and this document required registration and is, therefore, inadmissible in evidence. This, however, does not conclude the matter."
214. In the present case, the alleged memorandum of deposit of title deeds dated 29.05.2000, Ex. CW-1/A contains the entire particulars and details of the property mortgaged. It also mentions the amount of the alleged loan. The rate of interest agreed upon between the parties is also clearly mentioned. It also records an undertaking on the part of Late Sh. Inder Raj Kapoor to execute a registered mortgage deed in favour of the plaintiff in the future. Hence, the said memorandum of deposit of title deeds in the present case incorporates the entire terms and conditions agreed to between the parties, which have been reduced into writing. Therefore, the same would attract compulsory registration under section 17 of the Registration Act 1908 as a non-testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. Resultantly, the said memorandum of deposit of CS DJ no.615817/2016 Page 134/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors title deeds, Ex. CW-1/B would also be excluded from evidence in view of section 49 of the Registration Act.
215. Accordingly, I find that the plaintiff has failed to prove that she had loaned the sum of Rs. 10,00,000/- to Late Sh. Inder Raj Kapoor on 01.12.1998. The plaintiff has also failed to prove that Late Sh. Inder Raj Kapoor had executed a promissory note dated01.12.1998, Ex. CW-1/A her favour. The plaintiff has also failed to prove that a valid equitable mortgage could have been created by Late Sh. Inder Raj Kapoor in her favour. Further, the plaintiff has also failed to prove that she is entitled to a decree of sale of the suit property. Accordingly, the issue no.2 is decided in favour of the defendants. The issue no.3 is decided against the plaintiff. The issue no.1A is decided in favour of the defendants.
Issues no. 1 and 1B
216. I shall next decide issues no.1 and 1B, which is reproduced below for the sake of convenience:
1. Whether the plaintiff has suppressed material facts and hence not entitled for the relief claimed? OPD.
1B. Whether Late Inder Raj Kapoor had sent a power of attorney along with a blank stamp paper of Rs. 10/-
CS DJ no.615817/2016 Page 135/139Tejinder Kaur Kohli vs. Kamla Kapoor and Ors bearing no. 644 on 12.05.2000, which was misused by plaintiff and fabricated in mortgage deed/memorandum of deposit of title deed, if so, to what effect? OPD
217. The witness Sh. Nilesh S Agrawal, D1W1, who was the personal assistant of Late Sh. Inder Raj Kapoor has deposed in his evidence by way of affidavit, Ex. D1W1/A that on the instructions of Late Sh. Inder Raj Kapoor, he had purchased and sent an undated typed and signed GPA on Rs. 10/- stamp paper alongwith another blank stamp paper of Rs. 10/- with the signatures of Sh. Inder Raj Kapoor at the bottom. He deposed that he had purchased two non-judicial stamp papers of Rs. 10/-
bearing Sl. No 643 and 644 both dated 12.05.2000 from Andheri East, Mumbai in the name of the Firm M/s Chromewell. He also deposed that the said GPA was typed on the stamp paper of Rs.
10/- Sl. No. 643/- in which it was mentioned that it was being executed at Delhi. He has also relied on carbon copy of letter dated 12.05.2000 along with copy of annexures, i.e. GPA executed on stamp paper of Rs. 10/- bearing no. 643 and copy of one blank stamp paper of Rs. 10/- bearing no.644 dated 12.05.2000, signed by Late Sh. Inder Raj Kapoor at point X as Ex. CW-1/G (Colly).
CS DJ no.615817/2016 Page 136/139Tejinder Kaur Kohli vs. Kamla Kapoor and Ors
218. A bare perusal of the alleged memorandum of deposit of title deeds dated 29.05.2000, Ex. CW-1/B and the photocopy of the blank stamp paper of Rs. 10/- bearing no.644 dated 12.05.2000, signed by Late Sh. Inder Raj Kapoor at point X reveals that it is the same document on which the alleged memorandum of deposit of title deeds, Ex. CW-1/B has been created. There is no explanation on the part of the plaintiff as to why the personal assistant of Late Sh. Inder Raj Kapoor, D1W1 would be in possession of the photocopy of the blank stamp paper bearing no. 644, on which the the signatures of Late Sh.
Inder Raj Kapoor appear at the exact same point on which the alleged memorandum of deposit of title deeds, Ex. CW-1/B has been created. Further, the plaintiff has only denied the receipt of the document Ex. CW-1/G during her admission and denial of documents on 01.02.2011 and has never denied the signatures of Late Sh. Inder Raj Kapoor on the photocopy of the blank stamp paper bearing no. 644. The inconsistency in the statements of D1W1 statements with respect to the said letter, alongwith the GPA and blank stamp paper, Ex. CW-1/G having been sent by special messenger or by courier is but a minor inconsistency, CS DJ no.615817/2016 Page 137/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors given the fact that the plaintiff has been unable to give any explanation as to why D1W1 was in possession of the photocopy of the blank stamp paper of Rs. 10/-, bearing no. 644 on which Late Sh. Inder Raj Kapoor had signed at the same place on which the alleged memorandum of deposit of title deeds Ex. CW-1/B has been created.
219. In the entire cross-examination of D1W1 carried out on 01.11.2017, 05.12.2017 and 22.02.2018, no question has been put to the witness on this aspect as well. The photocopy of the blank stamp paper of Rs. 10/- bearing Sl No. 644, signed by Late Sh.
Inder Raj Kapoor, Ex. CW-1/G (Colly) casts a big doubt on the version of the plaintiff that the memorandum of deposit of title deeds, Ex. CW-1/B was executed in her presence at Mumbai on 29.05.2000. The plaintiff has failed to discharge the onus cast on her in this regards to explain the same.
220. Hence, it seems reasonably probable that Late Sh. Inder Raj Kapoor had sent Ex. CW-1/G comprising of the letter dated 12.05.2000, along with the general power of attorney executed on stamp paper of Rs. 10/- bearing Sl. No. 643 and blank stamp CS DJ no.615817/2016 Page 138/139 Tejinder Kaur Kohli vs. Kamla Kapoor and Ors paper of Rs. 10/- bearing Sl. No. 644, duly signed by Late Sh.
Inder Raj Kapoor. The version of the defendants no.1- 4 also seems probable that the said signed blank stamp paper of Rs.
10/- bearing Sl. No. 644 was sent in connection with the appeal filed by Late Sh. Inder Raj Kapoor before the NCDRC.
Accordingly, the issues no. 1 and 1B are decided in favour of the defendants.
Relief
221. In view of the foregoing reasons and conclusions, the suit of the plaintiff is dismissed. The costs of the suit are awarded in favour of the defendants no.1 - 8. Decree sheet be drawn up accordingly. File be consigned to the record room after due compliance.
JITEN Digitally signed
by JITEN MEHRA
MEHRA 16:04:08 +0530
Date: 2025.10.09
Announced in the open court (Jiten Mehra)
on 27.09.2025. DJ-10/Central/THC/Delhi.
CS DJ no.615817/2016 Page 139/139