Delhi District Court
Dr. Surendra Kumar Sirpal vs Mr. Rajendra Sirpal on 12 January, 2023
IN THE COURT OF MS. TWINKLE WADHWA:
ADDITIONAL DISTRICT JUDGE 04 - SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
In the matter of:
CS DJ No. 11611/2016
DR. SURENDRA KUMAR SIRPAL,
S/o. Late Mr. Som Raj Sirpal,
Through his Legal Representatives
a. Mrs. Punam Sirpal
b. Mr. Sanjeev Sirpal
c. Ms. Priyanka Sirpal
d. Ms. Shaili Sirpal Ball
R/o. 615, Atlantis Estate-Ways,
Atlantis, Florida-33462 (USA) ........Plaintiff
VERSUS
MR. RAJENDRA SIRPAL,
S/o. Late Mr. Som Raj Sirpal,
R/o. S-331, Greater Kailash-II,
NEW DELHI-110 048 ....Defendant
SUIT FOR POSSESSION, PERMANENT INJUNCTION
AND MESNE PROFITS
Date of institution of suit : 13.07.2009
Judgment reserved on : 04.01.2023
Judgment passed on : 12.01.2023
Final Decision : Decreed
CS DJ No. 11611/2016
CS DJ No. 11612/ 2016
1
AND
In the matter of:
CS DJ No. 11612/2016
MR. RAJENDRA SIRPAL,
S/o. Late Mr. Som Raj Sirpal,
R/o. S-331, Greater Kailash-II,
NEW DELHI-110 048 ........Plaintiff
VERSUS
DR. SURENDRA KUMAR SIRPAL,
S/o. Late Mr. Som Raj Sirpal,
Through his Legal Representatives
a. Mrs. Punam Sirpal
b. Mr. Sanjeev Sirpal
c. Ms. Priyanka Sirpal
d. Ms. Shaili Sirpal Ball
R/o. 615, Atlantis Estate-Ways,
Atlantis, Florida-33462 (USA) ..........Defendant
SUIT FOR CANCELLATION OF GIFT DEED
DATED 13.04.2009
Date of institution of suit : 06.11.2009
Judgment reserved on : 04.01.2023
Judgment passed on : 12.01.2023
Final Decision : Dismissed
CS DJ No. 11611/2016
CS DJ No. 11612/ 2016
2
JUDGMENT
By way of this common judgment, I shall dispose off two cases namely:
i). Suit No. 11611/2016 - Dr. Surendra Kumar Sirpal Vs. Rajendra Sirpal filed by plaintiff against the defendant seeking a decree of possession of the suit property i.e. Ground Floor, Mezzanine Floor, Front Lawn and one Car Parking of the building constructed on Plot No. S-331, Greater Kailash-II, New Delhi in favor of plaintiff and against the defendant.
Also permanent injunction is sought against the defendant thereby restraining him from creating any third party interest in the suit premises.
Also mesne profits/damages @ 60,000/- per month w.e.f. 10.06.2009 is sought from the defendant along with costs of the suit.
ii). Suit No. 11612/2016 - Rajendra Sirpal Vs. Dr. Surendra Kumar Sirpal filed by plaintiff against the defendant seeking cancellation of Gift Deed dt 13.04.2009 in respect of the suit premises.
Case of plaintiff- Dr. Surendra Kumar Sirpal:
1. Present is a suit for possession, permanent injunction and mesne profits filed by plaintiff against the defendant, plaintiff and defendant are real brothers.
2. It is the case of plaintiff that their father Sh. Som Raj Sirpal expired on 13.12.1995 leaving behind two sons, two daughters and his widow Smt. Indra Sirpal. With a CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 3 view to provide residence to his mother, the plaintiff purchased the ground floor of the suit property measuring 296 sq yards comprising of ground floor, Mezzanine Floor, Front Lawn and one Car Parking of the building constructed on Plot No. S-331, Greater Kailash-II, New Delhi, vide sale deed dt 01.04.1998. The entire consideration was paid by the plaintiff. The sale deed was registered by the plaintiff in joint names of himself and his mother Smt. Indra Sirpal. Since the plaintiff is a medical practitioner settled in USA, his mother started residing in the suit property and defendant being her elder son, started residing in the said premises as member of his mother's family.
3. Smt. Indra Sirpal executed a Will dt 25.10.2007 by way of which she bequeathed her share in suit property in favour of plaintiff. It was mentioned in the said Will that this property was purchased by plaintiff out of his own funds. His mother had no source of income. His mother was member of M/s. S.R Sirpal & Sons (HUF). After the death of Smt. Indra Sirpal, the defendant being the eldest son, became karta of HUF but he never paid any amount to his mother out of the income of the said HUF.
4. It is further averred by the plaintiff that on 13.04.2009, a Gift Deed was executed by Smt. Indra Sirpal with respect to her share in the suit property in favour of plaintiff which was duly registered as well. Hence the plaintiff became the exclusive owner of the suit premises.CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 4
Smt. Indra Sirpal, being the mother of plaintiff was residing in the said premises till her death on 14.05.2009.
5. After the death of his mother, the plaintiff requested the defendant to vacate the suit premises as he had no right to reside therein and a notice dt 05.06.2009 was issued by plaintiff against the defendant thereby revoking his licence. But defendant did not vacate the suit premises and rather threatened the plaintiff that he will create third party interest in the suit premises. After giving of legal notice, the defendant has become unauthorised occupant in the suit premises. It is pleaded that the property is situated in Greater Kailash-II and it may fetch rent of Rs. 60,000/- p.m. Hence the plaintiff is claiming mesne profits/damages @ Rs. 2,000/- per day w.e.f. 10.06.2009 beside possession.
6. Also, pending and future interest is claimed till handing over of actual physical possession of the suit property. Hence the present suit is filed for possession and permanent injunction thereby restraining the defendant from creating any third party interest in the suit property and also for mesne profits/damages @ Rs. 60,000/- per month w.e.f. 10.06.2009 alongwith costs of the suit.
7. During the pendency of the suit, the plaintiff expired and his four L.Rs are brought on record. Case of defendant-Rajendra Kumar Sirpal
8. It is the case of defendant that father of the parties was a senior officer in the Govt. of India and was CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 5 appointed as a Director in Air Head Quarters. He retired from services in the year 1972. After retirement, both father and mother were residing with defendant from 1978 onwards. In 1989, another premises no. S-252, First Floor, G.K-II, New Delhi was purchased vide registered sale deed dt 01.11.1989 out of the funds contributed equally by father of the parties, plaintiff and defendant. The money was paid from the bank account of Smt. Indra Sirpal. The defendant was working as a CEO of a large Company and was doing well in his employment. Hence it was decided that the premises be purchased in the name of defendant and mother of the parties namely Smt. Indra Sirpal. This was done so that the house rent be paid by the corporate employer of defendant to the plaintiff for his residence and it would go to late Smt. Indra Sirpal. Hence rent was received in the name of mother of the parties.
9. The above-mentioned premises No. S-252 was sold through registered sale deed dt 04.08.1998. The money received out of the sale proceeds of the said premises was used for the purchase of the suit property at S-331, G.K-II, New Delhi. Further, additional money required to purchase the property at S-331, G.K.-II was arranged by defendant and the plaintiff jointly. The said house was also purchased in the name of plaintiff and Smt. Indra Sirpal. At that time, the relations between the brothers were cordial. Smt. Indra Sirpal, being joint owner of suit property, executed a lease deed dt 01.12.2006 in CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 6 favour of defendant. Copy of the lease deed and rent receipts from 01.12.2006 till 31.05.2009 are filed on record.
10. Smt. Indra Sirpal was an old lady and was having continuous health problems. On 13.04.2009, while the defendant was out of the house for a period of three hours in the late afternoon, the plaintiff forced Smt. Indra Sirpal to sign some blank papers. When the defendant returned home, his mother told him about the unfortunate incident which took place and she informed him that she was never interested in signing the papers. Thereafter Smt. Indra Sirpal issued a public notice in the newspapers reporting the occurrence of the said incident in two newspapers namely Hindu and Veer Arjun dt 24.04.2009. Newspapers are placed on record.
11. It is submitted that the alleged gift deed was obtained by Dr. Surendra Kumar Sirpal in a fraudulent manner. Further Smt. Indra Sirpal never went to Sub Registrar Office on 15.04.2009 to execute the gift deed and she was not in a position to go out of the house on that day at all. Smt. Indra Sirpal died on 14.05.2009.
12. The Will relied upon by the plaintiff has no meaning in the eyes of law. The share of Smt. Indra Sirpal is to devolve upon her successors as per law. Smt. Indra Sirpal executed her last Will on 20.04.2009 which was registered with the Sub Registrar as well. It is further submitted that the defendant is the lawful owner of the premises where he was CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 7 inducted by erstwhile owner Smt. Indra Sirpal.
13. All the averments made by plaintiff are denied by defendant and he had filed a separate suit as well thereby submitting that the Gift Deed in favour of plaintiff has been obtained by him fraudulently, with undue force and influence.
14. Hence a suit is filed by defendant thereby seeking cancellation of Gift Deed dt 13.04.2009 executed by Smt. Indra Sirpal in favour of plaintiff. A decree thereby restraining the defendant from creating any third party interest in the suit premises alongwith costs of the suit is also prayed. Replication of plaintiff
15. It is submitted by the plaintiff that defendant was working in Private Sector as Production Manager till the year 1983-1984. He had serious matrimonial discords and ultimately under a settlement arrived at between him and his wife, he paid a lump sum amount towards alimony to his wife and he separated from his wife in 1983-1984 permanently. Hence the parents of the parties shifted from Delhi to look after the defendant, his son and his household.
16. It is admitted that the first floor of House No. 252, G.K-II, was purchased vide registered sale deed dt 01.11.1989. It is denied that father of the parties had contributed any money for purchasing the said premises. The defendant was working as Production Manager in a company after separation from his wife. He did not have any money to purchase any property. He did not have any money even to pay for his son's education in Australia and plaintiff paid for CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 8 the same from his NRI account. The plaintiff had given an affidavit in November, 1996 to the defendant for submitting it before authorities, copy of which is on record.
17. It is submitted that neither the defendant nor their father contributed any money for purchase of the said premises. The plaintiff is an oncologist, settled in USA and has been practicing there since last 30 years. The premises bearing No. S-252 was purchased by plaintiff in order to provide residential accommodation to his parents. Hence he has included the name of his mother while purchasing the said property.
18. It is reiterated that the entire sale consideration for purchase of S-331, Ground Floor, Greater Kailash-II, New Delhi was given by plaintiff out of his own account. Further as per the own case of defendant, property No. S-252, G.K-II was sold on 04.08.1998 while the suit property was purchased in April, 1998. Hence property No. S-252, G.K-II was sold after purchase of suit property. Hence, its proceeds could not have been utilized for purchase of the suit property. Further since the purchase of the suit property, the defendant had been staying there as a family member with his mother, hence the question of taking suit property on rent does not arise. The lease deed so pleaded by the defendant is alleged to be fake and fabricated one. Further the lease deed is not executed on a stamp paper of requisite value and does not appear to have been registered. Hence it cannot be read in evidence. Further the co-owner does not have any right to let out the property CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 9 owned by him as he is a co-owner only.
19. The Will of Smt. Indra Sirpal and Gift Deed in favour of plaintiff is reiterated. It is denied that the plaintiff had obtained signatures of Smt. Indra Sirpal on some blank papers. All the averments made in the W/S as well as the suit filed by defendant are denied.
ISSUES
20. From the pleadings of the parties in suit titled as "Dr. Surendra Kumar Sirpal Vs. Rajendra Kumar Sirpal" , following issues were framed vide order dt 12.01.2011 :
i). Whether the plaintiff is the owner of the suit property ? If so, whether the plaintiff is entitled to possession of the same ? OPP
ii). Whether the Gift Deed of 13.04.2009 in favour of plaintiff by his mother Smt. Indra Sirpal was fraudulently obtained by the plaintiff ? OPD
iii). Whether the defendant is the lawful tenant in the suit property by virtue of lease deed of 01.12.2006 ? OPD
iv). If the defendant is held to be unauthorised occupant in the suit property, then what damages, for which period, and with what rate of interest the defendant is liable to pay ? OPP
v). Relief.
21. In suit titled as " Rajendra Kumar Sirpal Vs. Dr. CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 10 Surendra Kumar Sirpal" , following issues were framed vide order dt 26.08.2011 :
i). Whether the Gift Deed of 13.04.2009 executed by Late Smt. Indra Sirpal, mother of the parties was got fraudulently executed by the defendant ? OPP
ii). Whether the plaintiff is entitled to the relief of cancellation of the gift deed dt 13.04.2009 ? If so, to what effect ? OPP
iii). Whether the suit filed is not maintainable ? OPD
iv). Whether the plaintiff is entitled to a decree for permanent prohibitory injunction against the defendant ? OPP
v). Relief.
EVIDENCE
22. The plaintiff in support of his case has examined himself as PW1. He tendered his evidence by way of affidavit Ex.PW1/X and relied upon the following documents:
i). Sale deed dt 01.04.1998 Ex.PW1/1
ii). Will dated 25.10.2007 Ex.PW1/2
iii). Gift deed dt 13.04.2009 Ex.PW1/3
iv). Site plan of suit property Ex.PW1/4
23. PW2 is Smt. Anita Nath who is sister of the parties, tendered her evidence by way of affidavit Ex.PW2/X. She is witness to Gift Deed.
CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 1124. PW3 is Sh. Ravinder Dayal who tendered his evidence by way of affidavit Ex.PW3/X. He is a witness to the Will dt 25.10.2007.
25. PW4 is Mr. Jasvir Kumar who tendered his evidence by way of affidavit Ex.PW4/X. He is a witness to the Gift Deed dt 13.04.2009.
26. Defendant in support of his case examined himself as DW1. He tendered his evidence by way of affidavit Ex.DW1/A and relied upon the following documents:
i). Sale Deed Mark DW1/1 ii). Lease Deed Ex.DW1/2 iii). Rent Receipts from Ex.DW1/3
01.12.2006 till
31.05.2009
iv). Notice dt 24.04.2009 Ex.DW1/4
27. DW2 is Sh. Sushil Kumar Nanda. He tendered his evidence by way of affidavit Ex.DW2/A. He identified the signatures of Late Smt. Indra Sirpal on rent receipts Ex.DW2/2 to Ex.DW2/5.
28. DW3 is Sh. Praveen Kumar. He tendered his evidence by way of affidavit Ex.DW3/A. He admitted the signatures as the lease deed dt 01.12.2006-Ex.DW2/1 and identified the signatures of Late Smt. Indra Sirpal on rent receipts Ex.DW2/2 to Ex.DW2/5.
29. To prove that the signatures of Late Smt. Indra Sirpal on Lease deed and rent receipts were forged and fabricated, CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 12 her admitted signatures were sent for comparison to CFSL, Lodhi Road, New Delhi at the instance of plaintiff. As per the report of CFSL dt 20.04.2022, it is not possible to express any opinion regarding the authorship of questioned signatures in comparison with admitted signatures. Hence, as per report, no opinion can be expressed regarding the signatures. FINDINGS OF THE COURT
30. I have heard both the sides and gone through the record of the case.
Sale Deed Of Suit Property Dated 01.04.1998.
31. In the suit filed by Sh. Rajendra Sirpal against his brother Dr. Surendra Kumar Sirpal , Sh. Rajendra Sirpal does not challenge the sale deed of 01.04.1998 pertaining to suit property bearing no. S-331, Ground Floor, Greater Kailash-II, New Delhi by way of which this property was purchased jointly in the name of Dr. Surendra Kumar Sirpal and Late Smt. Indra Sirpal. He has only challenged the gift deed. There is no such prayer sought by the defendant that the sale deed be declared as null and void.
32. Defendant has stated that the suit property at S-
331, Ground Floor, Greater Kailash-II, New Delhi was purchased out of the funds of the property bearing no. S- 252, First Floor, G.K.-II, New Delhi, the said property also stood in the name of Dr. Surendra Kumar Sirpal and Late Smt. Indra Sirpal. However said is a bare averment unsupported with any documentary evidence on record regarding payment. No bank account statement of Late CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 13 Smt. Indra Sirpal has been filed on record to show that she made payment for the purchase of the same. Nothing is filed on record to show that payment received from sale of the property bearing no. S-252, First Floor, G.K.-II, New Delhi was credited in any particular bank account. During cross-examination of PW1, a question was put to him if he has any bank account at Central Bank of India from where payment was made for purchase of property bearing no. S- 252, First Floor, G.K.-II, New Delhi to which plaintiff replied in negative. However it is also not proved on record that it was Late Smt. Indra Sirpal 's bank account at Central Bank of India from which payment was given for purchase of property at property bearing no. S-252, First Floor, G.K.-II, New Delhi. Nor is it proved in which bank account the sale proceeds of sale of the property bearing no. S-252, First Floor, G.K.-II, New Delhi were credited. Further suit property was purchased in April, 1998 while property bearing no. S-252, First Floor, G.K.-II, New Delhi was sold in August, 1998 i.e. after purchase of suit property. In view of the reasons stated above, defendant has failed to prove that suit property was purchased out of the sale proceeds of property bearing no. S-252, First Floor, G.K.-II, New Delhi.
33. Further plaintiff has placed on record his Citi Bank Account statement to show that the entire sale consideration for purchase of this suit property was paid from his bank account. There has been no cross-
CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 14examination on this bank account statement of plaintiff so as to raise any reasonable suspicion regarding the same. This bank account statement is duly proved and exhibited on record.
34. Defendant has not even placed on record photocopy of the said sale deed of property bearing no. S- 252, First Floor, G.K.-II, New Delhi. Further defendant Sh. Rajendra Sirpal claims himself to be the owner of the property on the basis of registered Will executed by Late Smt. Indra Sirpal in his favour but he has never filed original on record nor lead any evidence to prove the said Will.
35. Further registration of a document is a proof that it was validly executed. If a party pleads that it was not validly executed, the burden is on the party to prove the same who avers so. Hence the sale deed being validly registered, there is a presumption in favour of its validity in view of Section 114 E and Indian Evidence Act and in view Section 60 of Registration Act. It was observed in Prem Singh and Others Vs. Birbal & Others (2006) 5 Supreme Court Cases 353 by Hon'ble Supreme Court that :-
" 27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent no. 1 has not been able to rebut the said presumption."
There is nothing on record to raise suspicion on the CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 15 due execution of the sale deed of the suit property.
36. Defendant has tried to establish on record that sale consideration for purchase of suit property was paid out of funds obtained from sale of another property but he failed to prove the same by way of any documentary evidence. On the other hand, Plaintiff has established on record that entire sale consideration for purchase of this property was paid from his own bank account and hence it was obvious for his mother to execute a Will and Gift Deed in his favour. Further how the consideration was paid for execution of this registered sale deed of 1998 becomes unimportant as the document is duly registered. Unless that sale deed would have been subsequently challenged either by defendant, or by the plaintiff thereby claiming himself to be the owner of the entire property, it is immaterial how and from where the sale consideration was paid. Both the parties have cross-examined each others witnesses in detail on the aspect of consideration for the purpose of purchase of suit property. However the sale deed itself is not challenged before the undersigned. Hence how the sale consideration for purchase of the same was paid has become more or less unimportant as far as validity of sale deed is concerned and the rights emanating therefrom in favour of registered owners.
Gift Deed
37. Then defendant has challenged the Gift Deed dated 13.04.2009 executed by Late Smt. Indra Sirpal in CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 16 favour of Dr. Surendra Kumar Sirpal. It is pleaded by defendant that his mother was critically ill on the said date when she was taken to the Sub Registrar's Office for the execution of this gift deed, in the absence of the defendant. On the other hand, it is the case of plaintiff that their mother was not taken to Sub-Registrar's Office, in view of Section 38 of Registration Act, it is the Sub-Registrar who was called at home for the purpose of registration of Gift Deed as their mother was suffering from arthritis problem.
38. It is also argued by defendant that force and undue influence was used to get the Gift Deed executed and also it is pleaded that it is obtained by fraud. Hence it is null and void. To support his case defendant has placed on record photocopy of the newspaper whereby Late Smt. Indra Sirpal has given intimation in the newspaper that her signatures were forcibly obtained.
39. On the one hand, it is pleaded by defendant that Late Smt. Indra Sirpal was not medically fit and was rather critically ill to give willingness to sign this Gift Deed out of her own will, yet a few days thereafter she was fit to give a newspaper intimation that her signatures were forcibly obtained under undue influence and her signatures were obtained on blank paper. It is pertinent to mention here that gift deed is dated 13th April, 2009 and public notice in the newspaper is dated 24 th April, 2009 i.e. just after 10 days. Further it is pleaded by defendant that Late Smt. Indra Sirpal had executed her last Will on 28th April, CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 17 2009 which is registered with sub registrar as well. Though the original Will was never file on record nor has it been proved. On the one hand it is pleaded that she was critically ill on the date of execution of the gift deed but she was perfectly fit to execute a Will on 20.04.2009. The defence taken by the defendant does not inspire any confidence.
40. Further mere giving of newspaper notice is not sufficient to show that the gift deed was not validly executed. Late Smt. Indra Sirpal did not take any steps to manifest her intention to cancel/ revoke the gift deed. She could have filed a civil case, or could have filed a police complaint or any complaint with Sub-Registrar or any other authority to show that her signatures were fraudulently obtained and she had intention to revoke gift deed. But it was not done. Gift deed is a document duly registered in Law. There is a sanctity attached to the registered documents. They are presumed to be validly executed in view of Section 114, Evidence Act, and certificate issued under Section 60 of Indian Registration Act shows that it was validly executed. Mere giving of public notice in a newspaper, even if it is presumed to have been given by Late Smt. Indra Sirpal, is not sufficient to discard the rights which have been created by way of registered gift deed in favour of Dr. Surendra Kumar Sirpal, plaintiff. It was observed in Prem Singh and Others Vs. Birbal & Others (2006) 5 Supreme Court CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 18 Cases 353 that there is a presumption that a registered document is validly executed. The onus to prove otherwise is on a party who pleads so.
41. The gift deed so executed was not a revocable gift deed. Such a gift deed is not revocable solely on the donor's will. In Mool Raj Vs. Jamana Devi AIR 1995 HP 117, the Court observed that unconditional gifts cannot be revoked by a donor. A gift can be revoked by rescission, as in the case of contracts. If it is proved that consent of the donor was not free, it is a ground for revoking the gift. Under Section 126 of Transfer of Property Act, a gift can be revoked on all the grounds on which a contract can be revoked. In such cases, the undue influence, force or coercion not only needs to be specifically and precisely pleaded but also must be proved as well.
42. Further defendant did not deny that the gift deed was executed, he did not deny that his mother did execute this gift deed in presence of Sub-Registrar. The only defence is that it has been registered in his absence and fraudulently obtained. The person who pleads a fraud must prove the same. The act of fraud must be specifically and precisely stated in detail in the pleadings to prove the same. Mere general averments that signatures were obtained on blank papers or that signatures were forcibly obtained or obtained under undue influence or fraud are not sufficient. Whether a person was in a position to CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 19 exercise undue influence or fraud on another person in execution of a document, is a question of fact and a finding thereon is a finding of fact to be arrived at after appreciation of pleadings and evidence of the parties. There are no specific pleadings regarding the manner of undue influence or fraud being practiced upon Late Smt. Indra Sirpal nor the same could be proved by defendant by way of evidence on record. Mere averments in the written statement or oral testimony in the Court is not sufficient to discard validity of this registered gift deed, especially when donor is dead and she did not challenge the gift deed during her lifetime.
43. Further sister of the parties namely Anita Nath deposed before the Court as PW2 and she has been cross examined in detail. She is witness to the gift deed. There is nothing in her testimony to doubt the veracity of her statement made before the Court. Hence the gift deed, it's execution, it's attestation has been duly proved on record by the plaintiff as per Law.
44. Further defendant did not produce any other family member to show that she was critically ill on the date of the execution of the gift deed. No witness is brought to the witness box to show that she was in a unfit mental state for executing the gift deed on the date of its execution. Medical documents of Late Smt. Indra Sirpal are also not filed on record to show that she was critically ill on the date of execution of the gift deed and was also CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 20 not in a fit/ sound state of mind to execute a gift deed. Further mere physical disability may not be sufficient to presume the absence of soundness of mind as well. PW2/ Anita Nath deposed that Late Smt. Indra Sirpal was in a sound state of mind though she was physically unfit.
45. Further the Will executed by Late Smt. Indra Sirpal in favour of plaintiff specifically records that consideration of suit property was paid by plaintiff and mother was merely made a co-owner out of respect.
46. Further the execution of gift deed after the execution of Will dated 25.10.2007 only shows that the donor had manifested her intention to pass on her share in the suit property to the plaintiff firstly by way of Will dated 25.10.2007 and thereafter, by way of a registered gift deed. Further plaintiff has filed on record his bank account statement to show that the entire sale consideration for purchase of suit property was paid out of his bank account. This only shows that the decision of the mother was much probable in view of the fact that consideration for purchase of this property flowed from the bank account of plaintiff. Further the argument of plaintiff that he purchased the suit property partly in the name of his mother out of love and affection appears also much probable as in Indian society, it is not much unheard of, rather it happens often, that a family member may purchase a property in the name of another family member out of love and affection.
47. There is nothing in the cross-examination of CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 21 plaintiff to raise suspicion regarding the execution of Will and gift deed by Late Smt. Indra Sirpal in favour of plaintiff.
48. The execution of gift deed is not disputed. Defendant has only raised a vague and unspecific plea that mother's signature were obtained on blank papers by practicing fraud. Except for giving few suggestions to the plaintiff and other witnesses which have been denied by them, defendant has not been able to raise any substantial suspicion on due execution of gift deed. Defendant has not lead any evidence to discredit the registered gift deed and it remained unchallenged before this Court. On the other hand, plaintiff has proved its due execution that it is a valid gift deed.
WILL
49. Further plaintiff has also filed the original Will in his favour on record dated 25.10.2007 and has also examined one of the witnesses to the Will namely Sh. Ravinder Dayal as PW3 to show that the Will was validly executed by his mother in his favour in the year 2007 .The witness to the Will has been cross-examined in detail. His testimony inspires confidence. Hence the Will in favour of plaintiff is also proved. The execution of gift deed in favour of plaintiff by Late Smt. Indra Sirpal after execution of the Will in favour of plaintiff in 2007 only shows her absolute intention to give her share in the suit property to the plaintiff.
CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 22LEASE DEED
50. The next question is whether defendant can be called a lawful tenant in the property and whether the lease deed executed by Late Smt. Indra Sirpal in favour of defendant is valid.
51. Plaintiff had pleaded that this lease deed and rent receipts filed on record by the defendant are forged documents and do not bear the signatures of Late Smt. Indra Sirpal. The permission was sought from Court to send these original documents along with admitted signatures to CFSL which was allowed. The CFSL report has already been received on record wherein it is mentioned that it is not possible to express any opinion on the signatures. Further DW2/ Sh. Sushil Kumar Nanda and DW3/ Sh. Praveen Kumar have deposed that this lease deed was signed by Late Smt. Indra Sirpal in their presence. Hence it is not proved that the lease deed executed by Late Smt. Indra Sirpal in favour of defendant and the rent receipts are forged documents. However even if these documents are presumed to be genuine, do they create a valid tenancy in favour of defendant is the question on which detailed arguments have been addressed by the Counsels of both the parties.
52. This lease deed is for a period of 20 years. Needless to say a lease deed of more than 11 months is required to be compulsorily registered but this lease deed is not CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 23 registered. Since it was unregistered, hence by virtue of Section 49 of Registration Act, it is inadmissible in evidence. But in view of proviso to section 49, it can be looked into for collateral purpose only. If this lease deed is inadmissible in evidence for want of registration, none of the terms of the lease can be looked into or admitted in evidence. Further a collateral purpose is such which is not required to be evidenced or affected by a registered document. But defendant is claiming himself to be the tenant on the basis of this lease deed which is unregistered. Hence a valid tenancy cannot be created on the basis of such unregistered lease deed. I am supported with the above observation by the judgment of Sushil Kumar Soni Vs. Sheela 2015 SCC OnLine All 9225 : (2016) 114 ALR 414 : (2016) 3 All LJ 363 passed by Hon'ble High Court of Allahabad. The relevant quote is as follows:-
"28. Recently, section 49 proviso has come for consideration before Apex Court in K.B. Saha and sons Private Limited v. Development Consultant Limited' and the Court said:
"1. A document required to be registered, if unregistered is not admissible into evidence under section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 24
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
53. Hence this document cannot be read in evidence.
However this document can be used for collateral purpose i.e. to prove the nature of stay of the defendant in the suit property under the permission and authority of his mother. But once notice was given to vacate by plaintiff, the tenancy stood terminated.
54. Moreover this lease deed is not sufficiently stamped as well. There is a total bar on the admission of an unstamped instrument for whatsoever purpose it is sought to be used, such unstamped/ partially stamped document cannot be used even for collateral purpose. In view of Section 65 of Indian Stamp Act, unless there is compliance with the requirements of this Section by making payment of the entire stamp duty, this document cannot be looked into for any purpose and certainly cannot be received in evidence as well. It is relevant to quote here judgment of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra - (2009) 2 SCC 532 passed by Hon'ble Supreme Court :-
"28. In Sanjeeva Reddi v. Johaunputra Reddi' it has been held: (AIR p. 375, para 9) " 9. While considering the scope of Section 35 of the Stamp Act we cannot bring in the effect of non- registration of a document under Section 49 of the Registration Act. Section 17 of the Registration Act deals CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 25 with documents, the registration of which is compulsory and Section 49 is concerned only with the effect of such non-registration of the documents which require to be registered by Section 17 or by any provision of the Transfer of Property Act. The effect of non-registration is that such a document shall not affect any immovable- property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under Section 49 to receive such a document which requires registration to be used for a collateral purpose i.e. for an entirely different and independent matter. There is a total and absolute bar as to the admission of an unstamped instrument whatever be the nature of the purpose or however foreign or independent the purpose may be for which it is sought to be used, unless there is compliance with the requirements of the provisos to Section 35. In other words if an unstamped instrument is admitted for a collateral purpose, it would amount to receiving such a document in evidence for a purpose which Section 35 prohibits. There is nothing in B. Rangaiah v. B. Rangaswamy' which supports the contention of the petitioner. That was a case as pointed out by Kuppuswami, J., where there were two instruments though contained in one document, one a settlement in favour of the fourth defendant therein and the other a will. It was therefore held that part of the instrument which constitutes a will did not require any stamp and will be admissible in evidence for proving the bequest contained therein. It was for that reason that the learned Judge said that Section 35 Of the Stamp Act has no application to a case where one of the separate instruments relating to one such matter would not at all be chargeable under the Act as in the case before him."
55. The defendant never made any effort to correct this flaw in the lease deed by making payment of the stamp duty. Hence this document cannot be admitted in evidence.
56. Further a co-owner cannot create tenancy in the property unless he seeks specific permission of other co- owners. He cannot himself choose any portion of the undivided property to induct any tenant. Such tenancy, if CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 26 created, does not bind other co-owners who can take the remedies available in law for eviction of such tenant. Reliance is placed upon the judgment of Hon'ble Delhi High Court titled as Chaman Lal Marwah Vs. Nazir Ul Islam and Ors. (Delhi High Court : 2022 SCC OnLine Del 2069). The relevant excerpt is as follows:-
" 17. In the judgment of Delhi High Court in Surendra Kumar Jain & Anr. vs. Attar Chand Jain & Ors., 2004 (78) DRJ 229 (DB), it was inter alia held as under:-
"9...................................Not only that, a co-owner will not be in a position to create the tenancy without consent of the other co- owners it is also not pleaded or shown that Nem Chand, if at all, had taken permission of the other co-owners. Reliance has been placed in the case of Ram Gopal Sawhney v. Suraj Balram Sawhney and Sons and Others, (1996) 1 ELT 520 (SC), that a co-owner cannot create a tenancy of joint property without the consent of the other co-owners. If one co-owner does so, others are not bound by that act."
"18. Similarly, this Court in Ram Gopal Sawhney vs. Suraj Balram Sawhney & Sons: 1982 SCC Online Del 235 has inter alia held as under:- "Whatever be the collusive nature of these tenancies, the question arises whether one of the co-owners who has not been put into management of the property by other co- owners, can let out any portion of the property without their consent, and whether such tenancy can bind any of those co- owners to whom the property has fallen after partition. This controversy arose before G.C. Jain, J. of this Court in E A. No. 69 of 1979, decided on 26-5-1982 (Nand Lal Patel v Shiv Saran Lal). The learned Judge has made reference to two Full Bench decisions of the Calcutta and Patna High Courts in the cases Niranjan v. Soudamini Dasi, (AIR 1926 Calcutta 714) and Bibi Kaniz Fatma v. Sk. Hossuinuddin Ahmed, (AIR (30) 1943 Patna
194). In the former it was recognised that the general principle is that a co-sharer in joint property cannot by dealing with such property affect the interest of the other co-sharers therein. The question that arose was whether a person to whom a parcel of land had been allotted by a decree for partition took it subject to a permanent lease granted by his former co-owners without his concurrence when the land was joint inter-se them. It was answered in the negative. The Patna High Court too observed CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 27 that such tenant inducted by a co-sharer could certainly not be treated as tenant of the entire body of co-sharer. The Delhi High Court as well in a Division Bench decision in Hari Kishan Rathi v. Ranjan Dupatta House & Ors., (EFA (OS) No. 3/1972, decided on October 30, 1975), took the same view. In the decision it was observed that a co-sharer has no right to put a stranger in exclusive possession of the property, and if he does so, the other co-sharer can object to it and can seek his dispossession, G. C. Jain, J. too held Signature Not Verified C.R.P. 81/2022 page 13 of 14 Digitally Signed By:RAJ BALA Signing Date:16.07.2022 16:52:28 that a tenancy created prior or during the pendency of the suit for partition by one of the co-
sharers cannot bind others and the co-sharer to whom the property is allotted on partition, is entitled to dispossess the tenant. However, it was taken note that if there is any element of authorisation or agency created which can show that one of the co-sharers had been put into the management of the property by the other co-sharers, the lease created prior to the institution of the suit, can be binding on them. This has not been the position in the present case inasmuch as, as already noted above, the family had fallen out in 1970-71 and Krishan Gopal Sawhney too had published a notice in a newspaper in 1970 that Ram Gopal Sawhney had no authority to induct third persons in the joint properties."
57. Reliance is also placed on the judgment of Sameer Jain Vs. Sanjay Jain (2017 SCC OnLine Del 9266) wherein it was observed :-
" 13. This Court in Nand Lal Patel Vs. Shiv Saran Lal ILR (1984) 1 Delhi 913 held that a co-owner, merely as a co-
owner, is not an agent for the other co-owners and a person who is inducted by one co-sharer upon land belonging to a number of co-sharers, without the consent or authority express or implied of the others, is not a tenant with respect to the entire land and cannot acquire occupancy rights in it. It was further held that no co- owner can chose a specific portion of the common property and transfer it to a third person as if it belonged to him exclusively and if he does so, the other co-owner can object to it and can seek the dispossession of the stranger. Again, in Ram Gopal Sawhney Vs. Suraj Balram Sawhney & Sons 23 (1983) DLT 92 it was held that a co- sharer has no right to put a stranger in exclusive possession of the property and if he does so, the other co- sharer can object to it and can seek dispossession. The same view was followed in Attar Chand Jain Vs. Sudhir CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 28 Kumar Jain 97 (2002) DLT 22 and appeal to the Division Bench whereagainst was dismissed vide Surendra Kumar Jain Vs. Attar Chand Jain 112 (2004) DLT 914."
" 15. Mention may also be made of the dicta of the Division Bench of Punjab & Haryana High Court in Bachan Singh Vs. Swaran Singh AIR 2001 P&H 112, on a consideration of the judicial pronouncements on the subject, holding (i) that a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession; (ii) that if by the act of the co- owner in possession, the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property; (iii) that if the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest; and, (iv) that in all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co- owner."
58. It is not pleaded by defendant anywhere that his mother Late Smt. Indra Sirpal had sought the permission of plaintiff to create this tenancy. Further the fact that plaintiff is co-owner of this property cannot be challenged by defendant. As the sale deed of 1998 is not challenged by defendant nor any relief regarding the said sale deed is claimed, hence as per the sale deed, both Late Smt. Indra Sirpal and Dr. Surendra Kumar Sirpal are co-owners of the suit property. Since defendant is claiming himself to be the tenant in the property to show his possession, he cannot challenge the ownership rights of his landlord in view of Section 116 of Evidence Act. Hence plaintiff is also co-
CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 29owner of this property and is entitled to terminate the tenancy.
APPLICABILITY OF DELHI RENT CONTROL ACT:-
59. For the purpose of applicability of DRC Act, the lease so created should have been valid in Law. However as observed above, the lease deed is unregistered and unstamped, hence such lease deed cannot be read in evidence. Further it was created by a co-owner without the permission of other co-owner, hence such tenancy does not bind other co-owners whose permission was not obtained. Hence defendant cannot be called a tenant at all in view of above observations. When the notice was given to the defendant to vacate the premises, he became unauthorized occupant and does not remain a tenant at all. Where the defendant is not even a tenant, the question of applicability of DRC Act does not arise. It is pertinent to quote here the judgment of Sarfarzali Nawabali Mirza Vs. Maneek G. Burjorji Reporter 1975 SCC OnLine Bom 121 :
(1976) 78 Bom LR 704 of Bombay High Court :-
" 22. It appears to have been, however, argued that although the Court might have had jurisdiction when the suit was filed, as soon as the defendant raised the contention that he was a tenant the Court ceased to have jurisdiction to try that suit and that contention could only be disposed of by the Small Causes Court by virtue of the provisions of s. 28. It was observed in this connection that really, this question was not a question that had anything to do with the Act or any of its provisions. It was a question which was collateral and which had got to be decided before it could be said that the Act had any application at all. The very application of the Act CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 30 depended upon the defendant being a tenant. If he was not a tenant, the Act had no application and therefore before the Court can apply any provisions of the Act or decide any question arising out of the Act, it had got to determine whether the defendant was a tenant who can claim the protection of the Act. It was a jurisdictional question which had got to be determined in order to decide whether the particular Court in which the Suit had been filed had or had not jurisdiction to try the suit. It was further stated that s. 28 did not deal with jurisdictional questions which have got to be decided in limine before matters arising under the Act can be considered by the Court. Ultimately it was held that s. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, does not deprive the High Court of its jurisdiction in all suits for possession wherever the defendant takes up the contention that he is a tenant. The High Court has only been deprived of the jurisdiction in those suits where a landlord files a suit against his tenant and the tenant seeks the protection of the Act. The High Court's jurisdiction is also deprived in those cases where, although the landlord might file a suit against a person alleging that he is a licensee or a trespasser, it may ultimately turn out that the defendant was not a licensee or a trespasser but a tenant and he was entitled to the protection of the Act."
" 23. This decision, therefore, makes it pretty clear that the question whether a Court other than the Small Causes Court has jurisdiction to try a particular suit is to be determined on the basis of the allegations made in the plaint and the defence raised by the defendant is irrelevant for the purpose of deciding that question. Of course, if ultimately on trial it is found that the allegations made by the plaintiff are not substantiated but that the defence taken by the defendant was true, it is open to the Court either to return the plaint for presentation to the proper Court or to dismiss it as the circumstances of the case may warrant."
60. Further no evidence has been lead on record by defendant to prove that Delhi Rent Control is applicable in this area as well where suit property is situated.
61. It is pleaded by plaintiff that it is inconceivable that CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 31 the property would have been leased out at a rent of Rs. 2,000/- to the defendant by the mother. However it was a lease deed between family members and rent could have been considerably low out of love and affection as well. MESNE PROFITS
62. Next question is whether defendant is entitled to any mesne profits or rents. In view of the above discussion, once notice for termination was given to the defendant prior to filing of the suit, the tenancy if any created in favour of defendant by one co-owner, stood terminated and defendant became unauthorized occupant.
63. Further defendant does not claim himself to be the owner nor any such prayer is sought. He only claims himself to be tenant and also claims a share in the suit property to the extent of his share which would devolve upon him on the demise of his mother.
64. Further defendant is taking contrary pleas regarding his possession of suit property. On one hand, he claims to be the owner of this property being one of legal heir of Late Smt. Indra Sirpal and on the other hand he claims to be staying in this property as tenant. Both are mutually destructive pleas.
65. The law with respect to awarding of mesne profits/ damages along with decree of possession has been discussed in detail by Hon'ble Delhi High Court in the judgment titled as Hindustan Petroleum Corporation Ltd. V. Mohanjit Singh 2019 SCC OnLine Del 9419 : (2019) 263 DLT CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 32 192 passed by Hon'ble Delhi High Court . The relevant excerpt is as follows:-
"32. The aforesaid provisions have already been extensively examined in decisions of the various High Courts as well as the Hon'ble Supreme Court. A common vein of these judgments is that mesne profits, which a landlord is entitled to receive from a tenant who is continuously in occupation of the lease property despite the termination of the lease, has been laid down to mean the rate of rent which would otherwise accrue on a suit premises during the period of its illegal occupation by a tenant. However, the burden which the Courts are often tasked with is to determine the appropriate amount payable to the landlord/owner towards such mesne profits. This process of determination of mesne profits begins with the landlord discharging the onus placed upon him to prove his claim for mesne profits, in accordance with the law. Thereafter, it is for the Court to ascertain the appropriate mesne profits to be awarded to the claimant by adhering to the parameters as set out in Order XX Rule 12 CPC which prescribes that while passing the decree for possession, the Court may either straightaway pass a decree for mesne profits or direct that an inquiry be conducted for assessing the rate of mesne profits payable. If the Court finds that there is sufficient and authentic evidence available on record for determination of the landlord's claim for mesne profits, the Court may, in its discretion, award the same by relying on such evidence. In the alternative, in situations when the Court finds that the evidence brought on record is not sufficient for such determination, the Court may direct that an inquiry be conducted thereto, in accordance with the provisions of the CPC. In this regard, reference may be made to Chittoori Subbanna (supra), Ganpati Madhav Sawant (supra), National Radio (supra) and M.C. Agrawal HUF (supra) on which heavy reliance has been placed by the learned senior counsel for the appellant. I find that, in fact, the ratio of the decisions relied upon by the learned senior counsel for the respondent, viz., Consep India Pvt. Ltd. (supra) and Suman Verma & Ors. vs. Sushil Mohini Gupta & Ors. 2014(140) DRJ 595, concurs with the ratio of the decisions sought to be relied upon by the appellant in this regard and also lay down the same parameters for determining mesne profits."
"40. Even otherwise, the calculation of mesne profits always involves some guess work and the Courts have, hitherto in several cases, taken judicial notice of the prevalent market CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 33 rents of different areas within the city while awarding mesne profits. In this regard, reference may be made to paragraphs 22 (a) to (e) of Suman Verma (supra), relied upon by the respondents, in which it was held as under:-
"(a) though undoubtedly the Division Bench of this Court in National Radio & Electronic Co. Ltd. supra has held that judicial notice, only of a general increase in rent in the city of Delhi and not of the rates of rent, in the absence of proof thereof can be taken but it cannot be lost sight of that the Courts are for doing justice between the parties and not for, on hyper technicalities, allowing the parties to suffer injustice.
(b) The property of the respondents/plaintiffs which the appellants/defendants are admittedly in unauthorized occupation of, is situated in one of the poshest colonies of the city of Delhi, properties wherein fetch high rentals and which only the elite, affluent, expats and foreigners are able to afford.
(c) the said property is a independent bungalow constructed over 400 sq. yd. of land and comprising of two and a half floors.
(d) the calculation of mesne profits always involves some amount of guess work, as held by this court in International Pvt.
Ltd. Vs. Saraswati Industrial Sundictes Ltd. (1992) 2 RCR 6, M.R. Sahni Vs. Doris Randhawa and reiterated in Consep India Pvt. Ltd. supra and applicability of prevalent rents in the city and of which the Judges manning the Courts and who are born and brought up in the same city, are generally aware of.
(e) The Division Benches of this court in Vinod Khanna Vs. Bakshi Sachdev AIR 1996 Delhi 32 and S.Kumar Vs. G.K. Kathpalia 1991 (1) RCR 431, taking judicial notice, refused to interfere with the rate of mesne profits even where the landlord had not led any documentary evidence. Notice of such increase has also been taken by the Supreme Court in Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18."
"45. In the present case, I find that the trial Court has granted an annual enhancement of only 10% in the mesne profits which, in my considered opinion, cannot be deemed to be arbitrary or exorbitant in any manner, especially in the light of the decisions of this Court in M.C. Agrawal HUF (supra) and Om Prakash Chopra (supra), wherein this Court had approved an annual enhancement of 15% in mesne profits. That being so, I find no infirmity in the trial Court's decision to grant an annual enhancement of 10% in the mesne profits awarded to the respondent."CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 34
"46. I may now turn to the last submission of the appellant that the grant of interest on mesne profits was unjustified. This submission needs to be noted only to be rejected. In the face of the settled proposition of law that interest forms an integral part of the mesne profits and, therefore, once the Court awards mesne profits, the interest accruing thereon has to be allowed in the computation of the mesne profits itself. A tenant cannot be permitted to urge that mesne profits which in fact ought to have been paid years ago, should not bear any interest."
66. The plaintiff gave notice dated 05.06.2009 to Rajendra Sirpal thereby revoking his license but defendant did not vacate till date. Hence plaintiff is entitled to mesne profits from 05.06.2009 till actual vacation of the premises. The suit property admeasuring 296 sq yards comprises ground floor, Mezzanine Floor, Front Lawn and one Car Parking of the building constructed on Plot No. S-331, Greater Kailash-II, New Delhi. The property is situated in GK-II which is one of the most posh colonies of South Delhi. The rent of ground floor of any such property, going by a narrow estimate, would be around Rs. 50,000/- to Rs. 60,000/- per month. The plaintiff Dr. Surendra Kumar Sirpal has also claimed damages at the rate of Rs. 60,000/- per month. Though plaintiff has not filed any document in support of such claim that the property in that area could fetch a rent of Rs. 60,000/- per month in the year 2009. But I take judicial notice of the fact that it being one of the most upscale and posh colonies in Delhi which only rich and affluent could afford, could easily fetch rent of Rs. 60,000/- per month. Further there is no cross-examination of plaintiff on this rate of rent nor any contrary evidence is lead by defendant regarding the same. Hence mesne profits @ CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 35 Rs. 60,000/- per month are hereby awarded from 1st July, 2009 (after adjusting grace period required by Law in legal notice) till actual vacation of the suit premises. Further going by the escalating property rates and consequential rental rates in Delhi, granting enhancement of annual rate @ 8 % per annum would be justified. Further since this is a residential property, interest on the above awarded amount @ 5 % per annum (considering the rate of interest on bank accounts) is also awarded in favour of plaintiff.
ISSUE WISE FINDING IS AS FOLLOWS:-
67. Findings on the issues framed in the suit titled as Dr. Surendra Kumar Sirpal Vs. Rajendra Sirpal are as follows:
i). Whether the plaintiff is the owner of the suit property? If so, whether the plaintiff is entitled to possession of the same?
Ans. In view of above discussion, it is hereby held that plaintiff Dr. Surendra Kumar Sirpal/ his LRs are owners of the entire suit property bearing no. S-331, Ground Floor, Greater Kailash-II, New Delhi. Defendants have no right to continue their stay in the suit property. Their tenancy stood terminated after issuance of legal notice by plaintiff/ Dr. Surendra Kumar Sirpal. Hence a decree of possession is hereby passed in favour of plaintiff and against the defendants thereby directing the defendants to vacate the suit property within 45 days from the date of this Order. Issue is decided in favour of plaintiff. I A.) Whether the suit of plaintiff is barred in terms of Section 50 of Delhi Rent Control Act?
CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 36Ans. In view of above discussion, it is hereby held that DRC Act is not applicable in the present suit nor is there any valid tenancy in favour of Sh. Rajendra Sirpal. Hence the present suit is not barred by DRC Act. Issue is decided in favour of plaintiff.
ii). Whether the Gift Deed of 13.04.2009 in favour of plaintiff by his mother Late Smt. Indra Sirpal was fraudulen tly obtained by the plaintiff ?
Ans. In view of above discussion, it is hereby held that the gift deed was validly executed by Late Smt. Indra Sirpal in favour of plaintiff. The gift deed dated 13.04.2009 is valid in Law.
iii). Whether the defendant is the lawful tenant in the suit property by virtue of lease deed of 01.12.2006 ? Ans. As observed above, the lease deed dated 01.12.2006 does not create any valid tenancy in favour of defendant and lease deed is declared as null and void. Hence defendant is not lawful tenant in the suit property as his tenancy stood terminated on issuing of legal notice by defendant.
iv). If the defendant is held to be unauthorized occupant in the suit property, then what damages, for which period, and with what rate of interest the defendant is liable to pay ?
Ans. In veiw of above discussion, mesne profits @ Rs. 60,000/- per month are hereby awarded from 1st July, 2009 (after adjusting grace period required by Law) till actual CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 37 vacation of the suit premises. Further going by the escalating property rates and consequential rental rates in Delhi, granting enhancement of annual mesne profits @ 8 % per annum would be justified. Further since this is a residential property, interest on the above awarded amount @ 5 % per annum (considering the rate of interest on bank accounts) is also awarded in favour of plaintiff. The issue is accordingly disposed off.
v). Relief.
The suit of plaintiff/ Dr. Surendra Kumar Sirpal is hereby decreed and it is hereby held that:-
a) Plaintiff is owner of the suit property and a decree of possession is hereby passed in his favour and against the defendant thereby directing the defendants to vacate the suit property within 45 days from the date of this Order.
b) A money decree of mesne profits @ Rs. 60,000/- per month are hereby awarded in favour of plaintiff and against the defendant, from 1 st July, 2009 till actual vacation of the suit premises.
c) Further going by the escalating property rates and consequential escalating rental rates in Delhi, enhancement of annual mesne profits @ 8 % per annum is also awarded.
d) Further since this is a residential property, interest on the above awarded amount @ 5 % per annum is also CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 38 awarded in favour of plaintiff.
e) Parties to bear their own costs.
68. Findings on the issues framed in the suit titled "Rajendra Kumar Sirpal Vs. Dr. Surendra Kumar Sirpal" are as follows:
i). Whether the Gift Deed of 13.04.2009 executed by Late Smt. Indra Sirpal, mother of the parties was got fraudulently executed by the defendant ?
Ans. In view of above discussion, it is hereby held that the gift was validly executed by Late Smt. Indra Sirpal in favour of Dr. Surendra Sirpal.
ii). Whether the plaintiff is entitled to the relief of cancellation of the gift deed dt 13.04.2009 ? If so, to what effect ?
Ans. Plaintiff/ Rajendra Sirpal is not entitled to relief of cancellation of gift deed dated 13.04.2009 as it was validly executed by Late Smt. Indra Sirpal in favour of Dr. Surendra Sirpal.
iii). Whether the suit filed is not maintainable ? Ans. It is the argument of Counsel for plaintiff that the present is a suit filed by defendant thereby seeking cancellation of gift deed dated 13.04.2009. As plaintiff Sh. Rajendra Sirpal is not a party to the gift deed, hence he could not have sought cancellation but was required to file the suit for declaration that gift deed be declared as null and void. It is pertinent to quote here the judgment of Surhid Singh Alias CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 39 Sardool Singh Vs. Randhir Singh and Others (2010) 12 Supreme Court Cases 112 passed by Hon'ble Supreme Court, the relevant paras are as follows:-
"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non- executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid at, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."
In the present case, it is undisputed that Sh. Rajinder Sirpal is in possession of the suit property. Hence even if he would have amended his suit thereby seeking declaration that gift deed be declared as null and void, yet he was required to pay only fixed Court fee in view of Article 17 (iii) of Schedule II of Court Fee Act, 1870. Hence in such circumstances, the seeking of plea of cancellation of gift deed instead of a declaration that gift deed be declared as null and void, is more of a technicality or inconsequential flaw in the prayer clause CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 40 of the suit of Sh. Rajendra Sirpal. Further suits should be decided on merits and must not be dismissed on technicalities. Hence the suit of Sh. Rajendra Sirpal cannot be said to be not maintainable on the ground of this technical flaw. Needless to say, as observed above, the suit of Sh. Rajendra Sirpal is not proved on merits and is dismissed on merits. The issue is accordingly decided.
iv) Whether the plaintiff is entitled to a decree for cancellation of the gift deed dated 13 th April, 2009? Ans. In view of above discussion, plaintiff/ Rajendra Sirpal is not entitled to cancellation of gift deed. This issue is decided against plaintiff/ Rajendra Sirpal.
v). Whether the plaintiff is entitled to a decree for permanent prohibitory injunction against the defendant ?
Ans. Plaintiff/ Rajendra Sirpal is not entitled to a decree for permanent prohibitory injunction. This issue is decided against plaintiff/ Rajendra Sirpal.
vi). Relief.
The suit of plaintiff Sh. Rajendra Sirpal is hereby dismissed.
File be consigned to record room.
Announced in open court on 12.01.2023.
(TWINKLE WADHWA) ADJ-04/South-East, SaketCourts, New Delhi/12.01.2023 CS DJ No. 11611/2016 CS DJ No. 11612/ 2016 41