Delhi High Court - Orders
Manju Chaudhary vs Sudesh Lamba & Ors on 20 July, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 183/2021
MANJU CHAUDHARY ..... Plaintiff
Through: Mr. Sandeep Khurana, Mr. Dinesh
Rastogi & Mr. Shiven Khurana,
Advocates.
versus
SUDESH LAMBA & ORS. ..... Defendants
Through: Mr. Ved Prakash Sharma & Ms.
Ms.Amrit Kaur Oberai, Advocates for
D-1,3 & 6.
Mr. Sanjay Ghose, Sr. Advocate with
Ms. Sudershani Ray, Ms. Drishti
Mittal, Mr. Naman Jain & Ms. Urvi
Mohan, Advocates for D-2.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 20.07.2022
CS(OS) 183/2021
1. Arguments have been heard in regard to the maintainability of the suit for declaration and permanent injunction.
2. The present suit for declaration and permanent injunction has been filed on behalf of the plaintiff seeking following reliefs:
"(i) pass a decree for declaration thereby declaring the Gift Deed dated 27th March, 2012 executed by Sh. Gian Singh Chaudhary in favour of the defendants No: 1,3 to 6 that was registered on 29th March, 2012 with the office of the sub- registrar-V, New Delhi as document no: 4705 in Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 book no: 1, volume no: 12071 at pages 175 to 180 to be null and void and not binding upon the plaintiff;
(ii) pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants restraining the Defendants from disposing, selling of, transferring, alienating and creating third party rights in any manner whatsoever in respect of the property bearing No: 217, Jor Bagh, New Delhi;
(iii) award costs of the present suit 1n favour of the plaintiff;"
3. Facts in brief are that the property bearing Plot No. 217, Jor Bagh, New Delhi constructed on 375 square yards (hereinafter referred to as the "suit property..") comprises of a 21/2 storeyed structure. The suit property was purchased in an auction on 07th March, 1953 by Captain Risal Singh, the grandfather of the parties, from Land and Development Office, Scindia House, New Delhi. Upon his demise in the year 1955, the suit property devolved upon his two sons, namely, Shri Gian Singh Chaudhary and Shri Sardar Singh. Shri Sardar Singh Chaudhary executed a Relinquishment Deed dated 29th September, 1977 in respect of his 50% undivided share in the Suit property in favour of Shri Gian Singh Chaudhary by virtue of which late Shri Gian Singh became the absolute owner of the Suit property.. Shri Gian Singh got the suit property mutated in his name on 17th January, 1979 and got it converted into freehold and a Conveyance Deed was registered in his favour on 22nd July, 1994. Shri Gian Singh Chaudhary had seven daughters, namely, Smt. Manju Chaudhary, the plaintiff and Smt. Sudesh Lamba, Dr. Prakash Dabas, Smt. Bina Dalal, Smt. Madhu Kataria, Smt. Anju Mathew Varghese and Smt. Preeti Gurnani, who are the remaining six daughters. The plaintiff never got married and Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 continued to reside in the suit property, while the defendant Nos. 1 to 6, the other daughters, got married and went to live in their respective matrimonial home. The plaintiff and took good care of her aging parents. Though the parents were upset with the plaintiff for not having got married but that did not come in any way of the plaintiff to enjoy cordial relationship with her parents. It is claimed that the relations were cordial till the end of the year 2000.
4. Thereafter, Major Naresh Lamba, husband of defendant No. 1 was diagnosed with Parkinson's disease and he took premature retirement and started his own "Coal Business". He could not continue his business due to his ailment. At that time, the defendant No.1 along with the family, was residing in a portion of matrimonial home bearing House No. A-287, New Friends Colony, New Delhi. The defendant No. 1 stared putting pressure upon the parents to get the ground floor of the property vacated from Mr. Giampeiero Madio (Technical Attache) Italian Embassy on 23rd November, 2000. Thereafter, the defendant Nos. 1, 3, 4 and 6 pressurized the father to construct a room over the garage and servant quarter, the entry to which was from the back lane/service lane and tried to force the plaintiff to shift there. The defendant Nos. 1, 3, 4 and 6 started instigating their father to throw the plaintiff out. The plaintiff was constrained to publish a Public Notice in the National Daily, namely, "The Statesman" in December, 2000 to safeguard her interest in the suit property. The plaintiff also lodged a police complaint with the Police Station Lodhi Colony on 22nd December, 2000. After the ground floor was vacated, sometime in March, 2001, the parents shifted to the ground floor on account of their old age and old-age ailments.
5. The compelling conditions were created by the defendant Nos. 1, 3, 4 Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 and 6, who did not permit her to share the kitchen on the first floor and forced the parents to shit the plaintiff on the Barsati floor, comprising of one room and an attached bathroom.
6. The plaintiff filed the Suit bearing No. CS 962/2001 titled Manju Chaudhary vs. G.S. Chaudhary for permanent injunction on 11th May, 2001 against her father from dispossessing her and for restraining him from selling, transferring, alienating or creating any third-party right in the suit property and from interfering in any manner with the ingress and egress of the plaintiff to the suit property. The said Suit was transferred to District Court on account of pecuniary jurisdiction and was renumbered as CS 244/2003, which was adjudicated by learned Additional District Judge, Mr. A.S. Yadav. As a counterblast to the said suit, the father of the plaintiff filed a Civil Suit bearing No. CS 40/2001 titled Gian Singh vs Manju Chaudhary, which was also adjudicated by learned Additional District Judge, Mr. A.S. Yadav.
7. It is claimed that after the parents shifted to the ground floor, the defendant No. 1 came to reside on the first floor in March, 2001 but on the insistence of defendant No. 1, the parents were shifted back to the first floor and the defendant No. 1 along with her family occupied the ground floor of the suit property.
8. It is further claimed that the constant bickering and backlashing of defendant No. 1 against the plaintiff had a telling effect on the already fragile minds of her parents, which led to a strained relationship between the plaintiff and her parents. The plaintiff was forced to buy peace by entering into a compromise, wherein she admitted that her father is the absolute owner of the suit property and agreed to vacate the same in lieu of Rs.
Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:3545,00,000/- being paid to her. The suit property was vacated by her in September, 2004. The plaintiff was not on talking terms with her parents for a period of four years but their relationship improved thereafter.
9. In 2014, the mother of the plaintiff was operated for the knees and she gradually became bed-ridden. The father of the plaintiff also suffered from cataract and was gradually losing his eyesight and he started using wheelchair. Dementia also started affecting the memory of the parents of the plaintiff. Since there was no one to look after the parents, she requested her parents to permit her to shift back to the suit property and to take care of them.
10. Smt. Meena Choudhary, mother of the plaintiff, expired on 30 th April, 2018 after being bed-ridden for a long time. Shri Gian Singh the father of the plaintiff, also expired on 15th September, 2018. After the demise of the parents, the plaintiff filed a Civil Suit bearing No. CS (OS) 504/2018 titled Manju Chaudhary vs Sudesh Lamba & Ors. for partition, permanent, injunction and rendition of accounts. The defendant Nos.1, 3 to 6 filed the joint written statement dated 15th November, 2018 wherein they propounded a registered Will dated 24th December, 2007 and also a Gift Deed dated 27th March, 2012 executed by their father Gian Singh Chaudhary in favour of the defendant Nos. 1, 3 to 6.
11. An Application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC, 1908) was filed on behalf of the defendant Nos. 1, 3 to 6, but the same was dismissed and the matter was listed for framing of issues after completion of the pleadings.
12. On 18th March, 2019, when the matter came up for hearing, the suit was dismissed with costs of Rs. 30,000/- by making an observation that Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 "since the Gift Deed has not been challenged by the plaintiff, nothing survives in favour of the plaintiff to claim relief of partition". It was also observed that "the plaintiff herself had admitted her father to be the absolute owner of the suit property and the suit was barred under Order 23 Rule 3 of the CPC, 1908". It was further observed that "Section 6 of the Hindu Succession Act, 1956 was not applicable".
13. The plaintiff was not aware that the Gift Deed was required to be challenged. By stroke of luck, in or around January, 2020, the plaintiff during one of her evening walks, met Shri Ved Prakash Sharma, one of the close friends and associate of the her father, who informed her that after she had left the house in 2004, he had continued to visit her father's residence at Jor Bagh. He informed the plaintiff that the Gift Deed apparently was executed by the defendant Nos. 1, 3 to 6 by exerting pressure on her father. He expressed his disbelief in regard to the existence of the Gift Deed and specifically told the plaintiff that her father wanted to bequeath the property to all his daughters and maybe the defendant No.1 in particular, got the Gift Deed executed from him by misrepresentation, which her father could not comprehend due to his failing health and old age. The plaintiff was shocked to know these facts from Shri Ved Prakash Sharma.
14. It is also asserted that the father of the plaintiff at that time was close to 90 years of age and was suffering from old-age ailments. A Medical Certificate of the doctor should have been appended to the Gift Deed to show that the father of the plaintiff was in a fit state of mind and conscious of the facts of the document executed by him and being registered with the Office of the Sub-Registrar. However, the Gift Deed is not annexed with the certificate of the doctor and this fact has been overlooked by Sub-Registrar Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 while registering the Gift Deed. There are suspicious circumstances surrounding the Gift Deed. Hence the present Suit for declaration that the Gift Deed is null and void and permanent injunction, has been instituted by the plaintiff.
15. The suit was at the stage of framing issues when the issue in regard to maintainability of the suit challenging the Gift Deed, arose.
16. Learned counsel on behalf of the plaintiff has argued that the Gift Deed for the first time, saw the light of the day in the written statement that was filed by the defendants in Civil Suit bearing No. CS (OS) 504/2018. Though an Application under Order 7 Rule 11 of the CPC, 1908 had been filed prior to filing of written statement, but there was no mention of the Gift Deed in the said application. It is further argued that on account of the old age of the father of the plaintiff and the proximity of the defendant No.1, it can easily be inferred that he was under the pressure to execute the Gift Deed in favour of the defendant Nos. 1, 3 to 6. The father of the plaintiff was suffering from Dementia and did not have the mental faculty to understand the contents of the Gift Deed, which was got prepared by defendant No. 1 and registered before the Sub-Registrar. It is submitted that the suspicious circumstances surrounding the Gift Deed require a trial and hence, the present suit has been filed on behalf of the plaintiff.
17. Learned counsel on behalf of the defendant No. 1 has argued that the plaintiff never had cordial relationship with her parents. She had filed a Civil Suit bearing No. CS 244/2003 titled Ms. Manju Choudhary vs. Sh. Gian Singh Choudhary under Sections 3(b) and 20 of the Hindu Adoption and Maintenance Act, 1956 claiming maintenance from her father. The said matter was compromised and the plaintiff accepted Rs. 45,00,000/- in full Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 and final claims towards her maintenance and also stated that she shall not be claiming any right in the suit property in future.
18. The plaintiff even in the suit for partition wherein the Gift Deed was placed on record did not get any relief and the suit was dismissed. Thereafter, this is another futile attempt by her to defeat the bona fide claims of the defendants. It is submitted that the plaint does not disclose any cause of action and the plaint is liable to be dismissed.
19. I have heard the submissions and perused the records. My observations are as under:
20. It is an unfortunate case which has a chequered history of litigation between the plaintiff and her parents and after the demise of her parents with the sisters. It is also not in dispute that the plaintiff's father late Shri Gian Chaudhary was the exclusive owner of the property in question. It is the pleadings of the plaintiff herself that she had acrimonious relationship with her father and had published a Public Notice in the National Daily, namely, "The Statesman" in December, 2000 to safeguard her interest in the suit property. Though she has claimed that the relations between her and parents improved somewhat but she has also asserted in the same breath that the defendant Nos. 1, 3 to 6 had been instigating the parents against her.
21. The plaintiff had filed Civil Suit bearing No. CS 244/2003 for permanent injunction against the father restraining from dispossessing her from the suit property. This suit was followed by another Civil Suit bearing No. 294/2004 filed by Shri Gian Chaudhary against the plaintiff seeking possession and permanent injunction and for recovery of mesne profits/damages of the premises. Thereafter, the plaintiff filed a Civil Suit bearing No. CS 244/2003 titled Ms. Manju Choudhary vs. Sh. Gian Singh Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 Choudhary under Sections 3(b) and 20 of the Hindu Adoption and Maintenance Act, 1956 seeking maintenance from her father. The matter was compromised and a joint Application under Order 23 Rule 3 of the CPC, 1908 was filed. The Court vide Order dated 16th July, 2014 recorded the statements of the parties and the plaintiff herein gave a statement to abide by the terms of compromise as contained in the Application under Order 23 Rule 3 of the CPC, 1908 , wherein it was agreed that the plaintiff shall accept Rs. 45,00,000/- in respect of full and final settlement of the petition and she also undertook to handover vacant possession of one room with attached bathroom and kitchen on the Barsati floor to the defendants. She also undertook not to raise any claims whatsoever present or future, in respect of any of the properties moveable or immoveable of her father.
22. Admittedly, the plaintiff filed a suit for partition bearing No. CS (OS) 504/2018, which has been dismissed by this Court vide Order dated 22nd April, 2018 by observing that since a Gift Deed executed by the deceased father in favour of the defendant Nos. 1, 3 to 6 has not been challenged in the suit for partition, the same was not maintainable. Admittedly, the plaintiff did not question or challenge the Gift Deed till the filling of the present suit.
23. The basic cause of action as disclosed in the plaint in paragraph 52 of the plaint, which reads as under:
"52. That the cause of action for instituting the present suit arose on 15.11.2018 only when the plaintiff come to know of the existence of the alleged Gift Deed when Defendants No:
1,3 to 6 filed their joint written statement in Suit for partition, rendition of accounts and permanent injunction of the suit property being CS (OS) no: 504 of 2018 titled as "Manju Chaudhary vs Smt. Sudesh Lamba & Ors" that was Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 filed before this Honourable Court by the plaintiff. In the said written statement the said defendants for the 1st time propounded the existence of the alleged gift deed. It further arose on 18.03.2019 when the suit for partition etc. being CS (OS) no: 504 of 2018 titled as "Manju Chaudhary vs Smt. Sudesh Lamba & Ors" was dismissed by the Court of HMJ Rajiv Sahai Endlaw. It further arose in or about January, 2020 the plaintiff during one of her evening walks met Mr. Ved Prakash Sharma one of the very close friends and associate of the father of the plaintiff who had confided in the plaintiff that the alleged gift deed apparently was got executed by the defendants no: 1, 3 to 6 by exerting pressure upon the father of the plaintiff. It further arose when Mr.Ved Prakash Sharma specifically told the plaintiff that her father wanted to bequeath his property in favour of all his progeny and maybe the defendants no: 1 in particular had got the said gift deed executed from him by misrepresentation which her father could not comprehend due to his failing health and old age. The cause of action is still persisting and continuing till the alleged gift deed is declared to be null and void."
24. From the bare reading of the above-mentioned paragraph shows that the only basis for challenging the Gift Deed is on the hearsay statement of Mr. Ved Prakash Sharma, who incidentally happened to inform the plaintiff during one of her evening walks in January, 2020 that that her father wanted to give the Suit property to all the daughters and the Gift Deed was "apparently" got executed by defendant Nos. 1, 3 to 6 by exerting pressure and "maybe the defendant No. 1 in particular, got the Gift Deed executed by him by misrepresentation" which her father could not comprehend due to the failing health conditions.
25. It is quite evident that there is no sound ground disclosed for challenging the Gift Deed, except an apprehension of there may have been Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 some kind of force or misrepresentation by the defendant Nos. 1, 3 to 6 in getting the Gift Deed executed.
26. This may be appreciated in the context that the plaintiff had filed a petition for maintenance way back in 2003, which was compromised and an amount of Rs. 45,00,000/- was taken by the plaintiff for vacating the premises and also towards her claim of maintenance. Since then, she never came back to live in the Suit property.
27. Another significant fact is that Late Sh. Gian Singh, father of the parties, had even executed a registered Will dated 24th December, 2007 in which as well the plaintiff was not given any share. This again reinforces the intention of Late Gian Singh had no intention even in 2007 to give any share in the property to the plaintiff. It also reflects his prudence that being conscious that plaintiff may raise a challenge to the Will, he transferred the property by way of Registered Gift Deed dated 27 th March, 2012 during his life time to obviate any disputes in regard to suit property in future.
28. Furthermore, though the plaintiff has mentioned about the failing health of her parents but conspicuously this aspect of challenge is not mentioned in the cause of action paragraph as reproduced above. Also, it is her own case that the health of her parents started failing them in the year 2014 while the registered Gift Deed was prepared must prior to that, in 2012. There are no medical documents annexed in support of these assertions which do not have any basis. Clearly, it is a desperate attempt by the plaintiff to somehow create a ground of challenge to the Gift Deed.
29. It is quite evident that the challenge to the registered Gift Deed dated 27th March, 2012 is based on hearsay statement of Mr. Ved Prakash which also is purely conjectural and without any basis. The plaintiff has failed to Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35 disclose any cause of action and accordingly, the suit is hereby rejected. I.A. 9262/2021 (Exemption), I.A. 4499/2021 (U/O 39 Rules 1 & 2 read with Section 151 of CPC) & I.A. 9261/2021 (U/O 1 Rule 10(2) read with Section 151 of CPC) In view of the order passed in CS(OS) 183/2021, these applications have become infructuous.
NEENA BANSAL KRISHNA, J JULY 20, 2022 S.Sharma Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:29.07.2022 19:35:35