Delhi District Court
Sh. Gurminder Singh Bedi vs Sh. Jasbir Singh Bedi (Now Deceased) on 28 July, 2020
IN THE COURT OF SH. NITISH KUMAR SHARMA
CIVIL JUDGE-01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ No.607586/16
Date of Institution : 07.01.2000
Date of reservation of judgment : 27.07.2020
Date of pronouncement of Judgment : 28.07.2020
Sh. Gurminder Singh Bedi
S/o Late Sh. Bhupender Singh
R/o L-7, 2nd floor, front portion
Kailash Colony
New Delhi-110048.
...............Plaintiff
Vs.
1. Sh. Jasbir Singh Bedi (now deceased) .......Defendant no.1
2. Smt. Vijaya Bedi
W/o Late Sh. Jasbir Singh Bedi
Both R/o L-7, 2nd floor, rear portion
Kailash Colony
New Delhi-110048.
...........Defendant no. 2
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 1/30
SUIT FOR POSSESSION
JUDGMENT
The present suit has been filed by the plaintiff against the defendants for recovery of possession of property bearing no. L-7, 2nd floor, rear portion Kailash Colony New Delhi-110048. Unfortunately, the defendant no.1 expired during the pendency of the suit and the suit proceeded only against Mrs. Vijaya Bedi. In the present judgment, for the sake of convenience, Mrs. Vijaya Bedi is referred to as defendant no.2 only as she originally was.
The factual matrix of the case in brief is as follows:
PLAINTIFF'S VERSION
1.(a) That the plaintiff is the owner of the flat L-7, 2 nd floor, rear portion Kailash Colony, New Delhi-110048 (hereinafter referred as suit property) having purchased the same by a registered sale deed from Sh. Bhupinder Singh on 03.08.1999.
(b) That defendant no. 2 is the wife of the real uncle of the plaintiff.
(c) That the plaintiff's father had two brothers namely Ranbir Singh Bedi and Sh. Jasbir Singh Bedi and both resided with the plaintiff's father during his lifetime. Sh. Ranbir Singh Bedi expired in the year 1998 and he was unmarried.
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(d) That Sh. Jasbir Singh Bedi i.e. defendant no.1, got married with the defendant no. 2 in August 1996 at the age of about 52 years and the father of the plaintiff permitted the defendant no. 2 and Sh. Jasbir Singh Bedi to use the suit property purely on license till the time Sh. Jasbir Singh Bedi arranged some other accomodation.
(e) That the father of the plaintiff sold the suit property to the plaintiff on 03.08.1999 by way of registered sale deed on receipt of sale consideration of Rs. 2 lakhs.
(f) That the father of the plaintiff died on 13.11.1999 and after the death of the father of the plaintiff, the defendant no. 2 refused to vacate the suit property.
(g) That on 20.12.1999, the plaintiff requested Sh. Jasbir Singh Bedi (who was defendant no.1 initially) to vacate the suit property and hand over the possession but he refused to do so and threatened the plaintiff that he'll dispose off the property.
(h) That the plaintiff was constrained to file the present suit against defendants to recover the possession of the suit property, hence this suit.
2. By way of present suit the plaintiff has prayed for the following reliefs:
(a) Decree of possession in favour of plaintiff and against defendants to hand over the vacant and peaceful possession of the L- 7, 2nd floor, rear portion Kailash Colony New Delhi-110048.
(b) Cost of the suit
(c ) Any other relief.
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 3/30
3. DEFENDANT'S VERSION
Litigation by its very nature has two side to a story. To give their version, written statement was filed on behalf of defendants wherein it is stated-
(a) That the plaintiff has no cause of action to file the present suit since late Sh. Bhupender Singh had no right, title or interest to sell the suit property i.e. L-7, 2nd floor, rear portion Kailash Colony New Delhi-110048.
(b) That the plaintiff's father had executed a registered irrevocable power of attorney and Will in favour of Sh. Jasbir Singh Bedi and Sh. Ranbir Singh on 22.10.1993 for valuable consideration of Rs 15 lakhs.
(c) That the suit property was further sold to the defendant no.
2 i.e. Smt Vijaya Bedi by Sh. Jasbir Singh Bedi for valuable consideration of Rs. 4 lakhs within the knowledge and during the lifetime of late Sh. Bhupender Singh. That the title documents were executed in favour of the defendant no. 2 i.e Vijaya Bedi much prior to the alleged sale in favour of the plaintiff.
(d) That the defendant no. 2 is the owner in possession of the suit property and as such the suit of the plaintiff is not maintainable.
(e) That the alleged sale deed is sham and manipulated by the plaintiff to grab the suit property from the defendant no. 2 by unfair means.
(f) That the plaintiff has not approached the court with clean hands. That the father of Sh. Bhupender Singh and Sh. Jasbir Singh CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 4/30 Bedi was one Sh. Jagat Singh Bedi. The father of Sh. Jagat Singh Bedi was owner of several ancestral properties and some of which were sold by Sh. Jagat Singh Bedi. The family funds were always with Sh. Jagat Singh Bedi and the property no. L-7, Kailash Colony New Delhi was purchased out of the said funds. That the property abovesaid was purchased in the name of Sh. Bhupender Singh but the amount was paid from family funds as Bhupender Singh was not earning anything at that time.
(g) That on 25.01.1988, Sh. Bhupender Singh and his five brothers decided that the family property L-7 Kailash Colony and another property at II-B/17 should be converted into flats. In L-7, Kailash Colony, Six flats were built of which three were kept by the builder as cost of construction and the other three flats were given to the brothers.
(h) That property no. II-B/17 was also converted into six flats and basements. Out of these flats, two flats falling in share of Sh. Ranbir Singh and Sh. Jasbir Singh were sold and the consideration amount of Rs. 15 laks was taken by Sh. Bhupender Singh and it was agreed that the two flats in L-7 Kailash Colony will be given to Sh. Ranbir Singh and Sh. Jasbir Singh.
(i) That Sh. Ranbir Singh and Sh. Jasbir singh were residing in L-7 Kailash Colony since 1972 and even after raising of flats continued to reside in the same. Sh. Jasbir Singh was residing on L- 7, 2nd floor, rear portion Kailash Colony New Delhi-110048 since 1988 and in the year 1993, an irrevocable general power of attorney and will was executed in favour of Sh. Ranbir Singh and Sh. Jasbir Singh in respect of the second floor rear flat as Bhupender Singh had CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 5/30 already received Rs. 15 lakhs out of the sale proceed of the flats falling in the share of Sh. Jasbir Singh and Sh. Ranbir Singh in property no. II-B/17 Lajpat Nagar.
(j) That the ownership of Sh. Jasbir Singh over the suit property was absolute as an irrevocable GPA and will was in favour of Sh. Jasbir Singh and he was in possession of the suit property and that he had validly transferred his interest in the suit property in favour of the defendant no. 2.
(k) That the plaintiff is not the biological son of Sh. Bhupinder Singh Bedi and is a complete stranger to the suit property.
In parawise reply in the Written Statement, defendants denied the averments made in plaint by plaintiff and prayed for dismissal of suit.
3A. A counter claim was also filed by the defendant in the present suit but the same was returned being beyond pecuniary jurisdiction of this court. Thereafter the counter claim was filed by the defendant before the court of Ld. ADJ and the defendant moved an application for transfer of the present suit to the court of the Ld. ADJ which was allowed by the Ld. District & Sessions Judge. However, due to some reasons the counter-claim was withdrawn and the suit was assigned back to this court for trial. Due to the aforesaid, various written statements have come on record however, the contents of all the written statements are substantially the same.
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 6/30
4. Replication was filed by the plaintiff wherein plaintiff has stated that the suit property was the self acquired property of his father and the same was purchased out of his own funds. It is further submitted that no family arrangement was entered into whereby Sh. Jasbir Singh and Sh. Ranbir Singh were given flats in L-7 Kailash Colony, Delhi. It is submitted that Sh. Jasbir Singh and Sh. Ranbir Singh were allowed to stay along in the capacity of brothers only and they had no right in the suit property. It is admitted that a GPA was executed by the father of the plaintiff in favour of Sh. Jasbir Singh Bedi and Sh. Ranbir singh Bedi in 1993 but the same was without consideration and was revoked by registered cancellation deed i.e. Ex-4/2 on 09.09.1997.The plaintiff reiterated rest of the contents of the plaint and denied the contentions raised in the written statement.
5. On 13.02.2002, on the basis of pleadings of the parties following issues were framed :
1.Whether the plaintiff has no cause of action to file the present suit ? OPD
2.Whether the suit is bad for mis-joinder of parties ? OPD
3.Whether the plaintiff is entitled for a decree of possession as prayed? OPP
4.Relief.
6. On 26.09.2002, additional issues were framed as under:
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 7/30
(i) Whether the power of attorney executed by late Bhupender Singh in favour of defendant no. 1 was revoked, if so its effect? OPP
(ii) Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPP
(iii) Whether this court has the pecuniary jurisdiction to try and entertain the suit? OP Parties.
7. In order to prove his case the plaintiff has examined himself as PW-1 and has tendered in evidence her duly sworn in affidavit as Ex. PW 1/A and has relied upon following documents :
1. Site plan Ex PW 1/1 2. Sale Deed Ex PW 1/23. Collaboration agreement Ex PW 1/3 (OSR)
4. Photocopy of 10th Certificate Ex PW 1/4 (OSR)
5. Photocopies of passports Ex PW 1/5 (colly)
8. The plaintiff was cross-examined by Ld. Counsel for defendant no. 2. Apart from himself, the plaintiff has examined four other witnesses:
(a) Sh. Bhupinder Singh, as PW-2 who was a summoned witness from The Statesman office and who brought the summoned record i.e. certified copy of publication dated 15.07.1998 which is Ex PW 2/1 and the covering letter is Ex PW 2/2.
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 8/30
(b) Sh. Sanjay Goswami, office assistant,Sub-registrar-V, Mehrauli, New Delhi as PW-3 who brought the summoned record i.e. original register which contains the sale deed executed by Sh. Bhupender Singh Bedi in favour of Sh. Gurminder Singh. The sale deed is already exhibited as Ex PW 1/2.
(c) Sh. Sevajit, record attendant, Department of Delhi Archives as PW-4, who brought the summoned record i.e. registered cancellation of power of attorney executed by Sh. Bhupinder Singh Bedi. The said cancellation of GPA is Ex PW4/1. While this witness was under
examination, it was observed by the court that the original brought by the witness bears the seal of the registrar on the photograph whereas the copy placed on record does not bear the seal. Accordingly, a photocopy of the record brought by the witness was taken on record and the same was exhibited as Ex PW 4/2.
(d) Sh. Ashok Kumar, accountant of Frank Anthony Public School, Delhi as PW-5 who relied upon authorization letter Ex 5/A and brought the record i.e. enrolment form Ex 5/B, copy of transfer certificate issued by Pires' Private Kindergarten Ex 5/C and copy of transfer certificate issued by Frank Anthony Public School Ex PW5/ D.
9. All the witnesses were cross-examined by the ld. Counsel for defendant. Thereafter PE was closed on 28.08.2018 vide statement of plaintiff and the matter was listed for DE.
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 9/30
10. In defendant evidence, defendant no. 2 examined herself as DW-1 and has tendered in evidence her duly sworn in affidavit as Ex. DW 1/A and has relied upon the following documents:
1. Registered GPA executed between Jasbir Singh and Mrs Vijay Bedi Ex DW1/1 (OSR)
2. Registered Will dated 08.03.1999 Ex DW 1/3 (OSR)
3. Receipt dated 15.08.1996 Mark A
4. Will dated 22.10.1993 Mark B The documents i.e. special power of attorney and registered general power of attorney dated 22.10.1993 were mentioned in the affidavit but were not found on record and accordingly the said documents were not exhibited being not found on record.
11. The defendant no. 2 was extensively cross-examined by ld counsel for plaintiff.
12. Vide statement made by ld counsel for defendant no. 2 on 21.02.2019, DE was closed and the matter was listed for final arguments.
13. I have heard arguments advanced by Ld. Counsels for parties and perused the record carefully.
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14. FINDINGS My issue-wise findings are as under:
15. Issue No. 1Whether the plaintiff has no cause of action to file the present suit ?
The onus to prove this issue was upon the defendant. It is the case of the defendant that the sale deed relied upon by the plaintiff is a sham document as the seller of the sale deed i.e. Sh. Bhupinder Singh Bedi was not competent to execute the said sale deed as he had already executed a General power of attorney and Will on 22.10.1993 in favour of Sh. Jasbir Singh Bedi and Sh. Ranbir Singh Bedi for valuable consideration.
16. Per contra, it is the case of the plaintiff that prior to executing sale deed in his favour, the father of the plaintiff executed a registered cancellation deed on 09.09.1997 whereby the GPA executed in favour of Sh. Jasbir Singh and Sh. Ranbir Singh was revoked.
17. At the outset, it is pertinent to mention that cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 11/30 everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action.
18. In the instant case, the plaintiff has sued for possession on the basis of a sale deed in his favour. The defendant has claimed that the said sale deed is a bogus document and it is the defendant who is the owner of the suit. It is settled that cause of action has no relation with the defence whatever taken by the defendant, it refers entirely to the grounds set forth in plaint as cause of action. In the considered opinion of this court, the plaintiff having a sale deed in his favour and defendant residing in the suit property despite being asked to vacate is a sufficient cause of action to institute the suit. Whether the plaintiff succeeds in the suit is a different matter altogether for that would depend as to whether the plaintiff successfully establishes his case.
19. Accordingly, the issue no. 1 is decided in favour of the plaintiff and against the defendant.20. Issue No. 2
21. Whether the suit is bad for mis-joinder of parties?
The onus to prove this issue was upon the defendant. It is contended by the defendant no.2 i.e. Mrs. Vijaya Bedi that the suit property was given to her by her husband by executing a GPA and a Will and as such she is the owner of the suit property and CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 12/30 as such joining of Sh. Jasbir Singh (now deceased) as defendant no.1 is improper and the suit is bad for misjoinder of parties.
22. The rival contention is that Sh. Jasbir Singh was also living in the suit property and in a suit for possession, he is a necessary party. It is further contended that as defendant no.2 is claiming her right on the basis of GPA executed by defendant no.1 in her favour, he is atleast a proper party to the suit.
In Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd, 2007 SCC 417 the Supreme Court held as follows:-
A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made.
In Ramesh Hiranand Kundanmal vs. Municipal Corporation of Bombay; (1992)2SCC524 the Supreme Court held as follows:-
"The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 13/30 rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights."
23. It is to be noted that Sh. Jasbir Singh has met his maker during the pendency of the suit and as such the suit proceeded only against Mrs. Vijaya Bedi. In the present day situation, the objection of the defendant qua misjoinder of parties does not sustain. Even otherwise, the defendant no.1 had asserted that he was in possession of suit property since 1972 and a GPA was executed in favour of him by the father of the plaintiff. The plaintiff has stated in his plaint that the GPA in favour of Jasbir Singh was revoked prior to execution of sale deed in plaintiff's favour. Further, the defendant no.1 being the husband of defendant no.2 and both being in possession of the suit property, it would be improper to hold that defendant no.1 was improperly joined as defendant.
24. Issue no.2 is accordingly, decided against the defendant and in favour of plaintiff.
25. ADDITIONAL ISSUE NO. (ii) and (iii)
(ii) Whether the suit has been properly valued for the purposes of court fee and jurisdiction?
(iii) Whether this court has the pecuniary jurisdiction to try and entertain the suit?
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 14/30
26. Both these issues are taken up together as they are interlinked. The onus to prove additional issue no. (ii) was upon the plaintiff.
27. The plaintiff has valued the suit for the purpose of jurisdiction @ Rs. 2,95,000/ and ad-valorem court fees has been filed by the plaintiff. It is pertinent to note that the present suit has been filed by the plaintiff to seek possession of the suit property and as per Suit Valuation Act, the plaintiff is liable to value his suit on the basis of market value and court fees has to be paid ad-valorem as per Section 7(v) of Court Fees Act. The plaintiff is seeking possession on the basis of sale-deed executed in his favour in the year 1999. The consideration amount as mentioned in the sale-deed is Rs. 2,00,000/. The present suit has been filed by the plaintiff in the year 2000 and the suit is valued @ Rs. 2,95,000/ though initially it was valued at Rs 130/ and later by way of amendment the valuation was rectified.
28. The defendant has contended in the written statement that the value of property is beyond five lacs rupees. However, no evidence has been led by the defendant to prove that the market value of the suit property was beyond Rs. 5,00,000/.
29. The plaintiff on the other hand has relied upon the sale- deed Ex PW1/2 as also on the evidence of PW-3 who brought the record from the office of sub-registrar showing the sale deed in CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 15/30 favour of plaintiff for a consideration amount of Rs.2,00,000 and on which stamp duty has been duly paid.
30. There is nothing on record to doubt the market value of the suit property to be beyond Rs. 2,95,000/ at the time of filing of suit, particularly so when no evidence of whatsoever nature has been led by the defendant to counter the evidence led by the plaintiff.
31. As regards the jurisdiction is concerned, it is settled that exclusion of jurisdiction of the civil court is not to be readily inferred. The objection with respect to pecuniary jurisdiction of this court has been raised by the defendant by stating that the value of suit property is more than Rs. 5,00,000/. As per section 103 of the Indian Evidence Act, the burden of proving a fact lies upon the person who asserts that fact. Therefore it was incumbent upon the defendant to lead evidence to substantiate that the court has no pecuniary jurisdiction. The defendant no.2 has examined herself as the only witness and has not lead any cogent evidence to show that the pecuniary jurisdiction of the civil court is not there.
32. In view of the aforesaid discussion, it is held that the plaintiff has correctly valued the suit for the purpose of jurisdiction and Court fees.
33. Additional issues no. (ii) and (iii) are accordingly decided in favour of plaintiff.
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34. ISSUE NO. 3 and ADDITIONAL ISSUE NO. (i) Whether the plaintiff is entitled for a decree of possession as prayed?
Whether the power of attorney executed by late Bhupender Singh in favour of defendant no. 1 was revoked, if so its effect?
35. The onus to prove both these issues was upon the plaintiff.
It is contended on behalf of plaintiff that the father of the plaintiff was the owner of the suit property i.e. L-7, 2nd floor, rear portion Kailash Colony New Delhi-110048 and he had executed a registered sale deed i.e. Ex PW 1/2 in favour of plaintiff on 03.08.1999. It is further the case of the plaintiff that the brother of the plaintiff's father i.e. Sh. Jasbir Singh Bedi along with his wife Mrs. Vijaya Bedi were allowed to reside in the suit property as licensee by the plaintiff's father as Sh. Jasbir Singh Bedi had so requested till he finds some other accomodation. It is futher contended that a GPA was executed in favour of Sh. Jasbir Singh Bedi and Sh. Ranbir Singh Bedi on 22.10.1993 for management of the suit property but the same was without any consideration and was revoked by registered cancellation deed dated 09.09.1997.
36. Per contra, it is argued on behalf of the defendant that the GPA executed by the father of the plaintiff in favour Sh. Jasbir Singh Bedi and Sh. Ranbir Singh Bedi on 22.10.1993 was for a valuable consideration of Rs. 15 lakhs and the same could not have been revoked. It is further argued that Sh. Jasbir Singh Bedi executed a CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 17/30 GPA and Will in favour of defendant no. 2 and at present defendant no.2 is the owner of the suit property. It is further argued that the sale deed relied upon by the plaintiff is a sham document and the same does not even bear the signatures of the plaintiff.
37. As the onus to prove these issues was upon the plaintiff, therefore it is to be seen from the evidence led by the plaintiff as to whether he has succeeded in establishing his case for recovery of possession of suit property.
38. To substantiate his case, the plaintiff has examined himself as PW-1 and relied upon the sale deed Ex PW 1/2. The perusal of the said sale deed shows that the sale deed was executed by one Sh. Bhupender Singh Bedi in favour of Sh. Gurminder Singh Bedi for selling the property i.e. L-7, 2 nd floor, rear portion Kailash Colony New Delhi-110048 for sale consideration of Rs. 2,00,000/. The plaintiff has further summoned witness from sub-registrar office i.e. PW-3 Sh. Sanjay Goswami who brought the original register which contains the sale deed dated 03.08.1999 executed by Sh. Bhupender Singh Bedi in favour of Sh. Gurminder Singh Bedi vide registeration no. 2164, Additional Book No. I, Volume No. 152 on pages 133 to 139 duly registered from Sub-registrar, Hauz Khas.
39. The defendant no. 2 had objected to this sale deed on three grounds. First, that the sale deed does not bear the signature of the plaintiff and second that Sh. Bhupender Singh had no authority to sell the suit property as he had already executed GPA in favour of CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 18/30 Sh. Jasbir Singh Bedi and Sh. Ranbir Singh Bedi in 1993. The third objection is that the suit property was a family property having been purchased out of family funds though it stood in the name of father of the plaintiff and by way of family settlement the suit property was given to the defendant no.1 i.e. Sh. Jasbir Singh Bedi.
40. As regards the first objection that the sale deed does not contain the signature of the plaintiff, it would be beneficial to refer to the Judgment of the Hon'ble Apex Court in Alka Bose v Parmatma Devi & Ors. 2009(2) SCC 582 wherein the Hon'ble Apex Court held as under-
"An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 19/30 writing or in the presence of witnesses or any law relating to registration of documents"
Further, the Hon'ble High Court of Delhi in Shri. Ishwar Singh Decd. through Lrs.& Ors. 2016 SCConline Del 5359 has observed as under:
"The next argument urged on behalf of the appellants/defendants that the Agreement to Sell Ex. PW 1/1 dated 10.10.1990 is illegal because it is not signed by the buyer Sh. Karam Singh, is an argument wholly without substance because it is not the law that an agreement to sell has to be signed by the buyer before the same is taken as valid. In fact, even a sale deed can only be signed by the seller. An agreement to sell need only be signed by the proposed seller and need not be signed by the proposed buyer is no longer res integra and this is so held by the Supreme Court in the judgment in the case of Alka Bose v Parmatma Devi & Ors. 2009(2) SCC 582."
41. Thus, the first objection of the defendant has to be rejected in view of the aforesaid. As regards the second objection i.e. the plaintiff's father had no authority to sell the suit property to the plaintiff as he had already executed a GPA in favour of Sh. Jasbir Singh and Sh. Ranbir Singh on 22.10.1993 for valuable consideration, it is pertinent to note that the said GPA has not seen the light of the day and has never been placed before the court. It is interesting to note that the GPA dated 22.10.1993 is mentioned in affidavit of evidence tendered by defendant no.2/DW-1, however CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 20/30 while recording the evidence of DW-1, it was observed that such document is not found on record and is thus, de-exhibited.
42. As the assertion that the rival document i.e. GPA dated 22.10.1993, in favour of Sh. Jasbir Singh Bedi and Sh. Ranbir Singh Bedi was for valuable consideration has been set up by the defendant no.2, therefore it was primarily the duty of defendant no.2 to produce that document. Though, the plaintiff in his replication has not denied the existence and execution of such document in the year 1993 but has asserted that the same was without consideration. The defendant no.2 has asserted that the said GPA was for valuable consideration of Rs. 15Lakhs. In the absence of the GPA dated 22.10.1993 on record or some other cogent evidence, it can not be inferred that the same was for valuable consideration as the document must have been produced by the defendant no.2 before the court or some cogent evidence must have been led to establish that valuable consideration was paid. The defendant no. 2 has not examined any one else apart from herself though it is contended that her husband were six brothers. The defendant no. 2 has stated that the valuable consideration was paid in past out of the sale proceed of the flats falling in the share of Sh. Jasbir Singh and Sh. Ranbir Singh in property no. II-B/17 Lajpat Nagar. The defendant no.2 has, however, led no evidence to the effect that property falling in the share of Sh. Jasbir Singh and Sh, Ranbir Singh in property no. II-B/17 Lajpat Nagar was sold by plaintiff's father and the money out of the sale proceed was kept by him. The said assertions are thus, mere bald CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 21/30 allegations. It has been asserted by the defendant no.2 that the GPA dated 22.10.1993 (though not on record) was a registered instrument. In such case, it would have been prudent to examine a witness from the sub-registrar's office who could have brought the said record. However, no such witness was summoned by the defendant no.2.
43. Thus, what emerges from the above said is that GPA dated 22.10.1993 was executed by father of plaintiff in favour of Sh. Jasbir Singh and Sh. Ranbir Singh as admitted by the plaintiff but in the absence of any such document on record no inference can be drawn with respect to the contents of the said document specifically to the claim that it was executed for valuable consideration. Thus, the claim that consideration was paid out of sale proceeds by selling property no II-B/17, Lajpat Nagar has remained unsubstantiated. The GPA dated 22.10.1993 has not been filed even after recording of evidence of DW-1 and thus the same can not be said to have been proved on record. The necessary concomitant is that the said GPA dated 22.10.1993 in favour of Sh. Jasbir Singh and Sh. Ranbir Singh can not be said to have been executed for valuable consideration.
44. The plaintiff then asserted that the GPA dated 22.10.1993 was revoked by the father of plaintiff vide cancellation deed dated 09.09.1997 which was duly registered. The plaintiff asserted that the communication of the revocation of power of CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 22/30 attorney was done and a publication in this regard was also done in the Statesman Newspaper.
45. To substantiate the aforesaid assertions the plaintiff has examined two witnesses- PW-4 Sh. Sevajit, record attendant, Department of Delhi Archives who was a summoned witness who brought on record the registered cancellation deed, the copy of which is Ex PW 4/2 and PW-2 Sh. Bhupinder Singh who was a summoned witness and who brought on record the certified copy of publication in the newspaper Statesman Ex PW 2/1 and the covering letter Ex PW 2/2.
46. Perusal of document Ex PW 4/2, which is a registered deed of cancellation, reveals that the GPA executed by Sh. Bhupinder Singh Bedi in favour of Sh. Jasbir Singh Bedi and Sh. Ranbir Singh Bedi on 22.10.1993 is cancelled/revoked through this instrument by Sh. Bhupinder Singh Bedi on 09.09.1997. The defendant no. 2 claims it to be a sham document but no evidence was led qua the said plea. The other objection is that the defendant was not communicated about the cancellation/revocation of GPA dated 22.10.1993. The publication i.e. Ex PW 2/1 pertains to some GPA executed in January 1991 and does not relate to the GPA executed on 22.10.1993. The perusal of Ex PW 2/1 reveals that the copy of publication mentions the GPA of January 1991. It has been argued on behalf of plaintiff that the said error was clerical. Notwithstanding CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 23/30 the said objection, the very fact that the document cancelling/revoking the general power of attorney in favour of Sh. Jasbir Singh and Sh, Ranbir Singh is a registered document that in itself is a notice to the public at large. The objections of the defendant qua revocation of GPA and its non-communication therefore, fall to the ground.
47. Thus, from the abovesaid it emerges that the GPA dated 22.10.1993 was validly revoked by registered cancellation deed i.e. Ex PW 4/2 on 09.09.1997.
48. The necessary corollary that flows from above is that Sh. Jasbir Singh was left with no authority to execute any transfer document after the revocation of the general power of attorney dated 22.10.1993 vide registered cancellation deed on 09.09.1997. It is beneficial to refer to judgment of the Hon'ble Apex Court in Eureka Builders V Gulabchand 2018(8) SCC 67 wherein the Hon'ble Apex Court has observed as under-
"It is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise.
In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property."
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49. Thus, when Sh. Jasbir Singh had no interest in the suit property after 09.09.1997, he could not have transferred the same by way of GPA or Will in favour of defendant no.2. Hence the documents i.e. Ex DW1/1 and Ex DW 1/3 do not confer any right over the suit property in favour of the defendant no. 2.
50. The defendant has also relied upon a Will purportedly executed by Sh. Bhupinder Singh Bedi on 22.10.1993 which is Mark B. It is settled proposition of law a Will has to be proved as per Section 68 of the Indian Evidence Act. It is a matter of fact that no attesting witness to the said Will i.e. Mark B has been examined by the defendant no.2. The said Will has thus remained unproved. Also, it is settled that a Will takes effect only after the death of the testator and not before that. Sh. Bhupinder Singh had executed a registered sale deed in favour of plaintiff on 03.08.1999 prior to his death. The act of executing sale deed revokes any Will executed prior in time. Thus, the said Will also does not offer any help to the defendant no.2.
51. The last objection of the defendant no. 2 is that the suit property was a family property purchased out of the family funds. Now, this objection runs contrary to the objection raised by defendant no.2 that Sh. Bhupinder Singh Bedi had already disposed of the suit property in favour of Sh. Jasbir Singh and Sh. Ranbir CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 25/30 Singh. Both of these objections can not go hand in hand. It is further noteworthy that DW-1/defendant no.2 in her cross-examination stated as under-
"The documents pertaining to the suit property were in the name of Sh. Bhupinder Singh Bedi. Vol. Money for the suit property was given by my father in law i.e. late Sh. Jagat Singh. No transaction pertaining to the sale and purchase of the suit property was taken in my presence. I was told by my husband that though the suit property was purchased in the name of Sh. Bhupinder Singh Bedi but the money was given by Late Sh Jagat Singh Bedi. The suit property was purchased in the year 1956 and I got to know the same only after seeing the documents. My husband must have been around 6 years old in the year 1956. My husband never told me that the money for the purchase of suit property was given in his presence. I have not seen if any document was ever got prepared by my father in law regarding the suit property belonging to him."
52. Thus, the initial title of Sh. Bhupinder Singh Bedi with respect to the suit property is not disputed by defendant no.2 but an attempt was made to show that the consideration was paid out of family funds. However, the said statement of DW-1 is only a hear- say as she stated that she was told by her husband that the suit property was purchased in the name of Sh. Bhupinder Singh Bedi but the money for the same was paid by Sh. Jagat Singh Bedi. Interestingly, the husband of defendant no.2 was also stated to be around 6 years of age at the time when the said suit property was CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 26/30 purchased in the year 1956 and he had not witnessed as to who paid the money, thus, even the knowledge of husband is hear-say. No other witness was examined on behalf of defendant no.2 though it is a matter of record that Sh. Jagat Singh had six sons and the defendant no.2 had raised a plea that a family settlement was entered into between the said brothers. Thus, the plea that the suit property was purchased out of the family funds also remained unsubstantiated.
53. Another interesting fact is that the witness i.e. DW-1 stated in her cross-examination-
"When I purchased the suit property in the year 1996, it was existing in the name of Sh. Jasbir Singh. I made the payment in cash"
Whereas, even as per the stand of defendant no.2 in the written statement, the GPA and Will dated 22.10.1993 was executed by Bhupinder Singh Bedi in the name of Sh. Jasbir Singh and Sh. Ranbir Singh and Sh. Ranbir Singh expired on 19.09.1998 leaving behind a will in favour of Sh. Jasbir Singh. Thus, the testimony of DW-1 to the effect that the suit property in the year 1996 stood in the name of Sh. Jasbir Singh stands contradicted by her own plea taken in the written statement.
54. Further, during cross-examination of DW-1 the witness stated that the suit property was gifted to her by her husband for Rs.
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 27/30 4 lakhs whereupon a court query was raised as to when the suit property was stated to be purchased by defendant no.2 then how was it simultaneously gifted to her to which the witness stated:
"It was gifted to me for Rs 4 Lakhs.
I do not have any gift deed in my favour by my husband for the suit property in question. After my marriage in the year 1996, I came to the suit property only."
55. The testimony of DW-1 is thus, filled with contradictions and the same does not inspire confidence of the court. On the other hand, the plaintiff i.e. PW-1 has stood the test of cross- examination and has proved on record registered sale deed i.e. Ex PW1/2 which proves his title over the suit property. The plaintiff has further been able to prove that the GPA dated 22.10.1993 was validly revoked by the plaintiff's father (though it is notable that the GPA dated 22.10.1993 has never seen the light of the day).
56. The only contention of the defendant that remains to be decided is that the defendant no.2 was not residing in the suit property on the basis of any license but on the basis of her title. From the aforesaid discussion, it is clear that the defendant no.2 does not have any title over the suit property and it is the plaintiff who is the owner of the suit property. The defendant no.2 being wife of Sh. Jasbir Singh was residing in the suit property and though there is no license-deed as such but the defendant no.2 can be termed as gratuitous licensee atleast post 09.09.1997 i.e. after revocation of CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 28/30 GPA dated 22.10.1993. The defendant no.2 pleaded that defendant was not asked to vacate as there was no occasion for it as she was the owner of the suit property. It is settled that filing of suit in itself is a notice to quit. Reference in this regard can be had to M/S Nopany Investments (P) Ltd vs Santokh Singh (Huf) (2008) 2 SCC 728.
57. Thus, in view of the aforesaid, it can be safely stated that the plaintiff has been able to discharge his onus on the scale of preponderance of probabilities. The plaintiff has proved that he is the owner of the suit property and the defendant no.2 was in possession of the suit property as gratuitous licensee and which stood terminated on the filing of the present suit and that the defendant no.2 is liable to handover the peaceful and vacant possession of the suit property to the plaintiff.
58. Accordingly issue no. 3 and Additional issue no. (i), are decided in favour of the plaintiff and against the defendant no.2.
59. RELIEF In view of the findings on issue no. 1,2, 3 and additional issues no. (i),(ii) and (iii) the suit of the plaintiff is decreed in following terms-
(a) The plaintiff is held entitled to recover possession of the suit property i.e. L-7, 2nd floor, rear portion Kailash Colony New Delhi-110048.
(b) The defendant no.2 is directed to handover the vacant and peaceful possession of the suit property i.e. L-7, 2 nd floor, rear portion Kailash Colony New Delhi-110048 to the plaintiff.
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(c) The plaintiff is also held entitled to the costs of the suit.
60. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
NITISH Digitally signed by
NITISH KUMAR SHARMA
KUMAR Date: 2020.07.28
SHARMA 14:13:58 +05'30'
Pronounced in the open court (Nitish Kumar Sharma)
today i.e on 28.07.2020 Civil Judge-01(West)/Delhi
CS SCJ NO. 607586/16 Gurminder Singh Bedi v Jasbir Singh Bedi 30/30