Delhi District Court
Smt. Gurjeet Mehta vs Gurmail Singh And Ors on 28 October, 2024
IN THE COURT OF MS. SHILPI M JAIN : ADDL. DISTRICT
JUDGE-05, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
IN THE MATTER OF:
CS DJ ADJ 261/2018
CNR No. DLSW010064352018
SMT. GURJEET MEHTA
W/o Sh. Gyanender Mehta
D/o Late Sh. Darbara Singh
R/o D-75, Ground Floor East
Uttam Nagar New Delhi - 110 059 .............Plaintiff
VERSUS
1. SH. GURMAIL SINGH
S/o Late Sh. Darbara Singh
2. SMT. SATWANT KAUR
W/o Sh. Gurmail Singh
Both resident of:
D-75, Second Floor East
Uttam Nagar
New Delhi - 110 059 .............Defendants
ALSO IN THE MATTER OF:
Counter Claim No. 28/24
CNR No. DLSW010073002024
SMT. SATNAM KAUR
W/O SH. GURJEET МЕНТА
R/O D-75, 2ND FLOOR,
EAST UTTAM NAGAR
NEW DELHI-110059 .............Counter Claimant
Versus
SMT. GURJEET MEHTA
W/O SH. GYANENDRA МЕНТА
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors.
Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 1 of 42
R/O D-75, GROUND FLOOR
EAST UTTAM NAGAR
NEW DELHI-110059 ......Non Counter Claimant
SUIT/COUNTER CS DJ ADJ COUNTER CLAIM NO.
CLAIM NUMBER: 15529/2016 9/2024
Nature of Suit: SUIT FOR COUNTER CLAIM FOR
DECLARATION AND SEEKING RELIEF OF
PARTITION POSSESSION AS WELL
AS ARREARS OF RENT
AND MESNE
PROFITS/DAMAGES
Date of Institution : 20.03.2018 27.04.2018
Date of Arguments: 14.10.2024 14.10.2024
Date of Judgment : 28.10.2024 28.10.2024
JUDGMENT
INDEX FACTUAL BACKGROUND Page No. 2 & 12 ISSUES Page No. 15 EVIDENCE GIVEN BY PARTIES Page No. 16 SUBMISSIONS OF THE PARTIES Page No. 21 ISSUEWISE ANALYSIS & FINDINGS Page No. 23 CONCLUSION Page No. 41
1. Since, both suits pertain to the similar subject matter with common parties, under which common issues were framed, same are considered by this court simultaneously. The background of each case is given as follows for the purpose of clarification:
FACTUAL BACKROUND:
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 2 of 42 CS DJ ADJ 261/2018
2. Present suit for partition and declaration filed on behalf of the plaintiff/non counter claimant against the defendants with following prayer:
a) Pass a decree of declaration in favour of the plaintiff and against the defendants declaring the plaintiff to be owner of 1/2 undivided share in the suit property comprising of entire built- up property bearing no. D-
75, East Uttam Nagar, New Delhi 110059 constructed on the plot of land measuring 125 sq. yds. as shown in 'Red' colour in the site plan annexed with the plaint as Annexure-A.
b) Pass a decree of declaration in favour of the plaintiff and against the defendants declaring the alleged two gift deeds dated 09.11.2016 purported to have been executed and registered by Late Smt. Kulwant Kaur as null and void;
c) Pass a decree in favour of the plaintiff and against the defendants for partition by metes and bounds of the suit property comprising of entire built-up property bearing no. D- 75, East Uttam Nagar, New Delhi 110059 constructed on the plot of land measuring 125 sq. yds. as shown in 'Red' colour in the site plan annexed with the plaint as Annexure-A.
d) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants as well as their heirs, assigns, agents, administrators, attorneys etc. from creating any hindrance or obstruction in the peaceful use and enjoyment of the suit property by the plaintiff and her family members;
e) award cost of suit to the plaintiff; and
f) pass such other or further order(s) as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.
3. It is averred that, plaintiff/Non counter claimant and the defendant no.1 are the real sister and brother born out of the wedlock of their father Shri Darbara Singh and mother Smt. Kulwant Kaur and another son Shri Hardev Singh was also born out of the wedlock of Shri Darbara Singh and mother Smt. Kulwant Kaur who left for heavenly abode on 01.01.2016 and was not married and had no issues when he died. It is further averred CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 3 of 42 that, Shri Darbara Singh during his life time had purchased out of his own funds the property bearing no. D-75, East Uttam Nagar, New Delhi 110059 measuring 125 sq. yds in the name of his wife Smt. Kulwant Kaur in whose favour sale-purchase documents were executed by the erstwhile owner, which included agreement to sell and purchase, affidavits, possession slip, receipt, deed of Will all dated 17.05.1996.
4. It is further averred that, after purchase of the aforesaid property bearing no. D-75, East Uttam Nagar, New Delhi 110059 Shri Darbara Singh reconstructed the same in the year 2012 after demolishing the existing structure and the newly built-up property comprised of upper ground floor, first floor and second floor with roof rights built-up on 125 sq. yds. and ground floor built-up on 50 sq. yds. with stilt parking and the said built-up property is hereinafter referred to as the "suit property", more particularly shown in 'Red' colour in the site plan annexed with the plaint.
5. It is further averred that, Shri Darbara Singh and Smt. Kulwant Kaur always wanted that both plaintiff/Non counter claimant and the defendant no.1 herein shall have equal right in the suit property and therefore, after the reconstruction of the suit property the plaintiff/Non counter claimant was given the ground floor of the suit property for her use and enjoyment as the owner whereas the defendant no.1 was given the second floor of the suit property for use as his residence. It is further averred that the husband of the plaintiff/Non counter claimant was working at Delhi and used to reside with his in-laws including Shri Darbara Singh, Smt. Kulwant Kaur and the defendant herein and after the "Grih-Pravesh" ceremony of the newly constructed house on 25.12.2012, the possession of the ground floor portion of the suit property was handed over to the plaintiff/Non counter claimant and her husband on 13.01.2013 where they continued to live as owner. It is CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 4 of 42 further averred that, Shri Darbara Singh left for heavenly abode on 29.12.2013 and Smt. Kulwant Kaur also demised on 30.12.2016 and therefore the suit property devolved jointly and equally upon the plaintiff/Non counter claimant and defendant no.1 by way of natural succession as both Shri Darbara Singh and Smt. Kulwant Kaur died intestate.
6. It is further averred that, after demise of Smt. Kulwant Kaur, the plaintiff/Non counter claimant approached the defendant no.1 in the month of January, 2017 requesting him to partition the suit property by metes and bounds but the defendant no.1 denied the request of the plaintiff/Non counter claimant and told her to forget about her share in the suit property and further informed the plaintiff/Non counter claimant that he had already sold the upper ground floor of the suit property and had prepared various documents for second and ground floor of the suit property and threatened that the plaintiff/Non counter claimant and her husband would be thrown out of the suit property if the plaintiff/Non counter claimant ever demanded her share in suit property. The defendant no.1 further threatened that he would sell the suit property and will not give even a single penny to the plaintiff/Non counter claimant from the sale proceeds. Therefore, plaintiff/Non counter claimant had filed a civil suit bearing CS No. 395/17 titled "Smt. Gurjeet Mehta vs. Sh. Gurmail Singh" for partition of the suit property and also for cancellation of the title documents as well as for permanent injunction restraining the defendant no. 1 from selling, disposing, alienating, transferring or creating third party rights in the suit property which was contested by the defendant no. 1 who filed his written statement wherein he alleged that Smt. Kulwant Kaur during her lifetime had executed gift deeds dated 18.10.2016 before the Sub-Registrar concerned on 10.11.2016 in favour of his wife Smt. Satwant Kaur/counter claimant (defendant no.2 herein) and therefore neither Late Sh. Darbara Singh nor Late Smt. Kulwant Kaur had any right, title or interest in CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 5 of 42 the suit property at the time of their death. It is further averred that, the defendant no. 1 alleged that Late Smt. Kulwant Kaur had disowned and debarred the plaintiff/Non counter claimant from her movable and immovable properties including the suit property by way of publication in the newspapers "Virat Vaibhav" dated 05.11.2016 and "Sikh Times" dated 05.11.2016. It was further falsely alleged by the defendant no.1 that the plaintiff/Non counter claimant and her husband had taken the ground floor of the suit property measuring 50 sq. yds. in December, 2016 on a monthly rent of Rs. 10,000/- after the plaintiff/Non counter claimant shifted from Patiala, Punjab to Delhi and requested her mother to stay at the ground floor of the suit property. It is further averred that, in view of the objections raised by the defendant no.1 in the aforesaid civil suit bearing CS No. 395/17 the same was disposed of as withdrawn. It is further averred that, pursuant to withdrawal of the above mentioned civil suit, the plaintiff/Non counter claimant received a legal notice dated 19.12.2017 sent on behalf of the defendant no. 2/counter claimant wherein she unlawfully demanded the plaintiff/Non counter claimant to pay the alleged arrears of rent of Rs.10,000/- per month with effect from January, 2017 to December, 2017 aggregating to Rs.1,20,000/- and also to handover the physical and vacant possession of the ground floor of the suit property. It is further averred that, the said legal notice was duly replied to by the plaintiff/Non counter claimant wherein all the allegations made by the defendant no. 2/counter claimant were denied.
7. It is further averred that, on 10.02.2018 the defendants illegally restrained the plaintiff/Non counter claimant from going to the roof above the second floor of the suit property for accessing their water tank or for drying clothes etc. and locked the terrace. The defendants also removed the connection of the submersible water pump of the plaintiff's ground floor portion of the suit property and when objection raised by plaintiff/Non CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 6 of 42 counter claimant to this, the defendants started quarrelling with the plaintiff/Non counter claimant and harassed her and made a huge issue about it and denied to reconnect the connection of the submersible water pump or to allow the plaintiff/Non counter claimant to access the roof above the second floor of the suit property inspite of several requests from the plaintiff/Non counter claimant. It is further averred that, the alleged gift deeds are false, forged and fabricated documents prepared by the defendants in collusion with each other to deny the plaintiff/Non counter claimant of her rightful claim in the suit property. It is further averred that during the relevant time, Smt. Kulwant Kaur owing to her ill-health was undergoing treatment at Chandra Leela Hospital, Uttam Nagar having been admitted on 08.11.2016 and was discharged from the hospital only on 11.11.2016 and therefore there is no question of Smt. Kulwant Kaur going to the Office of the Sub- Registrar on 10.11.2016 for execution and registration of the alleged gift deeds. It is further averred that, Smt. Kulwant Kaur for about five years prior to her demise had been keeping extremely unwell both physically and mentally and had diminished memory because of which she had problems recognizing people and remembering things and events and she was also bed-ridden because of which she had bed sores and hence she could not move around even within the house.
8. It is further averred that, perusal of the photocopies of the two gift deeds filed by the defendant no.1 alongwith his written statement in CS No. 395/17 reveals that the said two gift deeds are dated 09.11.2016 and not 18.10.2016 as alleged by the defendant no.1 in the said written statement and that the date of registration of the two gift deeds is 09.11.2016 contrary to the allegation of the defendant no.1 that the said gift deeds were registered in the office of the Sub-Registrar on 10.11.2016. It is further averred that, the said gift deeds allegedly bear the thumb impression of Late Smt. Kulwant Kaur CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 7 of 42 whereas she used to sign her name on all official documents rather than affixing her thumb impression. It is further averred that, the defendants have created false, forged and fabricated documents in the form of alleged gift deeds dated 09.11.2016 which are illegal documents and are liable to be declared as null and void. It is further averred that, the plaintiff/Non counter claimant is entitled to a decree declaring the plaintiff/Non counter claimant to be owner of 1/2 share in the suit property and therefore for partition of the suit property. It is further averred that, plaintiff/Non counter claimant has apprehension that the defendants in furtherance to their dishonest intention may try to sell, transfer or alienate or part with possession of the suit property to a third party against consideration which would severely prejudice the right and entitlement of the plaintiff/Non counter claimant who is co-owner with 1/2 undivided share in the suit property.
9. The summons of the suit were issued to the defendants and written statement was filed on behalf of defendants wherein they denied the contents of plaint. It is stated that the plaintiff/Non counter claimant has not approached this Hon'ble Court with clean hands and has concealed the true and material facts about the ownership of the suit property, possession of the suit property and the transfer of the suit property. It is further stated that the present suit is bad for joinder or misjoinder of necessary parties because the defendants have nothing to do with the suit property. It is further stated that the present suit is not maintainable as the plaintiff/Non counter claimant has got no right, title or interest in the suit property because the deceased Sh. Darbara Singh had nothing to do with the abovesaid properties which were owned and purchased by Smt. Kulwant Kaur from Sh. Anoop Kumar Sharma vide duly executed documents dated 17.05.1996 and constructed the same. It is further stated that the suit property was owned and possessed by Smt. CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 8 of 42 Kulwant Kaur out of her own funds and she had executed two gift deeds dated 09.11.2016 in favour of defendant no.2 i.e. her daughter-in-law Smt. Satwant Kaur out of her own free will, consent and desire by appearing before the Sub-Registrar in the presence of witnesses and as such, the present suit is not maintainable against the defendant no.1 herein and hence the same is liable to be dismissed. It is further stated that the present suit is also liable to be dismissed under order VII Rule 11 CPC as no cause of action ever accrued in favour of the plaintiff/Non counter claimant and against the defendants for filing the present suit.
10. It is further stated that the plaintiff/Non counter claimant was disowned and debarred by Smt. Kulwant Kaur from her movable and immovable properties due to her high-handed, quarreling as well non- obeying attitude, by way of Publication in Newspapers namely "VIRAT VAIBHAV" dated 05.11.2016 and "SIKH TIMES" dt. 05.11.2016. It is further stated that, the plaintiff/Non counter claimant has concealed the material fact that she and her husband had taken the suit property measuring 50 sq. yds. at Ground Floor at a monthly rent of Rs.10,000/-. It is further stated that, the husband of the plaintiff/Non counter claimant is a Employee Government in Food Corporation of India at Rajindra Place, New Delhi as Deputy Manager and is getting a salary of Rs. 80,000/- per month including the H.R.A. from the department, and used to pay the same to the deceased mother but after the death of mother, plaintiff/Non counter claimant and her husband have become dishonest and whenever the defendants asked for the rent, they used to avoid the same on one pretext or another and in order to blackmail and to exert pressure upon the defendants, the plaintiff/Non counter claimant in collusion and connivance with her husband filed the present suit. It is further stated that, the plaintiff/Non counter claimant has not paid the appropriate court fees for the relief of cancellation of documents i.e. CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 9 of 42 Gift Deeds dated 10.10.2016 as per Section 7 (iv) (c) of Court Fees Act and has just valued the suit property for the purpose of declaration of the said two gifts as null and void at Rs.400/-. It is further stated that the defendant no.2, who is the owner of the suit property, after the execution of gift deeds both dated 18.10.2016 and executed on 09.11.2016 by deceased mother-in-law, has stepped into the shoes of her deceased mother-in-law and after the death of her mother-in-law on 30.12.2016, the defendant no.2 had requested the plaintiff/Non counter claimant to pay the rental amount of Rs.10,000/- per month which was being paid by her since December, 2012 when she was allowed to occupy the ground floor portion, during the lifetime of the deceased mother-in- law, but she did not pay any amount after the death of mother-in-law and under compulsion the plaintiff/Non counter claimant got served legal demand notice dated 19.12.2017 under section 106 of T.P. Act upon the plaintiff/Non counter claimant whereby terminating the tenancy of the plaintiff/Non counter claimant w.e.f. January, 2018 and as such the status of the plaintiff/Non counter claimant in the suit property is of a trespasser and is not entitled for any civic amenities or any other relief in view of the judgment passed in case titled as Vijay Kumar Gupta Vs. Manoj Mehta CM(M) 648 of 2008 passed by Hon'ble High Court of Delhi. It is further stated that, the plaintiff/Non counter claimant had earlier also filed a Suit No.395/2017 before civil this Hon'ble Court whereby seeking the relief of partition being the legal heir of late Sh. Darbara Singh but now the plaintiff/Non counter claimant filed the present suit whereby claiming herself to be the legal heir of Smt. Kulwant Kaur which clearly shows that the plaintiff/Non counter claimant is manipulating the facts. It is also stated that the Late Sh. Darbara Singh had no right, title or interest in the property and Late Smt. Kulwant kaur was the exclusive owner of the same. It is further stated that in December, 2012, the plaintiff/Non counter claimant and her husband had shifted from Patiala, Punjab to Delhi and had requested Late CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 10 of 42 Smt. Kulwant Kaur to allow them to live in the premises at Ground Floor and shall pay Rs.10,000/- as rent and on this condition the plaintiff/Non counter claimant and her husband were allowed to live at the ground floor and they kept on paying the rent for number of years. As the plaintiff/Non counter claimant and her husband had started misbehaving and quarreling with Late Smt. Kulwant Kaur, she had disowned the plaintiff/Non counter claimant vide publication dated 05.11.2016 in VIRAT VAIBHAV and SIKH TIMES from her movable and immovable and severed all her relationship with the plaintiff/Non counter claimant. It is further submitted that as the deceased mother Late Smt. Kulwant Kaur had already bequeathed her property in favour of her daughter-in-law, so there was no title or interest between the plaintiff/Non counter claimant and defendant no.1 and more so the plaintiff/Non counter claimant was clearly disowned and debarred by the deceased Smt. Kulwant Kaur in her lifetime and as such the plaintiff/Non counter claimant can not and could not ask partition in the suit property. It is further stated that, the present suit has been filed by plaintiff/Non counter claimant just to cause mental harassment and torture to the defendants and hence the same is liable to be dismissed.
11. Plaintiff/Non counter claimant has filed replication to the written statement of defendants wherein she reaffirmed and reiterated the contents of her plaint and denied all the averments made in the written statement of defendants.
Counter Claim No. 28/202412. Present counter claim filed by counter claimant for relief of possession as well as arrears of rent and mesne profits/damages qua the property bearing no. D-75, Ground Floor, East Uttam Nagar, New Delhi-
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 11 of 42 110059 (hereinafter referred as the "suit property") against the non counter claimant with following prayer:
(a) pass a decree of possession in favour of the counter claimant and against respondent whereby directing the respondent, her family members, heirs, attorneys, to vacate and handover the actual peaceful and vacant possession of the suit property i.e. D-75, Ground Floor, East Uttam Nagar, New Delhi-110059 (more clearly shown in red colour in the site plan filed hereto);
(b) pass a decree of arrears of rent for a sum of RS.1,20,000/- in favour of the counter claimant and against the respondent;
(c) pass a decree of mesne profits/damages Rs.20,000/- in favour of the counter claimant and against the respondent from the date of serving of legal notice till the actual handing over the physical possession of the suit property by the respondent to the counter claimant;
(d) award the cost of the counter claim in favour of counter claimant and against respondent;
(e) pass any other order or relief, which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case may kindly be passed in favour of counter respondent. claimant and against the FACTUAL BACKROUND
13. Briefly stated, the counter claimant is the owner of property bearing No. D-75, Ground Floor, East Uttam Nagar, New Delhi-110059 (hereinafter called the 'suit property'). The suit property earlier owned by Smt. Kulwant Kaur which she had purchased vide duly executed documents dated 17.05.1996 and had constructed the same. It is further averred that, Smt. Kulwant Kaur had executed the two gift deeds dated 09.11.2016 in favour of the counter claimant, who is the daughter-in-law of said Smt. Kulwant Kaur, before her death, which included the gift deed in respect of the abovesaid property measuring 50 sq.yds. in the parking at ground floor. The said property has been shown RED in the site plan.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 12 of 42
14. It is further averred that, respondent is the sister-in-law of the counter claimant and the daughter of deceased Smt. Kulwant Kaur and had been earlier residing at Punjab alongwith her husband and family and in December, 2012, she had shifted to Delhi and had requested the deceased Kulwant Kaur to stay at the ground floor portion and further averred that Smt. Kulwant Kaur allowed her to occupy the suit property subject to the payment of rent of Rs.10,000/- per month to which the respondent agreed. It is further averred that, the respondent kept paying the said rent of Rs.10,000/- p.m. in the lifetime of Smt. Kulwant Kaur and after her death. It is further averred that, on 30.12.2016, counter claimant had requested the respondent to pay the rent w.e.f. January, 2017 to the counter claimant but of no use and under compulsion, the counter claimant got served legal demand notice dt. 19.12.2017 upon the respondent thereby directing her to pay the arrears of rent as well as terminated her tenancy with immediate effect. It is further averred that, the said notice was duly served and the respondent had sent false, vague and baseless reply. When counsel claimant again requested the respondent to vacate the suit property respondent started threatening the counter claimant and her husband with dire consequences
15. It is further averred that, after the termination of the tenancy of the respondent, the status of the respondent is just a trespasser and respondent is occupying the suit property illegally, unlawfully and without any right, title or interest and is liable to handover the peaceful and vacant possession of the same to the counter claimant. It is further averred that, the counter claimant had also demanded the arrears of rent since January, 2017 and had requested the respondent to handover the peaceful and vacant possession but the respondent is avoiding the same and rather disputing the claim regarding the right to seek possession or to claim arrears of rent or damages/mesne profits. It is further averred that, the counter claimant is the absolute owner of the suit CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 13 of 42 property by way of duly executed gift dated deed 09.11.2016 executed by Smt. Kulwant Kaur and has got all rights to enjoy the same and to get it vacated from the respondent and that the respondent has got no right, title or interest in the suit property and is liable to vacate the same and also to pay the arrears of rent since January, 2017 to December, 2017 and after that is liable to pay the damages/mesne profits @ Rs.20,000/- per month which is the prevailing rate of rent in the area.
16. Written statement filed on behalf of non counter claimant to the present counter claim wherein it is stated that, the counter-claimant has not approached this Hon'ble Court with clean hands and is guilty of suppression of material facts in order to mislead the Court. It is further stated that, the suit property was owned by Smt. Kulwant Kaur, W/o Late Shri Darbara Singh who was mother-in-law of the counter-claimant and mother of the respondent herein. It is further stated that pursuant to the demise of Smt. Kulwant Kaur, the suit property devolved jointly and equally upon the respondent and her brother Shri Gurmail Singh by way of natural succession as Smt. Kulwant Kaur died intestate. It is further averred that, no cause of action has been arose in favour of the counter claimant as the counter claimant is only relying upon the alleged gift deeds dated 09.11.2016 which in itself are forged and fabricated documents and has been created by the counter-claimant in collusion and connivance with her husband Shri Gurmail Singh with the sole objective to deny the respondent's rightful right over the suit property. It is further stated that, the alleged gift deeds do not bear the signature of Smt. Kulwant Kaur who was not keeping well from a long period of time before her demise and was both physically and mentally unfit with diminished memory because of which she had problems recognizing people and remembering things. It is further stated that, Smt. Kulwant Kaur was hospitalized during the period from 08.11.2016 upto 11.11.2016 and therefore CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 14 of 42 there is no question of her going to the office of Sub-Registrar on 10.11.2016 for execution and registration of the alleged gift deeds. It is further stated that, the counter-claim is liable to be rejected under Order 7 Rule 11 CPC as counter-claimant has not been properly valued for the purpose of court-fee solely with the view to avoid paying ad-valorem court-fees. It is further stated that the counter-claimant has wrongly valued the relief of possession on the basis of rent for one year claiming that the respondent was her tenant in the suit property and had been paying rent of Rs.10,000/- per month. It is further stated that the respondent is the co-owner of the suit property alongwith her brother Shri Gurmail Singh and therefore the relief of possession ought to have been valued on the basis of market value of the suit property and the counter- claimant ought to have paid ad-valorem court-fee thereon.
17. It is further stated that, the counter-claim filed by the counter- claimant is liable to be dismissed for non-joinder of necessary and proper party. It is further stated that the suit property is jointly owned by the respondent alongwith her brother Shri Gurmail Singh and therefore Shri Gurmail Singh is a necessary and property party to the suit. The counter- claim is thus liable to be dismissed. Further, non counter claimant denied all the contents of the counter claim in reply on merits.
18. No replication to the written statement of non counter claimant has been filed by filed the counter claimant.
ISSUES
19. On the basis of pleadings of parties, following joint issues were framed vide order dated 30.05.2018:
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 15 of 42 (1). Whether the suit is bad for misjoinder of defendant No. 1 as the suit property was gifted by late Kulwant Kaur in favour of defendant No. 2 only? OPD (2). Whether the plaintiff is tenant in the suit property measuring 50 sq. yards on ground floor at monthly rent of Rs. 10,000/-? OPD (3). Whether the two gift deed dated 09.11.2016 are false, forged and fabricated as Kulwant Kaur could not have executed and registered the said gift deeds due to her physical and mental incapacity? OPP (4). Whether the plaintiff is entitled to the decree of declaration declaring the Gift deeds dated 09.11.2016 as null and void? (5) if the answer to the aforesaid issue is in affirmative, whether the suit property is joint property and plaintiff is entitled to one half of his share? OPP (6). Whether the counter claim of the defendant / counter claimant is undervalued for the purpose of court fees and jurisdiction and proper court fees has not been affixed? OPP (7). Whether counter claim is bad for non joinder of Gurmel Singh.
defendant No. 1 in the suit? OPP (8). Whether the Gift deeds dated 09.11.2016 have been validly executed by late Kulwant Kaur in favour of the defendant No. 2/ counter claimant? OPD/CC (9). Whether the defendant No. 2 is entitled to the relief of possession as prayed for? OPD (10). Whether the defendant No. 2/ counter claimant is entitled to the recovery of arrears of rent, mesne profits, damages, if so, for which period and at what rate? OPD.
(11). Relief.
JOINT EVIDENCE LED BY THE PARTIES:
20. In support of his case, plaintiff/Non counter claimant examined five witnesses. Plaintiff/Non counter claimant examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A and has relied upon following documents:
Sl. No. Particulars of Documents Exhibits/Mark
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors.
Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 16 of 42
1. Site Plan Already Ex.P-1
being admitted
2. Civil suit bearing no. CS no. 395/17 Already Ex.P-2
being admitted
3. Written statement filed by defendant no. 1 Already Ex.P-3
in CS 395/17 being admitted
4. Agreement to sell and purchase, affidavits, Already Ex.P-4 to
possession slip, receipt deed of Will all dt. Ex.P-10 being
17.05.1996 admitted
5. Publication in newspaper "Sikh Times" dt. Already Ex.P-11
05.11.2016 and "Virat Vaibhav" dt. and Ex.P-12 being
05.11.2016 admitted
6. Two gift deeds dt. 18.10.2016 Already Ex.P-13
and Ex.P-14 being
admitted
7. Order dt. 12.09.2017 passed in CS no. Already Ex.P-15
395/2017 being admitted
8. Legal notice dt. 19.12.2017 Already Ex.P-16
being admitted
9. Reply dt. 02.01.2018 to legal notice Already Ex.P-17
being admitted
PW-1 was cross-examined at length by Ld. Counsel for defendants and discharged.
21. PW-2 Sh. Ranjit Singh s/o late Sh. Mehar Singh age about 50 years, R/o S-3, Swaran Vihar, near Shiv Mandir, Rajpura Road, Patiala (Punjab) tendered his evidence by way of affidavit which is Ex.PW2/A. PW- 2 was cross-examined by Ld. Counsel for defendants and discharged.
22. PW3 Ms. Gurmeet Kaur Wo. Late Sh. Balbir Singh. aged about 53 years, R/o A-170, Nand Ram Park, Transformer Wali Gali, Uttam Nagar, New Delhi-110059 tendered her evidence by way of affidavit which is CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 17 of 42 Ex.PW3/A. PW-3 was cross-examined by Ld. Counsel for defendants and discharged.
23. PW-4 of Sh. Sukhpreet Singh S/o. Late Sh. Nakshatra Singh, aged about 35 years, R/o. C-56, Phase-IV, Om Vihar, New Delhi-110059 tendered his evidence by way of affidavit which is Ex.PW4/A. PW-4 was cross-examined by Ld. Counsel for defendants and discharged.
24. PW-5 Dr. Seema Pandey, Chandra Hospital, P-12-13 Vijay Vihar Uttam Nagar, New Delhi was a summoned witness who brought the summoned record i.e. medical record of Ms. Kulwant Kaur who admitted in hospital on 08.11.2016 till 11.11.2016. The said medical record consists of Admission/discharge record, history sheets, Treatment record/nurses sheet and vital signs record which was exhibited as Ex.PW5/1 (colly) running into 8 pages. PW5 stated that she has no written letter/noting/permission in her record from Kulwant Kaur and her family member requesting the doctor to allow her to go to the office of Sub Registrar or any date during the period of admission, however the patient was taken out of the hospital by her attendees to get the ultra sound of patient done from outside of the hospital on 09.11.2016. PW4 further stated that the patient was under the treatment of Dr. Bhardwaj, physician and the patient was not in a position to walk independently. PW5 further stated that the patient might have gone from the hospital on the stature. No person from the hospital was accompanied the patient. She does not recollect the time when the patient was taken out of the hospital on 09.11.2016. The original reports of the patient are entrusted to the patient or her/his attendees. The patient was gone for ultrasound only for one day i.e. 09.11.2016. PW5 further stated that in the present case, no permission in writing has been given to go outside the hospital. PW-5 was cross- examined by Ld. Counsel for defendants and discharged. CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 18 of 42
25. Thereafter, PE was closed and matter was fixed for DE.
26. In support of her case, defendant/counter claimant examined four witnesses. DW-1 Sh. Gurmail Singh s/o Late Sh. Darbara Singh, R/o. H.no. D-75, Second Floor, East Uttam Nagar, New Delhi-110059 tendered his evidence by way of affidavit Ex. DW1/1 and has relied upon the following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. Original site plan Ex. DW1/A
2. Copy of Agreement to sell & purchase, Ex. DW1/B (OSR) (Colly) Affidavit, Possession slip, Receipt, Deed of Will, all dated 17.05.1996 executed by Sh.
Anup Kumar Sharma in favour of Smt. Kulwant Kaur with regard to the suit property
3. Copy of Gift Deed dated 09.11.2016 of Ex. DW1/C (OSR);
Ground floor of the suit property
4. Copy of Gift Deed dated 09.11.2016 of Ex. DW1/D (OSR) Second floor of the suit property
5. Copies of newspapers Virat Vaibhav & The Ex. DW1/E & Ex.
Sikh Time dated 05.11.2016 wherein Ms. DW1/F (OSR). Gurjeet Kaur Mehta w/o. Mr. Gayender Mehta was disowned and debarred DW1 was cross-examined by Ld. Counsel for plaintiff/Non counter claimant and discharged.
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27. DW-2 Mrs. Satwant Kaur w/o. Sh. Gurmail Singh, R/o. H.no. D- 75, Second Floor, East Uttam Nagar, New Delhi-110059 tendered her evidence by way of affidavit Ex.DW2/1 and has relied upon the documents already exhibited as Ex.DW1/A to Ex.DW1/F. DW2 was cross-examined by Ld. Counsel for plaintiff/Non counter claimant and discharged.
28. DW-3 Sh. Anil S/o Sh. Mange Ram, Sr. Assistant, SR-IIB, Janakpuri, New Delhi was summoned witness who has brought the summoned record i.e. Gift deed dated 10.11.2016 having registration No. 18725 in Book No. 1. Vol. No. 1778 on page 177 to 183 Ex. DW-3/1 (OSR) (colly.) and Gift deed dated 10.11.2016 having registration No. 18731 in Book No. 1. Vol. No. 1779 on page 38 to 44 which was exhibited as Ex. DW- 3/2 (OSR) (colly.). DW3 was cross-examined by Ld. Counsel for plaintiff/Non counter claimant and discharged.
29. DW-4 Sh. Anil Kumar, S/o Sh. R.C. Sharma, aged about 46 years R/o F-510, 3rd floor, Karampura, New Delhi was a summoned witnessed the gift deed dt. 10.11.2016 at Srl. No. 1. DW4 was cross- examined by Ld. Counsel for plaintiff/Non counter claimant and discharged.
30. DW-5 Sh. Uttam S/o Sh. S. Lal, aged about 44 years, R/o RZ- 49, Flat no. 7, Mahindra Park, Uttam Nagar, New Delhi who was summoned witness of two gift deeds executed on 09.11.2016. He has stated that he had seen original gift deeds dated 09.11.2016 and he also identified his signatures at point B and C. DW5 further stated that on 09.11.2016, Mrs. Kulwant Kaur had put her thumb impression on both gift deeds in his presence.
31. Thereafter, DE stands closed and the matter was fixed for final arguments.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 20 of 42 SUBMISSIONS OF THE PARTIES:
32. Ld. Counsel for plaintiff/non counter claimant submitted that Gift deeds dt. 09.11.2016 i.e. Ex. P-13 and P-14 are forged and fabricated. It is submitted that Late Smt. Kulwant Kaur was admitted to Chandra Leela Hospital for the period 08.11.2016 to 11.11.2016 and it is during said time, above gift deeds were registered under suspicious circumstances. It is also submitted that Late Smt. Kulwant Kumar used to sign, however, impugned gift deed bears forged thumb impression, hence, cannot be relied upon. Ld. Counsel for plaintiff/Non counter claimant strongly relied upon the testimony of PW1 to PW5 in support of his contentions. It is submitted that the defendants were having undue influence upon Late Smt. Kulwant Kaur. Ld. Counsel for plaintiff/Non counter claimant also pointed out testimony given by DW-4 wherein impugned gift deeds were stated to be executed on 10.11.2016. Lastly, it is submitted that present suit may be decreed in favour of plaintiff/Non counter claimant. Ld. Counsel for plaintiff/Non counter claimant relied upon following judgments in support of his contentions:
1. Krishna Mohan Kul @ Nani Charan Kul & Anr. Vs. Pratima Maity & Ors. Appeal (Civil) 7133 of 2003 decided on 09.09.2003 passed by Hon'ble Supreme Court of India;
2. Laxmi Raj Shetty & Anr. v. State of Tamil Nadu 1988 AIR 1274 passed by Hon'ble Supreme Court of India.
33. Per contra, Ld. Counsel for defendants vehemently opposed the contention of the plaintiff/Non counter claimant. It is submitted that the entire arguments of plaintiff/Non counter claimant is based upon two contentions.
Firstly, Late Smt. Kulwant Kaur was ill hence, not fit to execute impugned gift deeds. Secondly, Ex.P-13 and P-14 i.e. impugned gift deeds bears forged and fabricated thumb impressions of Late Smt. Kulwant Kaur. It is further submitted that, except making bald submissions, no material is placed on CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 21 of 42 record by plaintiff/Non counter claimant to show the mental health of Late Smt. Kulwant Kaur at the time of execution of impugned sale deeds. It is further submitted that impugned gift deeds are registered documents as such, presumption is always there in its favour. It is further submitted that, during his testimony PW-1 duly admitted thumb impression of Late Smt. Kulwant Kaur in following terms:
"It is correct that the said gift deed are having the thumb impression as well photograph of my deceased mother."
34. Ld. Counsel for defendant further submitted that, issue of undue influence cannot be gone into as it is beyond the pleadings and barred under Order VI Rule 4 CPC. It is further submitted that, minor discrepancy in deposition of DW-4 can be ignored as alleged gift deeds are duly proved in terms of Sec. 68 of Indian Evidence Act. Ld. Counsel for defendants relied upon the following judgments in support of his contentions:
1. Damodar Versus State of Rajasthan AIR 2003 SC 4414;
2. Prem Singh Versus Presump Birbal AIR 2006 SC 3608;
3. Ladli Prasad Jaiswal Versus Karnal Distillery Co. Ltd. 1963 AIR 1279;
4. Ismail Mookrdum Mussajee Versus Hafiz Boo (1906) BOMLR 379;
5. Poosathurai Kannappa Versus Chettiar (1920) 22 BOMLR 538;
6. Rita Pandit Versus Atul Pandit AIR 2005 AP253
35. In rebuttal, Ld. Counsel for plaintiff/Non counter claimant submitted that vide order dated 02.05.2018 Ld. Predecessor of this court already granted access to terrace to the plaintiff/Non counter claimant thus, contention of the defendant cannot be relied upon. It is further submitted that as per gift deeds, possession was already handed over to defendant no. 2 ten years ago but, to the contrary, defendant no. 2/counter claimant is now seeking possession of the suit property by virtue of separate counter claim which clearly shows that impugned gift deeds are forged and fabricated. It is CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 22 of 42 further submitted that para 16 of the plaint categorically mention that, "defendants have resorted to illegal acts and created false, forged and fabricated documents in form of alleged gift deeds". Thus, undue influence is the part of pleadings and there is no bar u/o VI Rule 4 CPC. It is further submitted that, Late Smt. Kulwant Kaur was suffering from Cholecystitis as well as hypokalemia which is severe disease thus, she was not in a condition to execute any gift deeds as claimed by the defendant. It is also submitted that, debarred notice, as relied upon by defendants, cannot be relied upon being not as per law. It is further submitted that, judgments referred by defendant are not applicable to the facts and circumstances of the present case.
36. Submissions heard. Record perused.
ISSUEWISE ANALYSIS:
37. Before going ahead, it is imperative to determine nature of the suit property as in her plaint, plaintiff/Non counter claimant defined the suit property as entire built up property bearing no. D-75, East Uttam Nagar, New Delhi-110059' constructed on the plot of land admeasuring 125 sq. yds. as shown in red color in the following site plan:
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38. However, during the course of submissions, Ld. Counsel for defendant categorically submitted that the suit property consists of two rooms set admeasuring 50 sq. yards at ground floor and entire second floor along with terrace right only as Late Smt. Kulwant Kaur already sold the upper ground floor and first floor of the suit property to a third party. Record reveals that, while disposing off application u/o XXXIX Rule 1 and 2 CPC as filed by plaintiff/Non counter claimant, vide order dt. 28.11.2018 Ld. Predecessor of this court has also recorded the fact of third party right in upper ground floor and first floor. Thus, plaintiff/Non counter claimant is duly aware about this fact but failed to take any step for impleadment of said third party. Further, impugned Gift deeds were also w.r.t. Ground floor and Second floor only. In view thereof, this court restricted its analysis and findings for ground floor and second floor only as per the details given in the site plan.
39. Now, issuewise analysis as per their priority is as follows:
Issue no. 6: Whether the counter claim of the defendant / counter claimant is undervalued for the purpose of court fees and jurisdiction and proper court fees has not been affixed? OPP
40. In the present matter, plaintiff/Non counter claimant is seeking declaration and partition and valued her suit as follows:
"11. That the counter claim is valued for the purpose of court fees and jurisdiction as under:-
(a) for the relief of possession under the possession of the respondent, the counter claim is valued at Rs.1,20,000/- i.e. the rent for one year.
(b) for the purpose of recovery of arrears of rent, the counter claim is valued at Rs.1,20,000/-.
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(c) for the purpose of mesne profits/ damages, the counter claim is valued at Rs.80,000/-.
Upon all the abovesaid reliefs the ad- volerum court fees has been paid."
41. Onus of above issue was on plaintiff/Non counter claimant but no evidence brought on record by plaintiff/Non counter claimant to show that the present counter claim is undervalued and deficient court fees has been paid. In view thereof, issue no. 6 is decided in favour of counter claimant and against the non counter claimant.
Issue no. 1: Whether the suit is bad for misjoinder of defendant No. 1 as the suit property was gifted by late Kulwant Kaur in favour of defendant No. 2 only? OPD Issue no. 7: Whether counter claim is bad for non joinder of Gurmel Singh. defendant No. 1 in the suit? OPP
42. Since both issues are inter-related, taken simultaneously.
43. It is well settled law that, no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.1
44. Hon'ble Supreme Court of India in the matter of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others2 held as follows:
19. Misjoinder and non-joinder.--No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
[Provided that nothing in this rule shall apply to non-joinder of a necessary party.] 2 AIR 2010 SUPREME COURT 3109 CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 25 of 42
8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
45. In CS 79/18, plaintiff/Non counter claimant is seeking declaration against impugned gift deeds as well as declaration qua 1/2 share in the suit property along with partition thereof and consequential relief. Admittedly, plaintiff/Non counter claimant and defendant no. 1 are Class-I legal heir of Late Smt. Kulwant Kaur who was exclusive owner of the suit property. Thus, defendant no. 1 is a necessary party to the present suit to adjudicate actual dispute between the parties. In view thereof, Issue no. 1 is decided in favour of the plaintiff/Non counter claimant and against the defendants.
46. In CC no. 28/24, counter claimant is merely seeking decree of possession in capacity of landlord/owner. Thus, in the considered opinion of CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 26 of 42 this court, defendant no. 1 is not necessary party to the counter claim. Hence, issue no. 7 is decided in favour of the counter claimant and against the plaintiff/Non counter claimant. Both issues stand disposed off accordingly.
Issue no. 3: Whether the two gift deed dated 09.11.2016 are false, forged and fabricated as Kulwant Kaur could not have executed and registered the said gift deeds due to her physical and mental incapacity? OPP Issue no. 4: Whether the plaintiff is entitled to the decree of declaration declaring the Gift deeds dated 09.11.2016 as null and void?
Issue no. 8: Whether the Gift deeds dated 09.11.2016 have been validly executed by late Kulwant Kaur in favour of the defendant No. 2/ counter claimant? OPD/CC
47. Since above issues are inter-related, taken simultaneously.
48. Before going ahead, it is imperative to refer the law for Declaration and Cancellation.
49. Section 31(1) of the Specific Relief Act, 1963 3 deals with cancellation of documents. The purpose of cancellation of instruments under the Specific Relief Act of 1963 is to serve justice to the parties who are in a fear of being harmed or are actually being harmed by the other party due to the performance of such instrument/contract. Cancellation of documents/instruments means the nullification of a written document which is proof of a transaction between the parties.
331. When cancellation may be ordered.-- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
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50. Section 34, Specific Relief Act4 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the plaintiff/Non counter claimant must establish that (1) the plaintiff/Non counter claimant was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff/Non counter claimant, (iii) the declaration asked for was a declaration that the plaintiff/Non counter claimant was entitled to a legal character or to a right to property (iv) the plaintiff/Non counter claimant was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
51. Hon'ble Supreme Court of India in Deccan Paper Mills Co. Ltd. V Regency Mahavir Properties, Civil Appeal No 5147 of 2016 observed that document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under section 39 of the Specific Relief Act, 1877 (which is the pari materia provision to section 31 of the 1963 Act) is a protective or a preventive one. It is to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated.
52. Similarly, in Suhrid Singh V Randhir Singh, (2010) 12 SCC 112, Hon'ble Supreme Court held that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant 4
34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 28 of 42 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. In Deccan Paper Mills Co. Ltd (supra), it was observed that the expression "any person" does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. It was further observed as under:
"The incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non- executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem."
53. In the present matter, plaintiff/Non counter claimant is seeking declaration qua registered gift deeds dt. 09.11.2016 mainly on three grounds. Firstly, Ex. P-13 and Ex. P-14 are forged and fabricated. It is submitted that, Ex. P-13 and Ex. P-14 are manipulated documents on the face of it, as the thumb impressions are manipulated. Secondly, aforesaid gift deeds have been registered at the Sub-Registrar-II B Janakpuri on 10.11.2016 while Late Smt. Kulwant Kaur was admitted in Chandra Leela Hospital for the period from 01:40 PM on 08.11.2016 till 05:00 PM on 11.11.2016 which raise suspicion. Thirdly, defendants in collusion of each other have fabricated impugned gift deeds to deprive the plaintiff/Non counter claimant from her lawful entitlement.
54. For the purpose of clarification, relevant contents of impugned Gift deeds are reproduced here-in-below:
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 29 of 42 GIFT DEED DT. 09.11.2016 (EX.P-13) W.R.T. SECOND FLOOR WITH ROOF RIGHTS WITH COMMON CAR AND BIKE PARKING OUT OF PROPERTY SITUATED AT D-75, AREA MEASURING 125 SQ YDS SITUATED IN THE VILLAGE POSSANGIPUR, OUT OF REC. NO. 33, KILLA NO. 6, KHATUNI NO. 21/33, COLONY KNOWN AS EAST UTTAM NAGAR, NEW DELHI "NOW THIS GIFT DEED WITNESSETH AS UNDER
1. That the doner out of her natural love and affection has Gifted above said residential property to the donee and who have accepted this Gift Deed from the doner.
2. That the physical possession of the above said property has been already handed over last 10 years ago to the donee by the donor.
3. That all the previous documents relating i.e. Sale Deed and other chain of documents, as well as title of the above said property have been delivered to the Donee by the Donor.
4. That the donor hereby assures and declares that the above said property under Gift is free from all sorts of encumbrances and there is no legal defect in the title and ownership of the donor.
5. That the donor has not entered into prior any agreement with anybody for the sale and transfer of the said property.
6. That I have one daughter and at the time of her marriage have given sufficient shares of the said house in the shape of house-hold items and some ornaments or now my daughter is happily living in her in-laws house. Now I do not wants to give any share to my daughter at present and in future (dispauper rights of the said property.)
7. That my son and his wife along-with their children's also looking and caring and fulfill my day by day requirements, and my medical treatments. Now they are desire to take the said property in any manner and my all other legal heirs have no right/claim, inturst/interfare of the said property.
8. That from the date of execution of this Gift Deed, Donee will be entitled to use the said property in any manner they like and will CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors.
Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 30 of 42 be entitled to get it mutated in their own name in the Municipal /Revenue records. Donee are also entitled to further sell, transfer, Gift, Mortgage, Etc. their part of the above said property.
9. That the value of the property under gift has been fixed at Rs. 19,00,000/- (Rs. Ninteen Lacs Only.)
10. That the donee hereby accept this gift and make their declaration hereby to this effect.'"
GIFT DEED DT. 09.11.2016 (EX. P-14)W.R.T. GROUND FLOOR WITHOUT ROOF RIGHTS OUT OF PROPERTY SITUATED AT D-75, AREA MEASURING 125 SQ YDS SITUATED IN THE VILLAGE POSSANGIPUR, OUT OF REC. NO. 33, KILLA NO. 6, KHATUNI NO. 21/33, COLONY KNOWN AS EAST UTTAM NAGAR, NEW DELHI "NOW THIS GIFT DEED WITNESSETH AS UNDER
1. That the doner out of her natural love and affection has Gifted above said residential property to the donee and who have accepted this Gift Deed from the doner.
2. That the physical possession of the above said property has been already handed over last 10 years ago to the donee by the donor.
3. That all the previous documents relating i.e. Sale Deed and other chain of documents, as well as title of the above said property have been delivered to the Donee by the Donor.
4. That the donor hereby assures and declares that the above said property under Gift is free from all sorts of encumbrances and there is no legal defect in the title and ownership of the donor.
5. That the donor has not entered into prior any agreement with anybody for the sale and transfer of the said property.
6. That I have one daughter and at the time of her marriage have given sufficient shares of the said house in the shape of house-hold items and some ornaments or now my daughter is happily living in her in-laws house. Now I do not wants to give any share to my daughter at present and in future (dispauper rights of the said property.) CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 31 of 42
7. That my son and his wife along-with their children's also looking and caring and fulfill my day by day requirements, and my medical treatments. Now they are desire to take the said property in any manner and my all other legal heirs have no right/claim, intrust/interfare of the said property.
8. That from the date of execution of this Gift Deed, Donee will be entitled to use the said property in any manner they like and will be entitled to get it mutated in their own name in the Municipal /Revenue records. Donee are also entitled to further sell, transfer, Gift, Mortgage, Etc. their part of the above said property.
9. That the value of the property under gift has been fixed at Rs.
9,15,000/- (Rs. Nine Lacs Fifteen Thousand Only.)
10. That the donee hereby accept this gift and make their declaration hereby to this effect."
55. This court carefully gone through the impugned gift deeds as well as the other material placed on record by the parties. It is well settled law that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution5.
5Section 67, Bhartiya Sakshya Adhiniyam, 2023 Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
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56. Section 17 (1) (a) of the Registration Act, 1908 6 provides that instrument of gift of immovable property is compulsory registrable document. To prove impugned registered Gift deed dt. 09.11.2016 as genuine, defendant examined three witnesses i.e. DW-3 (official from SR-II B, Janakpuri), DW-4 (witness no. 1) and DW-5 (witness no. 2).
Testimony of DW-4 and DW-5 is reproduced here-in-below:
'Statement of DW-4: Sh. Anil Kumar, S/o Sh.R.C. Sharma, aged about 46 years R/o F-510, 3rd floor, Karampura, New Delhi.
On S.A.:
I am a summoned witness. I have witnessed the gift deed dated 10.11.2016 at Srl. No. 1.
XXXX by Sh. Yogendra Singh, L.d. Counsel for the plaintiff.
I have distance relation with the doner namely late Mrs. Kulwant Kaur. When I visited the hospital to see Mrs. Kulwant Kaur on 08.11.2016, she told me that she wants to execute gift deed in favour of her daughter in law namely Mrs. Santwant Kaur and asked me to become a witness in the same. I visited the Sub-registrar office on 10.11.2016. Late Smt. Kulwant Kaur asked me to come on 10.11.2016.
I have read over the gift deed before sign it in the chamber of Advocate on 10.11.2016. I know the English language and understood the language of the gift deed. When I was in Sub-registrar office and during the registration of gift deed, doner Late Smt. Kulwant Kaur and done Mrs. Santwant Kaur signed the gift deed in my 6
17. Documents of which registration is compulsory.-- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 33 of 42 presence and I also signed the same. Vol. Late Smt. Kulwant Kaur had put her thumb impression on it.
At this stage, witness is referred to the last two line Ex. DW-3/1 from point A to A. Q. I put it to you that you have falsely signed on above statement. Ans. It is incorrect.
On 10.11.2016, Late Smt. Kulwant Kaur was present in the Sub-registrar office and she was taken there in a private Ambulance by my brother Kumod Sharma, Gurmail Singh and Smt. Satwant Kaur. I do not know who hired the Ambulance. She stayed in the office Sub- registrar office for about one and half hour. I reached the office of Sub-registrar office at 10.00 AM. I set in the office of the Advocate which was situated about 100- 200 meters away from the office of Sub-registrar. When I reached the office of Sub-registrar, Late Smt. Kulwant Kaur and Smt. Satwant Kaur were already present there and my brother was also present there.
It is wrong to suggest that I am deposing falsely."
(emphasis is mine) "Statement of DW-5: Sh. Uttam S/o Sh. S. Lal, aged about 44 years, R/o RZ- 49, Flat no. 7, Mahindra Park, Uttam Nagar, New Delhi.
On SA.
I am a summoned witness. I am witness of two gift deeds executed on 09.11.2016. I have seen original gift deeds dated 09.11.2016 and I identify my signatures at point B and C. On 09.11.2016, Mrs. Kulwant Kaur had put her thumb impression on both gift deeds in my presence.
XXXX by Sh. Yogendra Singh, Ld. Counsel for the plaintiff.
Both gift deeds were executed at the office of Sub-
Registrar-II, Janakpuri. The first witness of Gift Deeds Sh. Anil Kumar, myself and defendant no. 1, all of us are common friends.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 34 of 42 Smt. Kulwant Kaur was the mother of defendant no. 1.
Lastly, I met to late Smt. Kulwant Kaur in the September, 2016 at her residence. At the time of execution of Gift Deeds, I separately reached to Sub-Registrar-II, Office at Janakpuri. Sh. Anil Kumar telephonically informed be about the date of execution of gift deeds.
It is correct that, late Smt. Kulwant Kaur requested me to witness to the said gift deeds. Late Smt. Kulwant Kaur made said request when I reached to Sub-Registrar-II Office on the date of execution.
I do not know, from where late Smt. Kulwant Kaur arrived to Sub-Registrar-II office. I was aware about her health condition, however, I was not aware about specific disease, if any.
Anil Kumar, defendant no.1 and daughter in law of late Smt. Kulwant Kaur accompanied her on the date of execution. I reached at 11.30 AM while late Smt. Kulwant Kaur reached thereafter. I do not know how she reached there. Vol. When I saw her, she was on stretcher along with one female hospital staff. That female hospital staff remained at Sub-Registrar-II office till conclusion of execution proceedings of Gift Deeds.
I do not know where late Smt. Kulwant Kaur gone thereafter. I left Sub-Registrar-II office prior to late Smt. Kulwant Kaur. I did not see any ambulance of hospital outside the Sub-Registrar-II office.
I have not personally met with late Smt. Kulwant Kaur, however, I had word with her over phone on very next date around 12.00 noon. Vol. She called me to say thanks and it was the last conversation with her. I know late Smt. Kulwant Kaur since 2014.
It is wrong to suggest that Late Smt. Kulwant Kaur signed the gift deeds. Vol. She has put her thumb impression. It is wrong to suggest that I am deposing falsely."
(emphasis is mine) CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 35 of 42
57. Careful perusal of above testimonies reveals material discrepancies w.r.t. the execution of impugned gift deeds i.e as follows:
i. As per DW-4 Late Satwant Kaur requested him to witness impugned gift deed on 10.11.2016 and it was read over by DW-4 on 10.11.2016 while as per DW-5 impugned gift deed was executed on 09.11.2016;
ii. As per DW-4 on 10.11.2016, Late Smt. Kulwant Kaur was taken to Sub-Registrar office in private ambulance by his brother and defendants. However, as per DW-5 Late Smt. Kulwant Kaur was on stretcher along with one female hospital staff and said staff remained at office of Sub-Registrar II till execution of gift deeds. DW-5 further deposed that he did not see any ambulance of hospital outside the Sub- Registrar II office;
iii. As per DW-4 when he reached Sub-Registrar office at 10:00 AM, Late Smt. Kulwant Kaur was already present. While, DW-5 says, he reached to Sub-Registrar office at 11:30 AM and Late Smt. Kulwant Kaur reached thereafter on stretcher with one female hospital staff;
iv. None of the Gift Deed contains any averment about debarment of plaintiff from Late Smt. Kulwant Kaur's property;
58. Interestingly, PW-5 who examined as plaintiff's witness specifically deposed that Late Smt. Kulwant Kaur was taken out of hospital by her attendee for ultrasound and no person from hospital was accompanying to her. Perusal of Ex.PW5/1 reveals that Late Smt. Kulwant Kaur was diagnosed with 'acute calculus cholecystitis mild fatty lever, General weakness, hypokalemia' and was on conservative treatment with CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 36 of 42 Chandra Leela Hospital from 08.11.2016 till 11.11.2016. Ex.PW5/1 also reveals that at 09:00 AM patient gone for USG without attendant.
59. During his testimony, DW-1 duly admitted that doctor of Chandra Leela Hospital did not permit defendants to take Late Smt. Kulwant Kaur for Sub-Registrar office and she was taken for X-ray at Tilak Nagar. No document produced on record to prove thumb impression of the executant. No plausible explanation was given by defendant for urgency to execute gift deeds in favour of defendant no. 2//counter claimant when Late Smt. Kulwant Kaur was undergoing medical treatment. Relevant testimony of DW-1 is reproduced here-in-below:
"Before death of my mother, she was ill but not completely bedridden. My mother was treated in Chander Leela hospital for stomach infection. I do not remember the period when she was treated. My mother was also admitted in the above said hospital on 08.11.2016 for two days and I was present in the hospital with my mother. It is correct to say that my mother was not able to move without help / assistance.
I know about the gift deed with respect to the suit property. The gift deed was executed on 09.11.2016. I was present at the time of execution of gift deed. The prior appointment for registration of gift deed of the office of Sub- registrar was taken on 18.10.2016. Donor / my mother Smt. Kulwant Kaur went to the office of Sub- registrar from the hospital namely Chander Leela on 09.11.2016 at about 11.30 AM. Doctor advised verbally her for X-ray of stomach. Vol. But doctor did not give permission for going to Sub-registrar office. My mother was taken in Private Ambulance for taking X-ray at Tilak Nagar. My mother expired on 30.12.2016 at home. I do not know reason of her death. There was no post-mortem of my mother. Vol. It was a natural death.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 37 of 42 My mother had put her thumb impression on the gift deed. I did not file any other document which shows that my mother used to put thumb impression except the gift deed."
60. Thus, considering the facts and circumstances of the present case, this court is of the opinion that, the circumstances under which impugned gift deeds were execution are highly suspicious. Hence, cannot be relied upon and declared as null and void and not binding upon the plaintiff/Non counter claimant. In view thereof, all these issues are decided in favour of plaintiff.
Issue no. 2: Whether the plaintiff is tenant in the suit property measuring 50 sq. yards on ground floor at monthly rent of Rs. 10,000/-? OPD Issue no. 10: Whether the defendant No. 2/ counter claimant is entitled to the recovery of arrears of rent, mesne profits, damages, if so, for which period and at what rate? OPD.
61. Since above issues are inter-related, hence taken simultaneously.
62. Onus of both issues were on defendants, however defendant no. 2 failed to prove any landlord-tenant relationship with the plaintiff/Non counter claimant rather, this court already declared title documents i.e. impugned gift deeds as null and void in preceding paras. Hence, above issues are decided in favour of plaintiff/Non counter claimant and against the defendants.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 38 of 42 Issue no. 5: If the answer to the aforesaid issue is in affirmative, whether the suit property is joint property and plaintiff is entitled to one half of his share? OPP
63. Admittedly, Late Smt. Kulwant Kaur was the owner of the suit property i.e. ground floor and second floor of property bearing no. 75, East Uttam Nagar, New Delhi 110059 and left for heavenly abode on 30.12.2016 leaving behind plaintiff/Non counter claimant and defendant no. 1 as Class-I legal heir. Thus, by virtue of Sec. 15 of Hindu Succession Act 7, suit property is to be divided in 1/2 equal share. Hence, this issue is also decided in favour of plaintiff/Non counter claimant and against the defendants.
Issue no. 9: Whether the defendant No. 2 is entitled to the relief of possession as prayed for? OPD
64. In view of above discussion and finding given by this court in preceding paras, this issue is decided against the defendants/counter claimants.
7Section 15, Hindu Succession Act, 1956 General rules of succession in the case of female Hindus. (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 39 of 42 ADDITIONAL ISSUES:
65. It is well settled law that, under Order XIV Rule 5 of CPC 8, the trial court can at any time before passing a decree, frame an additional issue on such terms as it deems fit as may be necessary for determining the matters in controversy between the parties. Present suit was filed by plaintiff/Non counter claimant seeking partition. However, no specific issue for partition framed in present matter. Thus, in considered opinion of this court, since subject matter of present dispute included immovable property, once shares are determined partition decree has to be drawn as per share of the parties.
66. In view thereof, to final adjudicate all disputes between the parties in realistic manner issues w.r.t. partition are to be framed as follows:
Additional issue No. 1: Whether plaintiff is entitled for preliminary decree of partition as per share determined by this court? OPP Additional issue No. 2: Whether Plaintiff is entitled for final decree of partition in terms of preliminary decree? OPP
67. Since above issues are interlinked, both are taken simultaneously. This court carefully gone through entire material on record to adjudicate above issues and in view of above discussion share of parties are determined as follows:
Plaintiff: 1/2nd Share;
Defendant no. 1: 1/2nd Share;
Additional issue No. 1 stands disposed off.8
Order XIV Rule 5 CPC: Power to amend and strike out, issues.--
(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 40 of 42
68. ISSUE NO. 11: Relief (Conclusion)
(a) considering the facts and circumstances of the present case, this court is of the opinion that, the circumstances under which impugned gift deeds were execution are highly suspicious. Hence, cannot be relied upon. Accordingly, decree of declaration passed in favour of plaintiff thereby declaring Gift Deeds dated 09.11.2016 as null and void and not binding upon the plaintiff;
(b) Defendant no. 2/Counter Claimant failed to prove any landlord-tenant relationship with the plaintiff/Non counter claimant. Further, this court already declared title documents i.e. impugned gift deeds as null and void in preceding paras. Hence, Counter Claim stand dismissed;
(c) Admittedly, Late Smt. Kulwant Kaur was the owner of the suit property i.e. ground floor and second floor of property bearing no. 75, East Uttam Nagar, New Delhi 110059 and left for heavenly abode on 30.12.2016 leaving behind plaintiff/Non counter claimant and defendant no. 1 as Class-I legal heir. Thus, by virtue of Sec. 15 of Hindu Succession Act9, suit property is to be divided in 1/2 equal 9 Section 15, Hindu Succession Act, 1956 General rules of succession in the case of female Hindus. (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 41 of 42 share. Hence, preliminary decree of partition passed in favour of plaintiff and share of parties are determined as follows:
Plaintiff: 1/2nd Share;
Defendant no. 1: 1/2nd Share.
69. Preliminary decree sheet be prepared accordingly in CS 261/2018 and Decree Sheet be prepared in CC No. 28/24.
70. However, unless the suit property is partitioned by metes and bounds, final decree qua the partition as per the share of the parties as determined in preceding para cannot be granted at this stage. Hence, to ascertain whether suit property is partitionable by metes and bounds, this court deems it fit that an opportunity should be granted to the parties to devise a method as to how best the suit property can be partitioned by metes and bounds after consulting with each other. For this purpose, time is granted to the parties to explore the possibility of partitioning the suit property by metes and bounds effectively and apprise the same to the court.
71. Put up for mode of partition /further proceedings on 11.11.2024.
(SHILPI M JAIN) ADDL. DISTRICT JUDGE-05 DWARKA COURTS, NEW DELHI 28.10.2024 Digitally signed by SHILPI M SHILPI JAIN M JAIN Date:
2024.10.28 17:05:42 +0530 CS No. 261/2018 Gurjeet Mehta vs. Gurmail Singh & Ors. Counter Claim No. 28/24 Satnam Kaur vs. Gurjeet Mehta Page No. 42 of 42