Delhi District Court
Smt. Tamsil Fatima D/O Sh. Raisuddin vs Smt. Sakina W/O Mohd. Umar on 12 July, 2013
IN THE COURT OF SH. RAKESH KUMARIII
JSCC : ASCJ : GUARDIAN JUDGE (SHAHDARA) :
KARKARDOOMA COURTS : DELHI.
Civil Suit no: 250/2012
Unique Case ID no.: 02402C0329712006
Smt. Tamsil Fatima D/o Sh. Raisuddin
R/o 5157, Phatak Hakim Mehmood Khan Ballimaran, Delhi110006.
....... Plaintiff
Versus
Smt. Sakina W/o Mohd. Umar
R/o V35, Welcome, Seelampur, Delhi110053.
...... Defendant
Suit for Declaration, Specific Performance, Possession,
Damages and Permanent Injunction
Date of Institution of the suit : 03.07.2006
Date on which judgment was reserved : 03.07.2013
Date of decision : 12.07.2013
Decision : Dismissed
J U D G M E N T
1. By filing the present suit on 03.07.2006 plaintiff seeking a decree to the specific performance in respect to the agreement to sell dated 24.06.2003 allegedly executed by the defendant in respect to the property bearing No. V35, Welcome, Seelampur, Shahdara, Delhi (herein after called property in question and shown in red colour in the site plan), Civil Suit no. 250/2012 Page NO. 1 / 26 decree of possession of the property captioned above, a decree of declaration thus declaring the cancellation of GPA dated 03.10.2003 as null and void, decree of recovery of mesne profit @ Rs.5,000/ p.m., decree of permanent prohibitory injunction thus restraining defendant for transferring possession of the property as well as restraining the defendant from making any alterations or addition in the property in question along with cost of the suit on the ground that plaintiff has married to the son of the defendant. At the time of marriage of the son of defendant, her family members i.e., her husband, sons and daughters demanded dowry in cash which was refused by father of the plaintiff, hence, defendant started negotiating for the sale of her house in the name or in favour of plaintiff. They persuaded the father of the plaintiff as they said that their daughter had to marry and for this purpose they required money, hence, father of the plaintiff agreed to purchase the house or property in question in the name of his daughter i.e., plaintiff herein for a sum of Rs.2,25,000/ and the defendant while executing power of attorney, Will, agreement to sale, money, receipt etc. were prepared and got registered on 24.06.2003.
2. It is contended that on 04.07.2003 defendant and her family members visited the house of the plaintiff for the process of marriage and again on 06.07.203 Mehndi Ceremony was performed and on request of the defendant and her family members the entire dowry articles were handed over to the defendant and her family members even before the marriage and Ruksati. Subsequently, on 07.07.2003 marriage was Civil Suit no. 250/2012 Page NO. 2 / 26 performed and immediately after the marriage on 08.07.2003 the defendant and her family members started demanding Rs.1,00,000/ and further demanding Rs.2,00,000/ for sending the son of the defendant Sh. Noor Mohd., who is the husband of the plaintiff, to Korea which was refused by father of the plaintiff resulting into they started harassing the plaintiff giving mental torture, creating a fear and to the extent of beating her mercilessly and torturing to kill her by showing her and putting the knives and dagger on her body. They also obtained her signature on the blank papers forcibly against her (plaintiff's) wish, will and consent.
3. It is further contended that on 28.10.03 the father of the plaintiff went to the house of the defendant and brought his daughter (plaintiff) with him and since then she has been suffering great depression due to physical and mental injuries inflicted by the defendant and her family members and thereafter she is continuous undergoing treatment at Ram Manohar Lohiya Hospital at Delhi and the defendant despite executing all the titled documents of the property in question in favour of the plaintiff and defendant entered into the house and taken possession of the property in question despite that neither the defendant nor family members have any right, title or interest of the property in question after having been sold the same for consideration to the plaintiff and after handed over the possession.
4. It is lastly contended that since the market rent and damages for the house of occupation of the similar premises of the vicinity area is Civil Suit no. 250/2012 Page NO. 3 / 26 more than Rs.5,000/ per month for which defendants are liable to pay to the plaintiff resulting into filing the present suit while valued the suit for the purpose of court fees and jurisdiction for a sum of Rs.2,25,000/ on which requisite court fees has been paid.
5. In reply, WS filed by defendant wherein preliminary objections taken that the suit is liable to be dismissed as there is no cause of action arise in favour of the plaintiff, plaintiff has not approached to the court with the clean hand and suppress the true facts, plaintiff did not pay the proper court fees and lastly dismissal sought on the ground that the father of the plaintiff used undue influence of his position and misuse his power to exploit the defendant and her family members and forced them to execute GPA, Will in favour of her daughter without any consideration amount as alleged before 10 days of the above said marriage between the plaintiff and the son of the defendant and also got executed agreement to sale and money receipt fraudulently (as the defendant is an illiterate lady) and even further he forced to defendant's son to execute the agreement for maintenance of the plaintiff upto Rs.2,000/ per month by enhancement 10% per year which is illegal and against the Islamic Shariat. Further, father of plaintiff determine Rs.1,00,000/ as Dower (Mehar) for his daughter/ plaintiff.
6. On merits all the contents are denied and it is specific denied that the plaintiff has received Rs.2,25,000/ for execution of agreement to sale, GPA and Will all dated 24.06.2006 but admitted that all the Civil Suit no. 250/2012 Page NO. 4 / 26 documents had been got executed by the father of the plaintiff fraudulently and got it signed by defendant being illiterate lady and when this fact has been discovered vide dated 03.10.2003 GPA/ all documents dated 24.06.03 has been cancelled rest all the content of the plaint are denied.
7. In replication all the contents of W.S denied and reiterated the contents of the plaint.
8. After completion of pleadings vide order dated 13.07.2007 issues were framed which are as under :
1. Whether the plaintiff is entitled to decree of declaration as claimed? OPP.
2. Whether the plaintiff is entitled for decree of specific performance of the agreement to sell deed dated 24.06.2003 as claimed?OPP
3. Whether the plaintiff is entitled for decree of possession as prayed for? OPP
4. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
5. Whether the plaintiff is entitled for decree of recovery of mesne profit and damages @ Rs.5,000/ per month as claimed? OPP
6. Whether the suit of the plaintiff is valued properly for the purpose of court fees and jurisdiction? OPD
7. Relief claimed.
9. In support of its case plaintiff examined father of the plaintiff as PW1 by way of affidavit which is Ex. PW1/A. On the other hand, defendant examined herself by way of affidavit which is Ex. DW1/A and both the parties respectively closed their evidence.
10. Prior to proceed further it is not out of the mentioned to place here that as per the Mohammedan/ Islamic Law the marriage is an Civil Suit no. 250/2012 Page NO. 5 / 26 agreement and it is admitted by the both parties that the marriage between the plaintiff and the son of the defendant was performed on 07.07.2003. Simultaneously, it is also not out of the mentioned to place here that the section 23 of the Contract Act provide that any agreement is said to be unlawful agreement if the object or consideration is not lawful which is read as under section 23 :
23. What consideration and objects are lawful, and what not. The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of any agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
Further , it is ruled out in case titled Nutan Kumar Vs. IInd Additional District Judge, Banda, AIR 1994 All 298 that :
"While the term 'object' unlike the term 'consideration' has not been defined in section 2 of the Act, but has been held to mean as 'purpose' or 'design' of the contract. If the object is opposed to public policy or tends to defeat any provision of law, it becomes unlawful and thereby it is void under section 23 of the Act."
"The term 'law' in section 23 of the Act must be understood in the sense of the term explained in the Article 13 (3) of the Constitution."
11. Further, Hon'ble Supreme Court of India in case titled C.Beepuathuma Vs. Velasari Shankaranarayana Kodamabolithaya, AIR 1965 SC 241, it has been held that "Practice and procedureDoctrine Civil Suit no. 250/2012 Page NO. 6 / 26 of electionEstopelApprobate and reprobate - Impermissibility - Imposition of exemplary costs for - Held, litigant cannot change and choose its stand to suit to his convenience - In present case, respondent having elected to give up plea of irrevocability of licence and taking advantage on that basis, held, cannot be permitted to disown his stand by raising same plea again - It is amply demonstrated that respondent has blown hot and cold by taking inconsistent stands, and has therefore prolonged several proceedings for more that a decade - It did not pursue its proceedings honestly in different fora and its conduct is far from satisfactory - By taking such pleas, respondent has succeeded in enjoying possession of premises concerned for 10 years beyond expiry of its licence - Hence exemplary costs of Rs.5 lakhs awarded against respondent - Maxims - Qui approbat non reprobat - Approbate and reprobate - Civil Procedure Code, 1908 - Or. 6 R. 7 and Ss. 5A & 35Art, 136 - Costs - Penal/ Exemplary costs."
12. Now, turning to the facts of the present case, in this case plaintiff got married with the son of the defendant on 07.07.2003, defendant executed all title documents in favour of the plaintiff for consideration, however, denied the fact. In view of the section 23 the contract is illegal in case the consideration is not lawful and against the public policy and in the present case it is admitted by the plaintiff herself that she was being forced to purchase the house of the defendant through her father while dowry of demand has been made by the defendant for Civil Suit no. 250/2012 Page NO. 7 / 26 which he agreed to purchase the property in question. Moreover, it is well settled law that without consideration there is no contract.
13. The testimony of the PW1 which is deposed in para no. 20 of the affidavit Ex. PW1/A is beyond pleadings and it is well settled law that the parties should not allowed to lead evidence which is beyond pleadings and reliance can be placed in case titled Kedarnath Vs. Ram Prakash, 1998 VII AD (Delhi) 409 wherein it has been held that "From a perusal of the several provisions of the CPC referred to hereinabove the position which emerges is as follows. Order VI which applies to pleadings generally and would include plaint or written statement both, has rule 7 which restrains any party from taking in the pleadings a stand which may be incosistent with the previous pleadings of that party. The only exception is by way of amendment. Order VI, Rule 17 which confers jurisdiction on the court to permit any alteration of amendment in the pleadings implies the existence of a negative rule; no party can alter or amend his pleadings - plaint or written statement - except by t he leave of the court and in such a manner and on such terms as may be just in the opinion of the court. Rule 9 of Order 8 restrains any pleading subsequent to the written statement of a Defendant being filed except by the leave of the court and again upon such terms as the court thinks fit. The exceptions are two; (i) a pleading filed by way of defence to set off or counterclaim, and (ii) a written statement or additional written statement required to be filed by the court."
Civil Suit no. 250/2012 Page NO. 8 / 26
14. In judgment titled Jitender Singh Bhatia Vs. State, (153) DLT 2008 633, AIR 2009 (Delhi) 54 wherein it has been held that "The principle of finality attaches not only to final disposal of a lis but also to each segment of the proceedings." It is further held that "A party cannot be permitted to file documents contrary to his pleadings. Cases remain pending for long and the parties cannot be permitted to enter into a roving and fishing inquiry and to lead evidence inconsistent with the case set up in their pleadings. If the same were to be permitted, it will frustrate the every essence of pleadings."
15. In the judgment titled Prakash Rattan Lal Vs. Mankey Ram (166) 2010 DLT 269, wherein it has been held that "The sole purpose pleadings is to bind the parties to a stand. When the Plaintiff makes certain allegations, the Defendant is supposed to disclose his defence to each and every allegations specifically and state true facts to the court and once the facts are stated by both the parties, the court has to frame issues and ask the parties to lead evidence. It is settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence beyond pleading then the sancrosancy of pleadings comes to an end and the entire purpose of filing pleadings also stand defeated. The other purpose behind this is that no party can be taken by surprise and new facts cannot be brought through evidence which have not been stated by the Defendant in the written statement. The law provides a procedure for amendment of the pleadings and if there are any new facts which the party Civil Suit no. 250/2012 Page NO. 9 / 26 wanted to bring on record, the party can amend pleadings, but without amendment of pleadings, a party cannot be allowed to lead evidence beyond pleadings."
16. Otherwise, the documents i.e., statement of provident fund Mark C confirmed that amount has been withdrawn for the purpose of marriage of the plaintiff and bare perusal of the documents Mark D i.e, statement of account of the father of the plaintiff it reveals that at the relevant time when the alleged property is stated to be purchased by father of the plaintiff there is no as such adequate amount was available in the bank account of the father of the plaintiff and during the cross examination of PW1 it is further explained and voluntarily deposed that as soon as father of the plaintiff was forced to purchase the property he borrowed money from his friend and this fact has first time came on record during the crossexamination which is beyond pleadings, hence, cannot be taken into consideration in view of the above captioned judgments and on this point the testimony of witness is not trustworthy and does not conspire any confidence.
17. In the present case plaintiff also sought specific performance, possession and damages while filed the present suit on 03.07.2006, however, it is admitted by plaintiff himself that the title documents Ex. PW1/2 has been executed on 24.06.2003 and it is well settled law that declaration can be sought within 3 years from the date of knowledge but in the present case plaintiff himself admitted that the documents colly Ex. Civil Suit no. 250/2012 Page NO. 10 / 26 PW1/2 executed on 24.06.2003, hence, suit of the plaintiff is time barred in respect to the relief of specific performance and declaration qua to execute sale deed in favour of plaintiff.
18. So far as the relief declaration of cancellation of GPA dated 03.10.2003 is concerned, here it is not out of the mentioned to place that after executing documents Ex. PW1/2, the defendant has already cancelled his earlier GPA through cancellation deed dated 03.10.2003 but no date of knowledge about such cancellation of GPA dated 03.10.2003 has been mentioned that as and when, this fact came to the knowledge of either of plaintiff or father of plaintiff.
19. Further, the status of such GPA as well as sell agreement or Agreement to sell has been discussed and held in case titled Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 X AD (SC) 365, wherein it has been held that :
11. Section 54 of Transfer of Property Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas Vs. S.A. Kamtam and Anr.
MANU/SC/0363/1976 : (1977) 3 SCC 247 observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad Vs.Ram Mohit Hazra MANU/SC/0212/1966 : 19671 SCR 293. the fiduciary character of the personal obligation created by a contract for sale is recognized in Section a3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Civil Suit no. 250/2012 Page NO. 11 / 26 Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership...... that only on execution of conveyance ownership passes from one party to another............
In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra MANU/SC/0680/2004 : 2004 (8) SCC 614 this Court held:
Protection provided under Section 53 A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.
It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
13. A Power of Attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as it done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State Civil Suit no. 250/2012 Page NO. 12 / 26 of Rajasthan Vs. Basant Nehata MANU/SC/0547/2005 : 2005 (12) SCC 77 this court held:
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of Attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the done. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
14. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is Civil Suit no. 250/2012 Page NO. 13 / 26 written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. Registration of a will does not make it any more effective.
20. Further, it is ruled out in judgment titled Janki Vashdeo Bhojwani & Another Vs. Indusind Bank Ltd. & Others (2005) SCCR 42 wherein it has been held that :
13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal, In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be crossexamined.
16. In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree.
17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2 WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness Civil Suit no. 250/2012 Page NO. 14 / 26 box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf the plaintiff in the capacity of the plaintiff.
18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain and Others. AIR 1998 Raj.
185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.
21. Further, Section 20 of the Specific Relief Act, 1963 provides that :
20. Discretion as to decreeing specific performance. (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance :
(a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff; or Civil Suit no. 250/2012 Page NO. 15 / 26
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1. Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause
(b).
Explanation 2. The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.
Now turning to evidence lead by the parties and issues wise findings.
Issue No. 1 and 2 :
Whether the plaintiff is entitled to decree of declaration as claimed?OPP Whether the plaintiff is entitled for decree of specific performance of the agreement to sell deed dated 24.06.03 as claimed?OPP
22. Since, issue no. 1 and 2 are inter connected, hence, are taken together and the onus to discharge these issues have been casted Civil Suit no. 250/2012 Page NO. 16 / 26 upon the plaintiff.
23. In support of the case instead of examination of plaintiff, father of the plaintiff examined himself by way of affidavit which is Ex. PW1/A and reproduce all the contents of the plaint. In the examination in chief, plaintiff has relied upon the documents Ex. PW1/1,PW1/2,PW1/5 and Mark A, B and C has been placed on record which is out of pleadings and nothing has been whispered in the pleadings in respect to the documents Mark A, B, and C and Ex. PW1/5.
24. In view of the section 20 of the Specific Relief Act, I am of the considered view that the plaintiff has failed to establish date of knowledge of cancellation of agreement to sell, GPA dated 24.06.03 which has been subsequently cancelled through cancellation deed on 30.10.03 on account that at the time of marriage of the son of the defendant, father of the plaintiff had obtained signature without explaining being the defendant is an illiterate lady.
25. Further, Section 46 of the Contract Act, 1872 provides that :
46. Time for performance of promise, where no application is to be made and no time is specified. Where, by the contract, a promiser is to perform his promise without application by the promise, and no time for performance is specified, the engagement must be performed within a reasonable time.
26. From the bare perusal of agreement to sell in favour of the plaintiff it reveals that there is no as such date is mentioned for the Civil Suit no. 250/2012 Page NO. 17 / 26 execution of conveyance deed or the sale deed in favour of the plaintiff which the plaintiff could have been prayed for sale deed within reasonable time but failed. Since the date of execution of GPA and agreement to sell was 24.06.03 but same has been cancelled by the defendant through cancellation deed vide dated 30.10.03 herself within the 4 months of execution of earlier GPA and agreement to sell in favour of the plaintiff. So,I am of the considered view that the plaintiff has failed to discharge these issues in as much as prayer for execution of sale deed has not been asked within reasonable time means it cannot be allowed to plaintiff to file the present on 03.07.06 after 3 years of execution of GPA/ Agreement to sell dated 24.06.03 especially when relationship turned bitter as plaintiff has been taken away from matrimonial house on 28.10.03, hence, both issues are decided in favour of the defendant and against the plaintiff.
Issue No. 3 :
Whether the plaintiff is entitled for decree of possession as prayed for? OPP
27. The onus to discharge this issue has been casted upon the plaintiff. First of all the testimony of PW1 cannot be considered in view of the judgment of Hon'ble Supreme Court of India titled Janki Vashdeo Bhojwani & Another Vs. Indusind Bank Ltd. & Others (2005) SCCR 42. Moreover, in the judgment titled Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 X AD (SC) 365, Hon'ble Supreme Court while discussing the scope of GPA, agreement to sell held that the such transaction does not convey any title nor create any interest in an Civil Suit no. 250/2012 Page NO. 18 / 26 immovable property. Further, while concluding it was further observed by Hon'ble Supreme Court that immovable property can be legally and lawfully transferred by a registered deed of conveyance. Transactions of the nature of GPA sales or SA/GPA/Will transfers do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. Under these circumstances, plaintiff has completely failed to establish that she is entitled to obtain possession on the basis of GPA, agreement to sale dated 24.06.03 which was contrary deposed that it has been executed by the father of the plaintiff by playing fraud to the defendant as defendant being an illiterate lady and was forced to belief the father of plaintiff because for the reason of the marriage of son of defendant has been declared with the plaintiff. Further more, as per contention of plaintiff that possession of property in question has been taken by the plaintiff than in case it was repossessed by the defendant and her family members, then obviously the complaint must have been filed by the plaintiff but the suit in this point is silent which cast doubt that defendant has ever been executed GPA/ Agreement to sell on 24.06.03 in favour of plaintiff for lawful consideration rather it established that she has been appended signature on request of plaintiff due to declaration of marriage of son of defendant with the daughter of plaintiff, hence, this issue is decided in favour of the Civil Suit no. 250/2012 Page NO. 19 / 26 defendant and against the plaintiff.
Issue No. 4 :
Whether the plaintiff is entitled for decree of permanent injunction as prayed for?OPP
28. The onus to discharge this issue has been casted upon the plaintiff and the plaintiff has examined her father and in para 14 of affidavit it is stated that "on hearing about condition of the plaintiff, I went to the house of defendant on 28.10.2003 and brought my daughter with me. Since, then she has been suffering from great depression due to physical and mental injuries inflicted by the defendant and her family members. Thereafter, she has been undergoing continuous treatment at Ram Manohar Lohia Hospital, Delhi. The medical treatment documents are collectively exhibited as Ex. PW1/3". But surprisingly, documents has not been proved by calling witness from the Hospital. Under these circumstances, the testimony of PW1 cannot be taken into consideration in view of the judgment captioned above.
29. On the other hand, defendant categorically deposed in her evidence by way of affidavit which is Ex. DW1/A that after fixing marriage, the defendant started distributing invitation card. It is deposed after distributing invitation card, father of the plaintiff starting using undue pressure of his post and means upon the defendant and her family and father of the plaintiff started threatening the defendant and her family members to transfer the property in question in the name of plaintiff failing Civil Suit no. 250/2012 Page NO. 20 / 26 which marriage between the plaintiff and defendant's son will be broken and specific deposed that defendant has executed GPA, Will under the undue influence of the father of the plaintiff in order to save the prestige of her family.
30. It is further deposed that the defendant and her family members never misbehaved and torture the plaintiff in any manner rather the defendant and her family member extended full love and affection to the plaintiff. The defendant and her family member never intended to remarry her son Noor Mohd. It is submitted that the son of the defendant has not divorced the plaintiff.
31. So, I am of the considered view that plaintiff had completely failed to establish that GPA/Will dated 24.06.03 has been executed for valid consideration. It is ruled out in the judgment titled V. Chandrasekaran and Another Vs. Administrative Officer and Others (2013) 2 SCC (Civ) 136, wherein it has been held that: "Equity - Relief - Entitlement to - Prerequisites for - Held, a person is - Person who seeks equity must do equity - A person cannot be enriched by causing injuries to others - Pleadings must be clear, consistent and devoid of falsehood
- Persons approaching courts with tainted hands not entitled for any relief, interim or final - Maxims - Jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem - Constitution of India - Arts. 136, 226, 32 and 142 - Equitable relief - Entitlement to."
39. In Cauvery Coffee Traders Vs. Hornor Resources (International) Co. Ltd. this Court considered a large number of judgments on the issue of estoppel and held as under : Civil Suit no. 250/2012 Page NO. 21 / 26
"34. A party cannot be permitted to 'blow hot and cold', 'fast and loose' or 'approbate and reprobate'. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
35......The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."
44. The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a court of equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide Ramjas Foundation Vs. Union of India, Noorduddin Vs. K.L. Anand and Ramniklal N. Bhutta Vs. State of Maharashtra.)
45. The judicial process cannot become an instrument of oppression or abuse, or a means in process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit Civil Suit no. 250/2012 Page NO. 22 / 26 containing a misleading and/ or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.
46. In Dalip Singh Vs. State of U.P. this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
47. The truth should be the guiding star in the entire judicial process. "Every trial is a voyage of discovery in which truth is the quest". An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide Ritesh Tewari Vs. State of U.P and Amar Singh Vs. Union of India).
48. In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira this Court taking note of its earlier judgment in Ramrameshwari Devi Vs. Nirmala Devi held : (Maria Margarida case, SCC p. 393, para 81) "81. False claims and defences are really serious problems with real estate litigation, predominantly because of everescalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in Civil Suit no. 250/2012 Page NO. 23 / 26 adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent."
The court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon false pleadings and forged or fabricated documents in the records furnished by them to the court.
32. Since, it is specific deposed that defendant has revoked GPA and Will on 30.10.03 despite that no crossexamination has been done on this point. Moreover, in the pleadings plaintiff himself admitted that the GPA has been revoked by the plaintiff through cancellation of GPA dated 03.10.2003 despite that present suit has been filed to harass the defendant, hence, plaintiff has failed to establish the equity in her favour and failed to establish any right title interest in favour of her daughter (plaintiff) through GPA and Will which is otherwise has no value in the eyes of law keeping in view the judgment titled Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 X AD (SC) 365, hence, this issue is also decided in favour of the defendant and against the plaintiff.
Issue No. 5:
Whether the plaintiff is entitled for decree of recovery of mense profit and damages @ Rs.5,000/ per month as claimed? OPP
33. The onus to discharge this issue has been casted upon the plaintiff and the claim for recovery of mense profit is the basis of GPA and Civil Suit no. 250/2012 Page NO. 24 / 26 Will which otherwise does not confirm any right title over the plaintiff in view of Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr.
Moreover, plaintiff himself admitted that GPA and Will has been cancelled vide dated 03.10.2003. Further more, it is admitted by plaintiff not only pleadings but also in crossexamination the possession of the defendant never handed over to the plaintiff as plaintiff were being left the property in question being the daughter in law of the defendant as such failed to establish the fact that plaintiff is entitled for any mesne profit/ damages @ Rs.5,000/ per month, hence, this issue is also decided in favour of the defendant and against the plaintiff.
Issue No. 6:
Whether the suit of the plaintiff is valued properly for the purpose of court fees and jurisdiction?OPD
34. The onus to discharge this issue has been casted upon the defendant. The present suit has been filed for the possession while value the property in question according to the sale consideration i.e, Rs.
2,25,000/ for which proper court fees has been paid and this fact has been deposed in his examination in chief despite that no cross examination has been done by the defendant to specify that the value of the suit property is not properly value, however, on contrary to the pleadings of deposition of plaintiff during the crossexamination question of the value of the suit property has put up by counsel for the plaintiff as on date the value of the suit property is Rs.50,00,000/ despite that no Civil Suit no. 250/2012 Page NO. 25 / 26 rebuttal evidence has been lead by plaintiff to substantiate that at the time of filing of the suit the property was worth of Rs.2,25,000/.
35. In view of the deposition of DW1 on 24.11.12 the value of the suit property has deposed as Rs.50,00,000/, so it is not out of stress of imagination that at the time of filing of the suit, the value of the suit property would have been more than Rs.2,25,000/, hence, this issue is also decided in favour of the defendant and against the plaintiff.
Relief :
36. In view of the findings given on the issues, the present suit of the plaintiff is liable to be dismissed, hence, suit of the plaintiff is dismissed. Parties are to bear their own cost. Decree sheet be prepared. Thereafter, File be consigned to Record Room. Original documents, if any, on record be returned to the concerned person against receipt after obtaining the certified copies.
Announced in the open (RAKESH KUMARIII)
Court on 12.07.2013 JSCC/ASCJ/GJ (Shahdara)
(Judgment contains 26 pages.) Karkardooma Courts,Delhi.
Civil Suit no. 250/2012 Page NO. 26 / 26