Delhi District Court
Smt. Chanchal Rani Sehgal vs Smt. Rashi Sethi on 21 February, 2013
IN THE COURT OF SH. CHANDER SHEKHAR, ADJ (N/W)04,
ROOM NO. 301, ROHINI COURTS, DELHI.
CS No. 311/9/11
CS No. 310/9/11
Smt. Chanchal Rani Sehgal
w/o Late Sh. Chaman Lal Sehgal
r/o H. No. 130, Pocket B4
Sector - 7, Rohini
Delhi - 110085 ......Plaintiff (Defendant in CS No. 310/9/11)
Versus
Smt. Rashi Sethi
w/o Sh. Rakesh Sethi
d/o Late Sh. Chaman Lal Sehgal
r/o H. No. 163, SFS Flats
Golden Jublee Appts., Rohini
Delhi - 110085 ........Defendant (Plaintiff in CS No. 310/9/11)
Date of institution : 25.05.2009
Date of clarifications : 19.02.2013
Date of decision : 21.02.2013
CS Nos. 311/9/11 & 310/9/11 Page 1 of 50
JUDGMENT
1. This Judgment shall govern the disposal of two cases i.e. "Chanchal Rani Sehgal vs. Rashi Sethi" in CS No. 311/9/11 and "Rashi Sethi vs. Chanchal Rani Sehgal" in CS No. 310/9/11. Both these suits were ordered to be clubbed vide Order dated 05.03.2010 for just decision and to avoid contradictory judgments. It was also ordered that the proceedings will be recorded in the main suit i.e. CS No. 311/9/11 and the same shall be read in the other suit.
2. In CS No. 311/9/11, the plaintiff has stated that she is the rightful owner and in possession of the suit property i.e. H. No. 130, Pocket B4, Sector - 7, Rohini, Delhi110085, as shown in red colour in the site plan and the defendant is the daughter of the plaintiff who took the plaintiff into confidence and asked her that she needs a guarantee from the plaintiff and being the mother of the defendant, in good faith, on 17.02.2009, the plaintiff went to the O/o Sub Registrar, Sector16, Rohini, Delhi, where the defendant by misusing the trust of the plaintiff, took thumb impressions and signatures of the plaintiff on various printed, blank and stamp papers without disclosing the actual contents of the documents and CS Nos. 311/9/11 & 310/9/11 Page 2 of 50 by stating that some guarantee is to be furnished by the plaintiff for the defendant. It is further stated that later on, on 08.05.2009, the defendant along with her husband and son came to the house of the plaintiff and asked the plaintiff, his son and her daughter in law to vacate the suit property and only then the plaintiff came to know that by playing a fraud upon her, the defendant has got executed the alleged sale deed in her favour on 17.02.2009. The plaintiff has further stated that defendant along with her husband and family members is trying to dispossess the plaintiff from the suit property. The plaintiff has further stated that she went to the Police Station, but the police officials did not register the case and advised her to go to the Civil Court for appropriate relief and hence, the present suit.
3. The defendant filed the written statement and later on filed amended written statement thereby denying the contents of the plaint stating therein that the plaintiff has no locus standi to file the present suit as she has sold the suit property to the defendant against a valuable consideration of Rs. 10,70,000/ on 16.02.2009 and no fraud has been committed by the defendant and the plaintiff has left with no right, title, interest or concern in any nature whatsoever in CS Nos. 311/9/11 & 310/9/11 Page 3 of 50 the suit property, hence the suit is liable to be dismissed.
4. The plaintiff filed replication wherein she denied the contentions raised by the defendant in the WS and reaffirmed those as stated in the plaint.
5. The defendant has also filed a suit CS No. 310/9/11 for recovery of possession, damages and mesne profits against the plaintiff (defendant in CS No. 310/9/11) stating therein that she is an absolute owner of the property bearing H. No. 130, PocketBIV, Sector7, Rohini, Delhi, as she purchased the same from the plaintiff (defendant in CS No. 310/9/11) for a valuable consideration of Rs. 10,70,000/ on 16.02.2009 against execution of valid sale deed in favour of the defendant which was mutated in her name by the MCD. It is also stated in CS No. 310/9/11 that after having sold the suit property to the plaintiff, the defendant (plaintiff in CS No. 311/9/11) has no right, title, interest or concern over the suit property and is liable to vacate the same and to hand over the peaceful possession to the plaintiff. The plaintiff in CS No. 310/9/11 has prayed for a decree of possession of the suit property and also prayed for a decree of recovery of damages/mesne profits for Rs. 20,000/ along with pendente lite and future interest @ 2% CS Nos. 311/9/11 & 310/9/11 Page 4 of 50 pm etc.
6. The defendants in CS No. 310/9/11 filed their joint WS stating therein that defendant no. 1 never sold out the suit property to the plaintiff and never received any sale consideration amount from the plaintiff as alleged. It is further stated by the defendants that the plaintiff has not come to the Court with clean hands and has concealed the true and correct material facts from this Court, hence the suit of the plaintiff is liable to be dismissed with heavy costs.
7. The plaintiff filed replication to the WS wherein he denied the contentions raised by the defendants in the WS and reaffirmed those as stated in the plaint i.e. CS No. 310/9/11.
8. From the pleadings of the parties and documents on record, following issues were framed on 05.03.2010 :
1. Whether the sale deed dated 16.02.2009 of the suit premises bearing no. H130, Pocket B4, Sector7, Rohini, Delhi, executed by the plaintiff in favour of the defendant, was obtained by the defendant by playing fraud and obtained signatures of the plaintiff on the printed paper, blank papers and stamp papers without disclosing the actual contents of the sale deed? OPD.
2. Whether the defendant has paid any sale consideration to the plaintiff for executing the sale deed dated 16.02.09? OPD.
3. Whether the plaintiff is entitled to decree for declaration of declaring sale deed as null and void in view of issue nos. 1 & 2? CS Nos. 311/9/11 & 310/9/11 Page 5 of 50 OPP.
4. Whether the plaintiff is entitled for the decree of permanent injunction restraining the defendant from creating third party interest in the suit property on the basis of the sale deed dated 16.02.2009? OPP.
5. Whether the plaintiff is entitled for a decree of mandatory injunction for direction against the defendant of returning original the title deed of the abovesaid suit premises? OPP.
6. Whether the defendant (plaintiff in CS No. 310/9/11) is entitled to a decree of possession of the suit property? OPD.
6. Whether the defendant is entitled for damages/mesne profits from the plaintiff, if yes, at what rate? OPD.
7. Whether the defendant has filed the suit i.e. CS NO. 310/9/11 by concealing the true and material facts from the Court? OPD.
8. Whether the suit filed by the defendant is barred under Order II Rule 2 CPC? OPP.
9. Relief.
9. Due to inadvertence serial no. 6 has been got typed twice by the Stenographer while numbering the issues.
10. Onus to Prove issue no. 1 was initially upon the defendant (Rashi Sethi), however, later vide Order dated 07.07.2010, the Onus to Prove issue no. 1 was shifted upon the plaintiff from the defendant. Similarly, Onus to Prove issue no. 7 was also shifted upon the plaintiff from the defendant.
11. In order to prove his case, the plaintiff (Smt. Chanchal Rani Sehgal) examined herself and tendered her affidavit Ex. PW1/A in CS Nos. 311/9/11 & 310/9/11 Page 6 of 50 evidence and her statement was recorded as PW1. The plaintiff also proved documents on the record in support of her case i.e. Exs. PW1/1 to PW1/2. The document Ex. PW1/1 is the site plan of the suit property. Ex. PW1/2 is the certified copy of sale deed dated 16.02.09 which was registered on 17.02.09.
12. The plaintiff examined one more witness i.e. Smt. Meenu Sehgal, who is the daughter in law of the plaintiff. This witness tendered her affidavit as Ex. PW2/A in evidence and her statement was recorded as PW2.
13. Both the above PWs were cross examined at length by Counsel for the defendant.
14. On the other hand, the defendant (Smt. Rashi Sethi) examined herself in support of her defence as well as the case and tendered her affidavit Ex. DW1/A in evidence and her statement was recorded as DW1. The defendant also proved documents i.e. Exs. DW1/1 to DW1/14 on the record in support of her case. Document Ex. DW1/1 is the site plan (filed in connected case bearing CS No. 310/9/11). Ex. DW1/2 is the sale deed dated 16.02.2009. Ex. DW1/3 is mutation letter dated 05.06.09. Exs. DW1/4 & DW1/5 are the house tax payment receipts dated 04.06.09 and 05.06.09 CS Nos. 311/9/11 & 310/9/11 Page 7 of 50 respectively. Ex. DW1/6 (colly) is the original letter of allotment, possession letter and lease deed. Ex. DW1/7 (colly) are the original payment challans (9 nos.). Ex. DW1/8 is the carbon copy of correspondence dated 16.01.90. Ex. DW1/9 is the original receipt no. 107509 dated 07.06.95 issued by DESU. Ex. DW1/10 (colly) are the agreement to sell, GPA, SPA, Will, receipt, affidavit and construction agreement with affidavit. Ex. DW1/11 (colly) are the original documents executed by Sh. Surender Kumar in favour of Smt. Chanchal Sehgal which are consisting of GPA, SPA, agreement to sell, Will, receipt, affidavit, indemnity bond. Ex. DW1/12 is the original house tax receipt dated 03.03.99. Ex. DW1/13 (colly) are the original acknowledgment and payment challans. Ex. DW1/14 (colly) are the original letter dated 14.08.2000 and conveyance deed.
15. The defendant examined three more witnesses i.e. Sh. Karan Sethi, her son, Sh. Rakesh Sethi, her husband and Sh. Hukam Chand in support of her case. Sh. Karan Sethi and Sh. Rakesh Sethi tendered their affidavits as Exs. DW2/A and DW3/A respectively and their statements were recorded as DW2 & DW3 respectively. Whereas statement Sh. Hukam Chand was recorded as DW4 who CS Nos. 311/9/11 & 310/9/11 Page 8 of 50 was a summoned witness and brought the summoned record i.e. sale deed registered vide Regn. No. 1350, Addl, Book No. 1, Vol. No. 2780, Page Nos. 169 to 174, dated 21.02.2009.
16. All the DWs were duly cross examined by the Counsel for the plaintiff.
17. I have heard Ld. Counsels for both the parties and have gone through the entire record carefully.
18. Considering the pleadings, the issues framed, evidence led, documents proved and arguments addressed by both the parties, the issuewise findings are as under : ISSUE Nos. 1 to 3 :
Issue no. 1 : Whether the sale deed dated 16.02.2009 of the suit premises bearing no. H130, Pocket B4, Sector7, Rohini, Delhi, executed by the plaintiff in favour of the defendant, was obtained by the defendant by playing fraued and obtained signatures of the plaintiff on the printed paper, blank papers and stamp papers without disclosing the actual contents of the sale deed? OPP.
Issue no. 2 : Whether the defendant has paid any sale consideration to the plaintiff for executing the sale deed dated CS Nos. 311/9/11 & 310/9/11 Page 9 of 50 16.02.09? OPD.
Issue no. 3 : Whether the plaintiff is entitled to decree for declaration of declaring sale deed as null and void in view of issue nos. 1 & 2? OPP.
19. All these issues are interconnected hence, are being taken up together firstly for determination and adjudication in as much as these will effect the determination, adjudication and outcome of other issues.
20. Onus to Prove issue no. 1 was initially upon the defendant (Rashi Sethi), however, later vide Order dated 07.07.2010, the Onus to Prove issue no. 1 was shifted upon the plaintiff from the defendant. Similarly, Onus to Prove issue no. 7 was also shifted upon the plaintiff from the defendant.
21. The Onus to Prove issue no. 2 is upon the defendant.
22. The Onus to Prove issue no. 3 is upon the plaintiff.
23. The plaintiff Smt. Chanchal Rani Sehgal has stated that she is the rightful owner and in possession of the suit property. The defendant is the daughter of the plaintiff who took the plaintiff into confidence and asked her that she needs a guarantee from the plaintiff and being the mother of the defendant, the plaintiff agreed CS Nos. 311/9/11 & 310/9/11 Page 10 of 50 to give the guarantee in good faith. On 17.02.2009, the defendant took the plaintiff to the O/o SubRegistrar, Sector16, Rohini, Delhi, where the defendant took the original title deed of the suit property from the plaintiff and produced the plaintiff before the Sub Registrar, where the defendant took thumb impressions and signatures of the plaintiff on various printed, blank and stamps papers without disclosing the actual contents of the documents and by stating that some guarantee is to be furnished by the plaintiff for the defendant. However, the defendant (Rashi Sethi) stated in the WS that the plaintiff has voluntarily sold the suit property to the defendant for a sale consideration of Rs. 10,70,000/ in respect of which, a valid sale deed was executed on 16.02.2009 in favour of the defendant which was duly registered later on. It is further stated that the defendant was handed over constructive and symbolic possession of the suit property. It is further submitted in the WS that the plaintiff admitted/acknowledged the receipt of the said consideration amount at the time of the registration of the sale deed.
24. The plaintiff (Chanchal Rani Sehgal) in her affidavit Ex. PW1/A has almost reiterated all the contents of the plaint.
25. In her cross examination, the plaintiff ((PW1) stated that she has CS Nos. 311/9/11 & 310/9/11 Page 11 of 50 studied upto 2nd or 3rd class and she can sign. She further stated that she cannot right the English alphabets. She further stated that she has two children, one son and one daughter. She further stated that she understands the meaning of guarantee but she does not understand what is sale deed. In a question, she answered that on 16.02.2009, her daughter (defendant) took her somewhere and obtained her signatures on the documents fraudulently. She further stated in her cross examination that her daughter told her that she needs a guarantee and for that the plaintiff had to accompany her. She further stated that on the next day, the defendant took her somewhere and obtained her signatures. She further stated that she did not ask the defendant as to what type of guarantee, the defendant requires and simply went with the defendant without asking any questions. She further stated that all the title documents concerning the impugned property were lying with her prior to 16.02.2009. She again said, the defendant had taken the said documents prior to the said date i.e. 4 - 5 days ahead of 16.02.2009 from her. She further stated that such documents were taken from her on the ground that these are required to be shown for the guarantee. She further stated in her cross examination that she had not told her son about handing CS Nos. 311/9/11 & 310/9/11 Page 12 of 50 over the title documents to the defendant. She further stated that she went alone with her daughter (defendant), husband of the defendant and son of the defendant and nothing was asked by the SubRegistrar from her about the consideration of the property. She further stated that the SubRegistrar had also not asked her if the document Ex. PW1/2 bears her signatures or not. She further stated that her photograph was taken at the O/o SubRegistrar. She further stated that she did not ask as to why her photograph is being taken. She further stated that she does not remember if the Sub Registrar had asked her if the document Ex. PW1/2 bears her signatures and hence, she could not admit or deny the suggestion that the SubRegistrar had actually asked her. She further stated that even the SubRegistrar did not ask her about the consideration amount. She further stated that her daughter (defendant) handed over the file of the title documents to her 56 days after 16.02.2009. Apart from other replies, PW1 also stated that she is residing with the family of her son and has good relations with her son. She further stated that she always tells her son about all the things whether good or bad but regarding this transaction, she had not stated anything to her son. She further stated that her voter identity CS Nos. 311/9/11 & 310/9/11 Page 13 of 50 card is always in her possession and she has kept it in her house. She denied that suggestion that the SubRegistrar had seen her voter identity card. She further denied the suggestion that she had not questioned the SubRegistrar about the execution of the sale deed as she was aware of the contents of the documents, she was executing.
26. PW2 supported the case of the plaintiff. In her cross examination, PW2 stated that her mother in law/plaintiff had told the above facts to her when PW2 returned from school on the same day and also told that the defendant has taken her somewhere for guarantee and the defendant had also obtained her signatures on the blank papers. PW2 further stated that she had stated all the above facts to her husband on the same day when he returned from his office i.e. on 17.02.2009. She further stated that the plaintiff shares every details, goof or bad, with her husband. However, neither her husband nor herself asked any question from the defendant as to where she had taken the plaintiff as it was related to mother and daughter. She denied the suggestion that she and her husband had not asked this question from the defendant as they were aware of entire transaction between the plaintiff and the defendant.
27. On the other hand, the defendant reiterated what is stated in the CS Nos. 311/9/11 & 310/9/11 Page 14 of 50 WS and has also stated in her affidavit Ex. DW1/A that the she paid a sum of Rs. 10,70,000/ to the plaintiff towards the sale consideration of the suit property which has been acknowledged by the plaintiff before the O/o SubRegistrar at the time of registration of the sale deed. She further stated that the plaintiff handed over the constructive and symbolic possession of the suit property to her and she also delivered and handed over the title deed and all the previous documents/chain of documents in original in respect of the suit property to the plaintiff. DW1 admitted in her cross examination that her brother and her bhabhi are looking after her mother. She further stated that her mother is not doing any work. She further stated that she has not discussed about the sale transaction of the suit property with the other members of the family. She further stated that her mother does not have any other property except the suit property. She further stated that her mother had discussed with her about sale of suit property and no other family member was present at that time. It was in the month of January 2009. She denied the suggestion that her mother never discussed with her about sale of suit property. She further denied the suggestion that she has requested her mother to stood as a CS Nos. 311/9/11 & 310/9/11 Page 15 of 50 guarantee for her. She further stated that she did not go to anyone along with her mother and also did not go to the SubRegistrar along with her mother. She further stated that the amount of sale consideration was given to her by her husband. She further stated that it was Rs. 10,70,000/ and the amount was given to her by husband on 29.01.09. She further stated that the said amount was consisting of notes of 500 and 1000 in denomination and this amount was taken by her in a bag and her son at that time had accompanied her and her husband was not present at that time. She further stated that her husband had purchased the stamp papers and these papers were got typed in the O/o Registrar. She denied the suggestion that she got executed sale deed under the guise of a guarantee from her mother after playing fraud upon her. She further stated that her mother/plaintiff gave her all the previous title documents herself to her. She further stated that the sale consideration was given to her mother/plaintiff at her house and at that time, nobody else was present. She further stated that she has disclosed the amount of sale consideration in the income tax return.
28. DW2 who is the son of the defendant stated in his affidavit that his father arranged the abovesaid amount of Rs. 10,70,000/ and his CS Nos. 311/9/11 & 310/9/11 Page 16 of 50 mother paid Rs. 4,00,000/on 29.01.2009 to his maternal grand mother/plaintiff. He further stated that he accompanied with his mother to make the payment of Rs. 4,00,000/ on 29.01.2009. He further stated that his father further arranged payment of Rs. 6,70,000/ which was paid to his maternal grand mother/plaintiff on 16.02.2009 at the time of execution of the sale deed. In his cross examination DW2 stated that the age of his maternal grand mother is about 75 years as on 08.02.2012. He further stated that his maternal uncle and aunt are looking after the plaintiff. He further stated that in the first week of January 2009, his maternal grand mother talked with his mother for selling the suit property and these talks took place at the residence of his maternal grand mother. He further stated that at that time, his maternal grand mother and his mother were present and no other person was present. He further stated that this fact was discussed by his mother with his father after returning to the house which he was listening. He further stated that on 17.02.09, he along with his mother and father went to the O/o SubRegistrar separately and his maternal grand mother had come of her own. He further stated that on 16.02.09, he along with his mother had gone to the residence of his maternal grand mother CS Nos. 311/9/11 & 310/9/11 Page 17 of 50 and thumb impression of his maternal grand mother were obtained on the sale deed. He further stated that on 29.01.09, he went to the residence of his maternal grand mother along with his mother and money which was given by his father. He further stated that prior to execution of sale deed, he had never seen his maternal grand mother writing or signing. He further stated that he did not meet SubRegistrar on the date the papers were signed by his maternal grand mother. He voluntarily stated that the papers were signed on 16.02.09.
29. DW3 who is the husband of the defendant stated in his affidavit Ex. DW3/A that he arranged the abovesaid amount of Rs. 10,70,000/. He further stated that his wife i.e. the defendant went to pay Rs. 4,00,000/ on 29.01.2009 to his mother in law/plaintiff at her house. He further stated that his son accompanied his wife to make the payment of Rs. 4,00,000/ on 29.01.2009. He further stated that he further arranged payment of Rs. 6,70,000/ which was paid to his mother in law/plaintiff on 16.02.2009 at the time of execution of the sale deed. He further stated that his son had accompanied his wife/defendant to make the payment of Rs. 6,70,000/ on 16.02.2009. DW3 stated in his cross examination that CS Nos. 311/9/11 & 310/9/11 Page 18 of 50 he has been doing the work of repair of two wheeler scooters as well as dealing in spare parts of two wheelers and has been earning around Rs.4045,000/ in a month. He further stated that the blank sale papers were purchased from the bank on 16.02.09. He further stated that the payment to his mother in law was not made in his presence by his wife. He further stated that he has taken an amount of Rs. 10,00,000/ as a loan from Sh. Vinod Singla and Sh. Gaurav Singhla who are doing the business in the same trade and he has got an amount of Rs. 70,000/ with him. He further stated that a writing was got executed from him by Sh. Vinod Singhala and Sh. Gaurav Singhala and that writing is with them. He further stated in his cross examination that he has brought copy of income tax return for assessment year 200809 and copy of same was supplied to the Counsel for plaintiff. He further stated that he never had any discussion with the family members of the plaintiff regarding sale of suit property. He further stated that he took the title papers of suit property on 16.02.2009 from his wife. He further stated that his wife had gone to the house of plaintiff on 16.02.2009. He further stated that the plaintiff came alone to the O/o SubRegistrar. He denied the suggestion that he has filed fabricated copy of income tax CS Nos. 311/9/11 & 310/9/11 Page 19 of 50 return. He further denied the suggestion that no sale consideration was given to the plaintiff and further denied that after playing fraud upon the plaintiff, suit property has been purchased. He further denied the suggestion that he returned the coloured photostat copy of original sale deed to the plaintiff by saying that surety has been given.
30. DW4 Sh. Hukam Chand is the Data Entry Operator in the O/o SubRegistrar VIC, Sector16, Rohini, Delhi, brought the summoned record i.e. Sale Deed registered vide Regn. No. 1350, Addl. Book No. 1, Vol. No. 2780, Page Nos. 169 to 174, dated 21.02.2009 and admitted in his cross examination that there is no signatures at point C of the sale document. He further admitted that the document was presented for registration on 17.02.2009 and was registered on 21.02.2009. He stated in his cross examination that the name of witness is Rakesh Kumar Sethi and his address is mentioned as G2/57, Sector - 11, Rohini, Delhi, and whereas name of purchaser is mentioned as Smt. Rashi Sethi w/o Sh. Rakesh Sethi, r/o 163, SFS Flats, Sector - 11, Rohini, Delhi. He further stated that he cannot say on seeing the document as to how much sale consideration was given, at what time and in what manner. CS Nos. 311/9/11 & 310/9/11 Page 20 of 50
31. The facts which now emerge are as follows :
"The relationship between the parties is that the plaintiff is the mother of the defendant, an illiterate widow who is about 72 years of age and also having one son namely P.K. Sehgal with whom she is residing. The son and her wife are looking after the plaintiff and the plaintiff is not doing any work. It has come on the record that both the parties i.e. plaintiff and defendant had not discussed about the sale transaction of the suit property with the son or other relatives of the plaintiff. It has also come on the record that the plaintiff does not have any other property except the suit property. It has also come on the record that after the transfer of this property, the plaintiff was not having any other property for her residence or shelter and at the time of transaction which is admitted by the defendant that she did not ask the plaintiff as to where the plaintiff would go after selling of the suit property.
32. It has come on the record that the defendant and her family made the execution of the sale deed quite confidential and secret affair. It was not even discussed by the defendant with the son of the plaintiff or their family members before execution of the impugned deed. Even no outsider apart from the family of the CS Nos. 311/9/11 & 310/9/11 Page 21 of 50 defendant was involved or aware about this transaction. Even the witnesses of the impugned sale deed were husband and son of the defendant. The conduct of the defendant raises suspicion in the mind of this Court "why this transaction was not discussed at the threshold by the defendant with her brother with whom the plaintiff was living". It is also a fact which has come on the record that the defendant and her husband has given different addresses in the sale deed Ex. DW1/2 despite the fact that they are living together. The defendant has given the address of 163, SFS Flats, Sector11, Rohini, Delhi - 110085, whereas her husband has given the address of G2/57, Sector11, Rohini, Delhi.
33. It is also mentioned in the sale deed that whereas "vendor for a legal need and requirement, has agreed to sell and transfer the above said property". It is also stated in the impugned deed that in consideration of the said amount of Rs. 10,70,000/ which the vendor has received from the vendee in full and final settlement as stated above, prior to execution of the sale deed, the vendor do acknowledge the receipt of the same and the vendor do sell, convey, transfer and assign all her rights, titles and interests in the abovesaid property. It has also been stated in the sale deed that the vendor has CS Nos. 311/9/11 & 310/9/11 Page 22 of 50 delivered the physical vacant possession of the suit property under the sale to the vendee at the time of execution and registration of this sale deed.
34. However, it is worthwhile here to mention that there is no evidence on the record regarding the legal needs and requirements of the plaintiff for the purpose for which the plaintiff has agreed to sell and transfer the suit property to the defendant. It is also an admitted fact that the possession of the suit property is also with the plaintiff, her son and family of her son. It is also an admitted fact that such a huge amount of Rs. 10,70,000/ was allegedly paid in cash. It has also come on the record that the plaintiff was having no other accommodation available to her after the alleged sale of the suit property.
35. In the matter of Shivnarayan Kabra, Appellant vs. The State of Madras, Respondent, reported in (AIR 1967 SC 986) which has been relied upon the by the plaintiff, it was held that it is not necessary that a false pretence should made in express word by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property".
36. The undue influence and the fraud has to be inferred from all CS Nos. 311/9/11 & 310/9/11 Page 23 of 50 the circumstances including the conduct of the parties in obtaining the property. A fact, though disputed, has come on the record that none of the family members of son of the plaintiff was present and/or noone else from outside was present except the son of the defendant at the time of making of the alleged payment to the plaintiff. Why is it so, it really causes suspicion in the mind of this Court. Even when the plaintiff went to the O/o SubRegistrar, nobody was present there at that time from her son's side except the family members of the defendant. Why such a conduct is there? Why such a fact was not disclosed to others? Why such an old lady would like to go to the O/o SubRegistrar all alone at her own to execute such a deed in such a fashion and manner that nobody will accompany her, indicates to the unnatural behaviour in the transaction? These circumstances indicates that undue influence was brought upon the plaintiff to enter into a contract to dispose of the suit property which was such as to preclude exercise of free and deliberate judgment by the plaintiff. It is the case of the plaintiff that the defendant convinced the plaintiff for standing guarantee for her and the plaintiff was under the impression that she is giving guarantee for the defendant as requested by the defendant i.e. her CS Nos. 311/9/11 & 310/9/11 Page 24 of 50 daughter. It can be seen from this part of the pleadings, evidence and conduct that the defendant was having due and active confidence of the plaintiff for whom the plaintiff could sign any document. The other important factor of the whole transaction is payment of consideration amount of Rs. 10,70,000/ which was stated to have been paid in two installments of Rs. 4,00,000/ and Rs. 6,70,000/ Such a huge amount was allegedly paid to the plaintiff but the same was paid, if believed, secretively by the defendant and her son to the plaintiff then too in cash which is not permissible under the law. It has also come on the record that the defendant was not having the money to pay at the time of purchase of the suit property and there is, except her son, no independent witness who witnessed the payment of the consideration amount. The defendant is silent about mode of payment in her written statement whether it was by cheque or by cash. The defendant has neither disclosed the names of the persons in her WS from whom the loan was taken nor those persons namely Sh. Vinod Singla and Sh. Gaurav Singhla from whom the loan was taken, have been examined by the defendant for proving her contention that an amount of Rs. 10,00,000/ was taken on loan by her husband to CS Nos. 311/9/11 & 310/9/11 Page 25 of 50 make the payment to the plaintiff. The defendant has not examined any witness even from the Income Tax Deptt. to show that such a huge amount was paid by her and shown in her income tax return. The defendant has also failed to prove her income tax return.
37. DW1 has stated in her cross examination that her brother and bhabhi are looking after her mother i.e. the plaintiff and her mother is not doing any work. DW1 further stated that she has not disclosed about the sale transaction of the suit property with other members of the family. DW1 also admitted in her cross examination that her mother does not have any other property except the suit property. DW1 stated in her affidavit Ex. DW1/A that the defendant paid a sum of Rs. 10,70,000/ to the plaintiff towards sale consideration of the suit property. However, she has not disclosed in her affidavit anything about presence of her son and the fact that it was paid in two installments. She has also stated in her cross examination that the amount of sale consideration was given by her husband which was Rs. 10,70,000/ and was given to her by her husband on 29.01.2009. The said amount was consisting of notes of 500 and 1000 in denomination. This amount was taken by her in a bag and her son at that time had accompanied her. CS Nos. 311/9/11 & 310/9/11 Page 26 of 50 However, she has not stated anywhere in her affidavit in evidence and in the cross examination that this amount was paid in two installments or on two different dates which is contrary to the statement of DW2 and adversely affect the credibility of the payment of this amount.
38. DW2 i.e. son of the defendant in his cross examination stated that in the first week of January 2009, his maternal grand mother talked with his mother for selling the suit property and at that time, his maternal grand mother and his mother were present only. DW2 also stated that on 17.02.2009, his maternal grand mother came to the O/o SubRegistrar at her own. DW2 also stated that on 16.02.2009, he along with his mother had gone to the residence of his maternal grand mother and thumb impression of his maternal grand mother were obtained on the sale deed. DW2 further stated that prior to execution of sale deed, he had never seen his maternal grand mother writing or signing. DW2 further stated that on 29.01.2009, he went to the residence of his maternal grand mother along with his mother and money which was given by his father.
39. The term "undue influence" is not susceptible of precise definition but it suggests the overcoming of the will of one by the CS Nos. 311/9/11 & 310/9/11 Page 27 of 50 other who superimposes his will on the weaker party despite the latter's disinclination or effective resistance. Undue influence is a species of constructive flow. Undue influence is used in contradiction to proper influence which may be secured through affection bestowed or from kindness indulged.
In the English decisions the expression "undue influence" is often used as a generic term to cover cases of absence of free consent. "Undue influence" and "pressure" or "coercion" have been expressed indifferently to express the same idea. The principal of undue influence has been applied to every case where influence is acquired and abused where confidence is reposed and betrayed.
The expression "undue influences" is one of ambiguous import. It is not confined to those cases in which by virtue of some dominant position, the influence is exerted to secure a benefit to the person exerting it but extends also to cases in which a person of imperfect judgment is placed or places himself under the direction of one possessing not only greater experience but also such force as that which is inherent in relations between persons in unequal positions.
Undue influence is defined in Sec. 16 of the Act. A party CS Nos. 311/9/11 & 310/9/11 Page 28 of 50 pleading undue influence will have to establish that the opposite party had an influence over him because of close relationship, custody or due to other circumstances and by exercising that influence, he took unfair advantage at his cost. In deciding the question of undue influence as in most other matters, an overall picture of the case will have to be taken into consideration.
Undue influence usually arises in contracts made between relatives or persons in a fiduciary position but even as between strangers between whom there exists no fiduciary relation certain forms of coercion, oppression or compulsion may amount to undue influence invalidating a contract.
In cases, however, it has been said that if the parent is aged and infirm and reposes actual trust and confidence in the child, the burden is upon the child to show that such transaction was fair and free from undue influence.
The mere existence of the fiduciary relation raises the presumption of undue influence and the Court will hold that transaction to be bad unless the presumption of undue influence is rebutted by cogent evidence adduced by the donee. CS Nos. 311/9/11 & 310/9/11 Page 29 of 50
40. The defendant has failed to prove that the plaintiff at her own free will executed the sale deed. The defendant has even failed to prove that the plaintiff had knowledge that she, in fact, was executing a sale deed as regards the suit property. The defendant has also failed to prove that a sum of Rs. 10,70,000/ was paid to the plaintiff as a consideration as stated by the defendant in the WS. The evidence on this aspect has not been substantiated by any independent and cogent evidence rather it is contradictory in view of cross examinations of DW1 & DW2. The defendant has also not examined the persons from whom her husband took the loan of Rs. 10,00,00/ to prove the factum of taking of loan from them. Proving the payment of consideration is very vital aspect in this case, merely oral statement by the witnesses of the defendant that they paid sale consideration amount to the mother of the defendant i.e. the plaintiff, is not a sufficient evidence to discharge the onus of mode of payment of Rs. 10,70,000/ to the plaintiff. This is more so because both the persons from whom the loan of Rs. 10,00,000/ was taken by the defendant, have not been examined in the Court.
41. DW3 i.e. husband of the defendant, stated in his cross examination that writing was got executed from him by Sh. Vinod CS Nos. 311/9/11 & 310/9/11 Page 30 of 50 Singhala and Sh. Gaurav Singhala and that writing is with them. However, no such writing or no such evidence has been produced or proved by the defendant on the record. The oral statements made by DW1 and DW2 cannot be said to have discharged the heavy onus of proof with respect to existence and payment of sale consideration amount. Rather a suggestion has been given in the cross examination of PW1 that she received the sale consideration on 16.02.2009 and 17.02.2009, which suggestion is contrary to the defence and evidence of the defendant and which suggestion itself demolishes the case of the defendant regarding payment to the plaintiff. The defendant in her affidavit Ex. DW1/A simply stated about payment of Rs. 10,70,000/ without any details though in the cross examination, she stated that the amount of sale consideration was given to her by her husband which was Rs. 10,70,000/ and it was given to her by her husband on 29.01.2009. She further stated that this amount was taken by her in a bag and her son had accompanied her at that time. On the other hand, DW2 stated in his affidavit that his father arranged the said amount of Rs. 10,70,000/ and his mother paid Rs. 4,00,000/ on 29.01.2009 to her maternal grand mother at her house and he accompanied with his mother to CS Nos. 311/9/11 & 310/9/11 Page 31 of 50 make the payment of Rs. 4,00,000/ on 29.01.2009. DW2 further stated that his father further arranged payment of Rs. 6,70,000/ which was paid to his maternal grand mother on 16.02.2009 at the time of execution of sale deed. DW2 further stated that he accompanied his mother to make the payment of Rs. 6,70,000/ on 16.02.2009 to the plaintiff. These contradictions are material in nature and casts doubt on the payment of Rs. 10,70,000/.
42. I have no hesitation to hold, therefore, that the defendant has miserably failed to prove that, in fact, she had monies of Rs. 10,70,000/ with her out of which her husband taken a loan of Rs. 10,00,000/ from Sh. Vinod Singhala and Sh. Gaurav Singhala and that such money was, in fact, paid over by the defendant to the plaintiff.
43. In view of above circumstances as the defendant has failed to prove the existence and passing of the sale consideration for the execution of sale deed Ex. DW1/2, I so hold that the sale deed Ex. DW1/2 was not understood by the plaintiff as having a document of sale in respect to her suit property to the defendant. This Court really fails to understand that how can the plaintiff who was not having any other roof on her head, could have sold her property and CS Nos. 311/9/11 & 310/9/11 Page 32 of 50 delivered the possession of the same depriving her own son and herself also from such a shelter by way of a sale to the defendant. This Court can say by the very strong reason as discussed herein above and hold that the plaintiff did not execute the sale deed Ex. DW1/2 in such a mental and physical condition so as to understand the nature of the transaction encompassed in the sale deed Ex. DW1/2. There is no documentary evidence on the record rather the whole conduct and event points out niddle of suspicion towards the defendant.
44. There is no specific suggestion in the cross examination of PW1 or PW2 that the plaintiff, in fact, was in such a sound state of mind so as to understand the nature of the sale deed Ex. DW1/2.
45. It is a well established law that once there is no cross examination that part of the testimony to which there is no cross examination ordinary ought to be believed.
46. In the facts of the present case in my opinion, absence of cross examination is an important factor to hold that the mother was not in the sound mental state for knowing the nature of the sale deed. I cumulatively take all the aforesaid factors with the fact that the defendant has failed to prove that she paid the alleged consideration CS Nos. 311/9/11 & 310/9/11 Page 33 of 50 of Rs. 10,70,000/ to the plaintiff and accordingly, hold that the plaintiff did not execute the sale deed Ex. DW1/2 in such a mental state that she had understood the nature of the same. Even, in fact, it is assumed that the plaintiff was in such a mental state of mind to ordinarily understand the other documents at least so far as the document Ex. DW1/2 is concerned, the facts and circumstances were so created that qua the document Ex. DW1/2, the plaintiff did not understand that the document was, in fact, a sale deed transferring the suit property to the defendant. This become all the more so because admittedly the transaction is not based on natural love and affection. There is no reason why a mother who is staying with her son will preclude him or oust him from her property and why the son was ousted by the plaintiff is not established.
47. The defendant has pointed out certain contradictions in the evidence of the plaintiff and PW2 qua also the pleadings. However, one has to keep it in mind that these contradictions are not sufficient to tear evidential value of the statement of PW1 & PW2. Naturally noone can give a statement like a parrot. There ought to be certain slight contradictions in every statement which is recorded after a gap of some time. Ld. Counsel has relied upon the Judgment CS Nos. 311/9/11 & 310/9/11 Page 34 of 50 regarding endorsements u/s 58 of the Registration Act about admission of payment by the plaintiff before the SubRegistrar, but it is fact that no such payment was made before the SubRegistrar. The defendant has failed to prove the factum of taking loan of Rs. 10,00,000/ as well as payment of Rs. 10,70,000/ to the plaintiff as discussed herein above. The Judgments as relied upon by the defendants i.e. Ishwar Dass Jain (dead) through LRs vs. Sohan Lal (dead) by LRs. (2000) 1 SCC 434 and Roop Kumar vs. Mohan Thedani, AIR 2003 SC 2418, are of no help to the defendant in view of the aforesaid facts. The mere registration of the sale deed is not a conclusive proof of a valid sale between the parties. The essential element for the valid contract is free consent of the parties entering into a contract and payment of consideration as in view of the facts of the present case, which is not there in this case.
48. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the later is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influences is upon the person in the CS Nos. 311/9/11 & 310/9/11 Page 35 of 50 dominating position; he/she had to prove that there was fair play in the transaction and that the apparent is the real; in other words, that the transaction is genuine and bonafide.
Free consent is deemed essential for every agreement. A contract induced by coercion, undue influence, fraud, misrepresentation lacks this element. If the consent is entirely absent, as in some cases of mistake, the agreement is void. If there is an apparent - though not free - consent, as in coercion and undue influence a voidable contract results.
The contracts which are voidable for undue influence falls into two classes :
(i) those in which there is no special relationship between the parties; i.e. transactions between the equals (ii) those in which a special relationship exists; i.e. transactions between unequals.
In transaction falling in the first class, undue influence must be proved as a fact. In the second class, it is presumed to exist. In transactions between equals, it must be affirmatively proved that one party, in fact, exerted influence over the other and thereby procured a contract which otherwise would not have been made. In transactions between unequals undue influence is presumed, because CS Nos. 311/9/11 & 310/9/11 Page 36 of 50 confidence reposed in one party either endows him with exceptional authority over the other or imposed upon him the duty to give disinterested advice. The possibility that may put his interest uppermost is so obvious that he comes under a duty to prove that he has not taken any undue advantage of his position and abuse it. The burden of proof is different in the two classes of cases. It is difficult to make a exhaustive list of persons against whom the presumption is raised. The most familiar types of relationship are those of solicitors and clients, trustee and beneficiary, guardian and ward, parent and child, teacher and pupil, doctor and patient etc. While it is true that "undue influence", 'fraud', "misrepresentation" are cognate vices and may, in part, overlap in some cases, they are in law distinct categories. If it is having been found that a donor in the case of gift was not upto an ordinary standard of intelligence and was under the influence of the defendants and the transaction was hopelessly improvident. In such a case, the Court shall be constrained to set aside the gift. In a case, a youngman who has just attained his majority and whose mind was clouded and affected by hemp smoking, sold his property for grossly inadequate consideration to his guru. The Hon'ble Allahabad High Court set aside CS Nos. 311/9/11 & 310/9/11 Page 37 of 50 the sale on the ground of undue influence. As such, a transaction may be set aside, as discussed herein above, on account of undue influence.
According to the description of undue influence in Sec. 16 of Indian Contract Act, there are three ingredients:
(i) that the relationship subsisting between the parties should be such that one of the parties is in a position to dominate the Will of the other;
(ii) that the dominant party obtains an unfair advantage over the other;
and (iii) that the dominant party has obtained that unfair advantage while using dominant position.
Thus it can be seen that contracts which may be rescinded for undue influence fall into two distinct classes :
(i) these where there is no special relationship between the parties;
(ii) these where a special relationship, such as parent and child exists.
In the first class, undue influence must be proved as a fact, in the second class, it is presumed to exist.
The Court trying the case of undue influence must consider two ends to start with :
(i) are the relations between the donor and the donee were such that the donee is in a position to dominating the Will of donor; (ii) has the CS Nos. 311/9/11 & 310/9/11 Page 38 of 50 donee used that position to obtain an unfair advantage over the donors.
Upon the determination of these issues, a third point emerges which is that of onus probandi. If the transaction appears to be unconscionable, then the burden of proving that contract was not induced by undue influence is to lie upon the person who was in a position to dominate the Will of the other. Even in this case, the defendants was in a position to dominate the Will of the plaintiff and that the defendant exercise her influence and obtained an unfair advantage for herself, such a transaction was itself unconscionable in as much as the mother deprived her dependent son of her entire share in the property besides this, the plaintiff herself has not kept any house for her living or for maintenance. The burden to prove thus lie upon the defendant is to establish that undue influence was not exercised and this they failed to establish. The plaintiff is an illiterate widow aged about 72 years physically infirmed who was living with her son and family of her son and was not having any other property for her disposal or to live in. The defendant was her nearest relative with whom she could confine and discuss everything in such an age, being a daughter of the plaintiff, even can discuss daily bickering in the family of the son, his wife etc. The defendant was obviously in a CS Nos. 311/9/11 & 310/9/11 Page 39 of 50 position to dominate her will, the transaction in question was unconscionable on the face of it. Under the impugned deed, the plaintiff was deprived of all her transferable property during her life time. More so, there appears to be no apparent reason to impel the plaintiff to deprive her son and the family, the right to inherit the suit property after her death. In such a situation, the burden lies on the defendant to rebut the presumption and to establish by cogent evidence that the confidence was not abused and the transaction was not induced by undue influence and the impugned deed was executed under circumstances which enabled the plaintiff to exercise her independent Will. However, the defendant has failed to establish by cogent evidence that the confidence was not abused and the transaction was not induced by undue influence and the impugned deed was executed under circumstances which enabled the plaintiff to exercise an independent Will. In view of the conduct of the defendant and the way alleged transaction was done, it is abundantly clear that the impugned sale deed was obtained by exercise of undue influence and the transaction is of an unconscionable nature. The defendant was in a position to dominate over the Will of the plaintiff. Moreover, there appears to be no apparent reason to impel the plaintiff to deprive her CS Nos. 311/9/11 & 310/9/11 Page 40 of 50 son with whom she is living to deprive him from inheritate the suit property after her death. The reason given in the sale deed that she wants to dispose of the property for legal requirements does not appeal to the mind of this Court nor such cause/reason has been proved by the defendant. There is also contradiction in the impugned deed that the possession has been given though no such possession was given to the defendant. In such a situation, the burden lie on the defendant to rebut the presumption and to establish by cogent evidence that the transaction was not induced by undue influence, fraud or misrepresentation and the impugned deed was executed under circumstances which enabled the plaintiff to exercise her independent free will or intent.
49. In this case, the defendant had made material misrepresentation to the plaintiff regarding giving of guarantee and such representation has been made with the intention that it be acted upon by the plaintiff to be defrauded. The plaintiff acted in reliance upon such a representation and the plaintiff thereby suffers injuries and entered into transaction and executed the impugned deed. The intention of the defendant is to deceive and/or induce the plaintiff to enter into sale contract. The plaintiff has been induced by the CS Nos. 311/9/11 & 310/9/11 Page 41 of 50 defendant to enter into the contract in question as discussed herein above. The plaintiff had no means of discovering the truth taking into consideration the educational background, age and relationship with ordinary diligence. It can be inferred from the circumstances by this Court, a fraudulent and dishonest plan by exercising undue influence, induced by the defendant to get the alleged sale deed executed by the plaintiff and there is positive material to this effect on the record of this Court. The assertion of a false fact knowingly by the defendant without belief in its truth with a deliberate intention to deceive the plaintiff was originated by the defendant.
50. Undue influence of the defendant on the plaintiff is also writ large and apparent from the facts on the record. Whatsoever transpired regarding the transaction in dispute was only discussed by the plaintiff with the defendant and not even with her son and daughter in law and their family members or any other relative even of the defendant, the plaintiff went to the O/o SubRegistrar alone in such an old age without disclosing this fact to any other person except the defendant either regarding the transaction or going to the O/o SubRegistrar before execution the impugned sale deed. The influence exerted by the defendant and/or the influence of the CS Nos. 311/9/11 & 310/9/11 Page 42 of 50 defendant upon the plaintiff in such circumstances cannot be denied and this Court is fully convinced that the plaintiff was in the undue influence of the defendant. Hence, it can be said that taking into consideration all the factors, as discussed herein above, that the plaintiff was under undue influence of the defendant.
51. I am satisfied that the sale deed is a result of influence expressly used by the defendant, for the purpose, in view of the relations between the plaintiff. The defendant at/or shortly and earlier also, before execution of the sale deed, had such an undue influence which may raise presumption that the defendant had undue influence over the plaintiff and in such a case, I have no hesitation to set aside the sale deed, since it was not, in fact, spontaneous act of the plaintiff acting under circumstances which enabled her to exercise an independent Will which may justify this Court in holding that the sale was the result of free exercise of the plaintiff's Will. In view of the undue influence, fraud and misrepresentation, the defendant has got executed the alleged sale deed in favour of the defendant and obtained unfair advantage.
52. This Court is conscious of the fact that mere influence pressed by pursuation, appeals to affections or ties of kindred or to CS Nos. 311/9/11 & 310/9/11 Page 43 of 50 sentiment of gratitude etc. is not illegal. It is illegal only when it destroys the free will of the testator. In this case, it is seen and observed as discussed herein above that the undue influence, fraud and misrepresentation had destroyed the free will of the plaintiff who under that executed the impugned sale deed.
53. When we cumulatively take all the aforesaid factors, taken with the fact that the defendant has quite clearly failed to prove that she paid the alleged consideration of Rs. 10,70,000/, in the facts of the present case, it ought to be held and I so hold that the mother did not execute the sale deed Ex. DW1/2 in such mental state that she had understood the nature of the same. In fact, even assuming that she was in such a mental stage to ordinarily understand other set of facts and documents, at least so far as the document Ex. DW1/2, facts and circumstances were so created that qua this document Ex. DW1/2, the mother did not understand that the document was, in fact, a sale deed transferring the entire suit property to the defendant. It is a fact that this transaction is not based on natural love and affection. Why would the plaintiff oust her only son, has not been established. I, therefore, hold that the plaintiff was either not in such a mental and physical state so that she could understand the document Ex. CS Nos. 311/9/11 & 310/9/11 Page 44 of 50 DW1/2 or even if she was otherwise in a reasonable mental and physical condition to otherwise know the normal state of affairs qua the document Ex. DW1/2, she did not understand that she was, in fact, executing the sale deed of the suit property in favour of the defendant. I accordingly hold that the sale deed dated 16.02.2009 Ex. DW1/2 executed by the plaintiff in favour of the defendant, was obtained by the defendant by playing fraud and obtained signatures of the plaintiff on the printed papers, blank papers and stamp papers without disclosing the actual contents of the sale deed. I also hold that the defendant had not paid any sale consideration to the plaintiff for executing the sale deed dated 16.02.2009. I also hold that the plaintiff is entitled to a decree for declaration of declaring the sale deed null and void. Accordingly, issue nos. 1, 2 & 3 are decided in favour of the plaintiff and against the defendant. ISSUE NO. 4 :
Whether the plaintiff is entitled for the decree of permanent injunction restraining the defendant from creating third party interest in the suit property on the basis of the sale deed dated 16.02.2009? OPP.
54. The Onus to Prove this issue is upon the plaintiff.
55. The plaintiff has prayed for permanent injunction with respect CS Nos. 311/9/11 & 310/9/11 Page 45 of 50 to the suit property thereby restraining the defendant from creating any third party interest in the suit property on the basis of sale deed dated 16.02.2009.
56. In view of my findings returned on the above issues, the plaintiff is also entitled for permanent injunction as prayed. Accordingly, this issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5 :
Whether the plaintiff is entitled for a decree of mandatory injunction for direction against the defendant of returning original title deed of the abovesaid suit premises? OPP.
57. The Onus to Prove this issue is upon the plaintiff.
58. The plaintiff has also prayed for mandatory injunction thereby directing the defendant to return the original title deed of the suit property to the plaintiff.
59. In view of my findings returned on the above issues, I hold that the plaintiff is also entitled for mandatory injunction regarding returning of the original title deed of the suit property. This issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO. 6 :
CS Nos. 311/9/11 & 310/9/11 Page 46 of 50
Whether the defendant (plaintiff in CS No. 310/9/11) is entitled to a decree for possession of the suit property? OPD.
60. The Onus to Prove this issue is upon the defendant.
61. In view of discussion herein above holding that the sale deed Ex. DW1/2 dated 16.02.2009 is null and void, the defendant is not entitled for a decree of possession of the suit property. This issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE NO. 6 :
Whether the defendant (plaintiff in CS No. 310/9/11) is entitled for damages/mesne profits from the plaintiff, if yes, at what rate? OPD.
62. The Onus to Prove this issue is upon the defendant.
63. In view of my findings returned herein above, the defendant is not entitled for damages/mesne profits from the plaintiff. This issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE NO. 7 :
Whether the defendant has filed the suit no. 310/9/11 by concealing the true and material facts from the Court? OPP. CS Nos. 311/9/11 & 310/9/11 Page 47 of 50
64. Onus to Prove this issue was initially upon the defendant (Rashi Sethi), however, later on vide Order dated 07.07.2010, the Onus to Prove the same was shifted upon the plaintiff from the defendant.
65. In view of my findings returned on the above issues, it is established that the defendant has filed the suit i.e. CS No. 310/9/11 against the plaintiff by concealing the true and material facts from the Court. This issue is accordingly decided in favour of the plaintiff and against defendant.
ISSUE NO. 8 :
Whether the suit filed by the defendant is barred under Order II Rule 2 CPC? OPP.
66. The Onus to Prove this issue is upon the plaintiff.
67. However, no arguments have been addressed by Counsel for the plaintiff on this issue nor any material in support of this issue has been proved by the plaintiff. Hence, this issue is decided against the plaintiff and in favour of the defendant.
RELIEF :
68. In view of my aforesaid discussions, a decree for permanent injunction in respect of the suit property i.e. House No. 130, Pocket B4, Sector - 7, Rohini, Delhi110085, as shown in red colour in the CS Nos. 311/9/11 & 310/9/11 Page 48 of 50 site plan Ex. PW1/1, is passed in favour of the plaintiff and against the defendant thereby restraining the defendant, her legal heirs, representatives, attorney etc. from dispossessing the plaintiff from the suit property and from selling the suit property and creating any third party interest in the suit property. The defendant is also permanently restrained from misappropriating the alleged sale deed dated 16.02.2009 executed by the plaintiff in favour of the defendant in respect of the suit property.
69. A decree is also passed in favour of the plaintiff and against the defendant for the mandatory injunction directing the defendant to return the original title deed/documents in respect of House No. 130, Pocket B4, Sector7, Rohini, Delhi - 110085, to the plaintiff.
70. A decree for declaration is also passed in favour of the plaintiff and against the defendant declaring the sale deed dated 16.02.2009 allegedly executed by the plaintiff in favour of the defendant in respect of property bearing House No. 130, Pocket B4, Sector7, Rohini, Delhi - 110085, to be null and voidabintio and hence, accordingly cancelled, with costs.
CS Nos. 311/9/11 & 310/9/11 Page 49 of 50
71. Accordingly, the suit of the defendant (Rashi Sethi) CS No. 310/9/11 is dismissed in view of my decision in CS No. 311/9/11 with costs.
Judgments be placed in both the files. Decree sheets be drawn accordingly and files be consigned to Record Room.
Announced in the open Court
today i.e. 21.02.2013 (CHANDER SHEKHAR)
Addl. Distt. Judge04 (N/W)
Rohini Courts, Delhi
CS Nos. 311/9/11 & 310/9/11 Page 50 of 50