Delhi District Court
Dr. Savitiri Sharma vs Dr. Shiva Murti Tewari (Since Deceased ... on 19 March, 2013
IN THE COURT OF MS. SEEMA MAINI :
ADJ (12) CENTRAL: TIS HAZARI COURTS: DELHI
In re :
Civil Suit No. 396/08
Unique Case ID No. 02401C0142482003
In the matter of:
1. Dr. Savitiri Sharma,
W/o Sh. A.K. Sharma,
R/o B-99, Sector-30,
Noida (U.P).
....Plaintiff
VERSUS
1. Dr. Shiva Murti Tewari (Since deceased through LRs)
1-A Sh. Viveka Nand Tewari,
S/o Late Dr. Shiva Murti Tewari,
R/o Village Parigara, P.O. Chhaprey,
Distt. Sultanpur, (U.P).
1-B Sh. Daya Nand Tewari,
S/o Late Dr. Shiva Murti Tewari,
R/o Kalpana Cottage, Behind Maruti Complex
548, Taramandal Road,
Gorakhpur- 273001 (UP)
1-C Dr. Sita Ojha
D/o Late Dr. Shiva Murti Tewari,
R/o 7, Karishma Apartments
Plot No. 27, I.P. Extension, Patparganj,
Delhi-110092.
1-D Smt. Malti Tewari
W/o Sh. Vivekanand Tewari
R/o Village Parigara, P.O. Chhaprey,
Distt. Sultanpur, (U.P).
.....Defendants
Suit No. 396/08 page no. 1 of 33
Date of filing of the suit : 29.11.2000
Date of reservation for judgment : 03.11.2012
Date of judgment : 19.03.2013
SUIT FOR PERMANENT INJUNCTION, MANDATORY INJUNCTION AND SPECIFIC
PERFORMANCE
APPEARANCE:
Sh.Sanjay Dua, counsel for plaintiff
None for defendant no.1-A and 1-C
Sh. M.R. Faruqi, counsel for defendant no.1-B
Sh. S.L. Chaudhary, counsel for defendant no.1-D
JUDGMENT
1. Vide this judgment, I shall dispose of the suit for permanent injunction, mandatory injunction and for specific performance, filed by the plaintiff Dr. Savitri Sharma against the defendant Dr. Shiva Murti Sharma .
2. At the outset, it may be mentioned that initially the suit was filed by the plaintiff seeking the relief of permanent injunction, but subsequently, the suit was amended with the permission of the Court, into a suit for permanent injunction, mandatory injunction and specific performance.
3. The brief facts, as stated in the plaint are that the plaintiff is the married daughter of the original defendant (since deceased) and is married to one Sh. Anil Kumar Sharma, since April, 1989. It is stated that the defendant applied to the DDA for allotment of a plot in Rohini in the year 1981, under the Rohini Residential Scheme 1981 and got himself registered vide application no. 088567 and priority no. 15913. The defendant was allotted a plot bearing no. 079, Pocket-5, Sector-24, Rohini, Suit No. 396/08 page no. 2 of 33 measuring 90 sq. meter, vide letter no. F031(0058) 96-97/LSB (Rohini) dated 27.03.1996 and the defendant was asked by the DDA to deposit a sum of Rs. 3,47,965.28p, after adjustment of the money deposited at the time of registration with interest for the said plot either by way of demand draft or in cash, by means of a bank challan in any authorized branch of the SBI/Central Bank of India as under:-
1. Rs. 1,25,370/- within 30 days from the date of issue of the demand-cum-
allotment letter,
2. Rs. 1,79,100/- within 90 days from the date of issue of the demand-cum-
allotment letter
3. Rs. 43,495.28 within two months from the date of receipt of the communication offering the possession or before taking the possession, which ever is earlier.
4. It is stated that the letter further had a mention that if any of the installments were not paid within the prescribed period, the allotment shall stand cancelled automatically. It is stated that the defendant, who was a retired person since 1983 had no funds to make the payment and accordingly did not pay any of the aforesaid installment towards the cost of the plot, resulting in the allotment being cancelled.
5. Sometimes in 1997, the defendant came to the house of the plaintiff to stay for some days and at that time he informed the plaintiff and her husband about the aforesaid allotment and its cancellation, on account of non-payment and offered to sell it to them. The plaintiff and her husband became interested in purchasing the same as the husband of the plaintiff was planning to sell his flat in Mayur Vihar and was interested in using the money realized therefrom. Accordingly, an understanding was reached between the parties, as per which the plaintiff agreed to purchase the demised plot from the defendant at a premium of Rs. One lac.
6. It is further stated that the defendant while staying with the plaintiff and her husband, at that time itself, made a representation to the DDA for restoration of the Suit No. 396/08 page no. 3 of 33 allotment of the demised plot to him. The husband of the plaintiff also disposed off his MIG Flat No. 276-A, Pocket-C, Mayur Vihar, Phase-II, Delhi in October, 1997 on the defendant's assurance of selling the suit plot to the plaintiff or her husband.
7. It is stated that consequent to the representation of the defendant in this regard, the DDA restored the allotment of the demised plot in favour of the defendant vide letter dated 03.12.1997, subject to the payment of the current rate and the restoration charges, totalling to Rs. 4,65,795/- and deposit of certain documents within 45 days from the date of issue of restoration letter.
8. It is stated that as per the understanding, between the parties and the instructions of the defendant, the plaintiff got prepared a pay order bearing no. 955565 on 14.01.1998 for Rs. 4,65,795/- payable to DDA, towards the cost fo the demised plot, through her Saving Bank Account No. 14559 in Bank of Madhura Ltd. at Noida. The said Pay Order was deposited with the DDA through the Central Bank of India, Vikas Sadan, INA, New Delhi vide Challan No. 0038397 dated 15.01.1998 on behalf of the defendant together with several documents required in terms of the restoration of the allotment letter. A premium of Rs. One lac was separately paid to the defendant in cash by the plaintiff and her husband on the same day i.e 15.01.1998 and as such the defendant received the full consideration amount towards the demised plot on 15.01.1998.
9. It is stated that the defendant, having received the full consideration amount towards the plot, accordingly agreed to sell, transfer, convey his right, title, interest etc.in the demised plot bearing no. 079, Pocket-05, Sector-24, measuring 90 sq. meter, Rohini, Delhi and simultaneously executed:-
a) An agreement to sell dated 15.01.1998 in favour of the plaintiff,
b) A receipt in acknowledgment of having received a total sum of Rs. 5,65,795/-
from the plaintiff in full and final settlement of the sale consideration of the demised plot, as per the terms and conditions of the agreement to sell entered into by him with the plaintiff,
c) A Will dated 15.01.1998, which was duly registered with the Sub-Registrar-
Suit No. 396/08 page no. 4 of 33 VII, INA, New Delhi on 15.01.1998, in favour of the plaintiff in respect of the demised plot;
d) Indemnity Bond, affidavits etc;
e) A General Power of Attorney (GPA) and a Special Power of Attorney (SPA)
appointing the husband of the plaintiff, Sh. Anil Kumar Sharma, as his attorney in respect of the demised plot for doing several specific acts and things and deeds concerning the said plot including sale/transfer and execution and registration of Sale Deed (the General Power of Attorney and Special Power of Attorney were also registered with the Sub-Registrar-VII, New Delhi, by the defendant on 15.01.1998),
f) Handed over several documents, in original, relating to the demised plot:-
(i) Letter of allotment dated 26.03.1996 received from DDA,
(ii) Letter of restoration of allotment dated 03.12.1997 from DDA,
(iii) 4th copy of challan No. 0038397 of Central Bank of India, Vikas Sadan, INA, New Delhi, depositing with DDA Rs. 4,65,795/- vide Pay Order/demand draft No. 955565 dated 14.01.1998.
10. It is further stated that thereafter, on 11.11.1998 Sh. Anil Kumar Sharma, (plaintiff's husband) as Attorney of the defendant wrote a letter to the DDA requesting them to handover the possession of the plot to him as the attorney of the defendant. However, DDA could not hand over the possession at that time as there were no civic amenities like electricity, water supply, drainage etc available in the area at that time. In July, 2000 on coming to know that DDA had arranged for the civic amenities in the area and started delivering the possession of the plots to the respective allottees in Sector- 24, Rohini, the plaintiff's husband, as attorney of the defendant against approached the DDA for delivery of the possession of the demised plot, but at that time to their shock and surprise, it came to the notice of the plaintiff and her husband that the defendant had complained to the DDA through various letters that:-
a) He had not executed any agreement to sell, general power of attorney, special power of attorney or like,
b) He had lost blank stamp/judicial papers duly signed by him,
c) He had lost original documents like letter of allotment, restoration letter, 4 th Suit No. 396/08 page no. 5 of 33 Copy of Challan depositing money with DDA, etc.,
d) Had requested for cancellation of General Power of Attorney etc.
11. It is also stated that under the circumstances, the plaintiff and her husband immediately met the defendant and inquired from him why he had lodged the false and malafide complaint to DDA and requested him to withdraw the same, in view of the fact that he had already agreed to sell and hand over the peaceful possession of the demised plot to the plaintiff and also received the full consideration with respect to the same. After great persuasion and on the plaintiff and her husband agreeing to pay an extra consideration of Rs. Two lac, as demanded by the defendant, the defendant and his attorney Sh. Anil Kumar Sharma, agreed to withdraw their letters dated 12.02.1998 and 11.11.1998 written to the DDA to ensure unhindered handing over of the possession of the suit plot by the DDA to the defendant and consequently its peaceful handing over to the plaintiff. Accordingly, a letter dated 09.11.2000 jointly written by the defendant and his attorney, addressed to the Assistant Director (LSB) DDA was submitted with a request to treat their letter dated 12.02.1998 and 11.11.1998 as withdrawn and not to take any action thereupon and further requesting that the possession of the suit plot be handed over to the defendant.
12. It is stated that the plaintiff even got prepared a draft of Rs. Two lac bearing no. 101943 on 13.11.2000 from State Bank of Mysore, Noida, favouring the defendant and payable at State Bank of India, Sultanpur, UP, as desired by the defendant. However, soon thereafter, the defendant once again changed his mind and with a malafide intention and ulterior motive on 14.11.2000 again wrote to the DDA, to the great detriment and prejudice to the rights and interest of the plaintiff, for cancellation of the General Power of Attorney in favour of Sh. Anil Kumar Sharma (husband of the plaintiff) and also falsely claiming that he had not executed any agreement to sell in respect of the suit plot, in favour of the plaintiff.
13. It is further stated that the plaintiff and her husband again met the Suit No. 396/08 page no. 6 of 33 defendant and inquired from him the reason as to why he had given false letter/affidavit to the DDA against their rights and interest and the understanding and agreement between the parties, whereupon he expressed his disinclination to perform his part of the contract on the ground that he wanted to dispose off the suit plot to a third person, for a higher consideration and premium. No amount of persuasion on part of the plaintiff and her husband could make him see reason and change his mind.
14. It is stated that under the circumstances, the plaintiff was constrained to write a letter to the DDA on 15.11.2000, informing the DDA about the whole situation and the true facts and circumstance of the case, explaining that the defendant had misguided by certain properly dealers and therefore, requested that the possession of the demised plot may not be handed over to the defendant without her consent.
15. It is stated that the plaintiff has already paid the entire sale consideration and nothing remains to be done on her part. The agreement to sell dated 15.01.1998 lays an obligation on the defendant to transfer and convey the suit plot in favour of the plaintiff by executing a registered conveyance deed and in case the defendant does not fulfill any terms and conditions of the agreement, the plaintiff shall be entitled to implementation thereof through Court of Law by specific performance of the agreement.
16. It is further stated that in the meanwhile, the defendant started initiating action to frustrate the agreement to sell and present the plaintiff with a fate by negotiating with the property dealers/other buyers, while simultaneously pursuing the case for grant of possession of the suit plot to him, with the DDA. The plaintiff has been given to understand by the DDA that there is no other option but to handover the possession of the suit plot to the defendant in the near future and the plaintiff came to know that the defendant has already arranged with the property dealers/other buyers to handover the possession of the demised plot to new buyer immediately thereafter, and simultaneously execute the necessary documents, transferring the suit plot to the prospective buyer, causing irreparable loss and injury to the plaintiff.
Suit No. 396/08 page no. 7 of 33
17. It is also stated that the plaintiff and her husband lastly met the defendant on 24.11.2000 at Bazar Sitaram, Delhi where the defendant is presently residing and requested him to act in a just and reasonable manner, but to no avail. Hence, the suit has been filed by the plaintiff for necessary relief and redressal and protection of her rights and interest. The plaintiff has always willing to perform her part of the contract and has infact already paid all the amounts due, as per the agreement, to the defendant.
18. The cause of action for filing of the suit arose in favour of the plaintiff and against the defendant on 24.11.2000 and is a continuing one. The agreement to sell between the parties was executed in Delhi and the suit plot was also situated in Delhi and therefore, this Court has the Territorial jurisdiction to adjudicate upon the matter. The value of the suit has been fixed at Rs. 5,65,795/-, on which the requisite Court fee has been paid. The value of the suit for specific performance is also fixed at Rs. 5,65,795/- while the value of the suit for the relief of mandatory injunction is fixed at Rs. 200/-, on which the requisite Court fee have been paid.
19. It is prayed that a decree of permanent injunction be passed in favour of the plaintiff and against the defendant, restraining the defendant permanently from selling, transferring, alienating or parting with the possession, in any manner and executing the sale deed in respect of the suit plot bearing no. 79, Pocket-5, Sector-24, Rohini, Delhi-06 in favour of anybody except the plaintiff.
20. A decree of specific performance in favour of the plaintiff and against the defendant is also prayed for, directing the defendant to specifically perform the terms of the agreement to sell dated 15.01.1998 and to execute the necessary documents in favour of the plaintiff.
21. A decree of mandatory injunction in favour of the plaintiff and against the defendant is also prayed for, directing the defendant to obtain possession of the suit Suit No. 396/08 page no. 8 of 33 plot from the DDA and to handover the peaceful possession of the same to the plaintiff. Costs of the suit have also prayed for.
22. The Written statement was filed on behalf of the defendant, wherein the preliminary objections were taken regarding non maintainability of the suit as the alleged agreement to sell was conceived in deception and secrecy and by breach of faith and therefore, the plaintiff cannot be allowed to take the benefit of her own wrongs. The suit is also bad for non-joinder of necessary party i.e DDA. Furthermore, the suit for specific performance of the agreement to sell dated 15.01.1998 even as per the allegations made in the plaint, is barred by time, since as per the own allegations made by the plaintiff in para no. 14 of the plaint, it is stated that the plaintiff came to know in July, 2000 that the defendant had denied the execution of the agreement and had refused to abide by its terms and therefore, the cause of action, if any, for filing the suit for specific performance, arose in favour of the plaintiff in July, 2000, the limitation for filing of which is three years, but the suit for specific performance was not filed within the period of three years. Since the application for amendment of the plaint, in order to seek the relief of specific performance and mandatory injunction u/o 6 rule 17 CPC was moved on 19.11.2003 and therefore, the application itself was time barred. Furthermore, the plaintiff has also estopped from seeking the relief of specific performance and the agreement dated 15.01.1998 in view of the allegations made in para no. 16 and 17 of the plaint, wherein the plaintiff has alleged that a new agreement between her and the defendant came into force and that she agreed to pay Rs. Two lac more and the defendant agreed to the same proposal in super session of the previous agreement dated 15.01.1998. Accordingly, there was a novation of the contract/agreement to sell on 09.11.2000 and the plaintiff has not sought the specific performance of the new agreement. The plaintiff was also estopped from filing of the suit on account of letter dated 09.11.2000 and moreover, the plot has though been allotted to the defendant, but the possession has not been handed over and therefore, the defendant had no saleable interest in the suit plot on the date of execution of the alleged agreement dated 15.01.1998. Infact, the plot allotted to the defendant cannot be sold under the terms and conditions on which the suit plot had been allotted to the Suit No. 396/08 page no. 9 of 33 defendant.
23. On merits, the relationship between the plaintiff and the defendant, the allotment of the plot by DDA in favour of the defendant and its subsequent cancellation, the schedule of payment and thereafter, its restoration by deposit of the amount alongwith the restoration and purchase, is all admitted, but it is denied that the defendant entertained any intention to sell the plot to the plaintiff at any point of time. The remaining assertions made by the plaintiff were all denied. Infact, in the reply to para no. 16 and 17 of the plaint, it was also stated that there was no novation of the contract as alleged, nor any promise to pay additional sum of Rs. Two lac by the plaintiff and her husband to the defendant was ever made.
24. It is stated that infact, the plaintiff is only entitled to the repayment of the amount which was paid by her to the DDA on account of the plot in question. The letter dated 09.11.2000 was written and the matter stood settled. It is prayed that the suit of the plaintiff be dismissed with costs.
25. Replication was filed by the plaintiff to the written statement of the defendant, wherein the assertions made in the plaint were reiterated while the allegations made on behalf of defendant were all denied.
26. During the pendency of the case, the defendant Dr.. Shiva Murti Tiwari expired on 16.12.2007 and on an application u/o 22 rule 4 CPC being moved, his four LRs, i.e Sh. Vivekanand Tiwari, Sh. Dayanand Tiwari, Dr. Sita Ojha, two sons and one daughter, (besides the plaintiff), and Smt. Malti Tiwari, the daughter-in-law of the defendant, in whose favour the alleged Will was executed by the deceased, were all impleaded as defendants no. 1 A to 1 D. Defendants no. 1-A to 1-C adopted the same written statement, which has been filed by the original defendant while defendant no.1- D Smt. Malti Tiwari filed an additional written statement, wherein she stated that the defendant Dr. Shiva Murti Tiwari had left behind his last Will dated 11.02.1998, which was registered as document no. 466 in Additional Book No. III, Volume 1018 at pages Suit No. 396/08 page no. 10 of 33 5 to 7 on 11.02.1998 in the office of Sub-Registrar-III, Delhi and by virtue of the said Will he had bequeathed all his rights, title and interest in the suit property to her. The natural heirs of the deceased did not inherit any right in the suit property. It is stated that the plaintiff had relied upon a Will dated 15.01.1998, allegedly executed by the deceased and registered on 15.01.1998, but it is stated that, even if the said Will has been executed, the same stands superseded by the Will in favour of the defendant no.1-D. It is stated that vide Deed of Cancellation of General Power of Attorney dated 11.02.1998, Dr. Shiva Murti Tiwari revoked and cancelled any GPA purporting to be executed by him.
27. The replication to the said additional written statement was filed on behalf of the plaintiff wherein, it was stated that the additional written statement was not as per the status of defendant no.1-D as a legal heir of the deceased defendant. It is also stated that the alleged Will and the cancellation of the POA propounded by defendant no.1-D are forged and fabricated documents, having been fabricated in order to usurp the suit property, which was sold by the deceased in favour of the plaintiff, who was his daughter. Without prejudice to these facts, it is also stated that the deceased Dr. Shiva Murti Tiwari had no right, either to execute any Will or to cancel the POA, as being claimed by the defendant no.1-D, as he had already transferred the property for a valuable consideration and had already executed the documents and therefore, the documents now being propounded by the defendant are meaningless. The defendant no. 1-D has absolutely no right, title or interest in the suit property, but has filed the written statement only to harass the plaintiff and to extort money from the plaintiff.
28. On the basis of the pleadings of the parties, following issues were framed on 18.02.2003:-
1. Whether the plaintiff has no cause of action to file the present suit? OPD
2. Whether the suit is bad for non-joinder of DDA as necessary party? OPD
3. Whether there was novation of the agreement to sell on 09.11.2000 on account of which the cause of action relied upon stands superseded? OPD
4. Whether the plaintiff is estopped from filing the present suit on account of the Suit No. 396/08 page no. 11 of 33 letter dated 09.11.2000? OPD
5. Whether the suit for injunction as framed is not maintainable? OPD
6. Relief.
29. Subsequently, since the plaintiff was allowed to amend the plaint, framing of further issues was necessitated and accordingly, additional issues were framed vide order dated 23.09.2005, which are as under:-
5(a) Whether the suit for specific performance of agreement dated 15.01.1998 is barred by time? Onus on parties 5(b) Whether the suit for mandatory injunction is not maintainable, as alleged?
OPD 5(c) Whether the plaintiff is entitled for the relief of specific performance? OPP 5(d) Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP
30. To substantiate her case, the plaintiff entered the witness box as PW1 and deposed on an affidavit, which she proved as Exh. P-1. She testified on oath all the averments made in the suit and brought on record the original allotment letter as Exh. PW1/1, the original restoration letter as Exh. PW1/2, the original agreement dated 15.01.1998 as Exh. PW1/3, the original receipt acknowledging the receiving of entire consideration amount of Rs. 5,65,795/- as Exh. PW1/4, the original Will dated 15.01.1998 as Exh. PW1/5, while the four affidavits dated 15.01.1998 deposed by the defendant, stating that the demised plot has been sold to the plaintiff are Exh. PW1/6 to Exh. PW1/9 and the GPA . The Special Power of Attorney, executed by the defendant in favour of the husband of the plaintiff are Exh. PW1/10 and Exh. PW1/11 respectively while the office copy of the letter dated 09.11.2000 jointly written by the defendant and his attorney Sh. Anil Kumar Sharma to the Assistant Director (LSB) DDA has been brought on record as Exh. PW1/12.
Suit No. 396/08 page no. 12 of 33
31. The husband of the plaintiff Sh. A.K.Sharma was examined as PW2, who deposed on an affidavit, which he proved as Exh. PW2/A testifying on the lines of the plaint, which was filed by the plaintiff, corroborating her on material particulars, relying upon the documents, which have already been brought on record by PW1 as Exh. PW1/1 to Exh. PW1/12.
32. Sh. A.K. Gupta, brother-in-law of the plaintiff and son-in-law of the defendant respectively entered the witness box as PW3 and deposed on an affidavit, which he proved as Exh. PW3/A. He testified that the defendant had executed the agreement to sell dated 15.01.1998 Exh. PW1/3 in his presence, in favour of the plaintiff and both had signed the said document in his presence. The receipt Exh. PW1/4 in acknowledgment of receiving of Rs. 5,65,795/- from the plaintiff in full and final settlement of the sale consideration of the demised plot was also issued by the defendant in favour of the plaintiff in his presence, on which he also put his signatures as a witness at point C. The defendant also executed a Will dated 15.01.1998 in favour of the plaintiff, in his presence and he also put his signatures on the same. The indemnity bond and affidavits etc, all dated 15.01.1998 were deposed in his presence by the defendant. A General Power of Attorney Exh. PW1/10 and a Special Power of Attorney Exh. PW1/11 appointing Sh. A.K. Sharma, husband of the plaintiff as his attorney, in respect of the suit plot, was also executed in his presence. He identified the signatures of the defendant on the documents Exh. PW1/6 to Exh PW1/11 having been signed in his presence.
33. He further stated that he reached Vikas Sadan, IND, New Delhi on 15.01.1998, on the asking of the plaintiff and when he reached there, the plaintiff and the defendant were both present and the defendant was going through the documents, which were already prepared and thereafter, the documents were signed by the defendant and the plaintiff, separately and jointly in his presence and the same were witnessed by him. The Will of the defendant was also signed in his presence, to which he also was a witness, in the presence of the deed writer Dr. B.S. Tanwar Verma, who has signed the same as second witness, in his presence. He deposed that the Suit No. 396/08 page no. 13 of 33 defendant was hale and hearty at the time of execution of the said documents and that there was no misrepresentation, fraud, pressure or undue influence upon the defendant, at the time of execution of the said documents and the defendant had signed all the documents in his presence on his own volition.
34. PW4 Sh. Umakanth Mahapatra, Manager, ICICI Bank, Noida, Sector-50 entered the witness box and produced the summon record pertaining to the joint account no. 628401014559 of Dr. Savitri Sharma and Sh. Anil Kumar Sharma. The letter issued by Sh. Manoj Arora, Dy Branch Manager, ICICI Bank Ltd. Noida, Sector- 50 as Exh. PW4/1, the requisition slip given by Dr. Savitri Sharma for a sum of Rs. 4,65,795/-, which was made vide bank draft no. 955565 as Exh. PW4/2, and had put his endorsement on the same as "True copy of the original" and has put his signatures and his employee code at point A. He has also brought the statement of account of the said account, which was taken on record as Exh. PW4/3 which reflects the withdrawal of the abovesaid payment at point A, on which he made his endorsement as ""True copy of the original" and also put his Employee code at point B. The mode of proof of the said two documents was objected to by the counsel for defendant.
35. After close of PE, matter was listed for DE. It may be mentioned that the suit was contested only by defendant no.1-D Smt. Malti Tiwari, but at the time of adducing DE, defendant no. 1-B appeared and prayed for leading DE.
36. Defendant no.1-D Smt. Malti Tiwari entered the witness box as DW1 and deposed on an affidavit, which was all beyond pleadings except for para no.1 and 13 of her affidavit. In the remaining paragraphs several assertions were made, which were all beyond pleadings and most of them were hearsay averments, especially as stated in para no.10 of the affidavit. She deposed that her father-in-law had left his last Will bequeathing his properties to her and he delivered the original Will to her before his death. She did not produce the original Will but the copy of the same was Marked as Mark-A. Suit No. 396/08 page no. 14 of 33
37. Defendant no.1-B Sh. Daya Nand Tiwari entered the witness box as DW2 and deposed on an affidavit, which he proved as Exh. DW2/A, wherein he deposed on the lines of the written statement of the original defendant, which he had adopted.
38. I have heard Sh. Sanjay Dua counsel for plaintiff and Sh. M.R. Faruqi counsel for defendant no.1-B, but no arguments on behalf of defendant no.1-A and 1-C were extended. Defendant no.1-D changed several counsels and on the date fixed for final arguments, another counsel Sh. S.L. Chaudhary was engaged, who again sought time for extending final arguments, but none of the dates given to him, were availed by him nor the additional liberty granted to extend final arguments, on the date of order, in the morning session, was availed by him. However, both the parties filed the authorities being relied upon by them. I have gone through the record, scrutinized the evidence adduced and the relevant case laws. My issuewise findings are as under:-
ISSUEs No. 1, 3 & 4:-
1. "Whether the plaintiff has no cause of action to file the present suit?" OPD
3. "Whether there was novation of the agreement to sell on 09.11.2000 on account of which the cause of action relied upon stands superseded?" OPD
4. "Whether the plaintiff is estopped from filing the present suit on account of the letter dated 09.11.2000? OPD
39. The onus to prove these issues was upon the defendant, but after the demise of the original defendant and the substitution of the legal heirs of the defendant, the said onus obviously stood shifted upon them, but all the defendants have miserably failed to discharge the said onus. The suit of the plaintiff has been filed on the basis of the agreement to sell Exh. PW1/3 and it is this agreement, the specific performance of which has been claimed by the plaintiff in the instant suit alongwith the ancillary relief of injunction. The receipt in acknowledgment of having received a total sum of Rs.56,5795/- from the plaintiff in full and final settlement of the sale consideration of the suit property, as per the terms and conditions of the agreement to sell has also been brought on record in original as Exh. PW1/4 alongwith the said two Suit No. 396/08 page no. 15 of 33 vital documents, the Will dated 15.01.1998, duly registered with the Sub-Registrar and executed by the defendant Dr. Shiv Murti Tiwari in favour of the plaintiff, in respect of the suit property, has been brought on record as Exh. PW1/5, which has been duly proved by one of the attesting witness i.e PW3 Sh. A.K. Gupta, to have been executed by the defendant in favour of the plaintiff, has been brought on record in original alongwith the indemnity bond, affidavit etc, all executed by the defendant, also saw the light of the day as Exh. PW1/9 to Exh. PW1/12. The registered GPA and the SPA, vide which the defendant authorized Sh. A.K. Sharma, to be his attorney in respect of the plot, for doing specific acts, was also brought on record as Exh. PW1/13 and Exh. PW1/14 and therefore, once the letters dated 12.02.1998 and 11.11.1998, of the defendant, addressed to the DDA, vide which he requested the DDA, not to transfer the plot to the plaintiff, came into the knowledge, it is quite apparent that the cause of action arose in favour of the plaintiff, to file the instant suit, as she had already performed her part of the contract by handing over the full and final sale consideration amount to the defendant.
40. It is to be noted that there is no denial from the original defendant Dr. Shiv Murti Tiwari regarding his signatures, not being present on any of the vital documents, produced by the plaintiff i.e agreement to sell, receipt etc and therefore, the cause of action has definitely arisen in favour of the plaintiff and against the defendant, to file the instant suit for specific performance as well as the ancillary reliefs, claimed for.
41. It is the contention on behalf of the defendant that on 09.11.2000, a fresh contract was entered into, between the plaintiff and the defendant, which amounted to novation of the earlier contract, i.e the agreement to sell dated 15.07.1998, since on that date, in supercession of the earlier contract i.e agreement to sell, the parties had agreed that besides the payment already made by the plaintiff to the defendant, further amount of Rs. Two lac would be paid by the plaintiff to the defendant at the time of execution of the sale documents and therefore, this agreement amounted to novation of the earlier contract. However, though the issue had been framed with the onus having been placed upon the defendant, the affidavit of the defendant is quite silent as Suit No. 396/08 page no. 16 of 33 regards any novation of the earlier contract having been done. , Infact, though novation of the earlier contract is alleged in the preliminary objections by the original defendant, subsequently in the body of the written statement, novation is denied. However, treating the same to be a typographical error, the concept of novation needs to be understood before it can be deciphered, as to what exactly was the intention of the contracting parties and that whether it amounted to novation of the agreement to sell.
42. In Lata Construction Vs. Ramesh Chandra R.L. Shah, AIR 2000 SC 380, the Hon'ble Apex Court, explaining the requirements of 'Novation' as envisaged under section 62 of the Indian Contract Act, has observed that:-
Requirements of "novation"-- One of the essential requirements of "novation", as contemplated by Sec. 62, is that there should be complete substitution of a new contract in place of he old. It is n that situation that the original contract need not be performed. Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract, has to be by agreement between the parties. A substituted contract should rescind or alter or extinguish the previous contract. But, if th terms of the two contracts are inconsistent and they cannot stand together, the subsequent contract cannot be said to be in substitution of the earlier contract: Lata Construction Vs. Rameshchandra Ramniklal Shah AIR 2000 S.C. 380."
43. In Union Bank of India Vs. Ramdass Mahadev Prasad & Ors. (2004)1 Supreme Court cases 252, it has been explained that, there has to be a consensus on the terms and conditions of the subsequent contract, if any, which also needs to be a concluded contract. If the second contract, as in the instant case, is not a concluded contract, it would not amount to novation of the first contract, which was a concluded one. It was also held that the party in breach of the contract can hardly be allowed to seek the enforecement of the contract, by alleging that the second contract amounted to novation of the first one. For the defendant, to seek novation of the contract, he is to be ready to comply with the old as well as the new contract, if concluded. But in the instant case, the new contract did not stand concluded while in respect of the first contract, the plaintiff had already complied with his part of the contract, and the breach was only on the part of the defendant. Moreover, if letter dated 09.11.2000 is perused, Suit No. 396/08 page no. 17 of 33 the intent of the letter is only to erase the previous letters, written by the defendant to the DDA and definitely not to erase the agreement to sell, which was entered into between the plaintiff and the defendant. Therefore, there was no novation of the agreement to sell and therefore, the cause of action, which had accrued in favour of the plaintiff, did not stand superseded nor does it act as an estoppal for the plaintiff, for filing the present suit.
Accordingly, issues no. 1, 3 and 4 are decided in favour of the plaintiff and against the defendants.
ISSUE NO. 2:-
"Whether the suit is bad for non-joinder of DDA as necessary party?" OPD
44. The onus to prove the said issue was upon the defendant. Other than, taking up a preliminary objection in the written statement, that the suit is bad on account of non-joinder of DDA as a necessary party, there was no averment forthcoming, on behalf of the defendant, as to how DDA was a necessary party, in the instant case, in the body of the written statement. After the demise of the original defendant Dr. Shiv Murti Tiwari in the year 2007, his legal heirs, i.e defendant no. 1-A to 1-C, being his two sons and one daughter, were impleaded as necessary party and subsequently on an application being moved by Smt. Maliti Devi, the daughter-in-law of the deceased defendant, who claimed to be a necessary party, by virtue of alleged Will, which was purportedly to have been executed by the deceased defendant in her favour, she was impleaded as defendant no. 1-D. Defendants no. 1B and 1D entered the witness box as DW1 and DW2, but other than talking about the suit plot, having been allotted by the DDA in favour of the deceased defendant, its cancellation and its restoration by the DDA eventually, nothing was forthcoming as regards the necessity of DDA being impleaded.
45. The allotment letter and eventually the restoration letter, vide which the plot was restored back and re-allotted in favour of the deceased defendant, have been brought on record as Exh. PW1/1 and Exh. PW1/2 respectively, in original. The suit, Suit No. 396/08 page no. 18 of 33 which has been filed by the plaintiff, is for specific performance of an agreement to sell, which was executed by the deceased defendant in favour of the plaintiff, especially since the plaintiff has already performed her part of the contract.
46. In para no. 9 of the written statement, which was filed by the defendant, it has been averred that though the plot has been allotted by the DDA to the defendant, the possession has yet not been handed over and therefore, the defendant did not have any saleable interest in the plot on the date of execution of the agreement dated 15.01.1998 and moreover, as per the terms of the allotment, a perpetual lease deed was to be executed by the President of India as 'Lessor' in favour of the defendant as 'Lessee' and that the said 'lessee' is not allowed a further transfer of the said plot in favour of any other person. But, even while so averring, the necessity of DDA being impleaded as a party, was not elucidated upon.
47. At the outset, the defendant's flimsy plea, which has been taken up in the written statement, needs to be set at rest, for which Sec. 43 of Transfer of Property Act, needs to be referred to. For ready reference, Sec. 43 of the Act is reproduced herein, below:-
43. Transfer by unauthorized person who subsequently acquired interest in property transferred-- Where a person [fraudulently or] erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.
48. The defendant, was retired, as a Professor in a U.P. University, having done his Ph.D and therefore, he was an educated person, well versed in all affairs. He executed the agreement to sell in favour of the plaintiff, and as per the unimpeached testimony of PW3, Sh. A.K. Gupta, who was the son-in-law of the deceased defendant, the defendant Dr. Shiv Murti Tiwari was reading and going through the papers, which Suit No. 396/08 page no. 19 of 33 were executed by him, at the time, when he had reached the office of the Sub- Registrar, for putting his signatures, as a witness to the execution. The defendant has therefore, executed the agreement to sell with full knowledge that some kind of permission would have to be taken from the DDA, eventually when the suit property was taken possession of and subsequently transferred by way of sale deed in favour of the plaintiff. However, the defendant chose to go ahead with the execution of the agreement to sell and the other documents and therefore, he cannot now be allowed to take advantage of his own conduct, as per the provisions of Sec. 43 of Transfer of Property Act.
49. Even though, the defendant has not discharged the onus of proving the said issue, which was placed upon him, the objection, which has been raised, indeed poses an interesting question, as to whether DDA should have been made a party, in the instant case and whether the suit of the plaintiff, is therefore, bad for non- impleadment of DDA.
50. The answer to the said question is very well elucidated and crystallized by the Hon'ble High Court in Vinod Singh Vs. Smt. Phutori Devi, 2006 III AD(Delhi) 234. In this case, before the Hon'ble High Court, a similar question came up for adjudication, where also the sub-lessee, in favour of the vendor, by the DDA, carried a clause that the said sub-lessee/vendor, shall not sell, transfer, assign or part with possession of the suit property, allotted by the DDA, except that the previous written consent by the DDA.
51. A similar objection was taken by the defendant in the instant case, before the Hon'ble High Court that DDA should have been a necessary party in view of this restrictive clause. The Hon'ble High Court, after referring to the decision of the Hon'ble Apex Court in Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial, AIR (1964) S.C. 978 and Maharo Sabheb Shri Bhim Singhji Vs. Union of India, AIR 1981 S.C. 234, has observed that:-
"The argument, that the transaction would be void as no permission to enter Suit No. 396/08 page no. 20 of 33 into such a transaction was taken from the DDA for the transfer of the land, is devoid of force and agreement to sell does not amount to sale or transfer of the immovable property and therefore, there is no bar for a sub-lessee to enter into an agreement to sell."
52. The Hon'ble High Court has quoted from the aforementioned judgments of the Hon'ble Apex Court that, "the permission from land and development office, is not a condition precedent for grant of decree for specific performance.
53. The Hon'ble High Court has further observed that, "if after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale the decree holder may not be in a position to enforce the decree, but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. Infact, the Hon'ble High court has in para no. 12 of the judgment, even suggested the via-media which, the Court can resort to, if such an issue comes before it.
54. In A.B. Singh Vs. Sh. Chunnilal Sawhney & Ors. 2011 IX AD (Delhi) 235, the Hon'ble High Court in a case, where again a similar question was posesd and an objection was taken about the DDA having been made a party subsequently, after relying upon the same judgment of the Hon'ble Apex Court, cited (supra), has held :-
"At this stage, I may add that this entire argument is actually without any substance because the suit for specific performance could have been decreed even if the DDA would not have been made a party to the suit. When a suit for specific performance is decreed qua a lease hold property, and where permission of the superior lessor has to be obtained for transferring the property, a decree which is passed includes therein a direction to the defendant/proposed seller to execute the sale deed after obtaining the necessary permissions of the appropriate authorities and which appropriate authorities do not have to be made parties to the suit.
Infact, a contract of specific performance of the type in question is a contingent contract and such a contingent contract is enforceable without making the authority which has to give the permission as party to the suit. It is only if for some valid reason that the concerned authority denies permission, then the decree for specific performance cannot be enforced, otherwise, the decree for specific performance will be enforced Suit No. 396/08 page no. 21 of 33 by either the defendant no.1 getting the necessary permissions or on behalf of the defendant no.1 appointment of a person by the Court who will take the necessary permissions and thereafter, get the sale deed executed and registered. The Supreme Court in the case of Chandnee Vidyawati Vs. C.L. Katiyal AIR 1964 SC 978 has held that, such type of contracts/agreements to sell are contingent contracts and in terms of the decree in such suits the proposed seller will have to take the necessary permissions from the appropriate authorities, after passing of the decree for specific performance.
I, therefore, hold that not only there is no bar for granting of the relief of specific performance merely, because the DDA was added as a party only subsequently, and on the contrary DDA actually need not at all have been added as a party as stated above."
55. Since the issue, before the Hon'ble High Court in both the above cited judgments, was the same, as the one before this Court, guided by the judicial pronouncements aforecited, I conclude that DDA is not a necessary party in the instant suit and therefore, the suit of the plaintiff is not bad for non-joinder of DDA.
Accordingly, issue no.2 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5(a) "Whether the suit for specific performance of agreement dated 15.01.1998 is barred by time? Onus on parties
56. The onus to prove the said issue was upon both the parties. The objection of the defendant was that the initial suit, which was filed only for injunction, was not maintainable and therefore, subsequently an application for amendment was moved on 19.11.2003, which was allowed by the Court vide order dated 21.02.2004 and the suit was amended to a suit for specific performance of the agreement to sell, permanent injunction and mandatory injunction, against the defendant. In the written statement, which was filed by the defendant, to the amended plaint, a preliminary objection was taken by the defendant that the cause of action, if any, to file the instant suit, if any, arose in July, 2000 when the plaintiff came to know that the defendant has denied the execution of the agreement and had refused to abide by the terms of the agreement to sell dated 15.01.1998 and therefore, the limitation of three years, to file the suit for Suit No. 396/08 page no. 22 of 33 specific performance, commenced from July, 2000. The suit for specific performance was not filed within the period of three years, as is quite clear. The application for amendment was moved only on 19.11.2003 and even if after the said relief was allowed to be added, in the plaint, by way of the amendment, it can be made only on 19.11.2003 and therefore, the suit for specific performance is barred by time. These objections, as per the plaintiff, are not tenable.
57. The contention of the plaintiff is that the defendant has resiled from the agreement and had written letters to the DDA and had again requested the DDA that the possession be not handed over to the plaintiff and hence, the plaintiff wrote a letter dated 15.11.2000 to the DDA, bringing the entire circumstances in the knowledge of the DDA. Soon thereafter, the suit for permanent injunction was filed on 29.11.2000. After the objection was taken by the defendant, the suit was amended to a suit for specific performance, permanent injunction and mandatory injunction, vide an application u/o 6 rule 17 CPC dated 19.11.2003, which was allowed vide order dated 21.02.2004.
58. In R.K. Aneja Vs. DDA & Anr. 61(1996) DLT 757, the Hon'ble High Court has held that, "in a suit for specific performance, where the relief for specific performance was sought by way of an amendment, after three years, the suit would not be barred by limitation, as the amendment would relate back to the institution of the suit and would therefore, the same would be within the period of limitation.
59. In Okasa Pharma Ltd. Vs. Lilly Icos Ltd, 2007 VII AD (Delhi) 748, the Hon'ble Double Bench of the Delhi High Court, after referring the case of Sampath Kumar Vs. Ayyakannu 2002 VIII AD (S.C.) 7, has observed that:-
"It is well settled that amendments once allowed generally relate back to the original filling of the plaint, unless order to the contrary is passed by the Court while allowing the amendment application".
60. The Order of the Ld. Predecessor of this Court, dated 21.02.2004, is not at all conditional and in the light of the judgments of the Hon'ble High Court and Hon'ble Suit No. 396/08 page no. 23 of 33 Supreme Court, aforementioned, the amendment, which was allowed on 19.11.2003 and the suit was allowed to be amended, to a suit for specific performance, permanent injunction and mandatory injunction, relates back to the date, when the suit was initially filed i.e 29.11.2000 and therefore, it is within the prescribed period of limitation.
61. Ld. counsel for defendant no.1(D) has filed the judgment, titled as "Tej Ram Vs. Patiambhav, AIR 1997 SC 2702, but the same is not applicable to the case in hand.
Accordingly, issue no. 5(a) is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 5(c):-
"Whether the plaintiff is entitled for the relief of specific performance? OPP
62. The onus to prove this issue was upon the plaintiff. The main and the pivotal relief, which the plaintiff has sought for, is the relief of specific performance of the agreement to sell dated 15.01.1998 and which is admittedly Exh. PW1/3.
63. Section 15 to 20 of the Specific Relief Act, specifically deal with suits for specific performance and the necessary ingredients, which are required to be pleaded. The relief itself is a discretionary relief, and even though it may be legal to be given, cannot be so allowed by the Court, in various circumstances, as enshrined in Sec. 20 of the Act. However, for a person to seek specific performance of a contract, it is imperative for him to show that not just there was a contract, executed by the defendant in his favour and that he has filed his suit for a specific performance within the period of limitation, but that he was always ready and willing to perform his part of the contract and that the breach, if any, or withdrawal from the contract, is that of the defendant. This principle of "readiness and willingness" of the plaintiff to perform his part of the contract is that, any person seeking benefit of specific performance of a contract, must manifest that, his conduct has been blemishless throughout, entitling Suit No. 396/08 page no. 24 of 33 him to the specific relief.
64. It has been held by the Hon'ble Apex Court in AIR 1995 SC 945 that, "Continuous readiness and willingness, at all stages, from the date of agreement till the date of hearing of the suit, must be proved, while "readiness" means the capacity of the plaintiff to perform his part of the contract, to pay the sale consideration, and the 'willingness' is his mental attitude, that he is always ready and prepared to perform his part of the contract. Furthermore, the Hon'ble Apex Court has held that, "this readiness and willingness should also be averred specifically in the plaint, which is filed by the plaintiff. In the pleadings, the plaintiff is required not only to aver, but also to prove that he has always been ready and willing to perform his part of the contract, at all times.
65. In AIR 2007, Delhi 264, it has been observed by the Hon'ble Delhi High Court that, "the requirement to aver and prove 'readiness and willingness' to perform a contract, is not necessary that the purchaser has already paid the entire sale consideration, has also proved the agreement to sell and the registered Will, which clearly goes to show that the sale consideration for the sale of the property, already stood paid."
66. Furthermore, since the grant of this relief for specific performance is a discretionary one, though the discretion is to be used judicially and should not arbitrary, the plaintiff is required to approach the Court with clean hands and this postulate extent to all the parties in such a suit.
67. Keeping these guidelines in mind, when the suit in hand is adverted to, it is found that the admitted factual matrix by the original defendant is also regarding the allotment of the plot in favour of the defendant Dr. Shiv Murti Tiwari by the DDA vide allotment letter Exh. PW1/1 and its subsequent cancellation, owing to the failure of the defendant to abide by the financial discipline and thereafter, its restoration, on payment of the initial allotment charges and the restoration charges vide restoration letter Exh. PW1/2. It is admitted by DW1 in her cross-examination that, the entire amount, which Suit No. 396/08 page no. 25 of 33 was deposited with the DDA, was paid from the account of the plaintiff and not from the account of the deceased defendant Dr. Shiv Murti Tiwari. The defendant has admitted his signatures on the agreement on sell, the receipt, the Will and the other affidavits etc all Exh. PW1/3, Exh.PW1/4 and Exh. PW1/5 etc respectively.
68. PW4 Sh. Umakanth Mahapatra, Manager, ICICI Bank, Noida produced the summoned record pertaining to the joint account no. 628401014559 of Dr. Savitri Sharma and Sh. Anil Kumar Sharma and brought on record the requisition slip, given by Smt. Savitiri Sharma, for making the bank draft in favour of DDA for a sum of Rs. 4,65,795/-, which was so made vide bank draft no. 955565, and was brought on record as Exh. PW4/2. The statement of account of the said account was also brought on record as Exh. PW4/3, though the mode of proof was objected to by the counsel. However, the statement of account becomes inconsequential in the wake of the testimony of PW5 Sh. J.P.Singh, the UDC from DDA, Vikas Sadan, who entered the witness box and produced the summoned record, which was the file pertaining to plot no. 079, Pocket-5, Sector-24, Rohini, which also included the copy of the Challan no. 038397 of the payment of Rs. 4,65,795/- in respect of the said plot, vide DD No. 955565. The copy of the challan, which was filed on record, was taken on record as Exh. PW5/1, after the original was seen and returned. Thus, PW4 and PW5 corroborated and proved on record that the total amount, which comprised of the allotment charges plus restoration charges of Rs. 4,65,795/- in lieu of the demised plot, were paid to the DDA by the plaintiff from her account. The agreement to sell Exh. PW1/3, on which the signatures of the defendant, are admitted by him, clearly states that the total consideration, to be paid by the plaintiff, for the said plot, to the defendant, is a total sum of Rs. 5,65,795/- and the receipt Exh. PW1/4, on which the signatures were admitted by the defendant, at the time of admission/denial of the documents, clearly acknowledges the receipt of Rs. 4,65,795/- by way of pay order bearing no. 955565 dated 14.01.1998 in favour of DDA, which was eventually deposited, as already stated by PW5 and a cash of Rs. One lac by the defendant. The Will Exh. PW1/5 and the subsequent affiadvit Exh. PW1/6, acknowledge the receipt of the amount and that the suit property being the self acquired property of the Suit No. 396/08 page no. 26 of 33 defendant/testator, which he bequeathed in favour of the plaintiff. Therefore, as far as the plaintiff is concerned, the plaintiff has already paid the entire sale consideration and has performed her part of the contract to the last detail.
69. The defendant in his written statement and at the time of admission/denial of the documents, has though admitted his signatures on all the documents Exh. PW1/3 to Exh. PW1/12, has claimed that he is ignorant regarding the contents of the said documents. In para no. 12 of the written statement, the defendant has tried to paint a picture of his helplessness, he being an old man in the age of 70s, weak and depleted in mental faculties and therefore, though he was wanting the restoration of the plot and was helped out by the plaintiff and her husband, to get the restoration done by the DDA. It was stated that on the penultimate day, he was made to sit on the ground floor and was made to sign several papers, which he never had the opportunity either to read or go though the contents thereof, and that he had put his signatures on certain papers only in good faith, but under misrepresentation, fraud and undue influence and only under a fear of the lapse of the last chance of getting the allotment of the plot in his favour, restored. However, other than this, very general and vague averment regarding fraud, misrepresentation and undue influence having been exercised upon him, to obtain his signatures on the documents brought-forth by the plaintiff, made in para no. 12 of his written statement, no other detail was forthcoming.
70. Order 6 rule 4 CPC is relevant at this juncture and for ready reference, same is reproduced herein below:-
"4. Particulars to be given where necessary-- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items, if necessary), shall be stated in the pleadings."
71. Fraud, misrepresentation and undue influence are totally different cognates and they have to be explained in detail in the pleadings before such a negative covenant is tried Suit No. 396/08 page no. 27 of 33 to be taken benefit of. Even though, the defendant has pleaded fraud, misrepresentation and undue influence, if the averments made in the subsequent paragraph, if anything to go by, the allegations boil down to that of "undue influence"
only.
72. In Ladli Prashad Jaiswal Vs. The Karnal Distillery Co. & Ors. 1963, SC 1279 has observed that:
"A vague or general plea of undue influence can never serve this purpose, the party pleading must therefore, be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. The plea of undue influence must be precised and all necessary particulars in support of the plea must be embodied in the pleading."
73. In Ranganayakamma & Anr. Vs. K.S. Prakash & Ors. (2008) 15 S.C.C 673 (judgment filed by the Ld. counsel for defendant), again this issue of fraud and misrepresentation has been discussed and in para no. 40 of the judgment it has been observed that, "when a fraud is alleged, the particulars thereof are required to be pleaded and in the absence of the same, it cannot be presumed that the said negative cognate was committed.
74. From the conjoint reading of both the judgments aforementioned, it is clear that the plea of fraud, misrepresentation or undue influence has to be specifically pleaded, the details of the said misrepresentation and undue influence has to be given, by whom it was exercised and till what period it continued and when such undue influence ceased. A personal knowledge of the person, upon whom such undue influence, misrepresentation was exercised, is of utmost importance and has to be pleaded specifically.
75. In the case in hand, after taking a very general and vague plea of fraud, misrepresentation and undue influence, the defendant Dr. Shiv Murti Tiwari unfortunately expired in the year 2007 and his legal heirs were brought on record. Due to his death, the defendant did not enter the witness box and therefore, personal Suit No. 396/08 page no. 28 of 33 knowledge as regards the negative cognate, if so exercised, did not come on record. DW-1 Smt. Malti Devi, entered the witness box and admitted that she was not present with her father-in-law i.e defendant Dr. Shiv Murti Tiwari, at the time of execution of the documents, since at that time, the defendant was staying with the plaintiff, while she was in Gorakhpur. DW-2 also admitted in his cross-examination that he was present at the time of execution of the documents in question. Therefore, there is no evidence on record, which would even be a pointer that any undue influence or misrepresentation was ever exercised upon the defendant, at the time of execution of the agreement to sell, the Will etc. Rather, DW1 though not a natural heir and legal representative of the deceased defendant, came to be arrayed as a defendant, when she was allowed to become a party to the instant case on the demise of the defendant, on the basis of an alleged Will, purportedly executed by the defendant in her favour, bequeathing all his properties in favour of Smt. Malti Tiwari. The said original Will, so executed by the defendant in her favour, has not been brought on record by her. However, if the photocopy of the said alleged Will, which was filed on record by the defendant no. 1(d) is perused, it is dated 11.02.1998, but if the back side of the said Will is scrutinized, the date of registration of the said document is that of February,1997 i.e even before the date of its execution. Quite apparently the Will is a bogus one, which has been fabricated to frustrate the cause of the plaintiff and to bypass the Will Exh. PW1/5, which was executed by the defendant in favour of the plaintiff, on which the signatures have been admitted by the defendant. The Will in favour of the plaintiff has been duly proved, as required by the law of evidence, by the attesting witness PW3 who entered the witness box and categorically deposed that he is the brother-in-law of the plaintiff and son-in-law of the defendant and that he on 15.01.1998m when reached the office of Sub-Registrar, he found the defendant reading the documents Exh. PW1/3 to Exh. PW1/5 and after reading the same, he had put his signatures in his presence, on the Will and the other documents. Subsequent whereof, PW2 also affixed his signatures on the said documents.
76. PW3 has categorically deposed that at the time, when he reached INA at Suit No. 396/08 page no. 29 of 33 about 11.00 a.m, on the date when the documents were executed, the documents had already been typed and were completed and the defendant was reading the same. There is no challenge or controversion of this categorical statement of the witness and there is no denial that the defendant had not read the documents, on which he had put his signatures. At the cost of repetition, it may be again observed that admittedly, the defendant Dr. Shiv Murti Tiwari was highly educated, having done his Ph.D and was a retired professor from University of UP and therefore, it is established beyond doubt that he had read the documents, before putting his signatures on them and being a Ld. man had quite obviously understood the contents thereof. Therefore, there is no reason at all, to infer or even suspect that, the defendant was victimized or was put under any kind of misrepresentation or undue influence by any quarter, whatsoever, leave alone by the plaintiff. Infact, it is the defendant no. 1(d) Smt. Malti Tiwari, who has approached the Court and became a party in this case, on the basis of a bogus Will, even though she was not even a natural legal heir and therefore, has no locus standi as a party, in the instant suit.
77. I am therefore, of the opinion that all the documents i.e agreement to sell, receipt, Will, affidavit etc. were executed by the defendant willingly and voluntarily, without any misrepresentation, fraud or undue influence, exercise upon him , after having received the full consideration amount from the plaintiff and it is only subsequently that the intention of the defendant became malafide and he resiled from the agreement. Rather, he played an ever changing game by writing letters to the DDA and then withdrawing them, by way of subsequent letter dated 09.11.2000 and then again writing to the DDA and resiling from his previous lettes also. The plaintiff has performed her part of the contract in entirety and therefore, she is entitled to a decree of specific performance.
Accordingly, issue no. 5(c) is decided in favour of the plaintiff and against the defendant.
ISSUES NO. (5), 5(b) & 5(d):-
5. "Whether the suit for injunction as framed, is not maintainable?"
OPD Suit No. 396/08 page no. 30 of 33 5(b) "Whether the suit for mandatory injunction is not maintainable, as alleged?" OPD 5(d) "Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for?" OPP
78. The onus to prove the issues no. 5 and 5(b) was upon the defendant, while the onus to prove the remaining issue i.e 5(d), was upon the plaintiff. The plaintiff had initially filed the instant suit for permanent injunction and it was at that juncture, on the basis of the preliminary objections, taken by the defendant, that the issue no.5 had been framed, as to whether the suit in the present form of only a permanent injunction, being not maintainable. However, with the subsequent amendment of the suit and the suit being amended to that for a suit of specific performance, the issue no.5 dies a natural death. However, it remains alive only to the extent that the plaintiff has also sought a decree of permanent injunction as well as a mandatory injunction, in the amended suit also. Furthermore, the relief of mandatory injunction has been sought for, since the original defendant, who had executed the agreement to sell, is no longer alive and therefore, even if a decree for specific performance is granted in favour of the plaintiff, the person who would be enjoined to specificly perform the decree, is no longer alive and therefore, obviously the duty would devolve upon his legal heirs. For this reason, a mandatory injunction is sought for in the form of a direction to the legal heirs of the defendant, to obtain the possession of the demised plot from the DDA and to hand over the peaceful possession of the same to the plaintiff.
79. In this scenario, the suit for mandatory injunction, is indeed maintainable.
This being the case, the defendants i.e the legal heirs of deceased defendant also need to be restrained from selling, alienating or otherwise parting with the possession of the suit property, in any manner whatsoever, as the interest in the suit property stood transferred by the deceased defendant Dr. Shiv Murti Tiwari, in favour of the plaintiff.
80. Section 19 of the Specific Relief Act becomes relevant at this juncture, which for ready reference is reproduced herein below:-
Suit No. 396/08 page no. 31 of 33 Sec.19. Relief against partis and persons claiming under them by subsequent title-- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff might have been displaced by the defendant;
(d) ...........
(e) ...........
81. After the demise of the defendant, his four Class-I heir i.e two sons and two daughters i.e plaintiff and defendant no.1(a) to 1(c) became the parties to the suit. The defendant no.1(d), as already discussed above, is not a class-I heir and any claim, which she was professing was on the basis of the purported Will, executed in her favour, but which was neither proved and in any case, has already been observed to be a bogus Will. Therefore, the defendant being no more, any direction, which could have been given to the defendant, is now to be given to the said legal heirs, who are the persons claiming under the defendant, to specifically perform the agreement to sell dated 15.01.1998, by way of a mandatory injunction. They also require to be restrained, by way of a permanent injunction, to this respect, so as not to transfer or alienate the suit property or creating any third party interest in the suit property.
Accordingly, issues no. 5, 5(b) and 5(d) are decided in favour of the plaintiff and against the defendant.
RELIEF:-
82. In view of my discussion above and the findings given on the foregoing issues:-
(I) A decree of permanent injunction, is passed in favour of the plaintiff and Suit No. 396/08 page no. 32 of 33 against the defendants, permanently restraining them from selling, transferring, alienating or parting with the possession of the suit property, in any manner, or executing a sale deed in respect of the suit property bearing plot No. 79, Pocket-5, Sector-24, Rohini, Delhi-1110006, in favour of anybody except the plaintiff.
(II) A decree of mandatory injunction is passed in favour of the plaintiff and against the defendant, directing the defendants to obtain the possession of the suit property from the DDA and for this purpose, the necessary application be moved before the DDA alongwith the plaintiff, who is also one of the legal heirs of the deceased defendant Dr. Shiv Murti Tiwari, within two months from the passing of this decree and obtain the possession of the abovesaid suit property.
(III) A decree of specific performance is passed in favour of the plaintiff and against the defendants, directing the defendants to specifically perform the terms of the agreement to sell dated 15.01.1998 and to execute the necessary sale documents/sale deed, in favour of the plaintiff, after obtaining the requisite permission and the possession of the suit property, from the DDA, for which purpose, steps be taken within two months from the passing of this decree.
83. The plaintiff shall also be entitled to the costs of the suit, which shall be paid by defendants no. 1(a), 1(b) and 1(d) jointly or severally, to the plaintiff. Decree-sheet be prepared accordingly. File be consigned to record room.
Announced in open Court (SEEMA MAINI)
today i.e on 19.03.2013 ADJ-12 (Central)Delhi
Suit No. 396/08 page no. 33 of 33
Suit No. 396/08
19.03.2013
Present: Husband of plaintiff in person
None for the defendants
Vide my separate order of even date, the suit filed by the plaintiff, against the defendants is allowed and --
(i) A decree of permanent injunction, is passed in favour of the plaintiff and against the defendants, permanently restraining them from selling, transferring, alienating or parting with the possession of the suit property, in any manner, or executing a sale deed in respect of the suit property bearing plot No. 79, Pocket-5, Sector-24, Rohini, Delhi-1110006, in favour of anybody except the plaintiff.
(ii) A decree of mandatory injunction is passed in favour of the plaintiff and against the defendant, directing the defendants to obtain the possession of the suit property from the DDA and for this purpose, the necessary application be moved before the DDA alongwith the plaintiff, who is also one of the legal heirs of the deceased defendant Dr. Shiv Murti Tiwari, within two months from the passing of this decree and obtain the possession of the abovesaid suit property.
(iii) A decree of specific performance is passed in favour of the plaintiff and against the defendants, directing the defendants to specifically perform the terms of the agreement to sell dated 15.01.1998 and to execute the necessary sale documents/sale deed, in favour of the plaintiff, after obtaining the requisite permission and the possession of the suit property, from the DDA, for which purpose, steps be taken within two months from the passing of this decree.
The plaintiff shall also be entitled to the costs of the suit, which shall be paid by defendants no. 1(a), 1(b) and 1(d) jointly or severally, to the plaintiff. Decree-sheet be prepared accordingly. File be consigned to record room.
(SEEMA MAINI)
ADJ-12(Central):Delhi
19.03.2013
Suit No. 396/08 page no. 34 of 33