Delhi District Court
Smt. Birma Devi vs Smt. Inderwati on 31 March, 2011
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IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
CS NO: 250/11/05
ID NO:02401C0474402005
SMT. BIRMA DEVI
W/o Late Sh. Bed Ram,
R/o House No.1043,
E/1 Ward No.8, Mahrauli
New Delhi30. .....Plaintiff
vs.
SMT. INDERWATI
W/o Sh.Megh Raj
D/o Late Sh. Bed Ram
R/o House No.1043,
E/1 Ward No.8, Mahrauli
New Delhi30. .....Defendant
DATE OF INSTITUTION : 02.06.2005
DATE OF FINAL HEARING : 31.03.2011
DATE OF FINAL ORDER : 31.03.2011
SUIT FOR DECLARATION AND RECOVERY OF POSSESSION
JUDGMENT
1. The suit has been filed by plaintiff mother against her defendant daughter for seeking a decree of declaration to the effect that she is lawful owner of property no.1043E/1 Ward No.8, Mehaurauli , Delhi. She has also sought declaration to the effect that documents namely GPA, Will , Agreement to Sell and possession letter dated 21.3.2001 got executed by defendant from her be declared illegal, Null and Void . She has also sought recovery of possession of portion of the suit property as per site plan.
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2. Case of the plaintiff as per plaint is that she is an illiterate 85 years old lady while defendant is her daughter. The above entire property, of which suit property is a portion, was purchased by her husband late Sh. Ved Ram who expired on 2.3.1997. He was survived by his plaintiff widow apart from four sons namely Sh. Om Parkash, Sh. Mam Chand , Late Sh. Mahender and Late Sh. Rajender and defendant daughter.
3. However, vide a registered Will dated 21.4.1987 the entire property was bequeathed by late Sh. Ved Ram in the sole name of his plaintiff wife. Defendant was married to one Sh. Megraj at Faridabad, Haryana and has her grown up children. She did not enjoy cordial relations either with her husband and in laws or with the plaintiff and her brothers. Defendant did not heed to advices of plaintiff and rather forcibly occupied one room in the suit property while threatening that she would not allow plaintiff to live in peace. Her children namely Sh. Yash Pal , Sh. Amit , Sh. Parveen and Miss Savita used to assist her in her misdeeds in subjecting cruelty over the plaintiff . She misled and threatened the plaintiff and took her to the Office of Sub Registrar on 21.3.2001 and got certain papers executed.
3 She also took possession of the suit property consisting of three rooms , one kitchen and bathroom build on 75 sq. yds.
4. Thereafter defendant filed a civil suit no.9/2005 for permanent injunction against plaintiff and her son Sh. Mam Chand against that threat of forcible dispossession. As per plaintiff the documents were got executed from her under fraud and misrepresentation. Even though she is illiterate, old and infirm, contents of neither of the documents were read over to her. As such on 17.1.2005 plaintiff got the GPA and Will shown to have been executed by her in favour of defendant canceled. Defendant even started extracting rent from the plaintiff's tenant even though tenants were served with the legal notice dated 19.2.2005 by the plaintiff . As per defendant's reply dated 11.3.2005, all the five tenants refused to recognise the plaintiff as their land lady. In this backdrop , the suit in hand was filed.
5. Upon service of summons, it was contested by the defendant wherein she pleaded that the suit deserves to be dismissed in so far as plaintiff transferred the title of the suit property after receiving entire sale consideration upon execution of sale document. Objection of suppression 4 of material facts was also taken apart from suit being time barred and bad for non joinder and mis joinder of party. On merits it is not denied that the entire property was purchased by Late Sh. Ved Ram. It is pleaded that Sh. Ved Ram had five sons as compared to four as mentioned in the plaint. Execution of Will by late Sh. Ved Ram in favour of plaintiff is admitted . She has pleaded that it is plaintiff and her son Sh. Mam Chand who created rift in her matrimonial life. Property no.1043 was a very big plot and plaintiff with the help of Sh. Mam Chand had already sold out a big portion of the same. She denied that plaintiff was ever threatened or subjected to cruelty as alleged.
6. She conceded to have filed a civil suit against the plaintiff . She denied that she got the sale document executed from plaintiff under fraud and misrepresentation. Documents, as per her, were executed by plaintiff out of her own sweet will followed by handing over of possession. She claimed the plaintiff and her son to be greedy person. Defendant has not denied that she was not enjoying good relations either with her inlaws or with plaintiff and her son. She expressed unawareness qua execution of 5 document of revocation of GPA as well. As per her she became absolute owner of the property after documents were executed by plaintiff in her favour. She accepted that tenants are now paying rent to her. With these pleas she prayed for dismissal of the suit.
7. Upon completion of pleadings following issues are identified by Ld. Predecessor on 3.8.05.
ISSUES
8.
1.Whether the documents as mentioned in paragraph 6 of the plaint were obtained from the plaintiff by fraud and misrepresentation as alleged in paragraph 6 of the plaint? OPP.
2.Whether the plaintiff can voluntary revoke / cancel GPA executed in favour of the defendant as alleged in paragraph 7 of the plaint? OPP
3.Whether the defendant misrepresentated and got certain papers executed from plaintiff on 21.3.2001 in the Office of Sub Registrar? OPP
4.Whether the suit is not maintainable due to nonjoinder of Sub Registrar as a party as alleged in preliminary objection no.4 of written statement?OPD
5.Whether the suit is filed within prescribed period of limitation? OPP
6.Whether the plaintiff has no locus standi to institute the suit and the suit is not maintainable as alleged in preliminary objection No.2 & 3in WS?
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7.Whether the plaintiff is entitled to decree of declaration as prayed? OPP
8.Whether the plaintiff is entitled to decree of possession as prayed? OPP
9.Whether the suit is not valued properly for the purposes of Court Fee?OPD
10.Relief
9. To prove her case plaintiff examined herself as PW1 apart from examining her son Sh. Mam Chand as PW2, Colonel K.S.Wadhwa as PW3, Sh. Sher Singh as PW4. On the other hand defendant examined herself as DW1 apart from examining DW2 Smt. Shakuntla, DW3 Sh. Hari Ram and DW4 Sh. Lalit Kumar.
10.I have heard arguments of Ld. Counsel Sh. Nagesh Kapoor for plaintiff and Ld. Counsel Sh. A.S.Dahiya advocate for defendant. I have also carefully perused the entire record.
11.In her deposition as PW1 vide affidavit Ex.PW1/1, plaintiff reiterated her pleaded case . She has proved the original Revocation of GPA dated 3.1.2005 as Ex.PW1/A, original Revocation of Will dated 3.1.2005 as Ex.PW1/B. 7
12.In her cross examination she stated that plot no.1043 was initially a built up plot and suit property is a portion of it. She conceded that she had five sons, her fifth son being Sh. Ram Parsad. She conceded to have executed agreement to sell , GPA, affidavit , receipt, Will and possession letter on 21.3.2001 but she did so on the asking of the defendant. She was told that by execution of these documents, her property would be transferred in her own name and so that her sons and daughter in laws would not be able to grab it. She denied the suggestion that she received Rs. 1 lac from the defendant for executing the above documents in favour of defendant in lieu thereof.
13.She denied handing over of possession of suit property to the defendant. She denied that her thumb impression were obtained in the presence of Sub Registrar and witnesses. She accepted that defendant got the electricity connection transferred in her name even though she was assured that it would be transferred in her (plaintiff 's) name. Defendant is extracting rent from her tenants namely Ms. Kanchan, Sh. Manoj, Sh.Rafique and Sh.Jawahar forcefully. Plaintiff maintained that she is 8 living in the portion in the suit property itself. She conceded to have not lodged any complaint against the defendant qua claimed fraudulent execution of documents. She conceded to have not issued any notice to defendant prior to cancellation of GPA and Will. She denied that she acted under the influence of her son Sh. Mam Chand while executing the cancellation document or that she has filed the suit at the instance of Mam Chand.
14.PW2 is Sh. Mam Chand , son of plaintiff and elder brother of defendant . He deposed on the lines of plaint vide affidavit Ex.PW2/A. In his cross examination he conceded to have sold the 100 sq. yds of his share in the property no.1043 to one Smt,. Seema Fatima in 1990. He admitted that he has shifted to Dehradoon thereafter. He denied that he tutored his plaintiff mother to cancel the GPA and Will.
15.PW3 Lt. Colonel S.K.Wadhwa (Retd.) he proved his valuation report of suit property at PW3/A as per which he valued the suit property at Rs.3,53,100/.
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16.PW4 is Sh. Sher Singh from Sub Registrar , Mehrauli Office. He proved the document Ex.PW1/A and B qua cancellation of GPA and Will.
17.In her deposition as DW1, vide affidavit Ex.DW1/A, defendant has deposed on the lines of her WS. She has proved copies of GPA, Will, Agreement to Sell, Affidavit, Receipt and Possession Letter executed by the plaintiff as Ex.DW1/1 to DW1/6.
18.In her cross examination she stated that she got married in 1977 and has four children. Her first husband expired and thereafter she was remarried in 1980 at Faridabad. Her mother expressed desire to sell the plot in 1998 99 to which she responded by expressing desire to purchase the same. She claimed to have paid Rs. one lac in cash. She accepted that her mother is illiterate and 8085 years old lady but claimed that she can see and hear well . They remained at Sub Registrar Office from 10.00 am to 12.00 pm. The contents of the document were narrated to her mother by the typist but she did not tell her anything. They were signed by the witnesses first, followed by plaintiff before she appended her signature. Her only source of income is rent and she is neither working anywhere nor 10 doing anything. She had no bank account in the year 2001 . She claimed to have arranged the money by selling agriculture land her late husband in the year 1994. She added that she might have arranged money after the land was acquired. She took her mother to Sub Registrar Office in a private taxi. Her sister in law Smt. Shakuntla was with them apart from her daughter and one Sh. Hari Ram. She raised additional construction in the property in the year 2003 but no sanction plan was obtained. She accepted that her mother has no source of income.
19.DW2 is Smt.Shakuntla, daughter in law of plaintiff . She supported the case of the defendant by stating that she witnessed document Ex.PW1/5 and Ex.PW1/6. In her cross examination she claimed that she reached Sub Registrar Office on defendant's telephonic request. She conceded that plaintiff is illiterate. She claimed that payment was paid in cash. She was unaware as to from where the money was arranged by the defendant. Plaintiff told her that she transferred the property in the name of defendant so that there is no dispute amongst her sons. Witness daughter in law requested the plaintiff to transfer property to her defendant daughter 11 without accepting money but plaintiff insisted that she needs money for her expenses. Defendant was residing in the suit property for the last two years before execution of documents.
20.DW3 is Sh. Hari Ram, another attesting witness. Vide his affidavit Ex.DW3/A, he deposed in favour of defendant by stating that he signed all the documents as witness. In his cross examination he stated that he is working with a property dealer with whom children of defendant are also working. He signed in English and has studied up to IX. He signed the documents, outside the Sub Registrar Office.
21.DW4 is Sh.Lalit Kumar Advocate, he claimed to witness Ex.DW1/1 GPA and Ex.DW1/2 i.e. Agreement to Sell. He stated that contents of the documents were explained to the plaintiff verbally before Sub Registrar Office.
22.Now I shall dispose of individual issues framed in this case. 23.ISSUE NO. 9
9.Whether the suit is not valued properly for the purposes of Court Fee?OPD 12
24.Ld. Counsel for defendant is not pressing this issue and as such same is disposed off accordingly.
ISSUE NO.5
25.
5.Whether the suit is filed within prescribed period of limitation? OPP
26.An objection was taken by the defendant to the effect that this suit is time barred in so far as the document sought to be canceled are dated 21.3.2001 while the suit in hand was filed on 2.6.05. Article 56 of the Limitation Act provides that :
A suit for negative declaration qua registered document has to be filed within three years from the date of acquiring the knowledge.
27.As per plaintiff she came to know of the execution of the above documents only when defendant filed a civil suit before the court of Ld. Civil Judge on 13.1.2005. This plea is controverted by Ld. Counsel for defendant on the ground that plaintiff was through out aware of above documents. Considering the fact that plaintiff is an illiterate old lady and as per her she came to know of the contents of the document when she 13 received summons of the civil suit, in my considered view this suit can not be allowed to fail on the technical plea of limitation. I would like to dispose it on merits. As such this issue is answered accordingly in favour of plaintiff and against the defendant .
28.ISSUE NO.4 & 6
4.Whether the suit is not maintainable due to nonjoinder of Sub Registrar as a party as alleged in preliminary objection no.4 of written statement?OPD
6.Whether the plaintiff has no locus standi to institute the suit and the suit is not maintainable as alleged in preliminary objection No.2 & 3in WS?
29.An objection was taken by defendant no.4 on the ground that since the documents sought to be declared null and void are registered with Sub Registrar, The Sub Registrar Office becomes a necessary party. I find no strength in this plea simply because adjudication of the suit either way shall have no bearing on the Office of Sub Registrar as such. No relief is sought against the Sub Registrar. It is not the case of the plaintiff that there was some collusion between the defendant and the Sub Registrar Office.
As such non impleadment of Sub Registrar Office is in consequential and 14 has no bearings on the merits of the case. As such Issue is answered in favour of plaintiff and against the defendant . ISSUE NO.2
30.
2.Whether the plaintiff can voluntarily revoke / cancel GPA executed in favour of the defendant as alleged in paragraph 7 of the plaint? OPP
31.It is case of the plaintiff that when she came to know of the alleged GPA Ex.DW1/1 and Will Ex.DW1/2 dated 21.3.2011 , she executed cancellation document / revocation document on 3.1.2005 Ex.PW1/A and B. Admittedly the above GPA executed was irrevocable as per clause 21 page 5. It is argued on behalf of defendant that once an irrevocable GPA is executed in lieu of consideration, it can not be revoked unilaterally. In support of his plea Ld. Counsel for defendant has relied case title H.L.Malhotra Vs. Nanak Jai Singhani 1986 RLR (Note) 89 wherein it was held that : " a person who entered into a sale agreement of the property and pays consideration and becomes attorney by execution of irrevocable POA , then owner can not seek to cancel of POA." Another case titled 15 Harbans Singh Vs. Shanti Devi 1976 RLR, 487 Division Bench of Hon'ble Delhi High Court ruled that " if an irrevocable power of attorney had been executed for consideration, the same could not be canceled."
32.Defendant , in the case in hand, has exhibited cash receipt Ex.DW1/5 which is shown to be sale consideration of the 75 sq. yds build up plot. This document has been controverted by Ld. Counsel for plaintiff on a plea that it was got executed by defendant from his client by fraud and misrepresentation. This plea has been taken by the plaintiff not only qua this receipt but qua the entire set of documents. Since finding on the plea of fraud and misrepresentation qua the cash receipt is directly related to the remaining issues No.1& 3 as well , this plea shall be dealt with separately. As such the decision of this issue is corelated to the decision on the remaining issue.
ISSUE NO. 1 & 3
33.
1.Whether the documents as mentioned in paragaph 6 of the plaint were obtained from the plaintiff by fraud and 16 misrepresentation as alleged in paragraph 6 of the plaint? OPP.
3.Whether the defendant misrepresentated and got certain papers executed from plaintiff on 21.3.2001 in the Office of Sub Registrar? OPP
34.It is pleaded case of the plaintiff that she is the illiterate lady and was aged around 80 years in the year 2001. Under a fraud and misrepresentation , she was compelled to execute aforesaid 6 documents by her defendant daughter. Admittedly plaintiff is having a sound mind and has no disability or infirmity in hearing and speech even today. In para 5 of the plaint the misrepresentation alleged is that defendant told her that if she executes the above documents, she (plaintiff ) would be benefited from them. In her affidavit in chief , she has mentioned that she agreed to execute these documents in the name of securing her old age. In her cross examination done on behalf of the defendant , she stated that she wanted to get the suit property transferred in her (plaintiff's) name so that there is no dispute amongst her son and daughter in law and they are unable to grab the property. It is admitted case of the parties that plaintiff was even otherwise absolute sole owner of the suit property in so far as it 17 was bequeathed in her name by her late husband by virtue of a registered Will as such the plea of transfer of property in her name appears to be a made a plea on the part of plaintiff . It is admitted case of the plaintiff not only in her pleadings but also during the final arguments that she is being taken care of well by her sons and daughters in law. It is not her case that she never visited the Office of Sub Registrar for execution of above set of documents.. It is also admitted that the thumb impression available on the entire set of document belongs to her. These documents were not executed in isolation or secrecy but were executed in the presence of her (plaintiff's) own daughter in law namely Smt. Shakuntla , DW2. For more than 5 years plaintiff remained silent qua the above 6 documents even though during that period , defendant raised construction over the property.
35.In order to succeed in seeking a negative declaration qua a set of duly registered document , plaintiff is required to raise believeworthy legal pleas and also substantiate them, since as per Section 114 (e) Evidence Act, there is a presumption working against the plaintiff and in favour of 18 defendant
36. Section 114 of Indian Evidence Act :The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
114 (e) of Indian Evidence Act provides : " That judicial and official acts have been regularly performed."
37.The entire record nowhere shows that there was something exceptionally lacking or different in the manner of execution of the documents. Simply because plaintiff is aged and is illiterate, it can not be regarded as a conclusive proof of that whatever transaction an aged and illiterate person enters into, it has to be mandatory declared a transaction got done under misrepresentation and fraud. It is not the case of the plaintiff that she was living alone with the defendant and she could not have exercised her willingness contrary to defendant . It is plaintiff's own case that her basic 19 well being and day to day needs and care is being done by her own sons. One of her sons namely Sh. Maam Chand PW2 who is ordinarily resident of Dehradoon, had not only been supporting her through out the trial but had also been attending all the dates of hearing. In such a scenario even Section 111 of Indian Evidence Act does not squarely come to her rescue. LD. Counsel for plaintiff has relied on AIR 1968 SC 956 . However, facts of this case are on a different footing. Not only in the case in hand there is exchange of consideration but also two of the documents under challenge are duly registered with Sub Registrar Office. Apart from presumption which can be drawn U/s 114(e) of Evidence Act , in cross examination, witness of the plaintiff namely PW4 Sh. Sher Singh, Record Incharge of Sub Registrar Mahaurali apprised that whenever a document is presented for registration before Sub Registrar, the contents and purpose of the document is ascertained in detail with the help of the parties followed by a query to the executor as to in whose favour the documents are sought to be executed. An inquiry is also done to ascertain and abrogate the instances of fraud, misrepresentation and coercion. Only when the Sub 20 Registrar is satisfied with the answers of the executor, the document intended to be registered, is allowed to be registered.
38.In the case in hand it was not the defendant alone who appeared before the Sub Registrar with the plaintiff , but plaintiff's own daughter in law Smt. Shakuntla was also there. Not only there is no explanation qua the role of Smt. Shakuntla in the plaint but plaintiff has conveniently decided to not to even name her in the plaint . Despite fully knowing that she is witnesses in atleast three documents executed on the same day, no attempt was made to explain her role. She was not even summoned by the plaintiff on record as a witness. However, it was the defendant who summoned and examined her . This witness is of pivotal important since she is plaintiff's own daughter in law and there is nothing on record from the side of plaintiff that she had anything averse to the plaintiff . In her deposition , Smt. Shakuntla as DW2, maintained that while plaintiff was executing the documents in favour of her daughter, she even asked the plaintiff to not to accept money from her daughter and to transfer the property in defendant's name without consideration as she was her daughter but plaintiff declined 21 the suggestion on the plea that she needs money for her expenses.
39.It is admitted case of the plaintiff that defendant had lost her first husband and even when she was remarried, she was driven out of the matrimonial home with her four children and was in need of a shelter. This witness has categorically stated that before the defendant entered into the transaction in hand , she had been allowed to live in a one room set with her children. This witness supported the case of the defendant by stating that the sale consideration of Rs.1 lac was paid by the defendant to the plaintiff in her presence and entire documentation was also done in her presence at the Sub Registrar Office. Plaintiff told her that she is transferring the property in the name of the defendant daughter so that in future her sons do not have any dispute qua the same.
40.Apart from making bald pleas, in my considered view, plaintiff has done a precious little to substantiate her plea. Under similar circumstances in case titled S.Kaliyammal Vs. K. Palaniammal AIR 1999 Mad40 a plea was taken that a Will was made under fraud and undue influence and no evidence in support of the same was adduced, the Will was ruled to be valid.
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41.In the case in hand as well in the absence of any cogent and legal evidence, I see no reason as to why plaintiff shall be given a finding that above set of 6 documents were got executed by the defendant from her under a fraud. Apart from making emotional pleas and overtures there is nothing on record from the side of plaintiff to substantiate her pleas. Defendant herein , who is equally distressed in life and had her own share woes and hardships, can not be robbed of her only shelter and made homeless with her four children on the asking sake of plaintiff . Moreso, simply because sons of the plaintiff so desire through her . In view of the above discussion both the issues are decided in favour of defendant and against plaintiff
42.In view of the decision of above issues, issue no. 2 also stands decided in favour of defendant and against the plaintiff.
43.ISSUE NO. 7 &8
7.Whether the plaintiff is entitled to decree of declaration as prayed? OPP
8.Whether the plaintiff is entitled to decree of possession as prayed? OPP 23
44.In view of the decisions on above issues, plaintiff is not entitled for any relief. These issues stand decided against the plaintiff and in favour of defendant .
45.However, before parting with the suit in hand I find it pertinent to observe that the decision of the plaintiff to revoke her Will is personal to her and no Court of Law can force a party to maintain a pre executed Will . Execution / revocation of a Will is a right so personal to a citizen , that it can not be interfered with in any manner legally.
RELIEF In view of the above observation, facts and circumstances of the case, Ih have no hesitation to conclude that plaintiff is not entitled to any relief whatsoever. Suit of the plaintiff stands dismissed on merits. Parties are however, left to bear their own costs. Decree sheet be prepared accordingly and file be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON 31.3.2011 (SURINDER S. RATHI) ADJ07/CENTRAL DELHI 24 CS NO: 250/11/05 ID NO:02401C0474402005 SMT. BIRMA DEVI vs. SMT. INDERWATI 31.3.2011 Pr: Ld. Counsel Sh.Nagesh Kapoor advocate for plaintiff Ld. Counsel Sh.A.S.Dahiya advocate for defendant FA heard at length from both the sides and file perused. Vide a separate judgment of the day, suit of the plaintiff stands dismissed on merits. Parties are, however, left to bear their own costs. Decree sheet be prepared accordingly and file be consigned to RR.
(SURINDER S. RATHI) ADJ07/CENTRAL DELHI : 31.3.2011 25 DECREE IN SUIT FOR DECLARATION & POSSESSION (Order XX Rule 7 of the Code of Civil Procedure) IN THE COURT OF SHRI SURINDER S. RATHI, ADJ/CENTRAL-7 DELHI.
CS NO: 250/11/05 ID NO:02401C0474402005 SMT. BIRMA DEVI W/o Late Sh. Bed Ram, R/o House No.1043, E/1 Ward No.8, Mahrauli New Delhi-30. .....Plaintiff vs. SMT. INDERWATI W/o Sh.Megh Raj D/o Late Sh. Bed Ram R/o House No.1043, E/1 Ward No.8, Mahrauli New Delhi-30. .....Defendant DATE OF INSTITUTION : 02.06.2005 DATE OF FINAL HEARING : 31.03.2011 DATE OF FINAL ORDER : 31.03.2011 SUIT FOR DECLARATION AND RECOVERY OF POSSESSION This suit coming for disposal before me in the presence of Ld. Counsel Sh.Nagesh Kapoor advocate for plaintiff and Ld. Counsel Sh.A.S.Dahiya advocate for defendant . It is ordered that suit of the plaintiff stands dismissed on merits. Parties are, however, left to bear their own costs.
Costs of the suits
Plaintiff Defendant
Stamp for plaint NIL Stamp for power NIL
Stamp for power NIL Stamp for exhibits NIL
Stamp for exhibits NIL Stamp for petition NIL
Pleader's fee NIL Pleader's fee NIL
Subsistence for witness NIL Subsistence for witness NIL
Commissioner's fee NIL Commissioner's fee NIL
Service of process NIL Miscellaneous NIL
Miscellaneous
Total NIL Total NIL
Given under my hand and the seal of this court, Dated 31.03.2011.
ADJ:07:CENTRAL DELHI 26