Delhi High Court
Sarjit Singh Awla vs Kuldeep Singh Awla on 13 January, 2015
Equivalent citations: AIR 2015 (NOC) 1016 (DEL.), 2015 (4) ADR 193 (2015) 217 DLT 13.1, (2015) 217 DLT 13.1
Author: Indermeet Kaur
Bench: Indermeet Kaur
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:13.01.2015
+ CS(OS) 574/2014, I.A.No.3707/2014, I.A.No.12881/2014 and
I.A.No.25069/2014
SARJIT SINGH AWLA ..... Plaintiff
Through Mr.Sanjeev Soni and
Mr. Y.R.Shamra, Advocates.
versus
KULDEEP SINGH AWLA ..... Defendant
Through Mr.Ashim Vacher, Mr.
M.L.Mahajan and Mr. Gaurav
Mahajan, Advocates
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (oral)
I.A.No.12881/2014 (u/O 7 Rule 11 (d))
1.This is an application filed by the defendant seeking rejection of the plaint on the ground of limitation. Submission is that the plaintiff has instituted the present suit for declaration, possession, permanent injunction and damages. The plaintiff is seeking declaration to the CS(OS)574/2014 Page 1 of 14 effect that the plaintiff by virtue of a relinquishment deed dated 21.01.2008 had not relinquished his right, title or interest in favour of the defendant with respect to the suit property. Submission is that the present suit which has been filed in the year 2014 qua the relinquishment deed which is admittedly of the year 2008 is beyond the period of limitation. Attention has been drawn to the power of attorney dated 17.9.2007 pursuant to which this relinquishment deed had been executed. Submission being reiterated that on all counts the suit of the plaintiff having been filed after more than six years from the date on which cause of action had arisen is barred by limitation. Additional submission being that there is no averment in the plaint whatsoever that the plaintiff learnt about the fate of the relinquishment deed at any later point of time which would enlarge the period of limitation. 2 Reply has been filed to the application. It is pointed out that to answer the arguments of the learned counsel for the applicant, the Will of the deceased mother of the parties as also the contents of the power of attorney and the relinquishment deed have to be adhered to; submission being that the plaintiff is not seeking invalidation of either the power of CS(OS)574/2014 Page 2 of 14 attorney or the relinquishment deed; his prayer is that he be granted possession of his divided share in the property which is the first floor and the garage. What he had relinquished in terms of the relinquishment deed dated 21.01.2008 was only his undivided rights in the suit property and not his divided interest.
3 Arguments have been heard. Record has been perused.
4. This is a dispute between two brothers. The plaintiff is a citizen of Germany and he had admittedly executed power of attorney dated 17.9.2007 in favaour of defendant no.2 (wife of defendant no.1). Relevant extract of the power of attorney reads herein as under:
1. To sign and submit documents/papers what-so-ever required in respect of transfer of my Undivided share in Property No.D-44 situated at South Extn., Part-II, New Delhi inherited through WILL dated 07.5.1993, which is registered in the office of the Sub-Registrar, New Delhi as Doc. No.2281 in Addl.Book No.III, Vol. No.729 on pages 194-1999 in favour of Shri Kuldip Singh Awla Alis Kultheep Uongkhattri resident of D-44, South Extension Part-II, New Delhi
2. To execute, sign and present documents for Release/Relinquish my share in respect of said property, before proper Registering CS(OS)574/2014 Page 3 of 14 Authorities for Govt. of India, Municipal Corporation of Delhi or Semi Government or others."
5 Submission being that this power of attorney was only qua the undivided share of the plaintiff in the aforenoted property i.e. property D-44, South Extension, Part-II, New Delhi. It did not encompass the interest of the plaintiff in his divided share of the property which included the first floor and the garage on the ground floor. To further advance this argument, learned counsel for the plaintiff has drawn attention of this Court to the Will of the deceased mother of the parties.
This Will is dated 07.5.1993 and is an admitted document. It has been executed by Mahender Kaur Awla detailing the bequeath of her immovable property i.e. D-44, South Extension, Part-II, New Delhi. In this Will, it was stated that a 2½ storied building had been raised on this plot of land; the ground floor of the property fell to the share of the defendant; the first floor fell to the share of plaintiff declaring both the parties the absolute owners thereof. Qua the barasati floor, there was one room constructed upon it; the plaintiff had the right to give the same on rent and to take the proceeds thereof; the two garages in the annexe had devolved upon the plaintiff and the defendant in equal shares; the CS(OS)574/2014 Page 4 of 14 defendant had also been given entitlement to give on rent the annexe portion and to keep the proceeds thereof.
6. Another relevant portion of the extract of the Will reads herein as under:
"That it is made clear that after the devolving of the property as existing on the date of the Will both my sons/S/Sh.Sarjit Singh Awla and Kuldip Singh Awla would be entitled to raise further construction on the Barsati Floor and thereupon in accordance with the sanction from the authorities concerned. Such construction shall be raised with the funds to be provided by both of them in equal shares and, therefore, they shall be the owners in equal shares of such newly construction portion."
7. This part of the bequeath is related to the rights of the parties on the barasati floor of the suit property; the testator desired that whenever further construction on the barsati floor is raised in accordance with the sanction given by the authorities concerned the funds will be given by both her sons in equal shares and thereafter they would become owners of this newly constructed portion.
CS(OS)574/2014 Page 5 of 14
8. Submission of the learned counsel for the plaintiff on this count being reiterated that it was the ground floor and the garage in the annexe which was the divided share of the plaintiff for which he had not given any power of attorney to defendant no.2; the power of attorney specifically states that this power of attorney is qua his undivided share in the suit property meaning thereby that this power of attorney was executed only qua the undivided rights of the plaintiff on the barsati floor and the right of the plaintiff to take rent from the proceeds of the said barasati floor. Further submission being that the plaintiff had in fact given the first floor on lease w.e.f. year 1996 for a period of three years which again shows that his interest in the property qua the first floor was his divided interest. Power of attorney had been given to defendant no.2 only qua his undivided interest, pursuant to which the relinquishment deed had been executed by defendant no.2 in favour of defendant no.1. He has no grievance on this count. He is seeking possession of his divived interest in the immovable property which clearly continues to belong to him i.e. the first floor and the garage on the ground floor qua which Article 65 of the Limitation Act, 1963, Schedule-I encompasses a period of 12 years and the cause of action CS(OS)574/2014 Page 6 of 14 would arise from the date when the possession of the defendant became adverse to the plaintiff. In this case, even presuming that the cause of action had arisen on the date of the execution of the relinquishment deed which in this case is 21.01.2008, the suit of the plaintiff filed in the year 2014 being within the span of 12 years is clearly within limitation.
9. On the perusal of the record and the documentary evidence filed by both the parties i.e. the will of the deceased mother of the parties, the power of attorney dated 17.9.2007 executed by the plaintiff in favour of defendant no.1 and the subsequent relinquishment deed dated 21.01.2008 executed by defendant no.2 in favour of defendant no.1, it transpires that the case of the defendant no.1 stands on a strong footing.
10. Admittedly on 17.9.2007 a power of attorney had been executed by the plaintiff in favour of defendant no.2 (his sister-in-law). The relevant extract of the same has been quoted supra. This power of attorney declares that the plaintiff who is a resident of Germany appoints and constitutes Baljit Kaur Vongkhattri (defendant no.2) as his true and lawful legal attorney to submit documents and papers whenever required in respect of his undivided share in the suit property i.e. D-44, CS(OS)574/2014 Page 7 of 14 South Ext.Part-II, New Delhi which has been inherited through the Will dated 07.5.1993. This power of attorney also authorizes defendant no.2 to release/relinquish the share of the plaintiff in respect of the suit property.
11. Vehement contention of the learned counsel for the plaintiff on this count is that this power of attorney refers only to his undivided share which would be his right and interest on the barsati floor alone, is negatived by a wholesome reading of the said documents. Both the documents i.e. the Will and the power of attorney when read as a whole and in conjunction with one another clearly authorize defendant no.2 to deal with the share of the plaintiff in the suit property which he had inherited in terms of the Will of his mother. A scrutiny of this Will shows that it does not bequeath the property in favour of her two sons separately as a divided and undivided interest; there is no division of a divided or an undivided share. It merely states that the ground floor of the property fell to the share of defendant no.1 and first floor would fall to the share of the plaintiff and the two garages would devolve equally to the plaintiff and to the defendant. These portions of the CS(OS)574/2014 Page 8 of 14 property were constructed, demarcated and delineated. The barsati floor had only one room constructed upon it. The Will stipulated that on the raising of construction by the two brothers on the barsati floor which would be funded equally by both of them; the barsati floor would then again devolve upon both of them in equal shares. These two documents i.e. the power of attorney and the Will when read in concurrence with one another do not demarcate the property separately as a divided and an undivided share of the plaintiff. It is a complete property and the complete interest of the plaintiff which the plaintiff had authorized (vide power of attorney of dated 17.9.2007) defendant no.2 who had the full authority to deal with his complete share in this property. It was not only to submit papers in respect of the transfer of his share in the suit property but also to release/relinquish it. The word "undivided" does find mention in para 1 of the power of attorney but by no strech of imagination can it be restricted only to the share of the plaintiff on the barsati floor of the suit property.
12. The subsequent document i.e. relinquishment deed of the year 2008 executed by defendant n.2 in favour of defendant no.1 had CS(OS)574/2014 Page 9 of 14 reqliquished/released this property i.e. one half share of the plaintiff in the suit property in favour of defendant no.1. As already noted supra the plaintiff has not challenged the execution of this relinquishment deed. His submission is only restricted to the interpretation of the terminology used in the Will, power of attorney and subsequently in the relinquishment deed.
13. This Court is of the view that the intent of the plaintiff was to authorize defendant no.2 to deal with his complete half share in the suit property and even to relinquish it/release it. The power of attorney is dated 17.9.2007 and the relinquishment deed followed just three months thereafter i.e. on 21.01.2008 whereby defendant no.2 relinquished this half share of the plaintiff in favour of her husband (defendant no.1). The fact that the plaintiff was a resident of Germany and was living there since the last several years was probably the reason which has weighed in his mind to allow his brother (defendant no.1) to enjoy the property completely.
14. Even as per the case of the plaintiff, he did not care to find out what happened to the property after the execution of his power of CS(OS)574/2014 Page 10 of 14 attorney on 17.9.2007. The plaint speaks of the relinquishment deed dated 21.01.2008 but it is conspicuously silent as to when the plaintiff learnt about this relinquishment deed. Plaintiff had given a legal notice to the defendant in October, 2013. Issuance of legal notice would not by itself enlarge the period of limitation in favour of the plaintiff. This is also not his argument. Attention has been drawn to the cause of action which has been contained in para 13. After 17.9.2007 (the date of the execution of power of attorney) and 21.01.2008 (the date of execution of the relinquishment deed) there is no cause of action which has arisen in favour of the plaintiff except the issuance of the legal notice which has been mentioned as 31.10.2013.
15. The prayers made in the present plaint are also relevant. They read as under:
a) Pass a decree of declaration in favour of the plaintiffs and against the defendant no.1, thereby declaring that the plaintiff by virtue of relinquishment deed dated 21.01.2008 absolutely had never relinquished his right, title and interest in favour of defendant no.1 with respect to the plaintiff specifically divided portions i.e. the first floor and one garage in the Annexe portion i.e. the "suit property", and as such he is the absolute CS(OS)574/2014 Page 11 of 14 and exclusive owner of the above portions, and is entitled to its physical possession, damages against the defendants for unauthorized use and occupation of the said portion/suit property by them and/or by their tenants, and for getting the defendants injuncted from creating any third party interest, alienating, disposing it of.
b) pass a decree of possession in favour of the plaintiffs and against the defendants jointly and severely thereby directing them to handover the peaceful vacant and physical possession of the entire first floor measuring about 334.29 sq. mtrs., and one garage measuring about 23.25 sq. mtrs, situated at the left hand side garage facing the main entrance, situated at the ground floor in the Annexe portion situated at the annexe portion i.e. the suit property, part and parcel of property bearing no.D-44, situated at South Extension Part-II, New Delhi to the plaintiff.
c) ...............
d) ................."
16. This Court is of the view that the plaintiff has failed to cross the hurdle of limitation. A suit seeking declaration is governed by Part-III of the Limitation Act, 1963. Article 58 stipulates a period of three years as limitation to file such a suit and the time begins to run from the CS(OS)574/2014 Page 12 of 14 date when the right to sue first accrues which in this case would be the date (21.01.2008) of execution of the relinquishment deed and as there is no further averment in the plaint that knowledge about the relinquishment deed was obtained by the plaintiff at any later date; the period of limitation has to be necessarily reckoned from the date of execution of the relinquishment deed. Section 9 of the Limitation Act also provides that once the period of limitation has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.
17. At the cost of repeition, there is no averment by the plaintiff that the knowledge about the relinquishment deed was brought to the notice of the plaintiff at any later date. This has neither been averred in the plaint nor does it find mention in the legal notice. The present suit is accordingly barred by limitation. The prayer made in the application filed by the defendant is allowed. plaint is rejected under Order 7 Rule 11 (d) CPC.
CS(OS)574/2014 Page 13 of 14 I.A.No.3707/2014 &I.A.No.25069/2014
19. Since the plaint has been rejected, these applications have become infructuous. They are disposed of accordingly.
INDERMEET KAUR, J JANUARY 13, 2015 ndn CS(OS)574/2014 Page 14 of 14