Delhi District Court
Present Address vs Shri Yashpal Arora on 31 March, 2014
IN THE COURT OF SHRI A.S. JAYACHANDRA: ADDITIONAL
DISTRICT JUDGE-I: SHAHDARA DISTRICT: KARKARDOOMA
COURTS: DELHI.
RCA No.109/2013
Unique I.D No. 02402C0127882012
Smt. Kamlesh Arora,
W/o late Shri Thakur Dass
R/o Flat No. 21, Pocket E,
Dilshad Garden Delhi.
Present address:
A-51, New Govindpura,
Gali NO.16, Chander Nagar,
Delhi-110051 ............... Appellant.
Versus
1. Shri Yashpal Arora
S/o shri Thakur Dass
2. Smt. Renu Arora,
W/o Shri Yashpal Arora,
Both residents of:
A-2/27, Krishna Nagar,
Delhi ........ Respondents
Date of Institution : 08.05.2012
Order reserved on : 28.03.2014
Order passed on : 31.03.2014
JUDGMENT
1. The unsuccessful plaintiff in the trial court is the appellant herein. Her suit filed u/s 26 & 31 of the Specific Relief Act for rectification is for the following reliefs: a) for the relief "decree of rectification under Section 26 of the Specific Relief Act in favour of the plaintiff and against the defendant thereby rectify the sale deed RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page1/10 dated 16.4.1986 in the name of Thakur Dass which was fraudulently forged in favour of the defendant in accordance with the provision of section 26 of the Specific Relief Act" and for prohibitory, mandatory injunctions against the defendants. The court below had dismissed the suit of the plaintiff in suit no. 66/2007 dated 04.04.2012 on the files of the ld. JSCC/ASCJ (NE), Karkardooma Courts, Delhi.
2. Grounds in the Appeal: The grounds urged are that the ld. trial court has not properly appreciated the evidence of PW-1 as regards the title of late Thakur Dass and that the age of the defendant no.1 as on the date of the sale deed was under minority and therefore the contract being void was ignored by the trial court. There was a will with regard to all the properties of late Thakus Dass in favour of the plaintiff and that the trial court did not appreciate about a probate petition pending before the ADJ Court at Tis Hazari. Plaintiffs contend that Ex. PW1/5 is manipulated document and that the evidence of DW1 if properly appreciated would prove the case of plaintiff. The impugned judgment is opposed to law facts and the evidence available on record.
3. Issue in the Appeal: Notices were ordered on this appeal to the respondents and the respondents appeared through their counsel. The trial court records were called. Heard the arguments of the ld. counsel on either side. After hearing the ld. counsel in RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page2/10 this appeal and further considering the grounds of appeal, the only issue that arises for consideration in this appeal is " whether the impugned judgment and decree of the court below is perverse, opposed to law in the given set of facts and evidence available on record or not?"
4. Before adverting to answer the issue framed by this court, it is necessary to understand the brief facts of the case as in the trial court.
5. Brief facts before the trial court: The plaintiff contend that she is the wife of late Thakur Dass who died on 15.04.1999. The plaintiff was residing with her children at C-2/8, Krishna Nagar, Delhi. Her husband purchased the property bearing no. A-2/27, Krishna Nagar described in the site plan (suit property) from Smt. Veerawali. The defendant is the step son of Thakur Dass through Ms. Satya Devi, previous wife of Thakur Dass. In the amended plaint defendant's wife is made the second defendant. One Tripta is the sister of defendant no.1. Thakur Dass executed a will dated 26.3.1999 and bequeathed two properties bearing no. C-2/8, Krishna Nagar and 409-A, Jheel Khuranja under the will but had left out the suit property in the will. However, he bequeathed all the movable and immovable properties in favour of plaintiff. Plaintiff has filed a probate petition before ADJ, Tis Hazari Courts. The defendants are in permissible possession of the suit property and RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page3/10 they are not the owners of the suit property. Plaintiff came to know that the vendor Veerawali executed the sale deed but by illegal means the name of the defendant is entered as one of the purchaser in the sale deed executed by Veerawali. According to plaintiff, defendant Yashpal Arora was a minor as on the date of the sale deed dated 16.4.1986 and the same is void. Since all the properties are bequeathed by Thakur Dass in favour of the plaintiff, the plaintiff had sought for rectification after coming to know about the name of defendant as one of the title holders in the sale deed dated 16.04.1986. Plaintiff contends that cause of action arose on 01.08.2005 where she came know about this from a copy of the sale deed filed in the probate petition litigation. She seeks rectification with the prayer " pass a decree of rectification under Section 26 of the Specific Relief Act in favour of the plaintiff and against the defendant thereby rectify the sale deed dated 16.04.1986 in the name of late Thakur Dass which was fraudulently forged in favour of the defendant in accordance with Section 26 of the Specific Relief Act" and other prayers.
6. Contention of D-1: The defendant no.1 urges that the suit is not maintainable, relief is under valued and he denied the plaint allegations. He contends that he owns the property and he sold the same in favour of his wife ( defendant no.2) vide GPA dated 17.01.2002 for consideration. He further submits that he is in RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page4/10 possession of the property uninterruptedly. He denies the marriage of the plaintiff with his father Thakur Dass. He submits that his mother Satya Devi is legally wedded wife of Thakur Dass. He denies being in permissible possession but as the title holder and plaintiff has no right or title and prays for dismissal of the suit.
7. The contention of D-2: The contention of defendant no.2 is that she purchased the property from defendant no.1 under GPA dated 17.01.2002 and she is in possession of the property. She denies all the plaint allegations. She prays for dismissal of the suit.
8. Issues before the Trial court: The ld. court below has framed four issues as under:
1. Whether the plaintiff is entitled for decree of mandatory injunction as prayed in the suit? OPP
2. Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit ? OPP
3. Whether the plaintiff is entitled for a decree u/s 26/31 of the Specific Relief Act as prayed in the suit ? OPP
4. Relief.
9. On behalf of the plaintiff two witnesses were examined and on behalf of the defendants two witnesses were examined. After hearing both the parties, the trial court dismissed the suit, which is now challenged. The issue raised in the appeal is being answered after considering the rival submissions on either side and after examining the trial court records in the light of contentions with the following reasons.
RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page5/10 Reasons.
10. The case of the plaintiff is for rectification of the deed. The prayer in the trial court is repeated above in two places is with a purpose. The prayer under Section 26 of the Specific Relief Act does not make out anything. From the facts pleaded in the trial court, the plaintiff intended to seek a rectification for deletion of the name of defendant in the sale deed dated 16.04.1986. But there is no such specific prayer. I have perused the certified copy Ex. DW1/P5 and also mark A which is the sale deed dated 16.04.1986. In the said sale deed name of the vendor is "Shrimati Viranwali w/o Shri Ram Lubhaya". The name of the purchaser is " Shri Yaspal S/o Shri Thakur Dass" .
11. The very prayer of the plaintiff is to declare the sale deed seeking a rectification of the sale deed, which amounts to implanting the third person as the purchaser. She is not a party to the deed.
12. Her contention that late Thakur Dass had purchased the property from vendor Veeranwali. She contends in the plaint that the said property was purchased by Thakur Dass. Her contention is falsified by the documentary evidence. By rectification the name of the vendor itself cannot be implanted by removing the name of the vendor. No doubt, such a suit may be filed by the parties to deed or by their successor in interest only if there is a fraud or a RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page6/10 mutual mistake of the parties as provided in section 26 of the Specific Relief Act. The case of the plaintiff is not pleaded on the ground of fraud. The plaintiff also does not say in the plaint that there was a mutual mistake. Only under the specified grounds, the suit could have been filed. The ld. court below in its judgment had held " I have no hesitation to hold that entire case of the plaintiff crumbles". Perhaps, the ld. Judge having understood the scope of section 26 of Specific Relief Act and the prayer sought, had couched the above words though the reasons for arriving at the decision is not fully expressed.
13. The ld. Judge had also found out that the cause of action pleaded is 01.08.2005 having arose from the pleadings in some other litigation. Her evidence reveals that she was aware of the sale deed dated 16.04.1986 during the lifetime of late Thakur Dass. She has also admitted in the cross examination that " myself and late Thakur Dass had gone through the contents of the sale deed dated 16.04.1986 executed by Veeranwali in favour of defendant no.1. It is correct that my husband has not filed any litigation or objections before the sub-registrar or any other authority regarding the sale deed dated 16.04.1986". (Cross examination of PW-1 dated 21.12.2010). Therefore, she was very much aware of the sale deed which neither herself nor her husband ( who is a party to the deed), had not questioned the same in time. The suit is highly barred RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page7/10 under limitation.
14. It is also seen from evidence available on record that Kuldeep Rai-the son of the vendor contended that the property was sold by his mother with his consent. It is also stated by him in the examination-in-chief itself that he does not know to whom the property was sold. The very examination-in-chief of PW-2 shows that though he is the successor in interest of the vendor, it does not reveal the intention of the parties to the deed as to the identity of the vendor, as contended in the plaint. It is not revealed from the evidence that the vendor intended to sell the property to late Thakur Dass but the name of the defendant no.1 had crept in by mistake or by fraud. Therefore, from the proper appreciation of the evidence available on record, the necessary circumstances under which a deed/instrument could be rectified is not forthcoming. Moreover, the plaintiff and her husband having known about the contents of the sale deed now cannot contend that there has been a mistake by the parties to the instrument or that there was a fraud. Further the evidence available on record does not show any other intention of the parties to the deed than that is reflected from the instrument. Therefore, the major contention of the appellant that there was non application of mind and the misreading of the evidence by improper appreciation of the same falls to the ground.
15. The other contention that the purchaser was a minor at the RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page8/10 time of sale which would vitiate the sale deed is not open to the plaintiff. Such a contention is impermissible more so when the defendant's father late Thakur Dass was aware of the contents of the sale deed as admitted by PW-1 herself. There is no prohibition under the Transfer of Property Act for transfer of property in favour of a minor. The Section 22 of the Transfer of Property Act, 1882. It reads as under:-
" Transfer to members of a class who attain a particular age- Where, on a transfer of property, an interest therein is created in favour of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age."
The Transfer of Property Act also recognizes the transfer for benefit of unborn person under Section 13 which reads as under:-
" Transfer for benefit of unborn person-Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property."
16. After looking into the above provisions, it cannot be said that a minor-purchaser is not eligible for purchasing the property.
17. It is also to be noted that the appellant desired to strike off the name of the purchaser ( on the ground that the purchaser was RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page9/10 a minor) and to implant the name of her deceased husband as purchaser. The same cannot be allowed in the guise of rectification of the sale deed.
18. Suffice it to say that the grounds urged by the appellant in the appeal are devoid of any merits to set aside the impugned judgment and decree. Hence, the issue framed by this court is answered holding that the impugned judgment and decree by the court below does not suffer from any perversity, illegality and impropriety.
19. Apart from the reasonings of the ld. court below, the impugned judgment and decree is affirmed for the additional reasons given in the present judgment. Hence, the following order:
O R D E R The appeal stands dismissed. There shall be no order as to costs in this appeal. The judgment and decree passed in suit no.
66/2007 dated 04.04.2012 on the files of the ld. JSCC/ASCJ (NE), Karkardooma Courts, Delhi is hereby affirmed.
Let the TCR be sent back alongwith the copy of this judgment.
Appeal file be consigned to Record Room.
Pronounced in the open court ( A.S. JAYACHANDRA) 31.03.2014 Addl. District Judge-I:
Shahdara District: KKD Courts Complex:Delhi RCA. No. 109/13 Smt. Kamlesh Arora Vs. Yashpal & Anr Page10/10