Delhi District Court
Sri Gopal S/O Sh. Tara Chand vs Anand Swaroop Aggarwal on 7 February, 2012
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST):
KKD, COURTS, DELHI
Suit No. 626/08
Unique Case Identification No: 02402C 0624952005
1. Sri Gopal s/o Sh. Tara Chand
R/o Mohalla Ramayan (near Barsi Gate) Hansi
Distt. Hissar (Haryana).... (Since deceased)
(However application U/O 22 CPC was allowed
vide Order dated 25/01/2007)
2. Sunder Lal s/o Late Sh. Tara Chand
(late a minor by Sh. Sri Gopal and his real brother
and next friend but now having attained majority on
21/06/1993 and leave to proceed in his own name
granted by Ms. Pinki, Civil Judge, Delhi in this case
by her order),
R/o C/o Smt. Santosh Kumari of
J77/78, Dakshin Puri, New Delhi110062
3. Smt. Santosh Kumari (late a minor by
Sh. Sri Gopal, her real brother and next friend
but now having attained majority on 17/05/1990
and leave to proceed in her own name granted by
Sh. P. R. Thakur, ADJ, Delhi in this case by
his order dated 3/4/1992) w/o Sh. Rohtash Kumar
R/o J77/78,Dakshin Puri,
New Delhi110062 ....Plaintiffs
Versus
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 1/59
1. Smt. Asha Rani w/o Sh. Shri Krishan
R/o H. No. 1288, Subhash Road,
Gandhi Nagar, Delhi110031
2. Smt. Vidya Wati w/o Late Sh. Tara Chand
(Since deceased) (However application u/o. 22
CPC allowed by Sh. Sharad Gupta, CJ, Delhi
on 6.08.2008)
3. Om Prakash s/o late Sh. Tara Chand (Since deceased)
(However, application allowed vide order dated 25/01/2007)
(Son)
4. Hari Chand s/o late Sh. Tara Chand
5. Mohan Lal s/o late Sh. Tara Chand
All R/o. C/o. Smt. Prem Lata alias "AaYa"
w/o late Sh. Darshan Lal, Gali No. 12,
(Opposite Shanker's Tubewell), Sonia Vihar,
Delhi110094
6. Smt. Lajja w/o Sh. Mahender Kumar
R/o I/206/18, S.D. Mandir, Sadar Bazar,
Delhi Cantt., Delhi110010
7. Smt. Prem Lata alias "AAYA" w/o Sh. Darshan Lal
R/o Gali no. 12, (Opposite Shanker's TubeWell)
Sonia Vihar, Delhi110094
8. Sh. Devi Charan S/o Umrao Singh
R/o H. No. 403, Bagichi Harphool Singh
Subhash Road, Gan Nagar, Delhi (also addressed
as r/o village Khera; Post Office Pilakhua,
Distt. Ghaziabad (U.P.) (Impleaded as party pursuant to order
dated 15/03/93 vide which application u/o 1 rule 10 read with
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 2/59
order VI rule 17 CPC moved by plaintiff was allowed).
(Now deceased and impleadment of LRs, if any, of deceased
defendant no. 8 stands exempted vide order dated 23/8/2011).
....Defendants
i) Date of Institution : 04/05/1989
ii) Date of Decision : 07/02/2012
iii) Final Order : SUIT DISMISSED.
SUIT FOR DECLARATION, PARTITION, SEPARATE
POSSESSION AND INJUNCTION.
J U D G M E N T
1. Prayer of the plaintiffs in the AMENDED PLAINT dated 28/05/2008 is as under: "Prayer :It is, therefore, respectfully prayed that :
(i) A declaratory decree, declaring all agreements, deals and transaction in connection with the sale, transfer and/or delivery of possession of the whole or any part of property/ House no. 336/3 (old) and 1338 (new) m.a. 105 sq. yards built, out of Khasra no. 406/339/63 situated at Mandirwali Gali, Gandhi Nagar, Delhi110031,as shown in red and marked A.B.C.D. in the plan attached, in between Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 3/59 defendant 2 to 7 AND defendant no. 1 and/or defendant no. 8 to be illegal and void and declaring that defendant no. 1 and/or defendant no. 8 has acquired no right, title and/or any interest in the suit property and declaring the plaintiffs to be coowners in possession with defendant no. 2 to 7 of the entire aforesaid property, be passed in favour of plaintiffs and against the defendants;
(ii) A decree for cancellation of instrument of sale deed and/or other documents, mentioned in para. 10 of the plaint, if any executed by defendants 2 to 7 in favour of defendant no. 1 (or her nominee) and/or defendant no.8 and/or registered (although plaintiffs bonafide believes that no sale deed has been registered so far) in respect of whole or any part of the suit property, fully described hereinabove, OR in respect of transfer of their undivided interest cancelling such instrument(s) be passed in favour of the plaintiffs and against the defendants and the SubRegistrar of Registration of documents of the area concerned of Delhi, be ordered to be informed accordingly in accordance with law;
(iii) A decree for recovery of possession of suit property bearing no. 336/3 (old) and 1338 (new) (out of Khasra No.406/339/63) situated at Mandirwali Gali, Gandhi Nagar, in the area of Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 4/59 village Seelampur, Illaqua Shahdara, Delhi 110031, and marked as A,B,C,D and shown in red colour in the plan attached recovering possession from defendant no.1, her husband, agents, servants and/or defendant no.8 be passed in favour of the plaintiffs and against the defendants;
(iv) A decree of partition, partitioning/dividing, by meets and bounds, the suit property, bearing No. 336/3 (old) and 1338 (new) out of Khasra No. 406/339/63, situated at Gali Mandirwali, Gandhi Nagar in the area of Village Seelampur, Illaqa Shahdara, Delhi 110031, as shown in red in the plan attached, be passed in favour of the plaintiffs and against the defendants Nos. 2 to 7 and respective separate possession of the plaintiffs' portions, be delivered to them; and
(v) The defendant No.1 and/ or defendant No.8 be restrained form acquiring or purchasing any interest in or whole or any part of property in dispute No.336/3 (old) and 1338 (new) situated at Mandirwali Gali, Gandhi Nagar, Delhi31, as shown in red and marked A.B.C.D. in the plan attached, from defendants 2 to 7 or otherwise getting any document of title executed and registered in that connection AND defendants 2 to 7 be restrained from selling or otherwise transferring suit property or their undivided Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 5/59 interest therein to defendant No.1 and/ or defendant No.8 or any bodyelse, except plaintiffs, in any manner ;
AND the defendant No.1 and/ or defendant No.8 be restrained from alienating, transferring, letting or otherwise parting with or delivering possession of the suit property, described above, to any person whosoever, except plaintiffs OR raising any construction or making any addition/alteration in the suit property in any manner and denying the title of the plaintiffs in respect of suit property by passing a decree of perpetual injunction in favour of plaintiff and against defendants;
(vi) Costs of the suit be awarded to plaintiffs;
Any other relief which this Hon'ble Court deems fit and proper, be also allowed to the plaintiffs under the facts and circumstances of the present case.
Delhi:
Dated : 2852008 Plaintiffs
20493 through :
3589 S.S.Gupta, Advocate"
2. CASE OF PLAINTIFFS :
In brief case of plaintiffs is that plaintiff No.2 & 3 are minors and are suing through their real elder brother, guardian and next Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 6/59 friend Shri Gopal S/o Sh. Tara Chand, plaintiff No.1 herein, who has no interest adverse to those of the minors. Father of minors is dead and mother of minors is a defendant alongwith other brothers in the present case, so under these circumstances none of the defendant is a fit person to become the next friend of plaintiff No.2 & 3.
As per plaintiffs, Sh. Munshi Lal @ Munshi Ram S/o Sh. Ganga Sahai was the owner in possession of plot/property bearing no. 336/3 (old) and 1338 (new), measuring 210 sq. yards appx. out of Khasra no. 406/339/63 situated at Mandirwali Gali, Gandhi Nagar, in the area of Village Seelampur, Illaqua Shahdara, Delhi 110031 and said Sh. Munshi Lal died in the year 1938 or thereabout, leaving behind his two sons namely Sh. Tara Chand @ Panna Lal and Sh. Ram Karan upon whom the above property devolved in equal shares but they remained joint. The abovesaid Tara Chand died intestate at Hansi, Distt. Hissar (Haryana) on 31/05/1980 leaving behind his following heirs only and no other :
(i) Smt. Vidya Wati (Wife) Defendant No.2
(ii) Sh. Om Prakash (Son) Defendant No.3
(iii) Sh. Hari Chand (Son) Defendant No.4
(iv) Sh. Mohan Lal (Son) Defendant No.5
(v) Sh. Gopal (Son) Plaintiff No.1 Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 7/59
(vi) Sh. Sunder Lal (Minor Son) Plaintiff No.2
(vii) Kumari Santosh (Minor Daughter) Plaintiff No.3
(viii) Smt. Lajja (Married Daughter) Defendant No.6
(ix) Smt. Prem Lata (Married Daughter) Defendant No.7 AND the joint property/house bearing No.336/3 (old) and 1338 (new) situated at Mandirwali Gali, Gandhi Nagar (in the area of Village Seelampur, Illaqua Shahdara) Delhi 31.
As alleged, abovesaid heirs of Sh. Tara Chand inherited aforesaid undivided share in the said property. Further case of plaintiffs is that there was oral family settlement and oral partition, which took place in or about 1986/87 between Sh. Ram Karan and the heirs of Tara Chand (i.e. plaintiffs and defendant no.2 to 7) of the aforesaid plot/property no.336/3 (old) and No.1338 (new) described above, and the portion shown in red in the site plan attached and marked as A.B.C.D measuring about 105 sq. yards (hereinafter referred to as "suit property") with construction on it, fell to the share of plaintiff no.1 to 3 and defendant no.2 to 7 and other portion measuring about 105 sq. yards and marked as A.B.X.Y in the site plan fell into the share of Sh. Ram Karan. As alleged, being heirs of Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 8/59 deceased Tara Chand the aforesaid property marked A.B.C.D shown in red colour in site plan devolved upon the aforesaid 9 persons (i.e. plaintiffs and defendant no.2 to 7) in accordance with the provisions of Hindu Succession Act and consequently they became and are the coowners and in joint possession of the suit property in equal shares (i.e. 1/9th share each in the said property). As per plaintiffs, aforesaid property is a joint and undivided residential (dwelling) house of the plaintiffs and defendant no.2 to 7 and the said property has never been divided/partitioned by meets and bound or by any other manner amongst the heirs of the deceased Sh. Tara Chand at any time upto this date by any mode or by any forum and each heirs of Sh. Tara Chand is as good an ownerin joint possession of every inch and parcel of the suit property as the other heir is.
Plaintiffs have further alleged that in or about 198788 defendants no.2 to 7, who are totally illiterate persons, in collusion, conspiracy and connivance of and at the instance and instigation of Sh. Brahma Nand (one of the relatives of the defendant no.2 to 7 and is a very clever person) and of Sh. Jai Pal Singh (a brother of defendant no.1 ) have entered into Agreement To Sell the aforesaid Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 9/59 suit property no.336/3 (old) & no. 1338 (new) to and in favour of defendant no.1 and defendant no.8 who is real brother of defendant no.1 and is benami of defendant no.1 at the costs of plaintiffs and also ignoring their rights in the suit property as its coowners illegally and unlawfully and without the consent and knowledge of plaintiffs. As alleged, defendant no.2 to 7 are under influence and control of Sh. Brahma Nand and Jai Pal Singh and the plaintiffs feel and fear that defendants no.2 to 7 can execute the Sale Deed and get it registered or otherwise complete the transfer of suit property, as is being done now a days in Delhi, at any time hereafter. As per plaintiffs, defendants no. 2 to 7 have no right, power or authority to sell, convey or otherwise transfer the aforesaid undivided residential/dwelling property belonging to undivided family of the plaintiffs and defendant no.2 to 7 or to deliver its possession, to defendant no.1 and/or defendant no.8 or any other person or transfer their interest in the said property without the consent and knowledge of all the plaintiffs (and that too be legally and validly obtained) and without joining them in the deal. Further plaintiffs have alleged that plaintiff no.1 requested the defendant no.2 to 7 not to agree to sell or otherwise transfer and also Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 10/59 requested defendant no.1 not to agree to buy the undivided shares of defendant no. 2 to 7 in the suit property and not to buy whole or any portion of the suit property but they did not pay any heed to it and rather threatened plaintiff no.1 of dire consequences if he comes in their way. As alleged, plaintiffs bonafide believe that no Sale Deed/Conveyance Deed of suit property has been executed by defendant no.2 to 7 in favour of defendant no.1 and/or defendant no. 8 so far but surprisingly defendant no. 1 has declared herself to be owner of property marked A.B.C.D in the site plan where it is false and incorrect and plaintiffs still continue to be coowners of the same with defendant no. 2 to 7. As alleged, in view of the aforesaid declaration of defendant no.1, plaintiffs strongly feel and suspect that defendant no.1 has got signed and executed certain documents (like agreement to sell, power of attorney, receipt, Will, affidavit etc.) from defendant no.2 to 7 in her favour and also in favour of defendant no. 8 who is her real brother and is acting as benami to her qua the suit property, during 198788 to show transfer of suit property in her favour, as is commonly being done in Delhi now a days. As per plaintiffs, even if it be so, defendant no.1 and/or defendant no.8 has Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 11/59 acquired no right, title, interest claim and/or any concern of any kind in the suit property in fact and in law in any manner whatsoever.
Plaintiffs have further alleged that plaintiffs have reliably learnt that defendant no.1 has determined to raise constructions on the suit property after demolishing existing structure and thereafter to let or sell the same or otherwise deliver its possession to interested persons according to her wishes and benefits. As alleged, defendant no.1 and her husband have refused to listen the plaintiffs and are adamant in their illegal and unlawful aims and designs and have threatened the plaintiffs that the aforesaid works shall be started in a day or two. As per plaintiffs, if defendant no.1 and at her instance defendant no.8 succeeds in doing the above work, the status quo of the property in question shall be disturbed and right of third parties shall be intervened and the plaintiffs shall be subjected to multiplicity of proceedings. Lastly plaintiff has alleged that local police being in collusion with defendant no.1 has refused to take action against defendants and has asked the plaintiffs to approach the civil court for their rights. Hence this suit.
(It is pertinent to note that vide order dated 25/8/09, while Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 12/59 allowing an application u/o VI rule 17 CPC moved on 01/04/09 by plaintiff, ld. predecessor of this court observed that ".......... There is no need for amendment in the plaint and amendment in the extent of share being claimed can be record in the order sheet itself. The plaint be read with amendment in the extent of share of the parties and 1/6th share be read in place of 1/9th share").
3. APPEARANCE OF DEFENDANTS : Defendant no.1 has filed separate WS and defendant no. 2 to 7 have filed joint WS. At last when defendant no.8 could not be served in ordinary manner defendant no.8 was ordered to be served through publication vide order dated 20.02.1995. On 1.05.95 defendant no.8 was proceeded against as exparty as despite service through publication in news paper Statesman dated 17/03/95 none appeared for defendant no.8.
WRITTEN STATEMENT OF DEFENDANT NO.1: In her written statement defendant no.1 has taken stand that plaintiff no.1 is not the son of Sh. Tara Chand and he has no right, title or authority to act as an guardian of alleged minors as plaintiff no. 3 is not minor and plaintiff no.3 executed Relinquishment Deed Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 13/59 dated 30/11/87 in favour of defendant no.2 which is duly registered with the Sub Registrar and in the said Relinquishment Deed plaintiff no.3 has not stated herself to be minor while in the present suit plaintiff no.3 is alleged to be minor while she is not a minor at all. As per defendant no.1, suit has been filed with ulterior motives to harass defendant no.1 and to extort money from defendant no.1 by illegal and unlawful means as defendant no.1 has purchased the property in dispute to the extent of an area of 50 sq. yards only as per terms and conditions of Agreement to Sell dated 07/01/88 and defendant no.2 also executed a General Power of Attorney dated 07/01/88 in favour of defendant no.1 to deal with the property in dispute to the extent of 50 sq. yards in the manner she likes. As alleged, as defendant no.1 has stepped into the shoes of defendant no.2 and if plaintiffs have any grievances at all, they must have claimed the relief against defendant no.2 to 7 as defendant no.1 is the lawful attorney of defendant no.2 and is in possession of suit property to the extent of 50 sq. yards in her own rights as an owner of the same as per terms and conditions of Agreement To Sell. As per defendant no.1, plaintiffs no.2 & 3 and defendant no.2 to 7 are legal heirs of Sh. Tara Chand who are the Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 14/59 owner of suit property and on the strength of Relinquishment Deed being executed by plaintiff no.3 and defendant no.3 to 7 in favour of defendant no.2, defendant no.2 sold the property in dispute to defendant no.1 to the extent of 50 sq. yards for a valuable consideration and defendant no.1 is in possession of suit land since the date of its purchase (i.e. 07/01/1988). As alleged, plaintiff no.1 has no right, title or interest in any manner in the suit property and defendant no.2 also executed relevant documents as natural guardian of plaintiff no.2. As per defendant no.1, plaintiffs have not requested defendant no.1 in any manner nor there was any such occasion because as per knowledge of defendant no.1, plaintiff no.1 is not son of deceased Sh. Tara Chand. As alleged, defendant no.1 is bonafide purchaser of suit property to the extent of 50 sq. yards and if any illegal act is being done, the same has been done by plaintiffs and defendant no.2 to 7 to cheat defendant no.1. With these stand defendant no.1 has prayed for dismissal of the suit with costs and special costs under section 35A of CPC have also been prayed for by defendant no.1 against plaintiffs and defendant no.2 to 7 in the interest of justice.
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 15/59
4. WRITTEN STATEMENT OF DEFENDANT NO. 2 TO 7 : In their common written statement, defendants no.2 to 7 have alleged that plaintiff no.1 is son of defendant no.2 and is real brothers of defendant no.3 to 7. As alleged, plaintiff no.2 was born on 21/06/75 and plaintiff no.3 was born on 17/05/72 from deceased Sh. Tara Chand and as such they are still minors. In fact, in their WS defendant no.2 to 7 have supported the case of plaintiffs. Defendants no.2 to 7 have taken the stand that defendant no.2 to 7 are illiterate and particularly defendant no.2 is totally an illiterate lady and Sh. Brahma Nand is relative of defendant no.2 to 7 and plaintiffs 1 to 3 and they learnt subsequently that Brahma Nand was in collusion and connivance with defendant no.1 and her husband Sri Kishan and her brother Sh. Jaipal Singh to eat up the property of defendants and they asked defendant no.2 to sign certain papers and defendant no.2 in good faith and believing him to be faithful and honest relatives and believing that he would never cheat her nor allow others to cheat her at the instance of and under instructions of Brahma Nand, defendant no.1 and her above relatives without taking any money or other consideration whatever from any person, was made to put her thumb Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 16/59 marks on certain papers and infact no such paper/documents was ever executed by defendant no.2 at any time. As alleged, under influence and spell of and control of abovesaid persons, defendant no.2 had to admit, on or about 07/01/88 before Sub Registrar to have already received an advance a sum of Rs.45,000/ from defendant no.1 and also from one Devi Charan of the same locality whereas no such amount (or any other smaller or bigger amount) was ever received by defendant no.2 to 7 at any time upto date of filing of written statement. As alleged, documents, if any, are without consideration, ineffective and inexecutable giving no right, power or authority to defendant no.1 and/or Sh. Devi Charan or anybody else in any manner in respect of suit property. As alleged, plaintiff no. 1 to 3 and defendant no. 2 to 7 are still coowners of the suit property. Further, as per defendant no.2 to 7, they were under influence, control and spell of the persons stated above for about two years ago at or about Dec. 87/Jan. 88 and continued upto June/July 1989 and are not so at present. As per defendant no.2 to 7, no Sale Deed/Conveyance Deed or any transfer deed has been executed by defendant no.2 to 7 so far in favour of defendant no.1, Devi Charan or anybody else in respect Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 17/59 of property in dispute upto this time of filing of WS.
5. REPLICATION : Plaintiff has filed replication to the WS of defendant no.1 wherein stand taken by defendant no.1 has been denied and averments made in the plaint have been reaffirmed. As per plaintiffs, no Relinquishment Deed was ever executed by plaintiff no.3 nor plaintiff no.3 could execute the same being minor. As per plaintiffs, to their knowledge, no relinquishment deed was executed by defendant no.3 to 7 in favour of defendant no.2 at any time and, alternately, if there is any alleged relinquishment deed the same has never been signed and executed by the executants with their free Will and consent and they never knew the nature and contents of alleged, relinquishment deed. Plaintiffs are allegedly not bound by the relinquishment deed. Further, as per plaintiffs, no permission of the District Judge, Delhi was obtained in the matter by defendant no.2 to agree to sell or even to sell the shares of the minor.
6. INTERIM ORDER : Vide order dated 17/11/2000, Mr. L.S. Solanki, Civil Judge Delhi allowed an application moved by plaintiff u/o 39 rule 1 & 2 Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 18/59 CPC and restrained the defendants, their attorneys, assigns etc. from creating any third party interest in the suit property or raise any further construction in the suit property shown red in site plan Mark A,B,C,D till the final disposal of the suit. Appeal preferred by Smt. Asha Rani, defendant no. 1, against this order was dismissed by the court of Sh. Daya Prakash, Senior Civil Judge, Delhi vide Judgement dated 2/8/2005.
7. ISSUES : Vide order dated 20/09/2008, ld. predecessor of this court framed following issues :
1. Whether the plaintiffs are entitled to a decree of declaration as claimed ? OPP
2. Whether the plaintiffs are entitle to a decree of cancellation of instruments as claimed ? OPP
3. Whether plaintiffs are entitled to a decree for recovery of possession as claimed ? OPP
4. Whether plaintiffs are entitled to decree for permanent injunction as claimed ? OPP
5. Whether plaintiffs are entitled to decree for partition as claimed ? OPP1
6. Whether the suit of the plaintiffs is not maintainable in its present form ? OPD1
7. Whether plaintiffs have no locus standi to file the Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 19/59 present suit ? OPD
8. Whether the suit of the plaintiffs is bad for mis joinder and non joinder of necessary parties ? OPD1
9. Whether the suit of the plaintiff is without any cause of action ? OPD1
10. Whether the suit of the plaintiffs has not been properly valued for the purpose of court fee and jurisdiction ? OPD1
11. Relief.
8. EVIDENCE : To substantiate their case on judicial file, plaintiff no.3 has appeared in the witness box as PW1 Santosh Kumari. PE was closed on 22/03/10 in affirmative by ld. counsel for plaintiffs. Defendant no. 1 has examined one witness namely DW1 Sh. Shri Kishan and DE was closed on 31/08/10 on the statement of Sh. T.C. Gupta, Advocate for defendant no.1.
9. ORDER UNDER ORDER 22 RULE 4 (4) CPC : Vide order dated 23/8/2011, on an application of plaintiffs, under the previsions of order 22 rule 4 (4) CPC, plaintiffs were exempted from impleading the LRs of deceased defendant no. 8.
10. ARGUMENTS : I have heard Sh. S. S. Gupta Adv. for plaintiffs and Sh. T. C. Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 20/59 Gupta Adv. for defendant no.1. None appeared for defendant nos. 2 to 7 and defendant no.8. Written Submissions have been filed on behalf of plaintiffs. Ld. counsel for plaintiffs has relied upon case laws reported as : i) Mehnga Singh and others Vs. Gurdial Singh and others AIR 2004 Punjab and Haryana 93; ii) Chaitan Das and others Vs. Murali Dalai and others AIR 1971 Orissa 41; iii) Smt. Gayatri Devi Vs. Janta Jeweller 2007 Rajdhani Law Reporter 521; iv) Omanhene Kwamin Bassayin Vs. Omanhene Bendentu II AIR 1937 Privy Council 274; v) M/s. Surajbhan Kailash Chand and another Vs. Hari Shanker Vashsist and another AIR1976 Delhi 70; vi) Smt. Krishna Rani Vs. Chuni Lal Gulati AIR 1981 Punjab and Haryana 119; vii) R. Jayapaul Vs Pappayee Ammal AIR 2004 Madras 6; viii) Umesh Bondre Vs Wilfred Fernandes AIR 2007 Bombay 29; ix) Amir Bi and others Vs Committee of Management of Nilasandra Mosque, Bangalore and another, AIR 1969 Mysore 103.
On the other hand, Ld. counsel for defendant has relied upon case laws reported as: i) Smt. Sugga Bai and others Vs. Smt. Hiralal and others AIR 1969 Madhya Pradesh 32; ii) In re Krishnakant Maganlal AIR 1961 Gujarat 68; iii) Than Singh and others Vs. Barelal and another AIR 1974 Madhya Pradesh 24; iv) Manik Chand and another Vs. Ramchandra AIR 1981 Supreme Court 519; v) Bombay Ammonia Vs. Raj Kumar 2005 Rajdhani Law Reporter 157;
vi) Surender Arora Vs. P.N. Mehta & Ors. 71 (1998) Delhi Law Times 744; vii) Jaswant Singh Vs. Surinder Kaur Kohli 159 (2009) Delhi Law Times 517.
11. MY ISSUE WISE FINDINGS ARE AS UNDER : ISSUE NO. 1 Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 21/59 Whether the plaintiffs are entitled to a decree of declaration as claimed ? OPP ISSUE NO. 2 Whether the plaintiffs are entitle to a decree of cancellation of instruments as claimed ? OPP ISSUE NO. 3 Whether plaintiffs are entitled to a decree for recovery of possession as claimed ? OPP ISSUE NO. 4 Whether plaintiffs are entitled to decree for permanent injunction as claimed ? OPP ISSUE NO. 5 Whether plaintiffs are entitled to decree for partition as claimed ? OPP1 ISSUE NO. 7 Whether plaintiffs have no locus standi to file the present suit ? OPD ISSUE NO. 9 Whether the suit of the plaintiff is without any cause of action ? OPD1 I shall be dealing with these issues under a common discussion in as much as issues are interconnected and issues have been framed by ld. predecessor of this court in a general manner having regard to the prayers made in the suit rather than framing the issues based on individual facts under controversy which required determination for Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 22/59 the decision of the case on merits. Issues are also being dealt with under a common discussion in as much as finding on issue no. 1,2,3,4,&5 will also determine the fate of issue no. 7 and 9. RELINQUISHMENT DEED: It is the case of plaintiffs herein that Relinquishment Deed Ex. DW1/6 has not been duly proved in this case. As submitted, registration of a document is not proof of its execution & execution of a document is to be proved independently of its registration.
Relinquishment Deed Ex. DW1/6 is undisputedly a registered document. Vide order dated 15/12/09, when the case was fixed for remaining crossexamination of PW1 Smt. Santosh Kumari, Sh. Vijay Kumar Rawat UDC, was present from the office of SubRegistrar 4A with the record of registered relinquishment deed Ex. DW1/6 (which was marked as Mark A for identification purposes in the course of crossexamination of PW1 Smt. Santosh Kumari).
As regards Ex. DW1/6 (Mark A) PW1 Smt. Santosh Kumari has deposed as under : "Q: I put it to you that on 30/11/1987 you along with your other brothers and sisters appeared before the Sub Registrar and executed the Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 23/59 relinquishment deed in favour of your mother. You affixed your thumb impression and signature at point A and B on the said document (certified copies filed today, the document is given mark A for purpose of identification). What you have to say?
Ans: I had not gone to the office of Sub Registrar on 30/11/1987 and I did not execute mark A. It does not bear my signature and thumb impression at point A and B. ...................."
Also this witness in his crossexamination has deposed that "...............At this stage, the witness is confronted with her thumb impression and signature at point A and B on the plaint at page no.17 dated 20/4/1987 as the witness states - the thumb impression and the signature is definitely not mine............"
Now coming to Relinquishment Deed Ex. DW1/6 (Mark A). This Relinquishment Deed has been signed by Om Prakash, Hari Chand, Mohan Lal, Smt. Prem Lata, Kum. Santosh and Smt. Lajja. The fact that Smt. Vidya Wati has not signed/has not put thumb impression on Ex. DW1/6 (Mark A) is inconsequential. There is no dispute as to the registration of Relinquishment Deed Ex. DW1/6 (Mark A).
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 24/59
At this juncture it would be relevant to refer to provisions of Rule 33, 34 and 35 of Delhi Registration Rules 1976 which deal with the aspect of Procedure of Acceptance of documents for registration Rule 33, 34 and 35 of Delhi Registration Rules 1976 reads as under : "33. Enquiry as to execution, identity, etc. The Registering Officer shall then, with as little delay as possible, enquire whether the document was executed by the alleged executant, and satisfy himself as to the identity of the person appearing before him to admit execution. In cases of alienation, he shall satisfy himself of the identity not only of the alienor; but also of the alienee, if the latter is present. If the presentor is the executant, or his representative, assign or agent is present, the registering officer shall make the necessary enquiry at once. He should also require the presentor if an agent, to produce a power of attorney authenticated in the manner prescribed in Sec. 33 of the Act and if a representative or assign to produce evidence of his status.
34. Documents to be scrutinised and explained to executants. Every deed shall be subject to a thorough scrutiny with a view to ascertain whether it correctly represents the intention of the parties and the Registering Officer shall make sure that the person incurring liability knows the Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 25/59 extent to which his rights are affected. Documents executed by persons who are unable to read shall be read out and if necessary explained to them and the Registering Officer shall ascertian that they clearly understand their purport. Documents written in language which the executants do not understand shall in like manner be interpreted and explained.
35. Recording of endorsement under Sec. 58. If execution by the alleged executant is admitted, and the Registering Officer is satisfied on the point of identity he shall record on the instrument the endorsement required by Sec. 58 of the Act and such endorsement shall be signed by the Registering Officer, the executant and all the witnesses examined; but not such endorsement is necessary on a copy of a decree or order or of a certificate sent under Sec. 89 of the Act."
Now presumption is that all the official acts have/had been regularly performed. Also Relinquishment Deed Ex. DW1/6 (Mark A) being a registered documents, its certified copy can be produced in proof of the contents of the public document of which they purport to the copy. Relinquishment Deed registered under the provisions of Registration Act is a public document. With the attachment of presumption of due compliance of abovesaid rules 33, 34 and 35 of Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 26/59 Delhi Registration Rules 1976 with regard to Relinquishment Deed Ex. DW1/6 (Mark A) stand taken by plaintiffs or defendants nos. 2 to 7 contrary to the presumptions so raised [i.e. (i) as to the identity of executants of Ex. DW1/6; (ii) as to the due execution of Ex. DW1/6 by its executants and (iii) executants knows the extent to which their rights are affected and contents of Ex. DW1/6 have been explained to the executants and they understood the same] cannot be, prima facie, accepted by the Court. If plaintiffs/defendants nos.2 to 7 want to rebut the abovesaid presumptions, it is for them to lead evidence in this regard & such evidence has to be cogent and convincing which will clearly establish that stand taken by plaintiffs/defendants nos. 2 to 7 in their plaint/WS. Mere giving of suggestions in this regard in the absence of positive convincing evidence is not sufficient to rebut the presumption that deserves to be attached to Ex. DW1/6 (Mark A) for the reason of due compliance of the provisions of rules 33, 34 and 35 of Delhi Registration Rules. Thus mere denial of PW1 Smt. Santosh Rani regarding her appearance before SubRegistrar on 30/11/1987 or Ex. DW1/6 (Mark A) not bearing her signature and thumb impression does not benefit the plaintiffs in any manner.
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 27/59
It is noteworthy that PW1 Smt. Santosh Kumari in her cross examination has deposed that thumb impression and the signature on page no.17 of plaint dated 20/04/1987 (in fact plaint is dated 20.4.1993) at point A & B is definitely not mine. In a way question put to witness in her crossexamination is not proper in as much as at point A and B on the plaint there exist signature of Santosh and LTI of Gopal (plaintiff no.1). But, to my mind, instead of replying the question in the manner in which it has been replied, witness PW1 Smt. Santosh Kumari ought to have clarified the aspect to the effect as to whether signature as Santosh in Hindi at point A and B pertains to her or not. But the witness DW1 Smt. Santosh Kumari in a way denied her own signature made by her in Hindi on plaint itself. Thus possibility of PW1 Smt. Santosh Kumari wrongly denying her own thump impression/signature on Ex. DW1/6 (Mark A) cannot be ruled out altogether. Also it is worth noticing that Ex. DW1/6 bears signature of Smt. Santosh in Hindi and in her cross examination she has deposed as under : "................... I put my signature in Hindi and English. Vol. my children taught me to sign in Hindi and English. It is correct that I could sign Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 28/59 in Hindi and my children taught me to sign in English...................."
Above depositions suggest that PW1 Smt. Santosh Kumari originally used to sign in Hindi as she has signed on Ex. DW1/6 but afterwards her children had taught her to sign in English. At the time of execution of DW1/6 (Mark A) PW1 Santosh Kumari was unmarried, as the facts suggest, & thus it bears her signature in Hindi alongwith her thumb impression. No steps have been taken by plaintiffs to prove that signature and thumb impression appearing on Ex. DW1/6 (Mark A) does not pertain to PW1 Smt. Santosh Kumari (Plaintiff No.3). It is alright that original Relinquishment Deed has not been produced by defendant no.1. But record of SubRegistrar regarding DW1/6 (Mark A) was brought by witness from the office of concerned SubRegistrar on 15/12/09. Plaintiffs have not examined any expert witness (i.e. Finger Print and Handwriting Expert) to support their version that Ex. DW1/6 (Mark A) has not been executed by its executants. In view of rule 34 Delhi Registration Rules 1976, it cannot be said that plaintiff no.3 and defendants 3 to 7 were not knowing the contents of Ex. DW1/6 (Mark A) on account of their being illiterate persons. Also if case of plaintiffs and defendant no.3 Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 29/59 to 7 is that concerned SubRegistrar had not followed the rules 33, 34 35 of Delhi Registration Rules 1976, in such an eventuality, said Sub Registrar should have been impleaded as party to this suit. Deciding the above plea of plaintiffs and defendant no. 3 to 7 in the absence of concerned SubRegistrar would be amounting to condemning a person in his absence without giving any hearing to such Sub Registrar which is not permissible as per law.
In this case defendant no.2 to 7 have filed a common WS wherein they have supported, substantially, the version of plaintiffs. It is pertinent to note that, except the filing of WS, defendant no.2 to 7 have not participated in the trial of the case. None appeared for defendant no.2 to 7 after 22/4/2009. No evidence has been lead by these defendants. None of these defendants has appeared in the witness box & offered him/her for cross examination by ld. counsel for plaintiff. To my mind, mere filing of WS by defendant no.2 to 7 does not serve any purpose unless contents of their WS are proved on judicial file in the course of trial by leading cogent and convincing evidence and person (s) filing WS offers himself/herself to cross examination by the other party. Also admissions made by defendant Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 30/59 no.2 to 7 or support given by defendant no. 2 to 7 to the version of plaintiffs cannot prejudice the case of defendant no.1 in any manner in the facts and circumstances of this case. As none of defendant no.2 to 7 has appeared in witness box to prove the contents of their WS, written statement filed by defendants 2 to 7 is to no utility for the purposes of this case. Vide order dated 28/02/2007 brother of defendant no.3 had stated that Sh. S.S. Gupta Adv. who is appearing as counsel for plaintiff is also his counsel in present suit. This fact is suggestive of collusion between plaintiffs and defendant no.2 to 7.
The fact that DW1 Mr. Shri Kishan is not a witness to Ex. DW1/6, or that he has not deposed that Ex. DW1/6 was executed in his presence or that DW1 Mr. Sri Kishan has not identified the signatures of its executants on Ex. DW1/6, to my mind, is to no legal consequences in the facts and circumstances of this case particularly keeping in view the fact that Ex. DW1/6 is a registered document and plaintiffs/defendant no.2 to 7 have not lead adequate evidence to rebut the presumptions attaching to it due to compliance of provisions of Rules 33, 34 and 35 of Delhi Registration Rules 1976 at the time of registration of these documents. To my mind Relinquishment Deed Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 31/59 Ex. DW1/6 (Mark A) stands duly proved on judicial file in this case and case laws relied upon by ld. counsel for plaintiffs have no application in the facts of the case in hand.
Also it is pertinent to note that Ex. DW1/6 (Mark A) pertains to property measuring 105 sq. yards shown in site plan Ex. PW1/3. MINORITY OF MS. SANTOSH KUMARI : Now stand of plaintiffs is that plaintiff no.3 was minor on the date of execution of Relinquishment Deed Ex. DW1/6. In this regard reliance has been placed on Ex. PW1/1 which is a date of birth certificate of PW1 Smt. Santosh Kumari as per which her date of birth is 1751972. Date of execution of Relinquishment Deed Ex. DW1/6 (Mark A) is 30.11.1987. Going by Ex. PW1/1, PW1 Ms. Santosh Kumari was a minor on the date of execution of DW1/6 (Mark A). What is pertinent to note is that on Ex. PW1/1 date of registration has been mentioned as 1.12.1988 (i.e. after the date of execution/ registration of Relinquishment Deed Ex. DW1/6 (Mark A). Certificate Ex. PW1/1 cannot be said to have been issued in ordinary course of official dealings in as much as ordinarily birth/death is to be get registered within a specific period from the date of birth/death but in Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 32/59 this case inordinate delay in getting the birth of PW1 Smt. Santosh Kumari registered with Nagar Palika, Hansi in as much as birth allegedly taking plan on 17/05/1972 is being registered on 1/12/1988. Also it is worth noticing that supporting documents on the basis of which Ex. PW1/1 has been issued has also not been produced/proved on the judicial file. Despite exhibiting Ex. PW1/1 in his affidavit PW1 Ms. Santosh Kumari in her crossexamination has deposed that "I do not remember my date of birth". Further she has deposed that "We were five brothers and three sisters" but she has also deposed that "Sh. Om Prakash was quite old as compared to me. I do not remember the exact difference of age between us. However, he could be 3035 years older to me. I cannot tell the difference between my age and the age of my elder brothers Sh. Hari Chand and Mohan Lal. Same is my answer regarding my elder sisters Smt. Lajja and Smt. Prem Lata Gopal was at number 4 amongst my five brother ............". Any person of ordinary prudence could have easily replied the above questions regarding the age gap amongst the brothers and sisters when so all are residing under a common roof but the facts suggest that witness has intentionally avoided to give proper answers to these Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 33/59 question so as to unable the Court to be able to calculate age of PW1 Smt. Santosh Kumari. PW1 Ms. Santosh Kumari has even gone to the extent that "I do not remember whether my brother Sh. Om Prakash was married or unmarried". This is despite her deposing that "It is correct that the Om Prakash used to live with us". It is not understandable as to why PW1 Ms. Santosh Kumari even is not able to say/depose whether Mr. Om Prakash was married or not despite being his (Mr. Om Prakash's) real sister. This all suggest that PW1 Ms. Santosh Kumari has avoided to give answers to questions put to her in her crossexamination which conclusion affects her over all reliability.
Also it is pertinent to note that Relinquishment Deed Ex. DW1/6 (Mark A) reads as under : "......................................And whereas Shri Tara Chand died on 31.5.1980. He left behind Four sons Executants No.1 to 3 and minor son Sunder Lal age about 14 years, three daughters (Executants No.4 to 6) and Widow said Smt. Vidya Wati. He left behind no other legal heirs Except the said eight persons. He left behind no Will....................................."
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 34/59
The Court has already concluded that Relinquishment Deed Ex. DW1/6 stands duly proved on judicial file. In the said Relinquishment Deed Ex. DW1/6 there is mention of four sons of Mr. Tara Chand, three of whom has executed Ex. DW1/6 and regarding one Sunder Lal it is mentioned that he is minor. Had PW1 Santosh Kumari been also a minor on 30/11/1987, there is no reason as to why her name also would not have been mentioned in Ex. DW1/6 alongwith Sunder Lal as a minor.
Thus this Court is of the opinion that plaintiffs have failed to establish on judicial file that plaintiff no.3 Smt. Santosh Kumari was a minor on the date of execution of DW1/6 on 30/11/1987. WHETHER GOPAL WAS SON OF TARACHAND OR WAS GIVEN IN ADOPTION As per defendant no.1, plaintiff no.1 Gopal (now deceased) is not son of Tara Chand. Reason for this stand has not been given by defendant no.1 in her Written Statement of defence. But in the cross examination of PW1 Smt. Santosh Kumari it has been suggested as under : "It is incorrect to suggest that my brother Sh. Gopal had been given in adoption to my Bua Smt. Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 35/59 Dhano Devi W/o Tara Chand. It is incorrect that Sh. Gopal was brought up by Smt. Dhanno Devi and it is incorrect that all his expenses were borne by Smt. Dhanno Devi. My Bua Smt. Dhano Devi used to live at Delhi but I do not know as to where she used to live in Delhi. It is incorrect that my mother had told the defendant no.1 that Sh. Gopal had been given in adoption to my Bua Smt. Dhano Devi and he had no relationship with us. Vol. He used to live with us.............................." Thus undisputedly, Mr. Gopal (deceased plaintiff no.1) was son of Mr. Tara Chand husband of defendant no.2 Smt. Vidya Wati but question that requires determination is whether he was given in adoption or not to his Bua Smt. Dhanno Devi.
Stand as taken by defendant no.1 regarding adoption of Mr. Gopal by his (Sh. Gopal's) bua had come on record in the course of crossexamination of PW1 Smt. Santosh Kumari though no such specific stand was taken by defendant no.1 in her WS wherein defendant no.1 had broadly taken the stand that Sh. Gopal is not son of Tara Chand. In the Relinquishment Deed Ex. DW1/6 to which PW1 Smt. Santosh Kumari is one of the signatory/executant it has been mentioned that besides the executants of said Relinquishment Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 36/59 Deed Ex. DW1/6, there were no other legal heirs of Mr. Tara Chand who expired on 31/05/1980 except Smt. Vidya Wati and minor son Sunder Lal. This suggest that by the time Relinquishment Deed DW1/6 was executed, Sh. Gopal had already been given in adoption to his bua Smt. Dhanno Devi. To my mind, to negetivate the stand of defendant no.1 regarding Sh. Gopal having been given in adoption to Smt. Dhanno Devi, plaintiffs ought to have examined Smt. Dhanno Devi as their witness in as much as if this Court concludes that Sh. Gopal was not given in adoption to Smt. Dhanno Devi in the absence of Smt. Dhanno Devi, the decision of the Court may prejudicially affect the interest of said Smt. Dhanno Devi. Also it is for the plaintiffs to prove their stand on judicial file by meeting out the stand taken in defence by defendant (s). More so when, suggestively, stand taken by defendant no.1 is prima facie true as per Ex. DW1/6 and depositions of PW1 Smt. Santosh Kumari are not consistant with Ex. DW1/6. PW1 Smt. Santosh Kumari even denied the execution of DW1/6 by her and pleaded minority but these stands of PW1 Smt. Santosh Kumari have not been found worth judicial credence by the Court. For want of examination of their bua Smt. Dhanno Devi by Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 37/59 plaintiffs, to my mind, it cannot be said that Sh. Gopal was not given in adoption to said Smt. Dhanno Devi. Also no documentary proof regarding residence of Sh. Gopal with plaintiffs 1 & 2 and defendants 2 to 7 upto the date when defendant no.1/8 had taken possession of property shown in Site Plan Ex. PW1/3 has been brought on record by plaintiffs. Thus preponderance of probabilities suggest that Sh. Gopal plaintiff no.1 was given in adoption to Smt. Dhanno Devi and thus not entitled to any share in suit property. EX. DW1/1 TO EX. DW1/5 : Defendant no.1 is also relying upon Agreement Deed Ex. DW1/1, General Power of Attorney Ex. DW1/2, Affidavit Ex. DW1/3, Registered Will Ex. DW1/5, Registered Receipt Ex. DW1/4, Undertaking Ex. DW1/8. In the documents Ex. DW1/1, Ex. DW1/2, Ex. DW1/5, Ex. DW1/4, DW1 Sh. Shri Krishan is one of the attesting witnesses. In the agreement deed Ex. DW1/1 and GPA Ex. DW1/2 there is reference of Relinquishment Deed Ex. DW1/6 and Ex. DW1/1 to Ex. DW1/5 bears the thumb impression of Defendant No.2 Smt. Vidya Wati. Presumptions as already discussed do also attach to registered Will Ex. DW1/5 and registered receipt Ex. DW1/4. The Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 38/59 stand of the defendant no.2 to the effect that contents of documents Ex. DW1/1 to Ex. DW1/05 were not explained to her or were not known to defendant no.2 is found to be without any substance in as much as documents Ex. DW1/1 to Ex. DW1/05 have actually been acted upon by defendants 2 to 7 and plaintiffs by way of putting the defendant no.1 into possession of property referred to in these documents. It is the case of the plaintiffs and defendants nos. 2 to 7 that they all were occupying the suit property prior to transactions/dealing alleged in suit which are subject matter of this suit. It is not the case of plaintiffs/defendants no.2 to 7 that they have been forcibly dispossessed from the suit property. During her life Smt. Vidya Wati did not take any action against defendant no.1/8 till her death. PW1 Smt. Santosh Kumari in her crossexamination has deposed that "It is correct that the except the present suit no other suit has been filed by my mother, brothers and sisters including the plaintiffs against defendant no.1 Smt. Asha Rani". Plaintiffs have preferred to maintain silence in their pleadings as regards the circumstances in which defendant no.1 & 8 happened to be placed in possession of the suit property.
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 39/59
By playing fraud on the defendant no.2, she could have been made to sign documents in favour of defendant no.1 & 8 but it is not possible to take possession of the suit property occupied by, as alleged, all the plaintiffs and defendant no.2 to 7 against their sweet/free will merely because, as alleged, by playing fraud on defendant no.2, defendant no.2 has been made to put her thumb impression on documents Ex. DW1/1 to Ex. DW1/5 out of which Ex. DW1/4 and Ex. DW1/5 are registered documents. In the totality of facts and circumstances of this case the fact that DW1 Mr. Sri Krishan has deposed that "The amount was paid before the Sub Registrar Krishan Nagar" but Receipt Ex. DW1/4 mentions regarding advance payment of Rs.45,000/ by Defendant no.1 Smt. Asha Rani to Smt. Vidya Wati is to no legal consequence in as much as had no such payment been received by Smt. Vidya Wati either in advance or in presence of SubRegistrar, there was no occasion for Smt. Vidya Wati to peacefully vacate the suit property and put defendant no.1 and defendant no.8 in possession of the suit property. In view of Ex. DW1/6, there was no need for documents Ex. DW1/1 to Ex. DW1/05 to bear signatures of Smt. Santosh Kumari (plaintiff Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 40/59 no.3). In this case serious allegations have been made against Mr. Brahma Nand and Jai Pal Singh, husband of defendant no.1 Mr. Sri Krishan and, as alleged, documents were executed by defendant no.2 under the influence, spell and control of these persons but none of such persons have been impleaded as necessary parties in the suit and also allegations made in plaint/replication against these persons have not been substantiated on judicial file by leading cogent and convincing evidence. Mere making of bald allegations without proving them on judicial file by leading cogent and convincing evidence does not serve any purpose. Further what cannot be overlooked are the following depositions made by PW1 Smt. Santosh Kumari, the sole witness of plaintiffs, in her cross examination : "................................. I do not know the area of the plot sold by my mother to Smt. Asha Rani. I also do not know whether my mother had sold any portion of the plot to any other person apart from the defendant................... I have filed the suit to challenge the sale by my mother as she could not have sold the share of the minor children ............ It is correct that in my affidavit I have stated that my mother had executed the documents in favour of defendant no.1 but she was not paid any Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 41/59 consideration for the same. I do not know whether my mother took any action against the defendant no.1 for getting the documents executed without making payment. It is wrong to suggest that at the time of execution of the document my mother had also simultaneously given the possession of the plot to defendant no.1 and it is wrong to suggest that the defendant no.1 is in possession of the plot sine then. I cannot tell the time since when defendant no.1 is in possession of the plot. It is correct that at present the defendant no.1 is in possession of the plot in question. ............I cannot say whether my mother had sold 50 sq. yards to the defendant no.1.................................................. I have no knowledge about execution of agreement deed, GPA, affidavit, Will dated 7/01/1988 in favour of Smt. Asha Rani and one document i.e. undertaking executed by Sh. Ram Kumar and Ram Karan in favour of Smt. Asha Rani ................................................." The above depositions and other depositions made by PW1 Smt. Santosh Kumari suggest that the sole witness of plaintiffs PW1 Smt. Santosh Kumari is not disputing the execution of documents by defendant no.2 in favour of defendant no.1 and rather her case (PW1 Smt. Santosh Kumari's) is that her mother had sold the suit property Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 42/59 to defendant no.1.
APPLICATION OF SECTION 8 OF HINDU MINORITY AND GUARDIANSHIP ACT In the case in hand, plaintiff no.2 undisputedly was minor at the time of execution of Ex. DW1/6 or the documents Ex. DW1/1 to Ex. DW1/5. The question that requires determination is whether defendant no.2 could have sold the share of plaintiff no.2 (a minor) in the suit property without permission of ld. District Judge u/s. 8 of Hindu Minority and Guardianship Act. In the case in hand suit property did not belong to plaintiff no.2 (or, for that purpose, to plaintiff no.3 who has otherwise not been found/proved to be a minor) exclusively and they had an undivided interest in suit property after the death of their father Mr. Tara Chand in the year 1980. The suit property was joint property owned by the widow mother (defendant no.2) and plaintiff no.2 and 3 and defendants no.3 to 7. Suit property is/was not exclusive property of plaintiff no.2, a minor. In this regard Hon'ble Bombay High Court in case law reported as Narayan Laxman Gilankar Vs. Uday Kumar Kashinath Kaushik & Ors. AIR 1994 Bombay 152 has ruled as under : Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 43/59 "4. As the preamble suggests, the Act is passed to amend and codify only certain parts of law relating to minority and guardianship among Hindus. It does not purport to cover the whole range of subject of guardianship. Section 2 makes it abundantly clear that the provisions of the Act are in addition to and not in derogation of the Guardians and Wards Act, 1890. Section 5 gives overriding effect to the provisions on the matters dealt with in it and repeals all existing law customary or statutory on those topics. Section 6 deals with natural guardians of a Hindu minor in respect of his person as well as minor's property. His or her undivided interest in joint family property is, however, specifically excluded from that Section. Section 12 clearly lays down that guardian is not to be appointed for minor's undivided interest in joint family property, where the property is under the management of an adult member of the family. The interest of the minor in the joint family property is thus kept outside the reach of these provisions, leaving it to the natural guardian to deal with it in accordance with customary Hindu Law. Section 8 with which this matter is concerned will have to be viewed and interpreted keeping these basic features of the Act in view. Section 8 speaks of power of natural guardian in relation to "immovable property of Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 44/59 minor" which would mean minor's definite property and not his fluctuating indefinite interest in the joint family property. Language employed in S. 8 seems to be in pari materia with S. 29 of the Guardians and Wards Act and hence both will have to be viewed and construed similarly. Thus, it appears that intention of S.8 is not to fetter the customary power of natural guardian in the matter of dealing with joint family property including minor's undivided share."
Reliance in this regard has also been placed by ld. counsel for defendant no.1 on certain case laws already noted in the paragraph dealing with Arguments. Now whether or not suit property was sold for the benefit of the minor or for the family need etc., plaintiffs have maintained silence in the plaint. Defendant no.1 or defendant no.8 being the purchasers cannot be asked to lead evidence in this regard in as much as it was a family matter of plaintiffs and defendant no.2 to 7. It is not at all case of plaintiffs or defendant no.2 to 7 that entire money received out of sale transaction was utilized/misappropriated by family members other than the minor member(s) to the prejudice to the interests of minor member(s). No evidence has been lead by plaintiffs that sale of suit property by defendant no.2 in favour of Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 45/59 defendant no.1 and 8 was not beneficial to minor member(s) of the family or it was not for the family need. It is not the case of minor family member(s) that they were not properly taken care of by the major member(s) of the family and sale consideration was not properly applied by defendant no.2 for the needs or for the benefit of the family as a whole. Thus, to my mind, sale by defendant no.2 of the undivided share/interest of plaintiff no.2 without the permission of ld. District Judge was legal and it did not suffer from any illegality/infirmity.
The fact that documents Ex. DW1/01 to Ex. DW1/05 does not specifically mention that share of plaintiff no.2 or other minors is also being sold is to no legal consequence in the facts and circumstances of this case. No act done by a person, who is the guardian of minor, binds the minor, unless the act was done by him in his capacity of guardian. It is a question of fact in each case, whether a particular act done by a person was done by him in his capacity of guardian or on his own behalf and on his account. In the former case, the act binds the minor, provided, it was otherwise within the power of the guardian; in the latter case, it does not. The mere fact that the name of Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 46/59 the minor is not mentioned in a contract, or in a deed of sale or mortgage, is not conclusive proof that the transaction was not entered into on behalf of the minor. In each case, the language of the document and the circumstances in which it was executed must be considered.
Also in the case in hand section 38 of Transfer of Property Act is favourable to defendant no.1 and defendant no.8 in as much as in the Relinquishment Deed Ex. DW1/6 there was mention of all the LRs of deceased Mr. Tara Chand & it is also mentioned that there is no other LR of Mr. Tara Chand. Also the fact that after the transaction of sale effected between defendant no.1/8 and defendant no.2 the house which was occupied, as per plaintiffs and defendant no.2 to 7, by all the LRs of Mr. Tara Chand was vacated by all of them without any objection of any nature and defendant no.1 and 8 were put in possession thereof to the total exclusion of all the LRs of deceased Mr. Tara Chand goes to suggest that defendant no.2 had acted within her authority to sale the suit property to defendant no.1 and defendant no.8. Even the plaintiff no.1 who is alleging to be occupying the suit property at the time of its sale, did not object to the act of suit Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 47/59 property being vacated and possession thereof being handed over to defendant no.1 and 8. Plaintiff no.1 did not take legal recourse against defendant no.2 and defendant no.1 and 8 at a time when transactions/dealing between them had started. It is not the case that plaintiff no.1 had no knowledge about the transaction/dealing between defendant no.2 and defendant no.1 & 8 in as much as plaintiffs have themselves alleged in plaint that plaintiff no.1 requested the defendant no.2 to 7 not to agree to sell or otherwise transfer and also requested defendant no.1 not to agree to buy the undivided share of defendant no.2 to 7 in suit property and not to buy whole or any portion of suit property but they did not pay any need to it and rather threatened plaintiff no.1 of dire consequences if he comes in their way.
WILL EX. DW1/5 : It view of discussion made uptil this stage, it cannot be said that defendant no.2 had no authority to execute Will Ex. DW1/05 as not being the exclusive owner. As already observed, defendants 3 to 7 and plaintiff no.3 had executed Relinquishment Deed Ex. DW1/6 regarding their share. Plaintiff no.1 was given in adoption to Smt. Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 48/59 Dhanno Devi and plaintiff no.2 was a minor and defendant no.2 was competent to deal with undivided share/interest of plaintiff no.2 in suit property. Here Will Ex. DW1/5 is not to be read in isolation. It has to be read as one of various sale documents such as Agreement to Sell, GPA, Receipt, Affidavit etc. which are got executed at the time of sale of properties as a common/prevalent. DW1 Mr. Sri Krishan is one of the attesting witnesses of the said Will Ex. DW1/5. It is a registered document executed by Smt. Vidya Wati by putting her thumb impression in the presence of attesting witnesses. It has been submitted on behalf of plaintiffs that there is no proof that 2nd witness also attested the Will in the presence of testator & first witness. This submission is without any substance in as much as there is no crossexamination of DW1 Mr. Sri Krishan which could lay foundation for the abovesubmission made by ld. counsel for plaintiffs. It has not been suggested that the testator and the attesting witnesses had not put their thumb mark/signatures in the presence of all others. To my mind, presumption of completion of all the procedural formalities for the due execution of Will Ex. DW1/05 can be attached to said Will as it is a registered Will.
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 49/59
SECTION 44 OF TRANSFER OF PROPERTY ACT 1882 : In this case after sale of suit property by defendant no.2 for herself and on behalf of defendant no.3 to 7, plaintiffs no.3 and plaintiff no.2 to defendant no.1 and defendant no.8, the suit property which was occupied by plaintiffs, as alleged, and defendant no.2 to 7 was vacated and defendant no.1 and defendant no.8 were put in possession of the same. Once possession of its previous occupants stands already completely disturbed and these persons are no more in possession of any portion of suit property para. 2 of section 44 of Transfer of Property Act, 1882 has no application at all. Hence in the totality of facts and circumstances of this case section 44 of T.P. Act has no application to the benefit of plaintiffs and defendant no.2 to 7.
In view of above detailed discussion, to my mind, plaintiffs are not entitled to any relief vide issues no. 1,2,3,4, & 5 either against defendant no. 1 or against defendant no. 8. As regards defendant no. 1 it is specifically observed that part of the suit property stood sold to defendant no. 1 through documents Ex. DW1/1 to DW1/5 on the basis of relinquishment deed Ex. DW1/6 executed by defendant no. 3 to 7 and plaintiff no. 3 Smt. Santosh Kumari in favour of defendant no. 2.
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 50/59
Also defendant no. 2 was duly competent to sell the undivided sale of plaintiff no. 2 as his guardian without taking any permission from Ld. District Judge. Plaintiff no.1 has been observed to have been given in adoption. No relief is being granted to plaintiffs even against defendant no. 8 who is otherwise exparty from the very beginning and has not at all contested the suit of the plaintiffs in as much as when the stand taken by plaintiffs and defendant no. 2 to 7 in respect of transaction / dealing of sale of part of suit property to defendant no. 1 has not been found worth judicial credence by the court and averments made in the plaint suggest that documents were executed in favour of defendant no. 1 and defendant no. 8 in the course of the same transaction and in fact plaintiffs have gone to the extent of alleging that agreement to sell for the suit property was executed in favour of defendant no. 1 and defendant no. 8. who is real brother of defendant no. 1 and is Benami of defendant no. 1. The fact that defendant no. 8 has been proceeded against exparte does not benefit the plaintiffs in any manner in as much as irrespective of the fact that defendant no. 8 is exparte plaintiffs are supposed to prove their case on judicial file by leading cogent and convincing evidence and their Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 51/59 suit against defendant no. 8 cannot be decreed merely because defendant no. 8 has not cared to contest the case filed against him by the plaintiffs. When the entire stand taken by the plaintiffs in respect of dealing between defendant no. 2, acting for herself and on behalf of plaintiff no. 2 and defendants no. 3 to 7, and defendant no. 1 has not been found to be worth judicial credence, there is no reason to believe the version of the plaintiffs against defendant no. 8. More so when defendant no. 2 on her behalf and on behalf of defendant no. 3 to 7 and plaintiffs no. 2 and 3 had dealt with defendant no. 1 and 8 in the course of one and the same transaction. Also case of the plaintiffs against the defendant no. 1 and 8 stands on the same averments which have not been substantiated on judicial file.
As this court has found no fault in the act of defendant no. 2 selling the suit property to defendant no. 1 and defendant no. 8 it can be said that plaintiffs have no locus standi to file the present suit. Further as plaintiffs have miserably failed to prove on judicial record the stand taken by them in the plaint it can also be said that suit has been filed by the plaintiffs without any cause of action.
In view of above detailed discussions, issue no. 1,2,3,4 & 5 are Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 52/59 decided against the plaintiffs and issue no. 7 & 9 are decided in favour of the defendant. Issue stand decided accordingly. ISSUE NO. 6
Whether the suit of the plaintiffs is not maintainable in its present form ? OPD1 This suit has been instituted by plaintiff no.2 and 3 who were minors at the time of filing the suit through plaintiff no.1 who is their natural elder brother. There is no conflict of interests between plaintiff no.1 and plaintiffs nos. 2 and 3. Father of plaintiffs nos. 2 and 3 has already expired and mother is defendant no.2 in this suit. This Court finds no defect in the frame of suit as such keeping in view the facts giving rising to alleged cause of action and relief sought. Thus this issue is accordingly decided in favour of plaintiffs. ISSUE NO. 8
Whether the suit of the plaintiffs is bad for misjoinder and non joinder of necessary parties ? OPD1 In the present case plaintiffs have made serious allegations against Brahamand and Mr. Jai Pal Singh, husband of defendant no.1 said Brahmanand is attesting witness registered relinquishment deed Ex. DW1/6. But none of these persons have been impleaded in the Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 53/59 suit as parties and for these reasons at least Mr. Brahmanand and Jai Pal Singh have been deprived of opportunity of hearing in as much as otherwise husband of defendant no.1 has appeared in Court as attorney of defendant no.1.
Also plaintiffs have raised grievances against the Sub Registrar who was instrumental in the registration of relinquishment deed Ex. DW1/6 but the said SubRegistrar was not made a party to the present proceedings despite the fact that allegations made by plaintiffs qua Ex. DW1/6 were of such a nature that deciding those allegations in the absence of the said Sub Registrar would have amounted to condemning the said Sub Registrar with regard to his official functions unheard. In such circumstances to my mind, above said Sub Registrar deserved to be impleaded as party to the present suit but he was not so impleaded. It is worth noticing that abovesaid persons are not necessary parties to the suit but they were, at least, proper parties to the suit in as much as their presence was required for the just and proper decision of the suit. These persons were not necessarily parties in as much as these persons are not otherwise having any right/title/interest in the suit property qua which reliefs Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 54/59 have been sought in this suit. Issue is accordingly decided against the defendants.
ISSUE NO. 10
Whether the suit of the plaintiffs has not been properly valued for the purpose of court fee and jurisdiction ? OPD1 Regarding the valuation of suit it has been submitted by ld. counsel for defendant no.1 that suit was filed in the year 1989 when pecuniary jurisdiction of the Court of Civil Judge, Delhi was upto Rs. 25,000/ and pursuant to order dated 1.04.2008 passed by ld. predecessor of this Court plaint stands amended to value the suit for the purposes of jurisdiction to Rs.75,997/ and thus suit has not been properly filed. Further ld. counsel for defendant no.1 has submitted that order dated 1.04.2008 has not been complied by plaintiffs. Further it is submitted that no evidence has been lead regarding the valuation of Rs.23,000/ put by plaintiffs for the relief of recovery of possession against defendant no.1. On the other hand, ld. counsel for plaintiffs has submitted that on 16/05/2008, an application was moved u/s. 151 CPC with the prayer to confirm the amount of Court fee as per order dated 1.04.2008 but no order has been passed till date on the Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 55/59 said application. Also ld. counsel for plaintiffs submitted that plaintiffs are ready and willing to pay Court fee as per order of the Court.
By order dated 1.04.2008 ld. predecessor of this Court had ordered that "....... the relief for declaration and cancellation has to be valued according to the value of the documents whence the relief has been sought by valuing the same by the plaintiff and fixed Court fee is not payable on the said reliefs". Thereafter plaintiffs have valued the suit for relief of cancellation of documents at Rs.45,000/. However it is pertinent to note that plaintiffs are seeking relief for the cancellation of documents pertaining to both defendant no.1 as well as defendant no.8 and Court fee has been paid only for the value of the documents of defendant no.1 only. To my mind, plaintiffs are further liable to pay Court fee on the value of documents of defendant no.8 as well, in as much as even his documents are sought to declared & cancelled in the same manner as that of defendant no.1. The fact that documents of defendant no.8 are not there on judicial file is to no consequence. At least, plaintiffs ought to have paid Court fee on the same value for which Court fee has been paid for the documents of Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 56/59 defendant no.1 in as much as both the documents of defendant no.1 and 8 were executed at the same point of time and they pertained to same area of land. As alleged by defendant no.2 to 7 in their WS, defendant no.2 was made to admit before SubRegistrar that she has received Rs.45,000/ from defendant no.8 Mr. Devi Charan. Also DW1 Mr. Sri Krishan in his crossexamination has been male to depose as under : "It is correct that the defendant no.1 claims to have purchased the 50 sq. yards property in question on the basis of documents Ex. DW1/1 to Ex. DW1/5 and no other documents. The site plan Ex. DW1/7 and Ex. DW1/9 pertains to the whole of the property i.e. 105 sq. yards and not 50 sq. yards of plot as shown in Ex. DW1/9 the possession of 50 sq. yards is with defendant no.1 and the possession of the rest of the same plot measuring 55 sq. yards is with Devi Charan. It is correct that after my purchasing 50 sq. yard the remaining left area was purchased by Devi Charan from defendant no.2 Vidhyawati ............." But plaintiffs have not paid such Court fee. However it is also to be noted that plaintiffs have valued the suit for relief of recovery of possession against defendant no.1 for Rs.23000/. Plaintiff is Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 57/59 prayering for decree of possession in respect of whole of the suit property against defendant no.1 as well as defendant no.8. Thus paying of Court fee only with regard to defendant no.1 will not suffice. If plaintiff is claiming possession against both the defendants no.1 & 8, plaintiffs are supposed to pay Court fee against the properties of both the abovesaid defendants. In the facts and circumstances of this case, for the relief of decree for possession as well, suit deserved to be valued at least to the tune of Rs.45000/ + 45000/ = Rs.90,000/.
Also for the decree for partition of suit property, suit has to be valued for the purposes of jurisdiction at the market value of land and for the purposes of Court fee on the value of the share(s) of the plaintiffs. Thus suit deserved to be valued for the purposes of jurisdiction at least at Rs.90000/ and for the purposes of Court fee at Rs.30000/. Onus regarding issue of valuation was on defendant no.1 but no cogent & convincing evidence has been lead by defendant no.1 on this issue and thus stand of defendant no.1 that value of suit property at the time of filing of suit was more than Rs.2.00 lacs cannot be believed to be accepted to judicial mind. In view of above Anand Swaroop Aggarwal Date:7/02/2012 SCJCumRC : East, Delhi Suit No. 626/08 Page 58/59 discussion this issue deserves to be decided against plaintiffs. Suit even otherwise merits dismissal in view of my findings on other issues.
RELIEF In view of my above findings on various issues suit of plaintiffs merits dismissal and same is hereby dismissed. Parties to bear their own cost. Decree sheet be prepared. File be consigned to RR.
Pronounced in the open court on (Anand Swaroop Aggarwal)
07/02/2012 SCJCumRC : East Delhi
Anand Swaroop Aggarwal
Date:7/02/2012 SCJCumRC : East, Delhi
Suit No. 626/08 Page 59/59