Delhi District Court
Farman vs Furqan on 29 October, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CS 476594/2015
CNR NO.DLNE01-000069-2009
FARMAN
SON OF LATE AHMED ALI
RESIDENT OF 1700-A
KAILASH NAGAR
DELHI-110094
.... PLAINTIFF
V
1. FURQAN
SON OF LATE AHMED ALI
RESIDENT OF L-22, SUNDER NAGRI
NAND NAGRI EXTENSION, SHAHDARA
DELHI-110093
2. SADIQ
SON OF FURQAN
RESIDENT OF L-22, SUNDER NAGRI
NAND NAGRI EXTENSION, SHAHDARA
DELHI-110093
3. ABDUL REHMAN
SON OF ABDUL SHAKOOR
RESIDENT OF N-122, SUNDER NAGRI
NAND NAGRI EXTENSION, SHAHDARA
DELHI-110093
4. MAJID
SON OF FURQAN
RESIDENT OF L-22, SUNDER NAGRI
NAND NAGRI EXTENSION, SHAHDARA
DELHI-110093
5. RESHMA
DAUGHTER OF FURQAN
RESIDENT OF L-22, SUNDER NAGRI
NAND NAGRI EXTENSION, SHAHDARA
DELHI-110093
CS 476594/2015 FARMAN V FURQAN AND OTHERS 1/40
AND
HOUSE NO 35, O.BLOCK
SUNDER NAGRI
DELHI
(DEFENDANT NO 2 TO 5 WERE IMPLEADED VIDE ORDER DATED 10.08.2010)
6. ANWARI BEGUM
WIFE OF AKHTAR HUSSAIN
DAUGHTER OF LATE AHMED ALI
CARE OF IMAM KHABIM QADRI ALAM
(MARKAZI JAMA MASJID)
JHUGGI NO 4, MOHALLA A.B. SINIYA
POST OFFICE SADAR
KARACHI, PAKISTAN
7. ANWARI BEGUM
WIFE OF MOHD HANIF
DAUGHTER OF LATE AHMED ALI
RESIDENT OF HOUSE NO R-293, SECTOR 2-AR
NIZAMI ROAD, LINE AREA, OLD NUMAISH
KARACHI, PAKISTAN
8. MANNO
WIFE OF KAMME
DAUGHTER OF LATE AHMED ALI
RESIDENT OF QUARTER NO H-54
KAMAL AKBAR ROAD, LALZERIA
SADAR KARACHI
KARACHI, PAKISTAN
9. SHAMSHAD
SON OF AKHTAR HUSSAIN
RESIDENT OF HOUSE NO 531, SECTOR 5/B/2
NEAR TWO MINUTE CHAURANGI
NORTH KARACHI, PAKISTAN
(DEFENDANT NO 6 TO 9 WERE IMPLEADED VIDE ORDER DATED 02.04.2012)
....DEFENDANTS
INSTITUTION: 19.11.2009
ARGUMENTS: 21.10.2020
JUDGMENT:29.10.2020 SUIT FOR DECLARATION, PARTITION, RENDITION OF ACCOUNT AND PERMANENT INJUNCTION JUDGMENT CS 476594/2015 FARMAN V FURQAN AND OTHERS 2/40
1. The plaintiff filed present suit for declaration, partition, rendition of account and permanent injunction and pleaded as under:-
Late Ahmed Ali, father of the plaintiff and the defendant no1, during lifetime on 26.08.1994 purchased properties bearing no J-293, Sunder Nagri, Nand Nagri Extension, Shahdara, Delhi-110093 (hereinafter referred to "the property bearing no J-293") from Bhagwan Dass son of Budha Singh in his name and bearing no J-294, Sunder Nagri, Nand Nagri Extension, Shahdara, Delhi-110093 (hereinafter referred to "the property bearing no J-294") from Tarawati wife of Bhagwas Dass in name of defendant no 1 on execution of title documents by paying entire sale consideration. The defendant no 1 held the property bearing no J-294 in fiduciary capacity and for benefit of Late Ahmed Ali without having right, title or interest whatsoever. Late Ahmed Ali in year 1997 raised constructions over properties bearing no J-293 and J-294 as a single unit out of his own funds and on various occasions expressed that the plaintiff and defendant no 1 shall be owners of the properties bearing no J-293 and J- 294 in equal shares after his demise as other children of Late Ahmed Ali i.e. the defendant no 6 to 9 have already migrated and settled in Pakistan before purchase of properties bearing no J-293 and J-294 and do not have any right, title and interest in the properties bearing no J-293 and J-294. The alleged transfer of the property bearing no J-293 by Late Ahmed Ali in favor of the defendant no 2 on execution of General Power of Attorney and Gift Agreement dated 26.12.1997 was an act of forgery and fraudulent fabrication of documents as Gift Agreement and unregistered General Power of Attorney dated 26.12.1997 do not create or transfer any right, title or interest whatsoever in favor of the defendant no 2. Ahmed Ali expired on 08.09.1999. The defendant no 2 consequently cannot create any right, title or interest whatsoever in respect of the property bearing no J-293 in favor of the defendant no 3 by executing General Power of Attorney, Agreement to Sell and Receipt dated 07.06.2001. The defendant no 3 cannot create any right, title or interest whatsoever in respect of property bearing no J-293 in favor of Ameena on execution of General Power of Attorney, Agreement to Sell and Receipt dated 24.07.2001. Ameena cannot create any right, title or interest whatsoever in respect of property bearing no J-293 in favor of the defendant no 1 on execution of General Power of Attorney, Agreement to Sell, Receipt and Will dated 1.11.2007.
The defendant no 1 let out the properties bearing no J-293 and J-294 and is realizing monthly rent @ Rs. 10,000/- but never rendered account of rent received by him. The plaintiff is CS 476594/2015 FARMAN V FURQAN AND OTHERS 3/40 entitled for partition of the properties bearing no J-293 and J-294 to extent of half share and to receive 1/2th share in rental income. The plaintiff lastly requested the defendant no 1 for partition of the properties bearing no J-293 and J-294 on 15.11.2009 which was refused by the defendant no 1 and threatened to sell the properties bearing no J-293 and J-294. The defendant no 1 does not have exclusive rights over the properties bearing no J-293 and J-294. The plaintiff filed present suit for declaration, partition, rendition of account and permanent injunction and prayed as under:-
(a) Pass a decree of cancellation of the purported General Power of Attorney and of purported Gift Deed dated 26.12.1997 allegedly executed by Sh. Ahmed Ali in favour of the defendant no. 2 as forged, fabricated and void ab initio, having no effect in the eyes of law and thus having not created/not creating or transferring any right, title or interest, of any nature, whatsoever and to any extent, in immovable property no. J-293, Sunder Nagri, Nand Nagri Extension, Shahdara purported documents, in favour of the plaintiff and against the defendants.
(b) Pass a decree of cancellation of the agreement to sell and receipt dated 07.06.2001 allegedly executed by the defendant no. 2 in favour of the defendant no. 3 of the agreement to sell and receipt dated 24.07.2001 allegedly executed by the defendant no. 3 in favour of Smt. Ameena wife of Sh. Furqan and further the alleged documents i.e. General Power of Attorney, Agreement to Sell, Receipt and Will dated 01.11.2007 alleged to have been executed by Smt. Ameena in favour of the defendant no.1 as forged, fabricated and void ab initio, having no effect in the eyes of law and thus having not created/not creating or transferring any right, title or interest, of any nature, whatsoever, and to any extent, in immovable property no. J-293, Sunder Nagri, Nand Nagri Extension, Shahdara purported documents;
(c) Pass a decree of cancellation of purported General Power of Attorney dated 07.06.2001 allegedly executed by the defendant no. 2 in favour of the defendant no. 3 and of the purported General Power of Attorney dated 24.07.2001 allegedly executed by the defendant no. 3 in favour of Smt. Ameena wife of Sh. Furqan as forged, fabricated and void ab initio, having no effect in the eyes of law and thus having not created /not creating or transferring any right, title or interest, of any nature, whatsoever, and to any extent, in immovable property no. J-293, Sunder Nagri, Nand Nagri Extension, Shahdara Delhi besides the direction to deliver up the purported documents and of consequent cancellation of registration of the above documents in favour of plaintiff and against the defendants with necessary directions to the office of Sub Registrar, District North East, Delhi for recording the cancellation of the above documents;
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(d)Pass decree of declaration declaring purported transfer of the immovable property no. J-293, Sunder Nagri, Nand Nagri Extension, Shahdara Delhi in favour of defendant no. 1 on 01.11.2007 to be illegal, null, void and without any effect.
(e) Pass decree of declaration declaring that the immovable property no.
J-294, Sunder Nagri, Nand Nagri Extension, Shahdara Delhi though acquired by Sh. Ahmed Ali in the name of the defendant no. 1, was to be held in fiduciary capacity and in trust and for benefit of late Sh. Ahmed Ali, with defendant no. 1 having no right, title or interest of any nature, whatsoever.
(f) Pass a decree of declaration in favour of the plaintiff and against the defendants thereby declaring the plaintiff as the equal joint owner alongwith the defendant no. 1 of property bearing no. J-293 & J-294 measuring 22.5 sq. yards each, situated at Sunder Nagri, Nand Nagri Extension, Shahdara Delhi as shown in the site plan annexed.
(g) Pass a preliminary decree of partition in favour of the plaintiff and against the defendants, thereby holding the plaintiff entitled to ½ share in the suit property bearing no. J-293 & J-294 measuring 22.5 sq. yards each, situated at Sunder Nagri Extn., Shahdara Delhi as more specifically shown in the site plan annexed and to appoint a Local Commissioner to ascertain and suggest the mode of partition to partition / divide the suit property by metes and bounds between the plaintiff and the defendant no. 1 or in the alternative if this Hon'ble Court adjudicates that all the legal heirs of late Shri Ahmed Ali are entitled to a share in the suit properties then to pass a preliminary decree of partition amongst all the legal heirs of late Shri Ahmed Ali i.e. plaintiff, defendants no 1,6,7,8 and 9 as per their respective shares derived under Muslim Personal Law.
(h) Pass a final decree of partition thereby partitioning and separating the share of the plaintiff in the suit property by metes and bound and to put the plaintiff in possession of his share.
(i) Pass a decree of Rendition of Account, directing the defendant no 1 to give the account of the rental income for the last three years of the rent realized from the suit properties no J-293 & J-294, measuring 22.5 sq. yards each situated at Sunder Nagri, Nand Nagri Extn. Shahdara, Delhi as more specifically shown in the site plan annexed to the plaintiff and to give the share of the plaintiff in the said rental income.
(j) Pass a decree of Permanent Injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants from selling, transferring or disposing of or creating ant mortgage or interest of any third party, parting with possession of the suit properties no J-293 & J- 294, measuring 22.5 sq. yards each situated at Sunder Nagri, Nand CS 476594/2015 FARMAN V FURQAN AND OTHERS 5/40 Nagri Extn. Shahdara, Delhi as more specifically shown in the site plan annexed.
(k) Costs of the suit be also awarded in favour of the plaintiff and against the defendants.
(l) Such other or further relief which this Hon'ble Court may deem fit and proper be also granted in favour of the plaintiff.
2. The defendant no 1 filed written statement and contested claims of the plaintiff. The defendant no 1 in preliminary objections stated that suit does not disclose cause of action against the defendant no 1 and is liable to be rejected under Order VII Rule 11 CPC. The suit is not properly valued for purposes of court fee and jurisdiction. The plaintiff is neither owner nor in possession of the properties bearing no J-293 and J-294. The defendant no 1 on reply to merits stated that the defendant no 1 purchased the property bearing no J-294 on 26.08.1994 from Tarawati for sale consideration of Rs. 60,000/- and property bearing no J-293 was ultimately transferred in favor of the defendant no 1 on 01.11.2007. The defendant no 1 raised constructions over properties bearing no J-293 and J-294 out of his own funds. Late Ahmed Ali transferred property bearing no J-293, Sunder Nagri, Nand Nagri Extension, Shahdara, Delhi in favor of the defendant no. 2 on 26.12.1997. The plaintiff does not have any right in the properties bearing no bearing no J-293 and J-294 and the defendant no 1 being the owner of the properties bearing no J-293 and J-294 can sell or dispose of these properties. The defendant no 1 also denied other pleas of the plaintiff.
The defendant no 3 in stated that suit is liable to be rejected under Order VII Rule 11 CPC. The defendant no 3 is not a necessary party. The plaintiff is neither owner nor in possession of the properties bearing no J-293 and J-294. Late Ahmed Ali purchased the property bearing no J-293, Sunder Nagri, Nand Nagri Extension, Shahdara, Delhi-110093 from Bhagwan Dass on 26.08.1994. The defendant no 3 purchased the property bearing no J- 293 from the defendant no 2 and thereafter transferred the property bearing no J-293 to Ameena wife of the defendant no.1. The defendant no 2, 4 and 5 were ordered to be proceeded ex parte vide order dated 23.12.2010. The defendant no 3 was ordered to be proceeded ex parte vide order dated 21.10.2020. The defendant no 6 to 9 were ordered to be proceeded ex parte vide order dated 06.07.2012.
3. The plaintiff filed replications to respective written statement of the defendant no 1 and the defendant no 3 wherein reaffirmed and reiterated pleas as mentioned in plaint.
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4. Vide order dated 07.05.2010 following issues were framed:-
1. Whether the plaintiff is entitled to one half share in the suit property? OPP
2. Whether the plaintiff is entitled to a decree of rendition of account? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction? OPP
4. Whether the suit of the plaintiff is liable to be dismissed u/o 7rule 11 of CPC? OPD
5. Whether the plaintiff has not assessed the value of the suit property and whether the proper court fees has not been fixed by the plaintiff? OPD
6. Relief.
Vide order dated 06.07.2012 issues were ordered to be reframed due to amendment in plaint. The issues were reframed as under:-
1. Whether gift deed and GPA dated 26.12.97 allegedly executed by Late Sh. Ahmad Ali in favour of D2 in respect of J-293, Sunder Nagri, Nand Nagri Extension, Shahdara, Delhi are forged and fabricated? OPP If in the affirmative, whether transfer of the suit property by defendant no. 2 in favour of defendant no. 3, vide documents of title dated 07.06.2001 and subsequent transfer of the suit property by defendant no. 3 in favour of Smt Ameena wife of Furkan vide documents of title dated 24.07.01 and execution of will dated 01.11.07 by Late Smt Ameena in favour of D 1 are null and void having no effect? OPP
2. Whether the defendant no 1 is holding property bearing no J-294, Sunder Nagri, Nand Nagri, Shahdara, Delhi in fiduciary capacity in trust and benefit of Late Sh. Ahmed Ali and defendant no 1 has no independent right, title or interest in the same? OPP
3. Whether the plaintiff is entitled to declaration that he is entitled to half share in the suit property? OPP
4. Whether plaintiff is entitled to decree for partition, rendition of account and permanent injunction as prayed for? OPP
5. Whether any valid will dated 01.11.07 was executed by Smt Ameena in favour of defendant no 1? OPD1
6. Relief.
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5. The plaintiff examined him as PW1, Rajesh Kumar, LDC, SDM-II, Head Quarter, Collector of Stamp, Civil Lines as PW2 and Ajay Nagar, Assistant Ahlmed, Shahdara as PW3. The plaintiff tendered affidavit Ex. PW1/A and additional affidavit Ex. PW1/B and referred documents Ex. PW1/3 to Ex. PW1/23 in evidence. PW2 Rajesh Kumar produced documents Ex. PW2/1, Ex. PW2/2 and Ex. PW1/20. PW3 Ajay Kumar Nagar produced Action Taken Report Ex. PW3/A submitted in complaint case bearing no 408/2010/13. The plaintiff's evidence was ordered to be closed vide order dated 05.04.2016. The plaintiff filed an application under section 45 of the Evidence Act, 1872 for appointment of expert to examine document Ex. PW1/8 i.e. Agreement to Sell dated 26.08.1994 which was dismissed vide order dated 03.03.2016. The plaintiff preferred CM(M) 438/2016 before Delhi High Court impugning order dated 03.03.2016 which was allowed vide order dated 23.05.2017. The plaintiff in pursuance of order dated 23.05.2017 examined Syed Faizal Huda, Forensic Expert as PW4 who produced Fingerprint Verification Report as Ex. PW4/A. The defendant no 1 examined him as DW1 and tendered affidavit Ex. DW1/A in evidence. The defendant no 1 in cross-examination referred documents which are Ex. DW1/P1 to Ex. DW1/P5. The evidence of the defendant no 1 was ordered to be closed vide order dated 01.12.2016.
6. Sh. Nitin Nayyar, Advocate for the plaintiff and the Sh. S. K. Jain, Advocate for the defendant no 1 heard. The counsel for the plaintiff also submitted written arguments which are considered. Record perused.
7. The burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Evidence Act, 1872 dealing with burden of proof are produces as under:-
101. Burden of proof.--
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
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102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.--
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another,VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 decided on 13th May, 2011 by the Supreme Court observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
ISSUEWISE FINDING ARE AS UNDER
ISSUE NO 2
CS 476594/2015 FARMAN V FURQAN AND OTHERS 9/40
Whether the defendant no 1 is holding property bearing no J-294, Sunder Nagri, Nand Nagri, Shahdara, Delhi in fiduciary capacity in trust and benefit of Late Sh. Ahmed Ali and defendant no 1 has no independent right, title or interest in the same? OPP
8. The plaintiff pleaded that Late Ahmed Ali was actual and real owner of the property bearing no J-294 having purchased from Tarawati wife of Bhagwas Dass by paying entire sale consideration but in name of defendant no. 1 on execution of title documents and the defendant no 1 as such was holding property bearing no J-294 for benefit of Late Ahmed Ali without having right, title or interest. The plaintiff in affidavit Ex. PW1/A tendered in evidence also deposed that DDA allotted the property bearing no 294 to original allottee vide receipt Ex. PW1/11 and Tarawati wife of Bhagwas Dass purchased property bearing no J-294 from original allottee vide General Power of Attorney Ex. PW1/12, Agreement to Sell Ex. PW1/13 and registered Receipt Ex. PW1/14 all dated 29.06.1984. Late Ahmed Ali purchased said property from Tarawati in name of the defendant no 1 on execution of General Power of Attorney Ex. PW1/15, Agreement to Sell Ex. PW1/16, Receipt Ex. PW1/17 and registered Will Ex. PW1/18 all dated 26.08.1994. The defendant no 1 at that time was having meager income and was financially dependent on Late Ahmed Ali. The defendant no 1 claimed ownership over property bearing no J-294 and deposed in affidavit Ex. DW1/A that he purchased the property bearing no J-294 from Tarawati and the plaintiff does not have any right over said property.
9. The counsel for the plaintiff argued at length to establish that Late Ahmed Ali was real owner of the property bearing no J-294 and argued that the property bearing no J-294 was purchased by Late Ahmed Ali out of his own funds in the name of defendant no. 1 and the defendant no 1 held the property bearing no J-294 in fiduciary capacity, interest and benefit of late Ahmed Ali who in the year 1997 carried out constructions by joining the properties bearing no J-293 and J-294 as a single unit out of his own funds and referred testimony of the plaintiff as PW1. The plaintiff in affidavit Ex. PW1/A deposed that the defendant no. 1 was having meagre income and was unable to maintain him independently and was financially dependent upon his father. The counsel for the plaintiff also referred cross examination of the plaintiff and argued that no suggestion was given to the plaintiff that late Ahmed Ali was not having funds or resources either to purchase the property bearing no J-294 or to raise construction over the properties bearing no J-293 and J-294. The counsel for the plaintiff also CS 476594/2015 FARMAN V FURQAN AND OTHERS 10/40 argued that the defendant no. 1 who is claiming to purchase the property bearing no J-294, out of his own funds and resources miserably failed to lead any evidence to establish availability of funds and resources with him to purchase the property bearing no J-294 or availability of funds or resources for raising construction over the properties bearing no J-293 and J-294. The counsel for the defendant no 1 argued that the defendant no 1 proved by substantial and adequate evidence that the defendant no 1 actually purchased the property bearing no J-294 and is actual and real owner of the property bearing no J-294.
10. The concept of ownership is one of the fundamental juristic concepts common to all systems of law. Ownership is a relation of a person to an object which is exclusive or absolute and ultimate. The person who stands in this relation is called the 'owner' and he has a right of complete control and enjoyment of the object. Ownership is a right of dominium over the property. The idea of ownership followed the idea of possession. Ownership denotes the relationship between a person and any right that is vested in him. Ownership may be absolute or restricted. An owner of property may be absolute and nobody else may have any interest in property. There may be certain restrictions on the right of ownership imposed by either law or by voluntary agreement. Ownership of a person does not diminish with his death. He is entitled to leave his property to his property to his successors. Owner can distribute the property even in his own lifetime. Ownership can be derived from a previous owner such as acquired by inheritance or gift or purchase etc.
11. The facts which are emerging from analysis of respective pleadings and evidence of the plaintiff and the defendant no1 are that DDA allotted the property bearing no J-294 in favor of Ayodhya wife of Nafe Singh vide receipt Ex. PW1/11. Ayodhya transferred said property in favor of Tarawati wife of Bhagwan Dass on execution of General Power of Attorney Ex. PW1/12, Agreement to Sell Ex. PW1/13 and registered Receipt Ex. PW1/14 for sale consideration of Rs. 15,500/-. Tarawati executed General Power of Attorney Ex. PW1/15, Agreement to Sell Ex. PW1/16, Receipt Ex. PW1/17 and registered Will Ex. PW1/18 all dated 26.08.1994 in favor of the defendant no 1.The main controversy regarding the property bearing no J-294 between the plaintiff and the defendant no 1 which requires judicial consideration and adjudication is that whether the defendant no 1 is holding the property bearing no J-294 for benefit of Late Ahmed Ali as the defendant no 1 is claiming ownership of the property bearing no J-294 having purchased from Tarawati on execution of documents Ex.
CS 476594/2015 FARMAN V FURQAN AND OTHERS 11/40 PW15 to Ex. PW1/18 while the plaintiff pleaded that Late Ahmed Ali purchased the property bearing no J-294 in name of the defendant no1 who is holding the property bearing no J-294 for benefit of Late Ahmed Ali.
12. The plaintiff although did not specifically pleaded that the defendant no 1 is benami owner of the property bearing no J-294 but it is reflecting that as per the plaintiff Late Ahmed Ali was actual and real owner of property bearing no J-294 but he purchased said property in name of the defendant no 1. In India benami transactions were not alien prior to enactment of the Benami Transactions (Prohibition) Act, 1988 which came into force on 19 th May, 1988. In benami transactions a person buys a property with his own money in the name of another person without any intention to benefit such other person. In benami transactions the real title is divorced from the ostensible title and vested in different person. The 1988 Act was enacted with an aim to prohibit the benami transactions which is define as a transaction in which property is transferred to one person for a consideration paid or provided by another person. The 1988 Act further prohibits recovery of the property held benami from benamidar by the real owner and properties held benami were also liable for confiscation. Section 3 of 1988 Act prohibits benami transactions. Sub section (1) provides that no person shall enter into any benami transaction. Section 4 deals with prohibition of the right to recover property which is held benami. Sub section (1) provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. Sub Section (2) provides that no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
13. The Supreme Court in various pronouncements considered burden to prove benami transaction and factors determinative of benami transactions. In Jaydayal Poddar V Bibi Hazra (Mst.), (1974) 1 SCC 3 it was observed and held by the Supreme Court that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner always rests on the person asserting it to be so. It is further observed that this burden has to be strictly discharged by adducing legal evidence of a definite character which would either CS 476594/2015 FARMAN V FURQAN AND OTHERS 12/40 directly prove the fact of the benami transaction or establish circumstances unerringly and reasonably raising an interference of that fact. It was observed as under:-
It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances:(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
In Thakur Bhim Singh V Thakur Kan Singh, (1980) 3 SCC 72 the Supreme Court observed and held as under:-
The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his CS 476594/2015 FARMAN V FURQAN AND OTHERS 13/40 intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. In Binapani Paul V Pratima Ghosh, (2007) 6 SCC 100 the Supreme Court after considering decision in Valliammal V Subramaniam, (2004) 7 SCC 233 observed and held that the source of money had never been the sole consideration. It is merely one of the relevant considerations but not determinative in character. In P. Leelavathi V Shankarnarayana Rao, (2019) 6 SCALE 112 the Supreme Court while considering whether a particular transaction is benami in nature, the following six circumstances can be taken as a guide:-
(1) the source from which the purchase money came (2) the nature and possession of the property, after the purchase (3) motive, if any, for giving the transaction a benami colour (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.
In Mangathai Ammal (Died) Through LRs and Others V Rajeswari, Civil Appeal No 4805 OF 2019 decided on 09th May, 2019 the Supreme Court of India, the original plaintiffs instituted the suit before the Trial Court for partition of the suit properties by pleadings that the suit properties were ancestral properties and purchased in the name of - defendant no.1 and the suit properties were in absolute possession and enjoyment of the Joint Family Property since the date of purchase. It was not specifically pleaded by the plaintiffs that the sale deeds/transactions in favor of defendant no.1 were benami transactions. It was also not pleaded that the suit properties were purchased in the name of defendant no.1 from the income derived out of the ancestral properties and the Trial Court did not specifically frame the issue that whether the transactions/Sale Deeds in favor of defendant no.1 are benami transactions or not. But the Trial Court and the High Court held that the transactions/sale deeds in favor of defendant no.1 were benami transactions. Issue before the Supreme Court was whether the transactions/sale deeds in favor of defendant no.1 can be said CS 476594/2015 FARMAN V FURQAN AND OTHERS 14/40 to be benami transactions or not. It was observed that the Trial Court and the High Court have erred in shifting the burden on the defendants to prove that the sale transactions were not benami transactions. It was observed that while considering a particular transaction as benami, the intention of the person who contributed the purchase money is determinative of the nature of transaction. The intention of the person, who contributed the purchase money, has to be decided on the basis of the surrounding circumstances; the relationship of the parties; the motives governing their action in bringing about the transaction and their subsequent conduct etc.
14. The burden was on the plaintiff to prove that Late Ahmed Ali was real owner of the property bearing no J-294 while the defendant no 1 was holding the property bearing no J-294 for benefit of Late Ahmed Ali. The plaintiff primarily pleaded that Late Ahmed Ali paid entire sale consideration for purchase of the property bearing no J-294 and in affidavit Ex. PW1/A also deposed that the defendant no 1 at that time was having meager income and was financially dependent on Late Ahmed Ali and in cross examination denied that the property bearing no J-294 was purchased by the defendant no. 1 in the year 1994 from his own income. The plaintiff cross examined the defendant no 1 at length regarding his financial status in year 1994. The defendant no 1 in cross examination deposed that in year 1994 he was dealing in sale, purchase and renting of properties and was also running auto but was not having any fixed monthly income. The defendant no 1 was earning about Rs.1,00,000/- per month besides this his elder son Abdul Majid was also earning in year 1994. The defendant no 1 did not produce any document regarding his monthly income in year 1994 but cross examination of the defendant no 1 as DW1 at least proved that the defendant no 1 in year 1994 was earning from independent sources. The plaintiff in cross examination also admitted that the defendant no 1 in Year 1994 used to run auto. The defendant no 1 was also given suggestions that he was not having sufficient income in year 1994 or that property bearing no J-294 was purchased by Late Ahmed Ali in name of the defendant no 1 and the defendant no 1 held the property bearing no J-294 in trust, fiduciary capacity and for the benefit and interest of Late Ahmed Ali or that at the time of purchase of the property he was not having any income and was financially dependent upon Late Ahmed Ali which were denied by the defendant no 1. There is nothing in cross examination of the defendant no 1 which can prove that at time of purchase of property bearing no J-294 he was not earning and was not having sufficient financial means CS 476594/2015 FARMAN V FURQAN AND OTHERS 15/40 and resources. There is no factual force in arguments advanced by the counsel for the plaintiff that the defendant no. 1 failed to establish availability of funds and resources with him to purchase the property bearing no J-294 or availability of funds or resources for raising construction over the properties bearing no J-293 and J-294. The plaintiff in cross examination admitted that title documents in respect of the property bearing no J-294 were executed in name of the defendant no 1. There is no evidence to prove that Late Ahmed Ali was actual and real of the property bearing no J-294. The plaintiff could not prove by leading appropriate evidence that Late Ahmed Ali purchased the property bearing no J-294 in name of the defendant no 1 by paying entire sale consideration and the defendant no 1 was holding property bearing no J-294 in fiduciary capacity and for benefit of Late Ahmed Ali without having independent right, title or interest. There is no legal and factual force in arguments advanced by counsel for the plaintiff that Late Ahmed Ali was real owner of the property bearing no J-294 being purchased by him out of his own funds in the name of defendant no. 1 and carried out constructions by joining the properties bearing no J-293 and J-294 as a single unit out of his own funds and the defendant no. 1 was having only meagre income.
The counsel for the plaintiff also referred cross examination of the plaintiff and argued that no suggestion was given to the plaintiff that late Ahmed Ali was not having funds or resources either to purchase the property bearing no J-294 or to raise construction over the properties bearing no J-293 and J-294. It was held in Sher Mohammad V Mohan Magotra, 202 (2013) DLT 708 which was also followed in Sa V Aa, MAT. APP. 68/2012 decided on 22 March, 2016 as under:-
The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. However unfortunately the said practice of criminal trials has crept into the civil trials also to the extent that most of the cross examinations being in the form of suggestions alone and which take considerable time. The purport of cross examination is to challenge the testimony and / or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.
The above argument advanced by counsel for the plaintiff is without any legal force. Issue no 2 is decided in favor of the defendant no 1 and against the plaintiff.
CS 476594/2015 FARMAN V FURQAN AND OTHERS 16/40
ISSUE NO 1
Whether gift deed and GPA dated 26.12.97 allegedly executed by Late Sh. Ahmad Ali in favour of D2 in respect of J-293, Sunder Nagri, Nand Nagri Extension, Shahdara, Delhi are forged and fabricated? OPP If in the affirmative, whether transfer of the suit property by defendant no. 2 in favour of defendant no. 3, vide documents of title dated 07.06.2001 and subsequent transfer of the suit property by defendant no. 3 in favour of Smt Ameena wife of Furkan vide documents of title dated 24.07.01 and execution of will dated 01.11.07 by Late Smt Ameena in favour of D 1 are null and void having no effect? OPP
15. It is not disputed that Late Ahmed Ali purchased the property bearing no J-293 from Bhagwan Dass. The plaintiff challenged transfer of the property bearing no J-293 in favor of the defendant no 2 by Late Ahmed Ali by pleading and deposing in affidavit Ex. PW1/A that allegedly transferred the property bearing number J-293 in favor of the defendant no 2 by Late Ahmed Ali on execution of General Power of Attorney and Gift Deed dated 26.12.1997 did not create or transfer any right, title or interest whatsoever in favor of the defendant no 2. The plaintiff also disputed and challenged subsequent transfer of the property bearing no J-293 by pleading and deposing in affidavit Ex. PW1/A that the defendant no 2 cannot transfer the property bearing no J-293 in favor of the defendant no 3 by executing General Power of Attorney, Agreement to Sell and Receipt dated 07.06.2001. The defendant no 3 cannot transfer the property bearing no J-293 in favor of Ameena on execution of General Power of Attorney, Agreement to Sell and Receipt dated 24.07.2001. Ameena cannot transfer the property bearing no J-293 in favor of the defendant no 1 on execution of General Power of Attorney, Agreement to Sell and Receipt dated 1.11.2007. The plaintiff was cross examined regarding subsequent transfer of the property bearing no J-293 and in cross examination denied that Late Ahmed Ali transferred the property no J-293 in name of the defendant no 2 in December, 1997 or that the defendant no 2 transferred the property no. J-293 in favor of the defendant no 3 vide documents dated 07.06.2001 or that the defendant no 3 transferred the property no J- 293 in favor of Ameena vide documents dated 24.07.2001 or that Ameena transferred the property no J-293 in favor of the defendant no.1 vide documents dated 01.11.2007.
16. The counsel for the plaintiff argued that Gift Agreement Ex DW 1/P5 alleged to have been executed by late Ahmed Ali in favor of the defendant no. 2 is deficiently stamped and unregistered and does not fulfill essential requirements and ingredients of a valid Gift which CS 476594/2015 FARMAN V FURQAN AND OTHERS 17/40 are declaration of gift by the donor, acceptance of gift by the donee and delivery of possession of the gifted property during the lifetime of the donor. The recital by the donor of actual act of gift of the property in question, recital of actual act of acceptance by the donee and recital of handing over of possession of the immovable property during the lifetime of the donor are missing in the document Ex DW 1/P5. The counsel for the plaintiff also referred testimony of the defendant no 1 as DW1 including cross examination of the defendant no 1. The counsel for the defendant no 1 argued that Late Ahmed Ali Validly transferred the property bearing no J-294.
17. The defendant no 1 alleged and deposed in affidavit Ex. DW1/A that Late Ahmed Ali transferred property bearing no J-293 in favor of the defendant no. 2 on 26.12.1997 and the property bearing no J-293 was ultimately transferred in favor of the defendant no 1 on 01.11.2007. The defendant no 3 also alleged that he purchased the property bearing no J-293 from the defendant no 2 and thereafter transferred the property bearing no J-293 in favor of Ameena wife of the defendant no.1.
The defendant no 1 was cross examined at length and in cross examination deposed that Bhagwan Dass sold the property bearing no J-293 to Late Ahmed Ali on execution of documents PW1/8, Ex.PW1/9 and Ex.PW1/10. Late Ahmed Ali executed sale documents in respect of the property no J-293 in his presence in favor of the defendant no 2 but could not tell date, month and year of the execution of the documents. The defendant no 1 identified the documents Ex.DW1/P4 and Ex.DW1/P5 executed by Late Ahmed Ali in favor of the defendant no 2 but could not identify thumb impressions of Late Ahmed Ali on Ex.DW1/P-4 and Ex.DW1/P-5 and denied suggestion that documents Ex.DW1/P-4 and P-5 are forged and fabricated by the defendant no 1 in conspiracy the defendant no 2. The defendant no 2 transferred the property bearing no J-293 to the defendant no 3 but documents were not executed in his presence however the defendant no 1 admitted his signatures as witness on title documents. The defendant no 3 transferred the property bearing no J-293 in name of Ameena and documents were executed in his presence.
18. The perusal of evidence led by the plaintiff and the defendant no 1 reflects that DDA allotted property no J-294 in favor of Rakesh vide Receipt Ex. PW1/3. Rakesh transferred said property in favor of Bhagwan Dass son of Budha Singh on execution of General Power of Attorney Ex. PW1/4 (Ex. DW1/P1), Agreement to Sell Ex. PW1/5 (Ex. DW1/P2) and CS 476594/2015 FARMAN V FURQAN AND OTHERS 18/40 registered Receipt Ex. PW1/6 (Ex. DW1/P3). Bhagwan Dass transferred the property bearing no J-294 in favor of Ahmed Ali on execution of General Power of Attorney Ex. PW1/7, Agreement to Sell Ex. PW1/8, Receipt Ex. PW1/9 and registered Will Ex. PW1/10. The plaintiff did not challenge legality and validity of chain of transfer of the property bearing no J-293 from original allottee Rakesh to Late Ahmed Ali. The plaintiff challenged validity and legality of subsequent transfer of property bearing no J-293 i.e. from Late Ahmed Ali to the defendant no 2 on execution of General Power of Attorney Ex. DW1/P4 and Gift Agreement Ex. DW1/P5 and from the defendant no 2 to the defendant no 3 on execution of General Power of Attorney, Agreement to Sell and Receipt all dated 07.06.2001 and from defendant no 3 to Ameena who was wife of the defendant no 1 on execution of General Power of Attorney, Agreement to Sell both dated 24.07.2001 and lastly from Ameena to the defendant no 1 on execution of General Power of Attorney, Agreement to Sell and Receipt all dated 01.07.2007 by stating that these transactions do not create any right, title and interest in favor of the defendant no 1.
19. As mentioned hereinabove Late Ahmed Ali executed General Power of Attorney Ex. DW1/P4 and Gift Agreement Ex. DW1/P5 in favor of the defendant no 2. The Supreme Court in Suraj Lamp & Industries Private Limited V State of Haryana & another, 2009 (7) SCC 363 referred to the ill - effects of sales through General Power of Attorney or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers) and observed that there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. The Supreme Court again in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 highlighted modus operandi in SA/GPA/WILL transactions and observed as under:-
The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.
Or CS 476594/2015 FARMAN V FURQAN AND OTHERS 19/40 An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.
Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.
(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
20. The Supreme Court considered relevant provisions of the Transfer of Property Act, 1882 (hereinafter referred to as "the Act") to examine validity and legality of SA/GPA/WILL transactions. Section 5 of the Act defines transfer of property reads as under:-
Transfer of Property defined : In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself or to himself and one or more other living persons; and "to transfer property" is to perform such act.
Section 54 of the Act defines sales and reads as under:-
"Sale" defined.--''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
CS 476594/2015 FARMAN V FURQAN AND OTHERS 20/40 It does not, of itself, create any interest in or charge on such property.
Section 53A of the Act defines part performance and reads as under:- Part Performance. - Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract :
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
The Supreme Court also referred other relevant legal provisions. Section 27 of the Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affect the chargeability of duty on that instrument. Article 23 prescribes stamp duty on Conveyance. Section 17 of the Registration Act, 1908 makes a deed of conveyance compulsorily registrable. The Supreme Court considered Scope of an Agreement of sale and observed that Section 54 makes it clear that a contract of sale i.e. an agreement of sale does not create any interest in or charge on property and referred Narandas Karsondas V S.A. Kamtam and another, (1977) 3 SCC 247 wherein it was observed that a contract of sale does not of itself create any interest in or charge on the property as expressly declared in Section 54 of the Act. Regarding protection under section 53A of the Act the Supreme Court referred Rambhau Namdeo Gajre V Narayan Bapuji Dhotra, 2004 (8) SCC 614 wherein it was held under:-
Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has CS 476594/2015 FARMAN V FURQAN AND OTHERS 21/40 nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.
The Supreme Court held that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed) and in absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of the Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of the Act). An agreement of sale whether with possession or without possession is not a conveyance. Section 54 of the Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter. The Andhra High Court in Gaddam Laxmaiah and others V The Commissioner and Inspector General, Registration and Stamps Department, WP No 20683/2012 and WP No 2192/ 2013 decided on 30th April, 2013 observed that the transfer of property from one person to another is governed by different statutory enactments. The Indian Contract Act, 1872, the Specific Relief Act, 1963 and the Transfer of Property Act, 1882 are substantive laws governing transfer of property. The Indian Evidence Act, 1872, the Registration Act, 1908 and the Indian Stamp Act, 1899 are the procedural or adjutant laws which also govern the transactions involving transfer of immovable property. Section 54 of the Transfer of Property Act, 1882 defined "sale" which made clear that a contract for the sale of immovable property does not by itself create any interest or charge on such property.
21. A Power of Attorney may be General Power of Attorney whereby the principal grants the Power of Attorney holder all such powers which are necessary to accomplish the objects for which such Power of Attorney is given and Special Power of Attorney whereby the principal wants the Power of Attorney holder to exercise only such powers as are specified in the Power of Attorney deed. The Supreme Court regarding scope of Power of Attorney in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 held that a power of attorney is CS 476594/2015 FARMAN V FURQAN AND OTHERS 22/40 not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him as per sections 1A and section 2 of the Powers of Attorney Act, 1882. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. The decision in State of Rajasthan V Basant Nehata , 2005 (12) SCC 77 was referred wherein it was observed that a grant of power of attorney is essentially governed by Chapter X of the Contract Act. A deed of power of attorney is executed by the principal in favor of the agent. An attorney holder may execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. The Andhra High Court in Gaddam Laxmaiah and others V The Commissioner and Inspector General, Registration and Stamps Department, WP No 20683/2012 and WP No 2192/ 2013 decided on 30th April, 2013 also took similar view. General Power of Attorneys dated 19.08.1991 stated to be executed by Sukhen Mistri in favor of the defendant no 1 does not confer any right, title and interest or ownership in respect of the suit property in favor of the defendant no 1.
22. The Supreme Court regarding validity of transaction through General Power of Attorney, Agreement to Sale and Will in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 concluded that a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. It was reiterated that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. It was held as under:-
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is CS 476594/2015 FARMAN V FURQAN AND OTHERS 23/40 stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
The Supreme Court regarding scope of Will in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 observed that a Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator.
23. In view of decision in Suraj Lamp & Industries Private Limited (Supra), General Power of Attorney Ex. DW1/P4 does not create any right, title and interest in favor of the defendant no 2 from Late Ahmed Ali. Late Ahmed Ali also executed Gift Agreement Ex. DW1/P5 in favor of the defendant no 2. The plaintiff challenged execution of Gift Agreement Ex. DW1/P5 by pleading that Gift Agreement Ex. DW1/P5 does not create any right, title and interest in favor of the defendant no 2 in respect of the property bearing no J-293. A gift is a transfer of property where interest is transferred from one person to another without any consideration. It is a gratuitous in nature. The Transfer of Property Act, 1882 contains general principles relating to transfer of property as well as laws relating to sale, mortgage, charge, lease, and exchange, transfer of actionable claims and gifts of property. Chapter VII of the Transfer of Property Act, CS 476594/2015 FARMAN V FURQAN AND OTHERS 24/40 1872 governed Gift made by any person irrespective of religion, caste or creed. Section 122 of the Transfer of Property Act, 1882 reads as under:
122. "Gift" defined.--"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Chapter VII does not apply to gifts or Hiba made by a Muslim. Section 129 of the Transfer of Property Act, 1882 reads as under:-
129. Saving of donations mortis causa and Muhammadan Law.--
Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law.
The conception of the term 'gift' as used in the Transfer of Property Act, 1882 is different from the practice under the Muslim Law. Under the Muslim Law, a gift is a transfer of property or right by one person to another in accordance with the provisions provided under Muslim law. Muslim Law defines Hiba or gift as a transfer of a determinate property without any exchange from one person to another and accepted by or on behalf of the latter. In Bibi Maniran V Mohd. Ishaque, AIR 1963 Pat 229 it was held that this exemption is constitutional and lawful. A donor must be Mohammedan, male or female, married or unmarried, attained age of majority as prescribed under Section 3 of the Indian Majority Act, 1875 as amended in 1999 i.e. eighteen years and owner of the property subject matter of the Hiba. A gift should be made with free consent and a gift made under compulsion is not valid but voidable. A donee may be a Mohammedan or non-Mohammedan, male or female, married or unmarried, major or minor. Hiba cannot be lawfully made in favor of an unborn person or dead person but can be made jointly in favor of two or more persons. Hiba can be made in respect of whole and every form of property tangible or intangible having legal value and the property must be transferable under Section 6 of the Transfer of Property Act, 1882. The clear and unequivocal declaration by the donor, acceptance by the donee and delivery of possession are essential formalities of a Hiba. The declaration may oral or in writing and should be bona fide but form of declaration is not immaterial. The acceptance by the donee may be express or implied. A gift is completed only after delivery of the possession and a gift which is not CS 476594/2015 FARMAN V FURQAN AND OTHERS 25/40 accompanied by possession is void ab initio. Hiba is complete only after the delivery of the possession.
24. Gift Agreement Ex. DW1/P5 stated to be executed by Late Ahmed Ali in favor of the defendant no 2 is perused. The perusal of Gift Agreement Ex. DW1/P5 reflects that it was executed in writing by Late Ahmed Ali in favor of the defendant no 2 on 26.12.1997 without any consideration in respect of the property bearing no J-293 measuring 22 ½ sq. yards and the defendant no 2 became owner of said property in pursuance of Gift Agreement Ex. DW1/P5. Late Ahmed Ali at time of execution of Gift Agreement Ex. DW1/P5 was a male and major Muslim and was owner of the property bearing no J-293. Gift Agreement Ex. DW1/P5 was made with free consent as there is no evidence that it was executed under compulsion. The defendant no 2 at time of execution of Gift Agreement Ex. DW1/P5 was male and major Muslim. Late Ahmed Ali executed Gift Agreement Ex. DW1/P5 in respect of entire tangible property bearing no J-293. Gift Agreement Ex. DW1/P5 reflects clear and unequivocal declaration of Late Ahmed Ali to gift the property bearing no J-293 in favor of the defendant no 2 with bona fide intention which was also accepted by the defendant no 2 with delivery of possession. It is proved that Late Ahmed Ali gifted the property bearing no J- 293 in favor of the defendant no 2 on execution of valid Gift Deed/Gift Agreement Ex. DW1/P5. The Gift Agreement Ex. DW1/P5 does not require compulsory registration in view of section 129 of the Transfer of Property Act, 1882. The arguments advanced by counsel for the plaintiff are without any factual and legal force.
25. The plaintiff to prove that General Power of Attorney Ex. DW1/P4 and Gift Agreement Ex. DW1/P5 are forged and fabricated documents examined PW2 Rajesh Kumar, LDC from office of SDM-II, Head Quarter, Collector of Stamp who brought record in respect of Stamp Vender namely Alok Kumar Routh. The counsel for the plaintiff argued that stamp paper used for fabricating alleged Gift Agreement Ex. DW1/P5 is forged and referred testimony of PW2 Rajesh Kumar who brought record pertaining to license issued in name of stamp agent namely Alok Kumar Routh having license no. 389 issued by collector of stamps on 06.11.1989 which was valid up to 31.03.1992 while Gift Agreement Ex. DW1/P5 was allegedly executed on 26.12.1997.
The perusal of General Power of Attorney Ex. DW1/P4 and Gift Agreement Ex. DW1/P5 reflects that are executed on stamp papers of denomination of Rs. 10/- and Rs. 2/-
CS 476594/2015 FARMAN V FURQAN AND OTHERS 26/40 respectively and were purchased on 26.12.1997 from stamp vendor namely A.K.Rough, Tis Hazari. PW2 deposed that License No 389 was issued in name of Alok Kumar Routh by Collector of Stamp on 06.11.1989 which was renewed up to 31.03.1992 but was surrendered on 24.02.1992 vide application Ex. PW2/3. PW2 also proved License Form as Ex. PW2/1 and order for issuing License as Ex. PW2/2. The perusal of License Form as Ex. PW2/1 and order for issuing License as Ex. PW2/2 reflects that Alok Kumar Routh was appointed stamp agent to sell stamp at Tis Hazari. The plaintiff attempted to prove that stamp papers on which General Power of Attorney Ex. DW1/P4 and Agreement to Sell Ex. DW1/P5 were executed, were forged papers as they are appearing to be purchased from A. K. Rough and not from authorized stamp vender namely Alok Kumar Routh and on day of purchase of stamp papers license of stamp vendor has already been expired. There is appearing to be discrepancy in name of stamp vender and date of purchase which are mentioned on stamp papers on which General Power of Attorney Ex. DW1/P5 and Gift Agreement Ex. DW1/P5 were executed. However there is no forensic evidence that stamp papers on which General Power of Attorney Ex. DW1/P5 and Gift Agreement Ex. DW1/P5 were executed, were forged stamp papers and were not printed or issued by competent and authorized government agency. Mere discrepancy in name of stamp vender and date of purchase as mentioned on stamp papers on which General Power of Attorney Ex. DW1/P5 and Gift Agreement Ex. DW1/P5 were executed and particulars of stamp vender as brought by PW2 does not prove that stamp papers were forged and fabricated. The testimony of PW2 does not provide much help to the plaintiff.
26. The plaintiff examined PW4 Syed Faizal Huda, Forensic Expert who compared and examined disputed thumb impressions of Late Ahmed Ali on General Power of Attorney Ex. DW1/P5 and Gift Agreement Ex. DW1/P5 with admitted thumb impression of Late Ahmed Ali on General Power of Attorney Ex. PW1/8. PW4 Syed Faizal Huda in Report Ex. PW4/A opined that disputed thumb impressions of Late Ahmed Ali on General Power of Attorney Ex. DW1/P5 and Gift Agreement Ex. DW1/P5 do not tally with admitted thumb impression of Late Ahmed Ali on General Power of Attorney Ex. PW1/8 and thumb impressions on General Power of Attorney Ex. DW1/P5, Gift Agreement Ex. DW1/P5 and General Power of Attorney Ex. PW1/8 were not affixed by hand of same or one person Ahmed Ali.
CS 476594/2015 FARMAN V FURQAN AND OTHERS 27/40 The Counsel for the plaintiff referred testimony of PW4 Syed Faizal Huda, Forensic Expert who deposed that after comparison of admitted and disputed thumb impressions marked as D1 to D 4 and A 1 he opined that disputed thumb impression marked as D1 to D4 ( appearing on GPA and gift agreement ) do not tally with the admitted thumb impression of Ahmad Ali , marked as A 1(appearing on agreement to sell Ex PW 1/8).
27. Sections 45 to 51 of the Evidence Act, 1872 provide relevancy of opinion of third persons called as Expert Opinion. These provisions are exceptional in nature to general rule that evidence is to be given of the facts only which are within knowledge of a witness. The exception is based on principle that the court cannot form opinion on issues which are technically complicated and professionally sophisticated without assistance of the persons having acquired special knowledge and skill on those issues. Section 45 of the Evidence Act, 1872 deals with law relating to Expert Opinion/Expert evidence. Section 45 of the Evidence Act, 1872 reads as under:-
45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.
28. The Supreme Court in State of H.P. V Jai Lal and others, (1999) 7 SCC 280 explained substance of expert opinion by observing that to bring evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. Expert opinion is admissible only when expert is examined as a witness and gives an appropriate reason for his opinion and tested during cross examination. A Court is not bound by the evidence of the experts which is advisory and corroborative in nature. The Court must derive its own conclusion after considering expert opinion cautiously and authorities on the point on which the expert deposes. The value of expert opinion rests on his competency and validity of process for forming a reliable opinion. Where the expert gives no real data in support of opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value. Expert evidence is evidence of opinion. The opinion is to be supported by reasons. The Court has to evaluate the expert opinion like any other evidence. The reasons in support of the opinion, if convincing, make CS 476594/2015 FARMAN V FURQAN AND OTHERS 28/40 the opinion acceptable. It is for the court to judge whether the opinion has been correctly reached on the data available and for stated reasons. The expert evidence or opinion is not cogent or conclusive evidence and has to be supported by reasons and relevant data. If the expert opinion contradicts unimpeachable documentary evidence then expert opinion does not have greater evidentiary value. The expert evidence cannot take place of substantive evidence and as a rule of procedure expert evidence must be corroborated by direct or circumstantial evidence. The Supreme Court in Murari Lal V State of M.P., (1980) 1 SCC 704 observed that a court may require corroboration of a varying degree. In Forest Range Officer V P. Mohammad Ali, AIR1994SC120 it was held that expert opinion is only opinion evidence and does not help court in interpretation. Mere opinion of an expert cannot override positive evidence of the attesting witness.
29. In Sri Debajit Barthakur and others V Sarnalata Devi and others, RSA No. 153 of 2003 decided on 02nd April, 2015 the first appellate court discarded testimony of expert merely on ground of non-disclosure of the method employed by the expert and compared signatures by itself so as to form an opinion. The Gauhati High Court after relying on The State (Delhi Administration) V Pali Ram, (1979) 2 SCC 158 and Ajit Savant Majagvai V State of Karnataka,(1997) 7 SCC 110 observed that once the specimen signature and/or finger print is referred by the court for scientific opinion under section 45 of the Indian Evidence Act and the opinion is available on record, such opinion becomes relevant facts and would normally be accept by the court unless there arises some doubt as regards the probative value of the opinion so given by the expert. The expert opinion obtained under section 45 cannot be totally disregarded by the court without recording a valid reason. It was further observed that matching of signatures and finger prints fall within the province of scientific enquiry by experts whose job it is to opine as to the points of similarity or dissimilarity of the disputed signature and /or finger print. The court should as a matter of prudence and caution avoid forming an opinion as regards the identity of the handwriting/ signature solely on visual comparison made by him and leaves the matter for the experts to decide. In a case where the opinion of expert is available on record, it would be improper for the Judge to draw a contrary opinion merely based on visual comparison by disregarding the expert opinion.
30. PW4 Syed Faizal Huda in Report Ex. PW4/A certified that disputed and admitted thumb impressions have been individually, carefully and scientifically examined and compared with CS 476594/2015 FARMAN V FURQAN AND OTHERS 29/40 each other onder high magnification in computer software i.e. Adobe Photoshop. PW4 Syed Faizal Huda in Report Ex. PW4/A regarding disputed thumb impressions opined as under:-
i. An examination of the apex ridges of the disputed thumb impressions marked as D-1 to D-4 show that these thumb impressions are belong to the Left Hand because in these thumb impressions the apex ridges are slopping down towards the left side. It is important to mention here that the apex ridges tell about the side of hand from which a thumb impression was affixed. When the apex ridges slope down towards the right side then the thumb impression belongs to Right Hand and when the apex ridges slope down towards the left side then the thumb impression belongs to the Left Hand.
ii. The disputed thumb impressions marked as D-1 to D-4 (appearing on GPA and Gift Agreement) on examination show that they are plain, clear and properly recorded thumb impression. The pattern formation, flow of the ridges and the sequence of the ridge characteristics are quite clear in these thumb impressions. The pattern formation of these thumb impressions is Plain Whorl type on the basis of the flow and configuration of the ridges.
PW4 Syed Faizal Huda in Report Ex. PW4/A regarding disputed thumb impressions opined as under:-
i. An examination of the apex ridges of the admitted thumb impression marked as A-1 shows that this thumb impression also belongs to the Left Hand because in this thumb impressions the apex ridges are slopping down towards the left side.
ii. The admitted thumb impression marked as A-1 on careful examination shows that it is plain, clear and properly recorded thumb impression. The pattern formation, flow of the ridges and the sequence of the ridge characteristics are quite clear in this thumb impression marked as A-1. The pattern formation of these this impression is Ulnar Loop type on the basis of the flow and configuration of the ridges.
PW4 Syed Faizal Huda in Report Ex. PW4/A regarding identification opined as under:-
i. The identification of the thumb impressions is based on the two factors that is the pattern formation and the ridges characteristics that they occur in relation to one another. If the pattern of the disputed and thumb impressions are different, it is a conclusive proves that the thumb impressions are totally different with each other and there is no need to further examination or comparison of the of the ridge characteristics between them. But on the other hand, if patterns of the CS 476594/2015 FARMAN V FURQAN AND OTHERS 30/40 disputed and admitted thumb impressions are similar on each other then the identity or nonidentity of the thumb impressions is based on the sequence or order of ridge characteristics that they occur in relation to one another.
ii. In this case, the pattern formation of the disputed thumb impressions Marked as D-1 to D-4 (appearing on GPA and Gift Agreement) is found different with the pattern formation of admitted thumb impression Marked as A-1 (appearing on Agreement to Sell Ex. PW1/8). The pattern formation of disputed thumb impression is Plain Whorl type whereas the pattern formation of admitted thumb impression is Ulnar Loop type.
iii. Since these sets of admitted and disputed thumb impressions belong to the different pattern, therefore they are fundamentally non-identical with each other and there is no need to further study and comparison of Ridge characteristics in between them. Ridge characteristics are examined only in those cases where the disputed and admitted thumb impressions belong to the similar pattern.
31. A document is generally used to note down contents of sale /transfer of movable and non- movable objects. It bears signatures and thumb impressions of the executant and witnesses. A document is important piece of evidence in the court of law for justice. The expert should examine the thumb impressions by going through contents and nature of the document. The standard thumb impressions can be obtained from the documents of the case file and expert can submit report after comparing the same. How ink is applied on the thumb as well as pressure applied on the thumb in taking impression on the paper may affect the ridges visibility and each and every fact should be examined carefully. The expert first examined thumb impression from apex ridges. The apex ridges always slide to the left down side in left hand thumb impression and apex ridges always slide to the right down side in right hand thumb impression. Thereafter basic pattern is compared which may be arch type, composite type, whorl type or accidental type. The expert in examination of thumb impressions should examine apex ridges first to determine whether it is Left Hand Thumb Impression (LTI) or Right Hand Thumb Impression (RTI). Thereafter basic pattern of the thumb impression should be compared because if basic pattern is different then examination of ridges details is not required and if basic pattern is same then ridge details are examined to determine their identity or non-identity. The expert should also compare nature of the core point, number of the core points and their position in the impression during the process of comparison of disputed and standard/specimen thumb impressions. The comparison of core point is an CS 476594/2015 FARMAN V FURQAN AND OTHERS 31/40 important feature because nature, position and number of core points may be same in the different thumb impressions but these points cannot be present differently in the identical thumb impressions. The expert should compare nature of the delta point, their position and number in the impression during the process of comparison of the disputed and standard thumb impressions. The comparison of delta point is an important feature because nature, position and number of delta points may be same in the different thumb impressions but these points cannot be present differently in the identical thumb impressions. The expert should count intervening ridges between the core point and delta point because if number of intervening ridges is same then thumb impressions can be same or different and if number of intervening ridges is different then it is a definite proof of non-identity of the disputed and standard thumb impressions. The points of ridge characteristics should be compared by the expert by taking core point or delta point or any other ridge detail point as the starting point and the other ridge characteristics should be marked from the starting point by counting number of intervening ridges between them and these points should be demonstrated on the photographs. (Source Article on Importance of Document by Anil Gupta Forensic Service available on internet at address https://anilguptaforensicservices.com/ and as per information available on internet Anil Gupta passed M.sc in Forensic Science in year 1987 from Punjabi University, Patiala and got practical training in handwriting & finger prints ex- amination as well as in the examination of questioned documents & photography from various institutes.)
32. The perusal of Report Ex. PW4/A reflects that disputed thumb impressions on General Power of Attorney Ex. DW1/P4 and Gift Agreement Ex. DW1/P5 and admitted thumb impression on Agreement to Sell Ex. PW1/8 are left hand thumb impressions and clean, plain and properly recorded thumb impressions. The difference between the disputed thumb impressions on General Power of Attorney Ex. DW1/P4 Gift Agreement Ex. DW1/P5 and admitted thumb impression on Agreement to Sell Ex. PW1/8 is pattern formation of disputed thumb impression is Plain Whorl type whereas the pattern formation of admitted thumb impression is Ulnar Loop type and due to this reason further study and comparison of Ridge characteristics between disputed thumb impressions and admitted thumb impression was not done. It is correct that first basic pattern of the thumb impressions should be compared and if basic pattern is different then examination of ridges details may not be required and if basic CS 476594/2015 FARMAN V FURQAN AND OTHERS 32/40 pattern is same then ridges details are required to be examined to determine their identity or non-identity. PW4 Syed Faizal Huda was required to make detailed comparison of disputed and admitted thumb impressions of Late Ahmed Ali and must compared nature of the core point, number of the core points and their position in the impression during the process of comparison of disputed and standard/specimen thumb impressions. It is apparent and not disputed between the plaintiff and the defendant no1 that Late Ahmed Ali purchased the property bearing no J-293 on execution of General Power of Attorney Ex. PW1/7, Agreement to Sell Ex. PW1/8, Receipt Ex. PW1/9 and registered Will Ex. PW1/10 but PW4 Syed Faizal Huda took specimen admitted thumb impression from Agreement to Sell Ex. PW1/8 and it is not explained by the plaintiff that why PW4 Syed Faizal Huda did not take or lift specimen and admitted thumb impressions of Late Ahmed Ali from General Power of Attorney Ex. PW1/7, Receipt Ex. PW1/9 and registered Will Ex. PW1/10. PW4 Syed Faizal Huda was required to lift admitted thumb impressions of Late Hamid Ali from General Power of Attorney Ex. PW1/7, Receipt Ex. PW1/9 and registered Will Ex. PW1/10 for better comparison and result. The plaintiff did not lead any corroborative evidence to support Report Ex. PW4/A. It was observed in Magan Bihari Lal V State of Punjab, (1977) 2 SCC 210) that expert opinion must always be received with great caution. In Mani Ram V State of Rajasthan, (1993 Supp (3) SCC 18) it was observed that expert medical evidence is only an evidence of opinion and is hardly decisive. In Malay Kumar Ganguly V Dr.Sukumar Mukherjee, (2009) 9 SCC 221) observed that the court is not bound by expert evidence which is advisory in nature. The Court must derive its own conclusion upon considering the opinion of the experts cautiously. The Report Ex. PW4/A does not inspire much confidence in absence of corroborative evidence. Although the plaintiff in cross examination denied that Late Ahmed Ali has transferred the property bearing no J-293 in name of the defendant no 2 in December, 1997 but the defendant no 1 in cross examination deposed that Late Ahmed Ali executed sale documents in respect of the property bearing no J-293 in his presence in favor of the defendant no 2 and also identified General Power of Attorney Ex.DW1/P4 and Gift Agreement Ex.DW1/P-5. The defendant no 1 could not identify thumb impressions of Late Ahmed Ali on General Power of Attorney Ex.DW1/P4 and Gift Agreement Ex.DW1/P5 but denied that General Power of Attorney Ex.DW1/P4 and Gift Agreement Ex. DW1/P5 are forged or fabricated in conspiracy with the defendant no 2. It is not proved that Gift CS 476594/2015 FARMAN V FURQAN AND OTHERS 33/40 Agreement Ex. DW1/P5 was a forged and fabricated. It is proved on preponderance of probabilities that Late Ahmed Ali transferred the property bearing no J-293 in favor of the defendant no 2.
33. The plaintiff also challenged transfer of the property bearing no J-293 from the defendant no 2 to the defendant no 3 on execution of General Power of Attorney, Agreement to Sell and Receipt all dated 07.06.2001 and from defendant no 3 to Ameena who was wife of the defendant no 1 on execution of General Power of Attorney, Agreement to Sell both dated 24.07.2001 and lastly from Ameena to the defendant no 1 on execution of General Power of Attorney, Agreement to Sell and Receipt all dated 01.07.2007. As discussed hereinabove In view of decision in Suraj Lamp & Industries Private Limited (Supra), General Power of Attorney, Agreement to Sell and Receipt do not create any right, title and interest in favor of the defendant no 3 or Ameena or the defendant no 1. However it was proved that the property bearing no J-293 was validly transferred in favor of the defendant no 2 by Late Ahmed Ali on execution of Gift Agreement Ex. DW1/P5 which constitutes valid gift of the property bearing no J-293 in favor of the defendant no 2 by Late Ahmed Ali. The plaintiff does not have any right, title and interest in the property bearing no J-293. Issue no 1 is decided accordingly.
ISSUE NO 3 Whether the plaintiff is entitled to declaration that he is entitled to half share in the suit property? OPP
34. Section 34 of Specific Relief Act, 1963 deals with relief of declaration. It reads as under:-
Section 34.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Section 34 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the CS 476594/2015 FARMAN V FURQAN AND OTHERS 34/40 relief of declaration the plaintiff must establish that (1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff, (iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
35. The plaintiff pleaded and deposed in affidavit Ex. PW1/A that Late Ahmed Ali purchased properties bearing no J-293 from Bhagwan Dass son of Budha Singh in his name and bearing no J-294 from Tarawati wife of Bhagwas Dass in name of defendant no 1 on execution of title documents by paying entire sale consideration. Late Ahmed Ali in year 1997 raised constructions over properties bearing no J-293 and J-294 as a single unit out of his own funds. The defendant no 1 did not acquire any right, title and interest over property no J-294. The plaintiff prayed that the plaintiff be declared as joint owner along with the defendant no. 1 of properties bearing no J-293 and J-294 each measuring 22.5 sq. yards as shown in the site plan Ex. PW1/19. The counsel for the plaintiff also argued that the plaintiff is entitled for half share in the properties bearing no J-293 and J-294. The defendant no 1 alleged and deposed that the defendant no 1 purchased the property bearing no J-294 on 26.08.1994 from Tarawati and property bearing no J-293 was ultimately transferred in favor of the defendant no 1 on 01.11.2007. The defendant no 1 raised constructions over properties bearing no J-293 and J- 294 out of his own funds. It is proved that the defendant no 1 is owner of the property bearing no J-294 having purchased from Tarawati on execution of General Power of Attorney Ex. PW1/12, Agreement to Sell Ex. PW1/13 and registered Receipt Ex. PW1/14 all dated 29.06.1984. The defendant no 2 became owner of the property bearing no J-293 by virtue of Gift Agreement Ex. DW1/P5. The plaintiff cannot be declared as entitled to half share in the properties bearing no J-293 and J-294. Issue no 3 is decided in favor of the defendant no 1 and against the plaintiff.
ISSUE NO 4 Whether plaintiff is entitled to decree for partition, rendition of account and permanent injunction as prayed for? OPP CS 476594/2015 FARMAN V FURQAN AND OTHERS 35/40
36. The property which is left after death of a Muslim is heritable and can be movable or immovable and ancestral or self-acquired. Inheritance opens only after death of a Muslim and no person can be an heir of a living person. Muslim law does not recognize doctrine of representation and as such nearer heirs excludes the remoter heirs from inheritance. The distribution of the assets is per-capita under Sunni law which means an heir does not represent branch from which he inherits. Muslim law recognizes two types of heirs which are sharers and residuary. Sharers are entitled to certain share in the deceased's property and 12 in numbers. Residuary takes up share in the property which is left over after shares are taken by sharers. Residuary takes entire estate in absence of sharers and in absence of both sharers and residuary the estate devolves on distant kindred. The properties of a Muslim after his death devolve on his heirs in definite share and each heir becomes an absolute owner.
37. The plaintiff pleaded and deposed in affidavit Ex. PW1/A that Late Ahmed Ali, father of the plaintiff and the defendant no1 was actual and real owner of the properties bearing no J- 293 and bearing no J-294 and paid entire sale consideration. Late Ahmed Ali died intestate and without partitioning the properties bearing no J-293 and bearing no J-294. Late Ahmed Ali on various occasions expressed that the plaintiff and defendant no 1 shall be owners of the properties bearing no J-293 and J-294 in equal shares after his demise as other children of Late Ahmed Ali i.e. the defendant no 6 to 9 have already migrated and settled in Pakistan before purchase of properties bearing no J-293 and J-294 and do not have any right, title and interest in the suit properties. The plaintiff prayed that partition of the properties bearing no J- 293 & J-294 each measuring 22.5 sq. yards and the plaintiff is entitled to ½ share in the properties bearing no J-293 & J-294. The defendant no 1 claimed ownership in respect of the properties bearing no J-293 & J-294. The plaintiff could not prove that he is having any right, title and interest in the properties bearing no J-293 and J-294. It is proved that the defendant no 1 purchased the property bearing no J-294 and Late Ahmed Ali transferred the property bearing no J-293 in favor of the defendant no 2 on execution of Gift Agreement Ex. DW1/P5. The plaintiff is not entitled to claim partition of the properties bearing no J-293 and J-294.
38. Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. In simple words, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A CS 476594/2015 FARMAN V FURQAN AND OTHERS 36/40 permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff specifies certain circumstances under which permanent injunction may be granted. Section 38 of the Specific Relief Act, 1963 deals with grant of perpetual injunction. It reads as under:-
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
39. The plaintiff pleaded that the plaintiff requested the defendant no 1 for partition of the properties bearing no J-293 and J-294 on 15.11.2009 but the defendant no 1 refused to partition the properties bearing no J-293 and J-294 and threatened to sell the properties bearing J-293 and J-294. The defendant no 1 does not have exclusive rights over the properties bearing no J-293 and J-294. The plaintiff prayed that the defendants be restrained from selling, transferring or disposing of, creating any mortgage, interest of third party or parting with possession of the properties no J-293 & J-294. The defendant no 1 claimed ownership in respect of the properties bearing no J-293 and J-294. It is proved that the defendant no 1 is owner of the property bearing no J-294. The defendant no 2 acquired title in respect of the property bearing no J-293 by virtue of Gift Agreement Ex. DW1/P5.
40. The plaintiff never remained in possession of the properties bearing no J-293 and J-294. The plaintiff in cross examination also admitted that he never resided in the properties bearing no J-293 an J-294. In Balkrishna Dattatraya Galande V Balkrishna Rambharose Gupta, 1509 of 2019 decided on 06th February, 2019 the Supreme Court observed and held that for CS 476594/2015 FARMAN V FURQAN AND OTHERS 37/40 seeking relief of permanent injunction under Section 38 of the Specific Relief Act, the Plaintiff has to prove his actual possession on the date of the suit for seeking. The possession of the plaintiff cannot be based upon the inferences drawn from circumstances. The plaintiff has to prove actual possession for grant of permanent injunction. It was observed that:-
The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property. As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction.
The plaintiff is not entitled for permanent injunction as prayed for.
41. A suit for rendition of accounts can be maintained only if a person suing has a right to receive an account from the defendant. Such right can either be created or recognized under a statute or based on fiduciary relationship between the parties or claimed in equity when the relationship is such that rendition of accounts is the only relief which will enable the person seeking account to satisfactorily assert his legal right. The plaintiff pleaded and deposed in affidavit Ex. PW1/A that the defendant no 1 let out the properties bearing no J-293 and J-294 and is realizing monthly rent @ Rs. 10,000/- but never rendered account of rent received by him. The plaintiff is entitled to receive 1/2th share in rental income. The plaintiff prayed that the defendant no 1 be directed to render account of rental income from the properties bearing no J-293 & J-294 in last three years and to give the share of the plaintiff in the said rental income. The plaintiff in cross examination admitted that the properties bearing no J-293 and J- 294 are given on rent and the defendant no 1 is realizing rent from tenants. The defendant no 1 used to give half rent to the plaintiff and gave rent in year 2008. The defendant no 1 gave rent amounting to Rs. 4,000/- lastly to the plaintiff in 2009. The plaintiff denied suggestion that the defendant no. 1 is entitled to receive rent being owner of the properties bearing no J- 293 and J-294. No concrete evidence is led by the plaintiff to prove that he ever received share in rent from the defendant no 1. The plaintiff could not prove any right in the properties bearing no J-293 and J-294 or entitlement to receive share in rent realized from tenants. The issue no 4 is decided against the plaintiff and in favor of the defendant no 1.
CS 476594/2015 FARMAN V FURQAN AND OTHERS 38/40
ISSUE NO 5
Whether any valid will dated 01.11.07 was executed by Smt Ameena in favour of defendant no 1? OPD1
42. There is no codified law regarding execution of Wills by Muslims and is governed by the Muslim Personal Law. The term Wasiyat means an endowment with the property of anyone after death and is not subject to any formalities. A Will must be made with free consent. The essential condition for a valid Will in Muslim law is that only property with absolute ownership of the testator can be bequeathed. A Muslim cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts except with consent expressly or impliedly given by other legal heirs. Ameena wife of the defendant no 1 stated to be executed a Will dated 01.11.2007 in favor of the defendant no 1. The defendant could only prove that the property bearing no J-293 was transferred to the defendant no 2 by virtue of Gift Agreement Ex. DW1/P5. The defendant could not prove valid and legal subsequent transfer of the property bearing no J-293 from defendant no 2 in favor of the defendant no 3 and from the defendant no 3 in favor of Ameena and from Ameena in favor to the defendant no 1. In these circumstances issue no 5 does not require adjudication.
ISSUE NO 6 RELIEF
43. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in A.S. Narayana Deekshitulu V State of A.P., (1996) 9 SCC 548 observed that from the ancient times, the constitutional system depends on the foundation of truth. In Zahira Habibullah Sheikh V State of Gujarat, (2006) 3 SCC 374 it was observed that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This view CS 476594/2015 FARMAN V FURQAN AND OTHERS 39/40 was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam. In view of the findings on issue no 1 to 4 the suit is dismissed. The plaintiff and the defendant no 1 shall dear their own costs. Decree-sheet be prepared accordingly. File be consigned to record room.
Sudhir Digitally signed by
Sudhir Kumar Jain
Location:
ANNOUNCED IN THE OPEN
COURT ON 29th OCTOBER, 2020 Kumar Karkardooma
courts, Delhi
Jain Date: 2020.11.02
15:06:19 +0530
(DR. SUDHIR KUMAR JAIN)
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
NORTH- EAST
KARKARDOOMA COURTS, DELHI
CS 476594/2015 FARMAN V FURQAN AND OTHERS 40/40