Delhi District Court
Shri Arun Jain vs Shri Padam Chand Jain on 3 January, 2019
IN THE COURT OF GAURAV RAO, ADJ02 & Waqf Tribunal /
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 58556/16 (Old No. 1804/15)
CNR No.DLND010088052016
Shri Arun Jain
s/o Shri Padam Chand Jain
R/o 12, Kilsyth Terrace
S21, Brighton,
MA 02135, USA
Through Duly constituted Attorney
Mr. Bharat S. Kumar
........Plaintiff
Vs.
1. Shri Padam Chand Jain
S/o Shri K.L. Jain,
R/o D3/3389, Vasant Kunj,
New Delhi - 110 070.
2. Shri Navin Jain
S/o Shri Padam Chand Jain
R/o D3/3389, Vasant Kunj,
New Delhi - 110 070.
..........Defendants
Date of institution : 19.06.2015
Date on which reserved for judgment : 03.01.2019
Date of decision : 03.01.2019
Decision : Application under Order XII Rule 6
CPC allowed and suit decreed.
CS No.58556/16 Arun Jain V. Padam Chand Jain 1/ 37
JUDGMENT
1. Vide the present order I shall be disposing off application U/O 12 rule 6 CPC, moved by the plaintiff, in the suit for declaration and perpetual injunction filed against the defendants.
1.1 The suit was filed before Hon'ble High Court of Delhi on 19.06.2015 and in view of the notification No. 27187/DHC/Orgl. Dated 24.11.2015, the same was transferred to Ld. District & Sessions Judge, New Delhi District, Patiala House Courts vide orders dated 10.03.2016 and thereupon assigned to this Court vide orders dated 12.07.2016.
Plaintiff's version
2. It is the case of the plaintiff that he is the sole, exclusive and absolute owner of property bearing Flat no. 3389, second floor, Category 2, Pocket 3, Sector D, Vasant Kunj, New Delhi along with one scooter garage on ground floor (hereinafter referred to as the suit property) by virtue of registered gift deed dated 05.02.2007.
2.1 It is further his case that initially the suit property was allotted to his father i.e. defendant no. 1 by DDA by way of allotment letter dated 18.02.1988 and its possession was handed over to defendant no.1 on CS No.58556/16 Arun Jain V. Padam Chand Jain 2/ 37 03.05.1988. It is further his case that the suit property was converted into freehold by way of conveyance deed dated 27.08.2003.
2.2 It is further his case that he had made substantial contribution to the tune of $8082/ (approximate INR Rs.2,40,000/) towards purchase of the suit property, to defendant no.1, as the defendant no.1 was in dire need of money for purchasing the same and as such, out of love and affection for his father, he had helped him in purchasing the suit property.
2.3 It is further his case that in year 200304, defendant no.1 informed him about his intention to settle his certain properties amongst his children, to gift the suit property to him and defendant no.1 informed him that he had executed a registered Will, according to which, the suit property was to devolve on him subsequent to the death of defendant no.1. It is further his case that property bearing Flat no. 421, Shri Parshvanath, CGGS Ltd. Plot no. 50, IP Extension, New Delhi92 was given to defendant no. 2 i.e. his brother who had sold the same and kept the sale consideration with him.
2.4 It is further his case that thereafter defendant no.1 informed him that he desires to transfer the suit property to him during his lifetime accordingly, wanted to gift the same to him through a registered gift deed and the requisite documentation was done by defendant no.1 including purchase of stamp paper worth Rs.60,000/ on 22.01.2007 in this regard. It CS No.58556/16 Arun Jain V. Padam Chand Jain 3/ 37 is further his case that after being satisfied with the completion of documents, defendant no.1 persuaded him to make a trip to India for execution of the said gift deed and accordingly he arrived in India on 01.02.2007.
2.5 It is further his case that on 05.02.2007, defendant no.1, out of love and affection towards him, voluntarily gifted the suit property to him, executed & got registered the said gift deed, handed over the possession of suit property to him and thus he became the absolute owner of the suit property.
2.6 It is further his case that after taking over the physical possession of the suit property and as he was residing abroad he, vide power of attorney dated 05.02.2007, appointed defendant no.1 as his constituted attorney, to manage and take care of the suit property as well as granted permissive possession of the same to defendant no. 1 and defendant no. 1 continued to act so till 06.12.2013.
2.7 It is further his case that defendant no.1 and defendant no. 2 i.e. his younger brother, along with his family, were in permissive possession of the suit property, as defendant no. 1 was his constituted attorney for managing the suit property.
CS No.58556/16 Arun Jain V. Padam Chand Jain 4/ 37 2.8 It is further his case that he maintained good relations with his
family which is evident from the fact that defendant no. 1 had sought financial assistance from him for purchasing the suit property. It is further his case that he communicated with his mother till her death in 2013 and his extremely close relationship with them is evident from various letters, greeting cards sent over the years.
2.9 It is further his case that he regularly communicated with defendant no. 1 till 27.07.2013 and defendant no. 1 trusted him more than defendant no. 2 which is evident from the fact that in 2006 defendant no. 1 gave him full access to his locker. It is further his case that he has always been attached with his family and had transferred funds, sent equipments for treatment of his mother and sister in law.
2.10 It is further his case that after the death of his mother, defendant no. 2 and his wife, with a malafide intention to usurp the suit property by creating a rift between him and defendant no. 1, started brainwashing defendant no.1 with the motive to strain the relationship between him and defendant no.1.
2.11 It is further his case that defendant no.2 also pressurized and coerced defendant no.1 to file a false and frivolous suit bearing no. 160/13 seeking cancellation of gift deed dated 05.02.2007 and upon coming to know CS No.58556/16 Arun Jain V. Padam Chand Jain 5/ 37 about the said case, he tried to reconcile the matter with defendant no.1 but could not do so as defendant no.2 had brainwashed defendant no.1. It is his case that as the reconciliation seemed impossible he was forced to revoke the power of attorney dated 05.02.2007, vide letter dated 06.12.2013. It is further his case that since 06.12.2013 i.e. after cancellation of power of attorney, the defendants are residing, in wrongful possession of the suit property. It is further his case that the suit was dismissed as withdrawn on 06.06.2015.
2.12 It is further his case that on 11.05.2015, defendant no.1 had issued two letters through his counsel, purportedly cancelling the registered gift deed dated 05.02.2007 and from the said letters it is clear that defendant no. 2, through defendant no. 1, is seeking to grab his property with a view to dispose of the same and thus unjustly enrich himself at his expense.
2.13 Hence the present suit.
Defendant no. 1's version
3. It was the case of defendant no. 1 that he is the absolute, legitimate & rightful owner of the suit property by virtue of conveyance deed dated 28.08.2003 and being the owner of the same he has a right to use and enjoy the same as per his own free wish, will & desire.
CS No.58556/16 Arun Jain V. Padam Chand Jain 6/ 37 3.1 It was pleaded that plaintiff has no rights of ownership over the
suit property and therefore no cause of action has ever accrued in his favour to file the present suit.
3.2 It was pleaded that the plaintiff had never paid the purchase price for the suit property and the entire consideration amount was paid by him. It was pleaded that he is in continuous possession of the suit property since its purchase.
3.3 It was further pleaded that he had never handed over the possession of suit property to the plaintiff and that the alleged gift deed dated 05.02.2007 was simply a make shift arrangement on the sole assurance that the plaintiff would serve his old aged parents, however the plaintiff never came forward to serve him or his deceased wife. It was pleaded that he was never willing to sign the alleged gift deed but on the above assurance of plaintiff, he agreed to sign the same with a condition that ownership of the same shall remain intact and subsist with him. It was pleaded that with this purpose a registered power of attorney dated 05.02.2007 was got executed from the plaintiff as a back to back arrangement.
3.4 It was pleaded that the rights of ownership in the suit property were never transferred or assigned to the plaintiff and therefore on the same CS No.58556/16 Arun Jain V. Padam Chand Jain 7/ 37 day registered GPA was executed by the plaintiff in his favour. It was pleaded that the alleged gift deed was signed as an additional document to Will dated 28.09.2005 and it was never aimed to transfer the title or ownership of the suit property in favour of the plaintiff.
3.5 It was further pleaded that on 05.02.2007, when the alleged gift deed was signed, defendant no. 2 and his family were in actual physical possession of major portion of the suit property, therefore, the question of handing over its possession to plaintiff does not arise.
3.6 It was pleaded that as he had no intention to transfer the title in the name of plaintiff, therefore the possession of the suit property was not handed over to him at the spot, as was stipulated in clause 2 of gift deed dated 05.02.2007 and simply a paper document i.e. gift deed was signed for the satisfaction of the plaintiff.
3.7 It was further pleaded that neither the possession nor the original documents of the property were handed over to the plaintiff and therefore question of transfer of title in favour of the plaintiff does not arise.
3.8 It was denied that his possession or that of defendant no. 2 over the suit property was/is a permissive one or that since 06.12.2013 they are in wrongful possession of the suit property.
CS No.58556/16 Arun Jain V. Padam Chand Jain 8/ 37 3.9 It was further pleaded that he has already cancelled, revoked the
alleged gift deed dated 05.02.2007, which was conditional, as the understanding on which the said gift deed was prepared, has been defeated and as such, plaintiff has no right, title in the suit property.
3.10 It was denied that the possession was taken over by the plaintiff and then handed over to him.
3.11 It was pleaded that the suit property was alloted to him and he had paid the cost of the same to DDA as well as deposited the conversion charges for converting the suit property into a freehold property. It was denied that the plaintiff had contributed towards the conversion charges or that he helped him in making the payments of the installments towards the cost of the suit property.
3.12 It was pleaded that at one stage he was willing to bequeath the suit property to the plaintiff and consequently Will dated 28.09.2005 was executed, which otherwise does not amount to transfer of right, title during his lifetime and the alleged gift deed was an additional document in addition to the said Will. It was pleaded that the Will stands superseded and he has already executed a fresh Will in respect of his self owned properties.
CS No.58556/16 Arun Jain V. Padam Chand Jain 9/ 37 Defendant no. 2's version
4. It was pleaded that he is occupying the suit property being son of defendant no.1 and has been residing in the same, along with his family, for last more than 20 years. It was denied that it was a permissive occupation or that he is now in wrongful possession of the same.
4.1 It was pleaded that General Power of Attorney was executed with the intention that defendant no. 1 was not willing to transfer, bequeath the suit property during his lifetime and it was his desire to continue with his ownership, title over the suit property during his lifetime.
4.2 It was further pleaded that his father i.e. defendant no.1 has paid all the installments through his bank account and has also paid the conversion charges and the plaintiff has falsely claimed the ownership over the suit property.
4.3 It was pleaded that as the plaintiff did not serve his parents at the time of their dire needs, defendant no.1 cancelled the gift deed dated 05.02.2007 and the Will dated 28.09.2005 also became insignificant on account of subsequent developments.
Application under Order XII Rule 6 CPC CS No.58556/16 Arun Jain V. Padam Chand Jain 10/ 37
5. It was pleaded that defendant no. 1 has not denied execution of gift deed dated 05.02.2007 and has in fact expressly admitted the same.
5.1 It was pleaded that defendant no. 1 is a well read person, highly accomplished mathematician and thus understood the contents of gift deed dated 05.02.2007. It was pleaded that the draft of the said gift deed was prepared by defendant no.1 himself while the plaintiff was in USA and plaintiff had arrived in India only for the purpose of the said gift deed when all the preparations were done by defendant no.1 himself. It was pleaded that as the gift deed was executed voluntarily and out of love and affection, there is no question of any undue pressure on defendant no. 1.
5.2 It was pleaded that title and ownership of the suit property has unambiguously passed on to the plaintiff by virtue of the said gift deed and by withdrawing suit bearing no. 160/13, defendant no. 1 has forgone his right to seek cancellation of the said gift deed and has unconditionally accepted, admitted the existence and execution of the same. It was pleaded that no explanation has been given, in the written statement, as to why the said suit was withdrawn.
5.3 It was pleaded that defendant no. 1 is estopped from pleading an oral agreement, arrangement as against a written, registered gift deed and CS No.58556/16 Arun Jain V. Padam Chand Jain 11/ 37 that he had served his parents to the best of his abilities.
Reply
6. While repeating the averments of the written statement, it was pleaded that the application is not maintainable as no admissions have been made which entitles the plaintiff to a decree under Order 12 Rule 6 CPC. It was pleaded that the ownership of the plaintiff, on the basis of gift deed, has been disputed. It was further pleaded that the plaintiff has pleaded certain new facts in the application and that the present dispute requires a trial on merits and cannot be adjudicated otherwise.
Findings
7. Heard the Ld. counsels for the parties and perused the records carefully.
7.1 Order XII Rule 6 of the Code of Civil Procedure reads as under : "6. Judgment on admission. (1) Where admissions of fact have been made ei ther in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any part or of its own mo tion and without waiting for the determination of any other question between CS No.58556/16 Arun Jain V. Padam Chand Jain 12/ 37 the parties, make such order or given such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under subrule(1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
7.2 In Charanjit Lal Mehra v. Kamal Saroj Mahajan AIR 2005 SUPREME COURT 2765 the Hon'ble Supreme Court held:
".......In fact, Order XII, Rule 6, C.P.C. is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. .............In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal and Co. Ltd. v. United Bank of India and others, reported in 2000 (7) SCC 120. Their Lordships have held as follows:
"In the Objects and Reasons set out while amending Rule 6 of Order 12, CPC it is stated that 'where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable to the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled."
7.3 Order XII Rule 6 CPC confers very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The Court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on wellestablished principles. Admission must be CS No.58556/16 Arun Jain V. Padam Chand Jain 13/ 37 clear and unequivocal, it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part. Even a constructive admission firmly made can be made the basis of passing appropriate orders. {Rama Devi Vs. Punam Chand Aggarwal 2008 (4) Civil Court Cases 701 (Delhi), Surjit Sachdev v/s Kazakhstan Investment Services Pvt. Ltd. & Others 66 (1997) DLT 54 (DB) and PPA Impex Vs. Mangal Sain Mittal 166 (2010) DLT 84 (DB)} 7.4 In Gajender Kumar Loond Vs. Samant Barara in IA no.
13740/2011 in CS (OS) 1132/2011 it was held as under:
"it is now wellestablished that admissions are not restricted to pleading. More often than not, contents of the plaint are denied in order to delay proceedings and procrastinate the incidence of liability. Admissions can, therefore, be justly and soundly drawn even from attending circumstances, such as pleadings in other suits or proceedings, or documents exchanged between the parties. In fact, in my opinion, documents constitute the best source of admissions of facts. In the present case, admittedly a license deed was executed by the parties, and the Court need not travel any further. It is bound to treat the contents of such a document as admissions between the parties, and give effect to its contents at the very earliest. Failure to do so would tantamount to encouraging dishonest pleadings. All the averments put forward by the plaintiff are predicated and are sustainable merely from a reading of this deed itself."
7.5 In the case at hand it is the admitted position that the suit property was initially allotted to defendant no. 1. The suit property was so allotted to him by the DDA and thereafter the same was got converted into a freehold property. Thus the suit property was the self acquired property of defendant no. 1. None of this is disputed.
CS No.58556/16 Arun Jain V. Padam Chand Jain 14/ 37 7.6 It is the plaintiff's case that the suit property was gifted to him
by defendant no. 1 who executed registered gift deed dated 05.02.2007 in his favour and thus he became, is the absolute owner of the same. Execution of the gift deed stands squarely admitted, is not denied by defendant no. 1. However it is the case of defendant no. 1 that said gift deed was merely a make shift arrangement and right, title or interest in the suit property was never intended to be or transferred in favour of the plaintiff. It was defendant no. 1's case that execution of Power of Attorney in his favour on the same day sufficiently proves that it was merely a make shift arrangement or else there was no occasion for execution of the said back to back documents i.e. the power of attorney.
7.7 However I find no merits in the said contentions of defendant no. 1. I have considered the gift deed dated 05.02.2007. The said gift deed is absolutely unconditional and the make shift arrangement which defendant no. 1 has so vehemently pleaded cannot be even remotely inferred from the said gift deed. It was the case of the plaintiff that the said gift deed was executed by defendant no. 1 out of love and affection for him as he is his elder son. The relevant portion of the gift deed in this regard read as "AND WHEREAS the DONOR PARTY NO. 1 have voluntarily great love and affection with the DONEE PARTY no. 2 - Shri Arun Jain being HIS Real elder son."
CS No.58556/16 Arun Jain V. Padam Chand Jain 15/ 37 7.8 Considering the relation between the parties the execution of the
gift deed was not something unnatural or surprising. In fact it is recorded in Clause 3 of the deed as under: That the DONEEPARTY NO. 2 has now become the absolute and exclusive owner with all rights of Ownership etc. in the aforesaid only One freehold Flat on Second Floor alongwith One Scooter Garrage on Ground Floor, fitted with Water and Electric connections with necessary fixtures and fittings, bearing Flat no. : 3389, Category 2nd, in Pocket - 3, SectorD, situated at Vasant Kunj, New Delhi, from today and shall also enjoy all rights of Ownership etc. therein hereinafter including the sale thereof.
The DONORPARTY no. 1 has now been left with no right, title, interests or liens etc. whatsoever of any sort/nature in the aforesaid FLAT/PROPERTY UNDER DONATION/GIFT henceforth after the execution/registration of this GIFT DEED.
7.9 With such recitals in the gift deed no question arises of the same being conditional or on account of certain oral arrangement or understanding between the parties. In fact it is not disputed that the requisite stamp papers for the gift deed were purchased by defendant no. 1. Despite categoric averments by the plaintiff, in para 7 of the plaint, that the stamp papers were purchased by defendant no. 1 and after completion of the documents, formalities he persuaded the plaintiff to come to India, from USA,for execution of the said gift deed there was no categoric denial by defendant no. 1 and it was merely a evasive reply wherein it was stated "the plaintiff's submissions regarding the purchase of stamp papers, his trip to India and regarding Jitendra Jain are disputed as the said facts have no concern". Things would have been different had defendant no. 1 denied that the stamp CS No.58556/16 Arun Jain V. Padam Chand Jain 16/ 37 papers were not purchased by him or that they were purchased by the plaintiff himself. There is no denial to the categoric averments that after completion of documentation by defendant no. 1 the plaintiff on being persuaded by defendant no. 1 in this regard came to India on 01.02.2007. This is a very strong fact which supports the plaintiff's case that the gift deed was executed purely out of love & affection and voluntarily.
7.10 As far as execution of the General Power of Attorney is concerned, which according to the defendant proves that the gift deed was merely a make shift arrangement and that gift deed was not intended to transfer the suit property to the plaintiff, suffice would be to say that the execution of the General Power of Attorney on the same day i.e. 05.02.2007 did not in any manner curtail, restrict or vanish the rights created by the registered gift deed in favour of the plaintiff. The sole purpose of execution of General Power of Attorney was to manage the suit property through defendant no. 1 as the plaintiff was admittedly residing in USA and therefore it could not have possible for him to manage the suit property from such far off place. Therefore and as defendant no. 1 was residing in the suit property, the Power of Attorney was executed so as to authorize him to manage the suit property which after the execution of gift deed belonged to the plaintiff. Same is evident from the following recitals of the said Power of Attorney:
WHEREAS I the aforesaid Executant do hereby declare that I am the absolute owner of.........
AND WHEREAS the Executant do hereby declare that due to HIS staying CS No.58556/16 Arun Jain V. Padam Chand Jain 17/ 37 aborad and other preoccupations, HE is not in a position to lookafter, control the aforesaid FLAT/PROPERTY and therefore, do hereby appoint, constitute and nominate my Real Father SHRI PADAM CHAND JAIN, SON OF SHRI K.L. JAIN, R/O D3/3389, VASANT KUNJ, NEW DELHI110070, as My true and lawful GENERAL ATTORNEY and I do hereby empower/authorise him to do the following acts, deeds and things in MY name and on MY behalf. (2) To manage, control, lookafter and supervise the abovementioned FLAT/PROPERTY in any manners as the said attorney deems fit and proper.
7.11 Even otherwise what exactly was the oral understanding or arrangement or what was the condition, which made the gift deed conditional has not been explained by defendant no. 1. The only alleged condition, as is claimed by defendant no. 1 and 2, is that plaintiff was to look after his old and ailing parents and as he failed to do so the said gift deed was cancelled. As far as taking care of defendant no. 1 is concerned there is no denial, in the written statement, of the plaintiff's categoric averments that he had had close relation with defendant no. 1 and his mother i.e. wife of defendant no. 1 till the time of her death. There is also no denial that he has been sending medical equipments and bearing other expenses towards the treatment of his mother and sister in law i.e. wife of defendant no. 2. In the absence of any specific denial I find no reasons to disbelieve the averments of the plaint. Moreover as already discussed above the registered gift deed does not speak of any such condition. Furthermore, as the execution of the gift deed stands admitted, Section 92 of the Indian Evidence Act, 1872 comes into picture and it is not open for the defendants to plead any oral arrangement or understanding or condition which is not part of, incorporated in the registered gift deed. At this stage it will be worthwhile to go through CS No.58556/16 Arun Jain V. Padam Chand Jain 18/ 37 the observations made by the Hon'ble High Court of Delhi in Mohinder Singh Verma Vs. J.P.S. Verma 2014 SCC Online Delhi 2565 which are reproduced hereunder:
12. Gift is a form of transfer of property. Once a gift in accordance with law has been made, the property stands transferred from the Donor to the Donee and the Donor is divested of all rights in the property and the property vests absolutely in the Donee and the Donor cannot subsequently revoke / cancel the said transaction, just like once a property is sold, the seller / vendor cannot subsequently revoke or cancel the sale. The only difference between a Sale Deed and a Gift Deed, both of which are forms / modalities of transfer of property, is that while in the Sale Deed the consideration is materialistic, in a Gift Deed the consideration is nonmaterialistic. To hold that transferer of property, after affecting the transfer, retains a right to revoke / cancel the transfer would tantamount to unsettling the rights and transactions in immovable property.
16. The plaint is conspicuously quiet on, which of the representations as are pleaded to have been made by the defendants to the deceased plaintiff to make him execute the gift, was false. The only possible ground can be of a promise made without any intention of performing it. The averments in the plaint, of the defendants having prevailed upon the plaintiff to execute the Gift Deed by representing to the deceased plaintiff that they would look after him, do not find any basis in the registered Gift Deed. The Gift Deed does not provide that the deceased plaintiff was gifting the ground floor of the property to the defendant no.2 on the promise of the defendant no.2 to look after the deceased plaintiff.
Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property except the document itself. Section 92 provides that where the terms of any such contract, grant or other disposition of the property have been reduced to the form of a document, have been proved in accordance with Section 91, no evidence of any oral agreement or statement shall be admitted for the purposes of contradicting, varying, adding to, or subtracting from, its terms. The plea of the plaintiff, of the consideration for execution of the Gift Deed being the promise made by the defendants to look after the plaintiff, is thus barred and cannot be considered. Rather, from a reading of the gift deed it appears that the reason therefore inter alia was the past services rendered by the defendant no.2 to the deceased plaintiff.
CS No.58556/16 Arun Jain V. Padam Chand Jain 19/ 37
18. There is no plea in the plaint, of the defendants or any of them being in a position to dominate the Will of the deceased plaintiff or having used that position to obtain an unfair advantage over the deceased plaintiff. Mere plea of undue influence, without pleading the ingredients which constitute undue influence, is of no avail and this Court would be failing in its duty if mechanically puts the suits with such pleas on trial and it cannot be forgotten that listing for trial of a suit which from its pleadings does not deserve to be tried, always delays the expeditious disposal of deserving cases. The Supreme Court in Subhas Chandra Das Mushib Vs. Ganga Prasad Das Mushib AIR 1967 SC 878, following its earlier dicta in Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. AIR 1963 SC 1279, laid down that with regard to undue influence "a vague or general plea can never serve any purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other".
38. I am unable to agree. Though undoubtedly the Donor, in the case before the Supreme Court, in the registered document of cancellation recorded that the Donee had failed to fulfill the oral conditions settled between the Donor and the Donee but the Supreme Court cannot be said to have laid down that such oral conditions which otherwise under the law are barred by Sections 91 & 92 supra of the Evidence from being raised can be permitted to negate the terms of the registered documents. On the contrary what was held was that "the recitals in the Cancellation Deed are consistent with the recitals in the Gift Deed".
40. I am therefore unable to find any case in favour of the plaintiff. I am conscious that the suit is being decided finally without framing issues and without evidence. Though no formal issue has been framed but in the order dated 12th March, 2014, the doubt on the aforesaid lines in the mind of the Court was highlighted, recorded in the order of that date and on the request of the counsel for the plaintiff opportunity given to prepare on the said aspect and the matter has been heard today in terms of the said order dated 12 th March, 2014. As far as trial is concerned, it is not the argument of the counsel for the plaintiff also that any of the aforesaid reasoning on which the suit is being dismissed requires any trial. The only argument was that in the trial, the factum of payment by the deceased plaintiff of the Property Tax and electricity and water charges with respect to the ground floor even after the gift will be proved. However it having been held that the same even if proved would not negate the gift, the question of ordering trial on the said aspect also does not arise. The Courts are not to mechanically put all suits to trial, when outcome CS No.58556/16 Arun Jain V. Padam Chand Jain 20/ 37 thereof is not dependent upon any factual adjudication.
7.12 In Promila Gulati Vs. Anil Gulati 2015 SCC Online Delhi 7406 it has been held as under:
16. It is a rule of law of evidence, which is also known as the "best evidence rule" that in case a written document is available, no oral evidence can be lead in that regard. In the present case, in the face of a document in writing, the pleas of the defendant cannot be permitted to be taken and are barred by the provision of Section 92 of the Evidence Act. The following cases are relevant in this regard:
(a) In M/s. Kusum Enterprises and Ors. Vs. Vimal Kochhar and Anr. 207 (2014) DLT 172, it was observed as follows:
"(c) Section 91 of the Indian Evidence Act, 1872 provides that where the terms of a contract have been reduced in the form of a document and where the matter is required by law to be reduced in the form of a document, no evidence shall be given in proof of the terms of such contract except the document itself;
Section 92 of the Evidence Act provides that where the terms of the contract required by law to be reduced in the form of a document have been proved according to Section 91, no evidence of any oral agreement between the parties for the purpose of contradicting, varying, adding to, or subtracting from its terms shall be admitted; though there are exceptions to both the said provisions but the same have not been invoked by the respondents/plaintiffs or their counsel and the case is not found to be falling in any of the exceptions;
(d) it is also the settled position in law (See Chandrakant Shankarrao Machale Vs. Parubai Bhairu Mohite (2008) 6 SCC 745 and S. Saktivel Vs. M. Venugopal Pillai (2000) 7 SCC 104) that the terms of a registered document can be varied/altered by a registered document only; in Raval & Co. Vs. K.G. Ramachandran (1974) 1 SCC 424 it was specifically held that any variation of rent reserved by a registered lease deed must be made by another registered instrument;"
(c) In Far East Marketing (P) Ltd. Vs. Khurana Electricals (in I.A. Nos.
17592/2011 and 17593/2011 in CS(OS) No. 303/2011, Decided On:
10.11.2014), this court observed that :
"13. No evidence of any oral agreement or statement can be admitted when the terms of any such contract have been reduced in the form of a document. Thus, the grounds mentioned in the application for leave to defend as defence, it is merely a moonshine defence. The said grounds have no application in law."
CS No.58556/16 Arun Jain V. Padam Chand Jain 21/ 37
17. The following judgments are relevant for the purpose of considering the prayer made in the present application under Order 12 Rule 6 CPC :
(a) In Rameshwar Prasad Gupta Vs. Rajinder Kumar Gupta and Ors., IAs 6852/2011 and 13665/2009 in CS (OS) No. 2362/2008, Decided On: 18.07.2011, it was observed that:
"The law on admission is well settled by this Court in various decisions, some of them are as under:
(a) Umang Puri v. Lt. Col. Pramode Chandra Puri 165 (2009) DLT 245 wherein it was held that the admissions need not be made expressly in the pleadings and even on constructive admissions, the Court can proceed to pass a decree in favour of the Plaintiff under Order 12 Rule 6, CPC.
(b) National Textile Corporation Ltd. and Anr. v. Ashval Vaderaa 167 (2010) DLT 602 wherein it was held that admission can be found even in the statement of parties recorded in the court and admissions may also be gleaned from vague and unspecific denials.
(c) Madan Lal Kaushik v. Shree Yog mayaji Temple and Ors. 178 (2011) DLT 398 wherein it was held that if the defense is irreconcilable rendering it impossible well nigh (almost) impossible for the Defendant to succeed, suit out to be decreed which was the objective of amendment of Code of Civil Procedure brought in 1976."
(b) In Uttam Singh Duggal & Co. Ltd. vs. United Bank of India, (2000) 7 SCC 120, it has been held as follows :
"In the objects and reasons set out while amending the said rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."
(c) In M/s. Payal Vision Ltd. vs. Radhika Choudhary, JT 2012 (9) SC 214, wherein it has been held as follows :
"In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the Plaintifflandlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord Under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the CS No.58556/16 Arun Jain V. Padam Chand Jain 22/ 37 Court can pass a decree in terms of Order XII Rule 6 of the Code of Civil Procedure."
(d) This Court in the case of Zulfiquar Ali Khan (dead) through LRs and Ors. vs. Straw Products Limited & Ors. 2000 (56) DRJ 590 in para 10 observed as under :
"10. This is a notorious fact that to drag the case, a person so interested often takes all sorts of false or legally untenable pleas. Legal process should not be allowed to be misused by such persons. Only such defense as give rise to clear and bona fide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or un tenable pleas to delay the suit. The issues will be framed in a suit only when pleadings raise material proposition of law and/or fact which need investigation and so could be decided after trial giving parties opportunities to adduce such relevant evidence as they may think necessary and proper. Material proposition of law or fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved. If a plea is not valid and tenable in law or is not relevant or necessary for deciding the controversy involved, the Court would not be bound and justified in framing issue on such unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable court time."
7.13 As has already been discussed above no fraud or undue influence has been pleaded in the present matter by the defendants especially defendant no. 1 i.e. the donor and as far as the condition that the plaintiff i.e. donee was to maintain, take care of the donor does not find mention in the gift deed.
7.14 It was also one of the contentions of the defendants that the possession of the suit property was not handed over to the plaintiff. However the recitals in the gift deed as well as the power of attorney make it amply clear that possession was handed over to the plaintiff and the same was CS No.58556/16 Arun Jain V. Padam Chand Jain 23/ 37 accepted by him. The relevant clause read as under:
That the actual, physical, vacant and peaceful possession of the aforesaid FLAT/PROPERTY UNDER DONATION shall be handedover/delivered to the DONEE PARTY NO. 2 by the DONOR PARTY NO. 1 at the Spot and the DONEE PARTY NO. 2 has also accepted the same.
7.15 Nonetheless it has been held in the above judgment that delivery of possession is not necessary. The relevant portion is reproduced hereunder:
35. Significantly, Section 123 of the Transfer of Property Act while providing "Transfer how effected", for gift of immovable property, prescribes only execution of a registered document by the Donor and does not prescribe delivery of possession. In fact it has been held by this Court in Wg. Cdr.
(Retd.) R.N. Dawar Vs. Shri Ganga Saran Dhama AIR 1993 Delhi 19 that mere delivery of possession without registered document cannot tantamount to gift of immovable property. A Division Bench of the Punjab & Haryana High Court in Indar Singh Vs. Nihal Kaur AIR 1968 Punjab & Haryana 495 has held that the rule of Hindu Law that delivery of possession is essential to the validity of the gift is abrogated by Section 123, under which deliver of possession is no longer necessary to complete a gift except in case of movable property. Observations to the said effect can also be found in Nirshi Dhobin Vs. Dr. Sudhir Kumar Mukherjee AIR 1969 SC 864. Section 122, only requires acceptance of the gift on the part of the Donee and which has been done in the present case by the Donee being a party to the Gift Deed. The argument raised of possession having not been delivered is thus misconceived as there is no requirement of delivery of possession.
7.16 In Sehdev Singh Verma Vs. J.P.S. Verma RFA (OS) 103/14 2015 SCC Online Delhi 11654 it was held as under:
47. We note that an argument was advanced on behalf of appellant before the Single Judge that gift in question was not complete in the instant case as the deceased had not delivered the possession of the suit property to the defendant No.2 at/after the time of making the gift. In this regards, suffice would it be to note the dictum of law laid down by three Judge Bench of Supreme Court in the decision reported as (2014) 9 SCC 445 Renikuntla Rajamma vs. K. CS No.58556/16 Arun Jain V. Padam Chand Jain 24/ 37 Sarwanamma that delivery of possession of gifted property is not an essential requirement for making a valid gift of the immovable property.
7.17 Further reliance may also be placed upon the law laid down in Renikuntla Rajamma Vs. K. Sarwanamma (2014) 9 SCC 445 wherein it was held as under:
16. The matter can be viewed from yet another angle. Section 123 of the T.P. Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word transfer must be effected used by Parliament in so far as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or by delivery.
The difference in the two provisions lies in the fact that in so far as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property........
20. In the case at hand as already noticed by us, the execution of registered gift deed and its attestation by two witnesses is not in dispute. It has also been concurrently held by all the three courts below that the donee had accepted the gift. The recitals in the gift deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor.
7.18 Reference at this stage may also be made to the law laid down CS No.58556/16 Arun Jain V. Padam Chand Jain 25/ 37
in Asokan Vs. Lakshmi Kutty (2007) 13 SCC 210 wherein it was held as under:
23. Could they now turn round and say that he was to fulfill a promise? The answer thereto must be rendered in the negative. It is one thing to say that the execution of the deed is based on an aspiration or belief, but it is another thing to say that the same constituted an onerous gift. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Indian Contract Act. It was not done. The deeds of gift categorically state, as an ingredient for a valid transaction, that the property had been handed over to the donee and he had accepted the same. In our opinion, even assuming that the legal presumption therefore may be raised, the same is a rebuttable one but in a case of this nature, a heavy onus would lie on the donors.
24. Keeping in view the relationship of the parties and further in view of the fact that admittedly the appellant had not been residing in India for a long time, neither the possession of the document nor the payment of tax nor nonmutation of the name by itself would be sufficient to show that the execution of the deeds of gift by the defendants was not voluntary acts on their part. It can never be the intention of a son to drive away the parents from the house as soon as the deeds of gift are executed. Parents while gifting the property to a successor out of love and affection as also with a view to enable him to live a peaceful life, would not like to lose both the property as also their son.
7.19 In fact as far as the alleged condition and cancellation of the gift deed on account of failure on the part of the plaintiff to fulfill those conditions is concerned, in addition to the above discussion it will be worthwhile to highlight the observations made in the above judgment which are reproduced hereunder:
38. In the decision reported as AIR 1962 Ori 130 Tila Bewa vs. Mana Bewa the law relating to revocation of gift upon breach of condition of gift was succinctly stated in following terms: "The well settled legal position, based on authorities, is that a gift, subject to the condition that the donee should maintain the donor, cannot be revoked under Section 126 of the Transfer of Property Act for failure of the donee to CS No.58556/16 Arun Jain V. Padam Chand Jain 26/ 37 maintain the donor, firstly for the reason that there is no agreement between the parties that the gift could be either suspended or revoked; and secondly, this should not depend on the will of the donor; again, the failure of the donee to maintain the donor as undertaken by her in the document is not a contingency which should defeat the gift; all that could be said is that the default of the donee in that behalf amounts to want of consideration; Section 126 thus provides against the revocation of a document of gift for failure of consideration; if the donee does not maintain the donor as agreed to by the donee, the latter (donor) could take proper steps to recover maintenance; it is not open to a settler to revoke a settlement at his will and pleasure and he has got to get it set aside in a court of law by putting forward such pleas as bear on the invalidity of a deed of gift. Under Section 122 the Transfer of Property Act, a gift is complete when it is accepted by or on behalf of the donee; where there is evidence that the gift of property by a person to his wife and children was accepted by the donees, the fact,that the donor, who had no other property, stayed on the property, even after the gift,does not show that the gift had not taken effect; where no right in the property is reserved in the donor, the fact that there is a clause in the deed (as in the present case) that the donee should maintain the donor, does not show that the donor continued to be the beneficial owner; a direction in a gift deed that the donee should maintain the donor till his death will not make the gift a conditional one; if the terms of the gift deed were ,that there had been an absolute transfer of the and remarried. In my opinion, this argument cannot stand, in view of the legal position as stated above. With regard to the decision, relied on by the learned counsel, it appears that the Allahabad High Court observed that it was arguable that in the. absence of an express power of revocation for failure of the condition the gift cannot be impugned or revoked. Therefore, the Allahabad decision,which was decided on the particular facts of the case,does not support the defendant's contention. In the present case, as is clear from the document itself, there is no agreement that on failure on the part of the plaintiff to perform any of the conditions, namely, Sebadharma etc. the gift will be invalid. In other words, there must be a defeasance or default clause in order to make the gift revocable; if there was a condition that on failure to perform any of the conditions the gift will be void, then certainly the gift could have been revoked; the document "does not make any provision to that effect. Here, the defendant cancelled the gift,as appears from the deed of cancellation,in apprehension that the plaintiff might waste the property by transfer; it is not the defendant's case that, by reason of the plaintiff's having failed to perform her Sebadharma etc. that she revoked the deed of gift. (Emphasis Supplied).
39. The decision reported as AIR 2003 HP 107 Tokha vs. Smt. Biru & Ors is CS No.58556/16 Arun Jain V. Padam Chand Jain 27/ 37 also an authority on the point of revocation of gift on breach of condition attached to gift. The relevant observations made in said decision are being noted herein under: "14. In Murikipudi Ankamma v. Tummalacheruvu Narasayya learned single Judge of Madras High Court held that in the absence of any express reservation of a power of revocation in the gift deed a donor does not continue to have the right to revoke a gift. For if a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, a Court will not loose the fetters he has put upon himself and without reservation of power to revoke, gift cannot be revoked under Section 126 of the Transfer of Property Act.
15. In Gandadhara Iyer v. Kulathu Iyer Sankara Iyer AIR 1952 TC 47, a Division Bench of the said Court held that when there is an outandout transfer by way of gift followed by a direction to the donee to maintain the donor the latter direction is only a pious wish. On the other hand, if the gift deed starts with a statement that it is made with the object of providing for the maintenance of the donor and this statement is followed by the operative clause, there can be no doubt that the gift is subject to the liability to maintain the donor. Thus, where after the operative portion of the gift deed other clauses providing for the expenses in connection with the donor's funeral ceremonies and for the services expected from the donee are introduced, the directions will not give any right to the donor to revoke the gift if the conditions are not observed.
16. In M.Venkatasubbaiah v. M.Subbamma, AIR 1956 AP 195, learned single Judge held that a gift subject to the condition that the donee should maintain the donor cannot be revoked under Section 125 for failure of the donee to maintain the donor firstly for the reason that there is no agreement between the parties that the gift should be either suspended or revoked: and secondly this should not depend on the will of the donor. Again, the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift. All that could be said is that the default of the donee in that behalf amounts to want of consideration. Section 126 itself provides against the revocation of a document of gift for failure of consideration. If the donee does not maintain the donor as agreed to by him, the latter could take proper steps to recover maintenance etc. It is not open to a settler to revoke a settlement at his will and pleasure and he has to get it set aside in a Court of law by putting forward such pleas as bear on the invalidity of gift deed. Similar view was taken by Judicial Commissioner of CS No.58556/16 Arun Jain V. Padam Chand Jain 28/ 37 Himachal Pradesh in Smt. Gaurju v. Tara Chand AIR 1962 HP 4.
17. A learned single Judge of Orissa High Court in Tila Bewa v. Mana Bewa has also held that gift cannot be revoked for failure of donee to maintain donor under Sections 126 and 122 of the Transfer of Property Act as there was no agreement between the parties that the gift could be either suspended or revoked.
18. In Union Bank Ltd. v. Mst. Ram Rati (Lucknow Bench), learned single Judge has held that a gift would be a valid gift if the gift has been accepted even though the document may not have been registered at the time of the execution of the document and it cannot be revoked subsequently, if the document has been registered. Further it is said that a completed gift takes effect from the date of the execution and not from the date of registration.
19. A Division Bench of this Court in Smt. Shakuntla Devi v. Smt. Amar Devi AIR 1985 HP 109, has held that if the gift not based on fraud, undue influence or misrepresentation its cancellation is not valid under Section 126 of the Transfer of Property Act.
20. In Vannathi Valappil Janaki v. Puthiya Purayil Paru a learned single Judge of Kerala High Court has held that when a gift of immovable property has been accepted by the donees and they are in possession of the property the fact that after making the gift the donors felt that it was a folly or imprudence or want of foresight on their part to have executed the deed of gift will not clothe them with power of revocation of the gift under Sections 126 and 122 of the Transfer of Property Act.
21. A learned single Judge of this Court in Mool Raj v. Jamna Devi AIR 1995 HP 117, has held that when no specific condition of revocation has been made in the deed itself, in the event of failure of the donee to render services to the donor or maintain the donor the gift cannot be revoked under Section 126 of the Transfer of Property Act.
22. In the case in hand there is no specific condition either for giving maintenance or for revoking of the gift deed in case services are stopped to be rendered by the donee. Anyway, the fact remains, as has been stated in the deed of gift that the gift was in lieu of services meaning thereby that the donee had to render services to the donorplaintiff but in the absence of any specific condition in the event of failure of the donee to render services, the gift could not be revoked. Thus, the deed of gift Ext. D1 if considered as an outcome of general law cannot be said to be revocable one when no specific condition for its revocation has been made in the deed Itself in the event of failure of the donee to provide services to the donor or maintain the donor, the gift cannot be revoked."
CS No.58556/16 Arun Jain V. Padam Chand Jain 29/ 37
(Emphasis Supplied)
40. To put it pithily, the position regarding revocation of gift upon breach of condition of gift is this: there must be a defeasance or default clause in order to make the gift revocable; if there was a condition that on failure to perform any of the conditions the gift will be void, then certainly the gift could have been revoked; but the gift could not be revoked where the document does not make any provision to that effect.
7.20 It will be pertinent to point out that defendant no. 1 had filed a civil suit bearing no. 160/13 seeking cancellation of the said gift deed however the said suit was withdrawn on 06.06.2015. Copy of order dated 06.06.2015 is available on record wherein it is reflected that plaintiff (defendant no 1 herein) is no more interested to proceed further with the suit and wishes to withdraw the same unconditionally. It has not been explained as to why the said suit was withdrawn by defendant no. 1 and if indeed there are merits in the contentions of defendant no. 1 then in my considered opinion defendant no. 1 would not have withdrawn the said suit. Withdrawal of the suit is itself a grave factor weighing against the defendants. Add to it the fact that no further, fresh steps were taken for cancellation, revocation of the gift deed. If indeed defendant no. 1 had any such intention to not to give the property or had the gift deed been got executed by playing fraud upon him he would not have withdrawn the suit and would have definitely taken recourse to the legal remedies available to him. Once defendant no. 1 does not do so, then the plaintiff's averment that defendant no. 1 was brainwashed by defendant no. 2 to file the civil suit bearing no. 160/13 get significantly strengthened.
CS No.58556/16 Arun Jain V. Padam Chand Jain 30/ 37 7.21 At this stage it will be pertinent to highlight that in the said suit
defendant no. 1 (plaintiff therein) had pleaded (para 9, 13 and 14 of the plaint of CS no. 160/13 as available on record) that he was "fraudulently made to execute a gift deed dated 15.02.2007". It was pleaded that after the death of his wife, as he was suffering from loneliness, depression as well as other old aged related ailments and was unable to look after the suit property including its maintenance, defendant (plaintiff herein) took advantage of the said situation, fraudulently persuaded him to sign certain papers namely gift deed on the pretext that he would be sharing his responsibility by looking after the said flat. It was also pleaded that defendant (plaintiff herein) connived with one Jitindra Jain, his brother's son and as he was not in a position to understand the legal consequences and also succumbing to the force, coercion, persuasion of his said son (plaintiff herein) he agreed to sign the papers, prepared by him, which he had not even looked into. However in the present litigation the pleadings, averments in the written statement of defendant no. 1 are completely, starkingly different. No such force, coercion, collusion etc. has been alleged. This itself proves the falsity of defendant no. 1's version. Moreover as discussed above the withdrawal itself speaks volume about the hollowness of defendant no. 1's claim in the present suit. Furthermore it has been discussed above that the plaintiff's averments that the gift deed was got prepared by defendant no. 1 himself and that after documentation, preparation of gift deed he was called to India has not been CS No.58556/16 Arun Jain V. Padam Chand Jain 31/ 37 categorically denied by the defendants. Considering the same and the fact that defendant no. 1 is a highly learned, educated person, an acclaimed mathematician, does not render defendant's version even remotely reliable.
7.22 It also cannot be ignored that the plaintiff had categorically averred in the plaint that he was gifted the suit property while his brother i.e. defendant no. 2 was given another property bearing Flat no. 421, Shri Parshvanath, CGGS Ltd. Plot no. 50, IP Extension, New Delhi92 which defendant no. 2 had sold and kept the sale consideration with him, which pleadings were not denied by the defendants. This fact assumes significance as there being two properties belonging to defendant no. 1, one was given to defendant no. 2 and other i.e. Suit property was given to the plaintiff. This is what usually happens in almost all the families, households i.e. parents give properties equally to their children unless there are circumstances which compel them to not do so. It also cannot be ignored that admittedly prior to registration of gift deed defendant no. 1 had also executed a Will dated 28.09.2005 in favour of plaintiff whereby the suit property was bequeathed to him. This all proves that defendant no. 1 always had the intention to give the said property to the plaintiff.
7.23 Though Ld. Counsel for the defendants relied upon Naramadaben Maganlal Thakker Vs. Pranjivandas Maganlal Thakker & ors JT 1996 (9) SC 273 however the said case law is not applicable to the CS No.58556/16 Arun Jain V. Padam Chand Jain 32/ 37 facts of the present case. In the said case the gift deed was conditional and there was no recital or proof of acceptance, whereas in the present case it has been discussed above that the gift deed was/is unconditional and there is a categoric recital of acceptance. Furthermore in the said case the gift was to become operative after the death of the donor who was also having the right to transfer the property absolutely which is not so in the present case. In the case at hand upon execution, registration of the gift deed and acceptance by the plaintiff, the plaintiff became absolute owner of the suit property. It was only after the execution, registration and acceptance that the power of attorney was executed in favour of defendant no. 1 by the plaintiff i.e. the absolute owner of the suit property.
7.24 Though Ld. Counsel for the defendants relied upon Amar N. Gugnani Vs. Naresh Kumar Gugnani (through Legal Heirs) CS (OS) No. 478/2004 dated 30.07.2015 however the said case law is not applicable to the facts of the present case. Undoubtedly the plaintiff had claimed that he had contributed towards the purchase of the suit property, as his father was in need of finance, but this by itself does not attract the provisions of the Benami Transactions (Prohibition) Act 1988. The property was allotted in the name of defendant no. 1 who is the father of the plaintiff and it is not the case of either of the party that at the time of making the contributions it was agreed between them that the property though purchased in the name of defendant no. 1, he would be holding the same for the plaintiff or that the CS No.58556/16 Arun Jain V. Padam Chand Jain 33/ 37 plaintiff shall be real owner always or that defendant no. 1 shall hold it as a trustee. It was a case of mere contribution by a son towards the property planned to be purchased by the father. Nonetheless defendant no. 1 having categorically denied the claims of contribution by the plaintiff, towards purchase of the suit property, he cannot otherwise also take the plea of benami transaction. Hence there is no question of the suit being barred by the provisions of Benami Transactions (Prohibition) Act 1988.
7.25 Though Ld. Counsel for the defendants also relied upon S. Satinder Singh and ors Vs. Raminder Sarup Singh and anr 2002 IIIAD Delhi 531 and M/s Jeevan Diesels & Electricals ltd. Vs M/s Jasbir Singh Chadha (HUF) & anr JT 2010 (4) SC 574 to argue that it is not a fit case to attract the provisions of Order 12 Rule 6 CPC however I find no merits in the reliance placed upon by the Ld. Counsel for the defendants on the said case laws. It is only upon considering the entire pleadings of the parties and the material placed on record that I have come to the conclusion that it is a fit case which does not merit any trial and exercising the judicial discretion under Order 12 Rule 6 CPC would meet the ends of justice. Once execution of registered gift deed is admitted I find no impediment in decreeing the suit in favour of the plaintiff. Evasive denials are there in the written statements. Averments in the written statements are otherwise inconsistent with the pleadings, plaint of CS No. 160/13. Oral evidence against the registered gift deed cannot be admitted. The suit property was duly transferred, came to be CS No.58556/16 Arun Jain V. Padam Chand Jain 34/ 37 owned by the plaintiff upon execution of the registered gift deed and he is the absolute owner of the same.
7.26 There are no additional averments in the application under Order 12 Rule 6 CPC as was claimed by Ld. Counsel for the defendants during the course of arguments. At best the averments in the application under Order 12 Rule 6 CPC are merely explaining the factual matrix already set out in the plaint.
7.27 Merely because the original documents are with defendant no. 1 that does not effect the plaintiff's right in the suit property which devolved upon him on account of execution and registration of the gift deed. As the plaintiff was/is residing abroad i.e. in USA, the gift deed had already been registered which made him the absolute owner of the suit property and he had also executed the Power of attorney in his father's favour to manage and control the property and his father i.e. defendant no. 1 was residing in the suit property it was completely natural for the property documents to have been kept with defendant no. 1 as they could be required from time to time for various purposes including payment of tax, letting out of the property, getting electricity connection etc. But merely because the documents remained with defendant no. 1 it does not effect the plaintiff's right under the registered gift deed.
CS No.58556/16 Arun Jain V. Padam Chand Jain 35/ 37 7.28 Merely because defendant no. 2 is/was residing in the suit
property at the time of execution of gift deed that also does not effect the plaintiff's right under the registered gift deed. A careful scrutiny of defendant no. 2's written statement would reveal that he has not claimed any independent right to, over the suit property and the only right which has been claimed is that he is residing in the same with his father as it is belongs to his father. Plaintiff being the absolute owner can seek possession of the suit property from the defendants for which he has already taken steps in the form of CS No. 67/17. Furthermore the electricity connection in the suit property is in the name of the plaintiff and the suit property stands mutated in his name which obviously was done on the basis of registered gift deed.
7.29 Defence as taken by the defendants is thus sham, moonshine and of a kind which no court of justice or equity would countenance.
7.30 Therefore the application stands allowed and is disposed off accordingly.
7.31 Plaintiff being the owner of the suit property is entitled to the declaration to the effect that and also as a right to restrain the defendants from alienating or creating any third party interest in the suit property. Accordingly plaintiff is declared owner of suit property i.e. Flat no. 3389, second floor, Category 2, Pocket 3, Sector D, Vasant Kunj, New Delhi CS No.58556/16 Arun Jain V. Padam Chand Jain 36/ 37 along with one scooter garage on ground floor and the defendants are restrained from alienating or creating any third party interest in the said property. I order accordingly.
7.32. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Gaurav Rao)
on 3rd January 2019 ADJ02 & Waqf Tribunal /
New Delhi District,
Patiala House Courts, Delhi.
CS No.58556/16 Arun Jain V. Padam Chand Jain 37/ 37