Deepak Gupta vs Mr. Ajay Gupta on 28 March, 2022

[Cites 27, Cited by 0]

Delhi District Court

Deepak Gupta vs Mr. Ajay Gupta on 28 March, 2022

                 THE COURT OF MS. SHIVALI SHARMA
           ADDITIONAL DISTRICT JUDGE03: WEST DISTRICT
                   TIS HAZARI COURT: DELHI

In the matter of:

Civ DJ No. 609563/2016 (First Suit)


1. Deepak Gupta
S/o Sh. Abhimanyu Gupta
R/o H. No. 37, on Road no. 71,
New Delhi 110 026.

2. Smt. Ritu Gupta
W/o Ahimanyu Gupta
R/o H. No. 37, on Road no. 71,
New Delhi 110 026.

                                                           ..............Plaintiff


                              Versus

1. Mr. Ajay Gupta
S/o Sh. Janardhan Gupta
R/o 37/71, Punjabi Bagh,
New Delhi.

2. Mrs. Anita Gupta
W/o Sh. Ajay Gupta
S/o Sh. Janardhan Gupta
R/o 37/71, Punjabi Bagh,
New Delhi.




Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. &
Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors.      1 /77
 3. Mr. Janardhan Gupta
S/o Sh. Gurdial Mal Gupta,
R/o 37/71, Punjabi Bagh,
New Delhi.

(Expired on 01.08.2014)
LR of the deceased.

i. Smt. Usha Kiran (Wife) age80 years
R/o H. No. 56, Sector31,
Gurgaon, Haryana

ii. Sh. Abhamanyu Gupta (Age59) years
S/o Late Sh. Janardhan Gupta,
R/o H. No. 56, Sector31,
Gurgaon, Haryana

iii. Sh. Vijay Gupta, Age52 years, (Son)
S/o Late Sh. Janardhan Gupta,
R/o H. No. 37/71, Punjabi Bagh (West),
New Delhi.

iv. Sh. Abhimanyu Gupta, Age40 years (Son)
S/o Late Sh. Janardhan Gupta,
R/o H. No. 37/71, Punjabi Bagh (West),
New Delhi.

v. Ms. Jyotsana Aggarwal Age 50 years
D/o Late Sh. Janardhan Gupta,
R/o H. No. 7/58, Gali No. 08,
Vishwas Nagar, Delhi 32.

vi. Ms. Deepa Drolia, Age45 years
D/o Late Sh. Janardhan Gupta,
R/o H. No. 31B, PocketA,
Dilshad Garden, Delhi95.



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Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors.   2 /77
 Vii. Ms. Prerna Garg, Age44 years
D/o Late Sh. Janardhan Gupta,
R/o H. No. 36/73, West Punjabi Bagh
New Delhi 110 026.

viii. Ms. Mamta Gupta, Age42
D/o Late Sh. Janardhan Gupta,
R/o H. No. 427, Gurudwara Road,
Modi Nagar 201 1204 (UP)

                                                          ...........Defendant

              Date of institution                 :      24.02.2010
              Date of decision                    :      28.03.2022

      SUIT FOR POSSESSION AND DAMAGES & INJUNCTION.

                                     And

Civ. DJ. No. 609627/2016 (Second Suit)

Ajay Gupta
S/o Sh. Janardhan Gupta
R/o 37/71, Punjabi Bagh (West),
New Delhi.
                                                           ..............Plaintiff

                              Versus


1. Janardhan Gupta (Expired on 01.08.2014)
LR of the deceased.

i. Smt. Usha Kiran (Wife) age80 years
R/o H. No. 56, Sector31,
Gurgaon, Haryana


Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. &
Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors.      3 /77
 ii. Sh. Abhamanyu Gupta (Age59) years
S/o Late Sh. Janardhan Gupta,
R/o H. No. 56, Sector31,
Gurgaon, Haryana

iii. Sh. Vijay Gupta, Age52 years, (Son)
S/o Late Sh. Janardhan Gupta,
R/o H. No. 37/71, Punjabi Bagh (West),
New Delhi.

iv. Sh. Abhimanyu Gupta, Age40 years (Son)
S/o Late Sh. Janardhan Gupta,
R/o H. No. 37/71, Punjabi Bagh (West),
New Delhi.

v. Ms. Jyotsana Aggarwal Age 50 years
D/o Late Sh. Janardhan Gupta,
R/o H. No. 7/58, Gali No. 08,
Vishwas Nagar, Delhi 32.

vi. Ms. Deepa Drolia, Age45 years
D/o Late Sh. Janardhan Gupta,
R/o H. No. 31B, PocketA,
Dilshad Garden, Delhi95.

Vii. Ms. Prerna Garg, Age44 years
D/o Late Sh. Janardhan Gupta,
R/o H. No. 36/73, West Punjabi Bagh
New Delhi 110 026.

viii. Ms. Mamta Gupta, Age42
D/o Late Sh. Janardhan Gupta,
R/o H. No. 427, Gurudwara Road,
Modi Nagar 201 1204 (UP)




Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. &
Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors.   4 /77
 2. Sh. Abhimanyu Gupta
S/o Late Sh. Janardhan Gupta,
R/o H. No. 56, Sector 31,
Gurgaon, Haryana.

3. Sh. Vijay Gupta, Age52
S/o Late Sh. Janardhan Gupta,
R/o H. No. 37/71, Punjabi Bagh
New Delhi26.

4. Sh. Abhinav Gupta, Age40 years
S/o Late Sh. Janardhan Gupta,
R/o H. No. 37/71, Punjabi Bagh,
New Delhi26.

5. Sh. Deepak Gupta
S/o Abhinav Gupta
R/o H. No. 56, Sector31,
Gurgaon, Haryana.


6. Smt. Ritu Gupta
W/o Sh. Abhinav Gupta
R/o H. No. 37/71, Punjabi Bagh
New Delhi 26.


                                                         ...........Defendants

 SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF AND
               PROHIBITORY INJUNCTION.


       Date of institution                 :      12.03.2010
       Date of decision                    :      28.03.2022




Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. &
Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors.    5 /77
                                          JUDGMENT

1. Vide this consolidated judgment, I shall dispose off two consolidated suits, description of which are mentioned above. Both the suits were consolidated vide order dated 23.10.2021.

2. The first suit tilted as Deepak Gupta & Anr. Vs. Ajay Gupta & Ors. was filed by the plaintiffs claiming themselves to be owner of the suit property on the basis of a gift deed and claiming possession from defendants no. 1 and 2 who were alleged to be in unauthorized occupation of the suit property. Defendants no. 1 and 2 challenged the said gift deed in their defense and defendant no. 1 filed the second suit titled as Ajay Gupta Vs. Janardhan Gupta & Ors. seeking a declaration that the said gift deed was invalid, illegal, null and void. Since, similar evidence was required in both the matters, the suits were consolidated vide order dated 23.10.2021.

PLEADINGS OF THE FIRST SUIT: Plaintiff's Case in the first suit Civ. DJ No. 609563/2016 titled as Deepak Gupta & Anr. Vs. Ajay Gupta & Anr.:

3. The first suit bearing Civ. DJ. No. 609563/2016 was filed by two plaintiff namely Sh. Deepak Gupta and Smt. Ritu Gupta against three Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 6 /77 defendants namely Sh. Ajay Gupta, Smt. Anita Gupta and Sh. Janardhan Gupta. Sh. Janardhan Gupta has been impleaded as a proforma party in the suit and no relief is prayed against him.

4. It is alleged in the plaint that defendant no. 3/ Sh. Janardhan Gupta has four sons and four daughters namely 1. Sh. Abhimanyu Gupta (Father of plaintiff no. 1), Sh. Vijay Gupta, 3. Sh. Ajay Gupta (defendant no. 1), 4. Sh. Abhinav Gupta (Husband of plaintiff no. 2), 5. Ms. Jyotsna Aggarwal, 6. Ms. Deepa Drohia, 7. Ms. Prerna Garg and 8. Ms. Mamta Gupta. Defendant no. 2 is the wife of defendant no.1.

5. One property bearing plot no. 137/71, West Punjabi Bagh, New Delhi admeasuring 1088.89 sq. yds. was purchased jointly by Sh. Janardhan Gupta/defendant no. 3 and one Sh. Ratan Lal Gupta vide sale deed dated 26.12.1969. They raised construction on the said plot of land. Some disputes arose between the two joint owners which led to the filing of suit no. 223 of 1985. The said suit was compromised between the said joint owners vide order dated 20.09.1996 and a consent decree of partition was passed in the said suit. Pursuant to the said partition, the portion shown in red color in the site plan fell in the share of Sh. Ratan Lal Gupta while the portion shown in green color in the site plan fell in the share of Sh. Janardhan Gupta/defendant no. 3. This portion of defendant no. 3 in property no. 37/71, West Punjabi Bagh, New Delhi is the bone of contention between the parties and is hereinafter referred to as " the suit property".

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 7 /77

6. The suit property was purchased and constructed by Sh. Janardhan Gupta/defendant no. 3 from his own funds. Defendant no. 3 married all his four daughters and all are living separately in their matrimonial houses. All the four sons of Sh. Janardhan Gupta/defendant no. 3 had been residing with him in the suit property along with their families as licensees of Sh. Janardhan Gupta/defendant no. 3. Portion marked as E,F,G,H in the site plan of the ground floor of the suit property is in possession of defendants no. 1 and 2. The said portion is hereinafter referred to as " the disputed portion" of the suit property.

7. Sh. Janardhan Gupta/Defendant no. 3 gifted the suit property to the plaintiffs vide registered Gift Deed dated 05.11.2009 by virtue of which the plaintiffs became absolute joint owners of the suit property.

8. The defendants no. 1 and 2 namely Sh. Ajay Gupta and his wife Smt. Anita Gupta were informed by the plaintiffs on 05.11.2009 itself that they do not want them to continue in possession of the disputed portion of the suit property and they were requested to vacate the same. Defendants no. 1 and 2 assured the plaintiffs to vacate the disputed portion before 06.12.2009. Prior to 05.11.2009, Sh. Janardhan Gupta/Defendant no. 3 had also asked defendants no. 1 and 2 to vacate the disputed portion of the suit property as they were a continuous source of tension and harassment to defendant no. 3.

9. The license in favour of defendants no. 1 and 2 to reside in the disputed portion of the suit property was revoked by the plaintiff w.e.f.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 8 /77 06.11.2009. However, despite giving their undertaking for vacating the same before 06.12.2009, defendants no. 1 and 2 failed to vacate the disputed portion of the suit property. Accordingly, a formal notice dated 08.01.2010 was issued to them by the plaintiffs calling upon them to vacate the disputed portion of the suit property. However, they failed to comply with the notice.

10. Hence, the present suit has been filed seeking possession of the disputed portion of the suit property; decree of damages for unauthorized occupation @ Rs. 40,000/ per month for two month w. e. f. 06.11.2009 till the filing of the suit; as well as a decree of injunction restraining defendants no. 1 and 2 from inducting third party in the suit property or occupying any other portion of the suit property.

Defendant's case in the first suit Civ. DJ No. 609563/2016 titled as Deepak Gupta & Anr. Vs. Ajay Gupta & Anr.: Case of defendants no. 1 and 2.

11. Sh. Ajay Gupta and his wife Smt. Anita Gupta i. e. defendants no. 1 and 2 filed their joint written statement alleging that the alleged notice of termination of their license dated 08.01.2010 has not been duly served upon them. It is also alleged that the present suit, having been filed on the basis of Gift Deed dated 05.11.2009, is not maintainable as the said Gift Deed is a void document and a separate civil suit bearing CS (OS) No. Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 9 /77 447/2010 titled as Ajay Gupta Vs. Janardhan Gupta and Ors. (New No. Civ. DJ. No. 609627/2016) has already been filed challenging the said gift deed.

12. It is also alleged that house no. 37/71, West Punjabi Bagh, New Delhi was a coparcenery property having been bought and built up with funds generated from ancestral movable and immovable properties bearing unit Nos. U134 and V20, Bhooton Wali Gali, Naya Bazar, Bhiwani, Haryana as well as income of the members of Hindu Joint Family which continued upto March 1997. In March 1997, an oral partition took place and the disputed portion of the suit property fell in the share of defendant no. 1 who is occupying the same as its owner.

13. The suit is alleged to be barred by limitation as it has been filed beyond the period of 12 years after the oral partition in March 1997 between the members of HUF i.e. defendant no. 1 Sh. Ajay Gupta, Sh. Janardhan Gupta/defendant no. 3, father of plaintiff no. 1 Sh. Abhimanyu Gupta, Sh. Vijay Gupta and husband of plaintiff no.2 Sh. Abhinav Gupta.

14. The suit is alleged to be false, frivolous and vexatious having been filed on the basis of a forged and fabricated gift deed dated 05.11.2009.

15. It is alleged that the grand parents of defendant no. 1 were permanent residents of Bhiwani, Haryana. They migrated to Delhi about 65 years back alongwith their only son Sh. Janardhan Gupta/defendant no. 3 and started living on rent in Khari Baoli. Sh. Janardhan Gupta/defendant Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 10 /77 no. 3 was educated in Delhi and got married in Delhi. Eight children were born out of the wedlock who were the members of joint hindu family and who were joint in mess, worship and estate. The income of all earning members were pooled to run the Joint Hindu Family. The two houses of grand father of defendant no.1 in Bhooton wali Gali were sold by Sh. Janardan Gupta/defendant no. 3 as Karta of HUF. Property bearing no. U 134 was sold for Rs. 30,000/ vide sale deed dated 03.09.1974. The plot no. 37/71, Punjabi Bagh was bought by Sh. Janardhan Gupta/defendant no. 3 on 26.12.1969 jointly with one Sh. Ratan Lal Gupta and some construction was raised therein till 1971 when the Joint Hindu family of Sh. Gurdyalmal, father of defendant no. 1 had shifted to Punjabi Bagh house and started living therein. Grandmother of defendant no. 2 expired in 1971 and his grandfather expired in 1974 in the suit property.

16. The land of the suit property was bought and construction was raised from time to time from the joint earnings of the members of Joint Hindu Family and the funds of ancestral properties of Sh. Gurdayal Mal, father of Sh. Janardhan Gupta/defendant no. 3.

17. Accordingly, the suit property is alleged to be a Joint Family Property and it is stated that there was an oral partition between the family members at the end of March 1997 by virtue of which separate portions of the suit property were given to the four brothers. Parents of defendant no. 1 i.e. defendant no. 3 and his wife started living with one of their son namely Sh. Abhimanyu Gupta (father of plaintiff no. 1) in 1997. All the brothers were permitted to make additions, alterations, renovations and Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 11 /77 construction in their respective portions on their own expenses. Defendant no. 1 spent lacs of rupees after March 1997 on reflooring and renovation in the portion of the suit property in his occupation from time to time. Similarly, his other brothers had also spent money on construction/renovation in their respective portions.

18. In 2008, a dispute arose between defendant no.1 and his brother Sh. Vijay Gupta on account of some joint construction made by them. Since Sh. Vijay Gupta was closer to Sh. Janardhan Gupta/defendant no. 3, Sh. Vijay Gupta along with his father and other brothers hatched a conspiracy against defendant no. 1 to throw him out from the suit property and executed a gift deed of the suit property in favour of the plaintiffs. However, this gift deed is an illegal and void document as the gifted property was not owned by Sh. Janardhan Gupta/defendant no. 3 and accordingly, he was not capable of gifting the same. It is alleged that the suit property was a coparcenery property of the family of Sh. Gurdayalmal Gupta till March 1997 when it was partitioned by metes and bounds.

19. The contention of the plaintiff that the defendants no. 1 and 2 are merely licensees in the disputed portion of the suit property has been categorically denied. Other allegations made against them are also denied. With these contentions, the suit of the plaintiff has been rebutted.

CASE OF DEFENDANT NO. 3.

20. Sh. Janardhan Gupta/defendant no. 3 filed his separate written Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 12 /77 statement wherein he submitted and explained that the suit property was his self acquired property which was purchased by him out of his own income as a practicing lawyer and Deputy Chairman of Metropolitan Council from the year 1969 to 1971. It is categorically stated that the suit property was purchased and constructed in the financial year 19691970 from his own funds. He admitted the partition between him and Sh. Ratan Lal who was the joint owner of property bearing no. 37/71, West Punjabi Bagh, pursuant to which the suit property fell into his share.

21. He also admitted the case of the plaintiffs to the effect that he had permitted all his sons to reside in the suit property which was exclusively owned by him. He further alleged that he had executed a Memorandum of Family Settlement dated 06.07.1997 whereby the portions of the suit property given to his sons for the purposes of living only were clearly defined. There was also a stipulation in the same for performance of social obligations by all his sons towards their parents and their married sisters. All his sons were also made liable to maintain the commons services in the suit property, however, it was clarified to all his sons that Sh. Janardhan Gupta/defendant no. 3 is the absolute owner of the suit property and by way of said arrangement he was not creating any right in favor of any of his sons. The said family arrangement was signed by all his sons.

22. It is further alleged that defendant no. 1 was not fulfilling all his social and monetory obligations as per the said arrangement. On 03.09.2007, defendant no. 3 also executed his registered will whereby the Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 13 /77 portions given by him to his sons by way of Memorandum of Family Settlement dated 06.07.1997 were bequeathed in their favour which they were to receive only after his demise. However, because of the conduct and attitude of defendant no. 1, the dispute between all his four sons increased and on seeing them fighting, he executed another Will on 25.03.2009 cancelling the earlier Will dated 03.09.2007 whereby after his demise, all his movable and immovable assets were bequeathed upon his wife Smt. Usha Kiran as her life estate and after her demise on his grandson Sh. Deepak Gupta, son of Sh. Abhimanyu Gupta (plaintiff no. 1) only and not in favour of his sons.

23. Later on, vide Gift Deed dated 05.11.2009, the suit property was gifted by him in favour of his grandson Sh. Deepak Gupta/plaintiff no. 1 and daughterinlaw Ms. Ritu Gupta/Defendant no. 2. With the execution of the said gift deed, the plaintiffs became the absolute owners of the suit property and he himself was left with no rights therein.

24. He specifically denied that the suit property was a HUF property as alleged by defendants no. 1 and 2 and stated that no HUF ever existed and there was no common pool where the income of the members were put. The only property inherited by him from his father was disposed of by him in the year 1974 to meet the expenses on the education and marriages of his children. In the year 1975, during emergency, he was detained for 19 months under Maintenance of Internal Security Act and the funds received Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 14 /77 as sale proceeds of the said property became the sole source of survival for members of his family during that period. With these contentions, the suit of the plaintiff has been supported by defendant no. 3.

REPLICATION:

25. Replication was filed by the plaintiffs to the written statement of defendants no. 1 and 2 wherein the averments made in the plaint have been reiterated while the averments made in WS are rebutted except the admissions made.

PLEADINGS OF THE SECOND SUIT:

Plaintiff's Case in second suit Civ. DJ No. 609627/2016 titled as Ajay Gupta Vs. Janardan Gupta & Ors.:

26. Almost after two weeks of filing of the first suit mentioned above, defendant no. 1 in the said suit filed a suit for declaration with consequential relief and prohibitory injunction against his father Sh. Janardhan Gupta, his brothers Abhimanyu Gupta, Vijay Gupta and Abhinav Gupta and Sh. Deepak Gupta and Ms. Ritu Gupta (i. e. the plaintiffs in the first suit).

27. It is alleged in the plaint that the defendants are depriving Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 15 /77 him of his right, title and interest in joint family property/coparcenery property bearing no. 37/71, West Punjabi Bagh, New Delhi (suit property). It is stated in the plaint that plaintiffs and defendants no. 1 to 4 are owners in possessions of different portions in the suit property with common use of passages, open space, stairs, varandah, roof etc.

28. He detailed the manner in which the suit property is alleged by him to be a joint family property as mentioned in his written statement filed in the first suit and as detailed above. He also stated about the family arrangement/oral family settlement which had taken place between the brothers in March 1997 as detailed in his WS filed in the first suit and noted herein above.

29. He also stated about the various renovations/repairs/constructions carried out by the four brothers in their respective portions of the suit property after the family settlement in March 1997. He further stated about the disputes between him and his brother Sh Vijay Gupta that arose in 2008 as mentioned by him in his WS in the first suit as detailed above.

30. He further stated that in order to oust him from the suit property, his father Sh. Janardhan Gupta and his three brothers hatched a conspiracy as per which his father Sh. Janardhan Gupta executed a gift Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 16 /77 deed dated 05.11.2009 in favour of Sh. Deepak Gupta and Ms. Ritu Gupta (Defendants no. 5 & 6 herein) i.e. the plaintiffs in the first suit. He came to know about the execution of the gift deed on 10.12.2009. It is alleged that the said gift deed is void and illegal as his father Sh. Janardhan Gupta had no authority to gift the suit property in favour of anyone as he was not the sole owner of the suit property. The suit property is alleged to be a Joint Hindu Family property. It is also stated that the physical possession of the gifted property was not given by the donor to the donee. The donees i.e. the plaintiffs in the first suit and the defendants no. 5 and 6 in the second suit had got executed gift deed from Sh. Janardhan Gupta who is aged about 80 years under influence and pressure. The disputed portion of suit property is in possession of the plaintiff since March 1997 without any interference.

31. After coming to know about the execution of the gift deed, the plaintiff tried to settle the matter with the defendants but it was of no use. Hence, the suit was filed by Sh. Ajay Gupta seeking a declaration to the effect that registered gift deed dated 05.11.2009 executed by Sh. Janardhan Gupta in favor of Sh. Deepak Gupta and Smt. Ritu Gupta in respect of the suit property is invalid, illegal, void and unenforceable. Consequential relief of restraining Sh. Deepak Gupta and Smt. Ritu Gupta from creating any third party interest in the suit property and acting upon the gift deed dated 05.11.2009 has also been sought. A decree of permanent injunction is also sought restraining the defendants from dispossessing the plaintiff from the disputed portion of the suit property in Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 17 /77 his possession without due process of law.

Defendant's Case in the second suit Civ. DJ No. 609627/2016 titled as Ajay Gupta Vs. Janardan Gupta & Ors.: Case of defendant no. 1/Sh. Janardhan Gupta (defendant no. 3 in the first suit titled as Deepak Gupta & Anr. Vs. Ajay Gupta & Ors. )

32. Sh. Janardhan Gupta who is defendant no. 1 herein is defendant no. 3 in the first suit and his written statement in second suit is in consonance with his written statement filed in the first suit titled as Deepak Gupta and Anr. Vs. Ajay Gupta & Ors.

33. Since the details of the stand of Sh. Janardhan Gupta have already been enumerated while discussing his written statement in the first suit above, the same are not reproduced herein for the sake of brevity.

34. In nutshell, the case of defendant no. 1/ Sh. Janardhan Gupta is that the suit property is his self acquired property and he had every right to transfer the said property to anyone by any means. He had admitted having executed the impugned gift deed dated 05.11.2009 in favour of defendants no. 5 and 6 herein (plaintiffs in the initial suit). It is alleged that the said gift deed is a duly registered document executed by him out of his own free will

35. The suit has been preliminarily objected to on the ground that Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 18 /77 the plaintiff has no locus standi to file the same as he, being the sole owner of the suit property had executed the registered gift deed dated 05.11.2009 in favour of defendants no. 5 and 6 herein. It is also alleged that advolerm court fees had not been paid by the plaintiff herein although he is seeking cancellation of a registered document. It is also stated that the suit is bad for nonjoinder of necessary parties as the plaintiff is alleging the suit property to be a joint family property but has not impleaded his sisters in the present suit. On merits, it has been specifically denied that the suit property is a joint family property or he did not have any right to execute a gift deed qua the suit property.

Written Statement of defendants no. 2 to 4 that are brothers of the plaintiff and three other sons of defendant no. 1 other than plaintiff herein.

36. Defendants no. 2 to 4 have filed their joint written statement wherein the suit has been preliminarily objected to on the ground that the plaintiff has cleverly avoided payment of advolerm court fee although he is seeking cancellation of a registered document. On merits, it is specifically denied that the suit property is a joint family property rather it is stated that the suit property was the self acquired property of father of the parties Sh. Janardhan Gupta/defendant no. 1. The WS of defendants no. 2 to 4 on this aspect is in consonance with the WS of defendant no. 1. Other allegations have been specifically denied. With these contentions, the suit of the plaintiff has been rebutted.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 19 /77 Written statement of defendants no. 5 and 6/Sh. Deepak Gupta and Ms. Ritu Gupta(plaintiffs in the first suit).

37. In their joint written statement filed by defendants no.5 and 6, they have preliminarily objected to the suit on the ground that plaintiff has no locus standi to file the present suit. The suit is bad for nonpayment of advolerm court fees and nonjoinder of necessary parties as despite claiming the suit property to be a joint family property, plaintiff has not impleaded his sisters as party to the present suit.

38. Defendants no. 5 and 6 herein are the plaintiffs in the first suit titled as Deepak Gupta & Anr. Vs. Ajay Gupta & Ors. Their submissions in their written statement herein are in consonance with the averments made by them in their plaint in the first suit. Since the same are detailed herein above, they are not being repeated again for the sake of brevity.

39. In nutshell, the case of defendants no. 5 and 6 is that the suit property was the self acquired property of defendant no. 1/Sh. Janardhan Gupta and he had validly executed the impugned gift deed dated 05.11.2009. With these contentions, the suit has been rebutted.

Replication:

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 20 /77

40. Separate replications to the written statements were filed by the plaintiff wherein the contents of the plaint are reiterated and the averments made in the WS have been denied except the admissions made.

Demise of Sh. Janardhan Gupta:

41. During the course of trial, Sh. Janardhan Gupta, defendant no. 3 in the first suit titled as Sh. Deepak Gupta & Anr. Vs. Ajay Gupta & Ors. and defendant no. 1 in the second suit titled as Ajay Gupta Vs. Janardhan Gupta & Ors. Expired.

42. His LRs were brought on record in the first suit titled as Deepak Gupta & Anr. Vs. Ajay Gupta & Ors. vide order dated 02.09.2016 and in the second suit titled as Ajay Gupta Vs. Janardhan Gupta & Ors. vide order dated 22.03.2017. However, after their impleadment, none appeared on behalf of the Lrs of Late Sh. Janardhan Gupta to pursue the suits.

Exparte Defendants:

43. Defendants no. 2 to 4 in second suit titled as Ajay Gupta Vs. Janardhan Gupta and Ors. stopped appearing after filing of WS and were proceeded exparte vide order dated 23.10.2021.

Issues:

44. After completion of pleadings, issues in first suit titled as Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 21 /77 Deepak Gupta & Anr. Vs. Ajay Gupta & Ors. were framed vide order dated 03.12.2010 as under: a. Whether the suit is barred by limitation, if so, to what effect? OPD b. Whether the suit is liable to be rejected under Order VII Rule 11 (a) CPC? OPD c. Whether the plaintiffs are the owners of the suit property on the basis of Gift Deed dated 05.11.2009, if so, to what effect ? OPP d. If the issue no. (c) is decided in affirmative, whether the defendant nos. 1 & 2 were licensees in respect of the portions shows in red in the site plan at point E, F, G and H, if so, to what effect? OPP.

d(i) Whether the plaintiff is entitled to relief of possession/eviction of defendants no. 1 and 2 from the portion of the suit property as prayed in prayer clause i of the plaint? OPP e. Whether the plaintiffs are entitled to damages, if so, at what rate and for what period? OPP f. Relief.

45. The issue no. d.(i) was added vide order dated 21.12.2021 as it was inadvertently not framed initially although the main relief of plaintiff was the relief of possession. After framing of this issue at the final stages, Ld. Counsels for both the parties that are plaintiffs and defendants no. 1 and 2 had given their submissions that no additional evidence on this issue was required as the evidence had already been led on the same.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 22 /77

46. After completion of pleadings, issues in second suit titled as Ajay Gupta Vs. Deepak Gupta & Ors. were framed vide order dated 09.02.2012 as under:

1. Whether the gift deed by defendant no. 1 in favour of defendant no. 5 and 6 regarding suit property is illegal, invalid and void document on the grounds mentioned in plaint?OPP

2. Whether defendant no. 1 was competent to execute the gift deed dated 05.11.2009 in favour of defendants no. 5 and 6? OPD1

3. Whether there was an oral family partition of property no. 37/71, Punjabi Bagh House in March, 1997 and plaintiff is occupying a portion in Pink Color in Annexure P1 as an owner? OPP

4. Whether the suit is not correctly valued for purposes of Court Fees? OPD

5. Whether the defendants are liable to be restrained permanently from dispossessing the plaintiff from the portion shown in Pink colour in site plan Ex. P1 in his possession? OPP

6. Whether the defendants no. 5 and 6 have become owners of the suit property on the basis of Gift Deed dated 05.11.2009? OPD 5 & 6

7. Whether the plaintiff is entitled to the relief? OPP

8. Relief.

Evidence led in first suit Civil DJ No. 609563/2016 titled as Deepak Gupta & Anr. Vs. Ajay Gupta & Ors.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 23 /77

47. In order to prove their case, plaintiffs examined three witnesses in all.

48. PW1 Sh. Deepak Gupta is plaintiff no. 1 who stated and reiterated on Oath the contents of the plaint vide his affidavit Ex.PW1/A. He was cross examined at length on behalf of defendants no. 1 and 2. However, no cross examination was conducted on behalf of LRs of deceased defendant no. 3. PW1 has relied upon the following documents:

1. Ex. PW1/1 : Copy of application under Order 23 Rule 3 CPC filed in suit no. 223/1985.

2. Ex.PW1/2 : Copy of consent decree passed vide order dated 20.09.1996.

3. Ex.PW1/3: Site plan.

4. Ex.PW1/4: Gift Deed dated 05.11.2009.

5. Ex.PW1/5 & Ex.PW1/6: Legal Notice and its Postal Receipts.

49. PW2 Sh. Ram Krishan Singh is a witness summoned from the office of SubRegistrar II, Punjabi Bagh, Delhi. He produced the summoned record i. e. the original as well as certified copy of Gift Deed registered in the office vide registration no. 4369 in Addl. Book no. 1, volume no. 1259 on page no. 109 to 115 on 05.11.2009. The copy of his ID card is Ex.PW2/1 and the certified copy of the gift deed dated 05.11.2009 is Ex.PW2/2. This witness was also cross examined on behalf of defendants no. 1 and 2 only.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 24 /77

50. PW3 Ms. Jyotsna Aggarwal is one of the daughter of Sh. Janardhan Gupta/ defendant no. 3 and a witness to the Gift Deed Ex.PW2/2. She deposed vide her affidavit Ex.PW3/A supporting the case of the plaintiff that the suit property was the self acquired property of Sh. Janardhan Gupta/defendant no. 3. She also stated that Sh. Janardhan Gupta/defendant no. 3, Sh. Deepak Gupta, Ms. Ritu Gupta (plaintiffs in the present suit) and her other sister namely Ms. Mamta Gupta who is also a witness to the gift deed Ex.PW2/2 had signed the said gift deed in her presence. She relied upon the copy of her Aadhar Card, which is Ex.PW3/1.

51. PW3 was also cross examined at length on behalf of defendant no. 1 and 2 but no cross examination was conducted on behalf of Lrs of deceased defendant no. 3.

52. Defendants no. 1 and 2, on the other hand, examined five witnesses to support their case.

53. DW1 is defendant no. 1 Sh. Ajay Gupta who stated and reiterated on Oath the contents of his WS vide his affidavit Ex.DW1/A. This witness was cross examined at length on behalf of plaintiffs.

54. DW2 Sh. C. S. Kakkar is a witness summoned from the office of South DMC. He produced original file of municipal tax of the suit property. He deposed that there was no receipt of payment of MCD Tax qua the suit Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 25 /77 property in the name of Sh. Ajay Gupta. He produced the photocopy of MCD Tax Challan for the year 200910 vide ID No. 067015299150 which is marked as Mark DX1 and the self assessment form for the said financial year which is marked as Mark DX2.

55. DW3 Sh. Harpreet Singh is a witness summoned from Union Bank of India, Punjabi Bagh. He produced bank statement of Sh. Ajay Gupta bearing account no. 406302010007200 for the period from 01.01.2009 to 31.12.2009 which is Ex. DW3/A. He was cross examined at length on behalf of the plaintiffs. During his cross examination, he identified the entry at point A in statement of account Ex.DW3/A as that pertaining to the cheque Ex.DW3/B and also produced the electronic image of said cheque duly stamped and authenticated which is Ex. DW3/C.

56. DW4 is a summoned witness from MTNL, Rajouri Garden, Delhi who stated that as per the computer generated record, the telephone landline number 25224033 was in the name of Sh. Ajay Gupta installed at suit property on 16.04.1995 and disconnected due to nonpayment on 16.07.2016. He proved the relevant record in this regard as Ex.DW4/A.

57. DW5 Sh. Ramesh Chander Bhatt is a summoned witness from BSES who produced the certified copy of the original file of electricity connection installed in the name of Sh. Ajay Gupta which is Ex.DW5/1.

58. DW6 was a summoned witness from Delhi Jal Board, however, his examination in chief was deferred for want of original register Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 26 /77 which was never produced by him.

59. All the witnesses of the defendant were duly cross examined on behalf of the plaintiffs.

Evidence led in second suit Civil DJ No. 609627/2016 titled as Ajay Gupta Vs. Janardhan Gupta & Ors. :

60. In this case, only affidavit of Sh. Ajay Gupta/plaintiff was filed, however, neither the same was tendered nor cross examination was conducted. Vide order dated 23.10.2021, an application filed on behalf of defendant no. 5 and 6 in this case under section 151 CPC for consolidation of this matter with first suit titled as Deepak Gupta and Anr. Vs. Ajay Gupta and Ors. was allowed and it was decided that affidavit of the plaintiff herein namely Sh. Ajay Gupta filed in the present suit will also be read along with the cross examination and affidavit of Sh. Ajay Gupta in Deepak Gupta's case wherein he was examined as DW1.

61. In addition to this, defendant no. 5 and 6 had also admitted the sale deed dated 03.09.1974 in respect of property no. U134, Gali Bhooton Wali, Bhiwani, Haryana executed by Sh. Janardhan Gupta which is Ex.P1.

62. In the evidence affidavit filed by Sh. Ajay Gupta in the Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 27 /77 present suit, he had stated and reiterated on Oath the averments made by him in his plaint filed in the present suit.

FINDINGS:

63. Final arguments have been heard at length. Written submissions filed by both the parties as well as citations relied upon by them have been duly perused and considered. Record and documents have been carefully perused.

64. Before proceeding to give my issue wise findings, I deem it appropriate to jot down the basic points of controversy between the parties, the evidence led by them and my findings on the same.

I. Whether the suit property was a self acquired property of Sh. Janardhan Gupta or was a coparcenary property?

II. Whether the execution of Gift Deed Ex.PW1/4 (also Ex.PW2/2) has been duly proved on record?

65. As noted above, there are two primary parties in both the suits who have been contesting the same. These are Sh. Deepak Gupta and Smt. Ritu Gupta who are plaintiffs in the first suit and defendants no. 5 & 6 in the second suit; and Sh. Ajay Gupta and his wife who are defendants no. 1 and 2 in the first suit and plaintiff in the second suit. Sh. Deepak Gupta and Smt. Ritu Gupta are represented by their counsel Sh. Anuj Jain, Advocate.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 28 /77 On the other hand, Sh. Ashwin Vaish, Advocate is representing Sh. Ajay Gupta and his wife.

66. Another important person whose stand in the suit is important is Sh. Janardhan Gupta (since deceased) who is defendant no. 3 in the first suit and defendant no. 1 in the second suit. Now, I shall proceed to give my findings on the two basic points of controversy between the parties as noted above.

I. Whether the suit property was a self acquired property of Sh. Janardhan Gupta or was a coparcenary property?

67. It is the admitted case of the parties that the suit property is in the name of Sh. Janardhan Gupta which he had received on the basis of the partition in suit bearing no. 223/1985 vide a consent decree dated 20.09.1996. This stand is common in the pleadings of all the parties including the plaintiffs in the first suit, defendants no. 1 and 2 in the first suit as well as Sh. Janardhan Gupta. It is also an admit case that the entire plot No. 37/71, Punjabi Bagh was purchased on 26.12.1969 jointly by Sh. Janardhan Gupta and Sh. Ratan Lal Gupta and construction on the same was raised therein till 1971. No documents of ownership of the suit property have been proved on record by any of the parties primarily as this was the admitted case of all the parties. PW1 has however, placed on record photocopies of the application under Order XXIII Rule 3 CPC and Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 29 /77 order dated 20.09.1996 whereby consent decree of partition qua the suit property was passed in the civil suit no. 223 of 1985 which are Ex.PW1/1 and Ex.PW1/2 and are undisputed documents.

68. It is argued by Sh. Anuj Jain, Advocate on behalf of Sh. Deepak Gupta and Smt. Ritu Gupta (plaintiffs in the first suit and defendants no. 5 & 6 in the second suit), that since the suit property is admittedly in the name of Sh. Janardhan Gupta, there is a presumption that it was his self acquired property. Their stand in this regard is also supported by Sh. Janardhan Gupta in his written statement filed in both the suits. Since Sh. Ajay Gupta and his wife had raised a plea that the suit property was a coparcenary property having been purchased and constructed from the joint family funds the onus to prove the said fact was on them. However, they have failed to prove the same. Admittedly, the suit property (purchased as a plot of land) was purchased on 26.12.1969 and constructed till 1971. Accordingly, the contention of the Sh. Ajay Gupta that the sale proceeds of the property bearing house No. U134, Bhooton Wali Gali, Naya Bazar, Bhawani, Haryana which was owned by his grand father/father of Sh. Janardhan Gupta were used in the purchase and construction of the suit property is highly misconceived. This is so as the sale document in respect of the said property which is Ex.P1 (admitted document) clearly shows that the said property was sold on 03.09.1974 for a sum of Rs. 30,000/ i.e. almost after five years of purchase of the suit property and almost three years after its construction. Accordingly, the said consideration amount could not have been used in the purchase of the suit property by Sh. Janardhan Gupta. Moreover, Sh. Ajay Gupta miserably Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 30 /77 failed to bring on record any evidence to show that there was any joint Hindu Family in existence or there was any joint pool of funds which was utilized for purchase of the suit property. In the absence of any evidence to prove the stand of Sh. Ajay Gupta that the suit property was a joint family property/coparcenary property, the only logical conclusion which can be drawn from the material and documents on record is that the suit property was the self acquired property of Sh. Janardhan Gupta.

69. Per contra, it is argued by Sh. Ashwin Vaish, Advocate of Sh. Ajay Gupta (defendant no. 1 and 2 along with his wife in the first suit and plaintiff in the second suit) that Sh. Deepak Gupta and Smt. Ritu Gupta have miserably failed to prove or explain as to how the suit property was the self acquired property of Sh. Janardhan Gupta. Although, Sh. Janardhan Gupta had stated in his written statement that the suit property was his self acquired property, however, no document to support the said contention of Sh. Janardhan Gupta has been proved on record either by Sh. Janardhan Gupta or his legal heirs despite having opportunity to prove the same. Sh. Ajay Gupta, on the other hand, categorically stated in his evidence affidavit Ex.DW1/A that his grand parents had migrated from Bhiwani to Delhi about 65 years back with their only son Sh. Janardhan Gupta. In Delhi, they were residing on rent in Khari Baoli. Sh. Janardhan Gupta married in 195152 while in Delhi and out of the wedlock eight children were born. All of them were members of Joint Hindu Family which was joint in mess, worship and estate and the income of all the earning members was pooled to run the Joint Hindu Family. The grand father of Sh. Ajay Gupta i. e. father of Sh. Janardhan Gupta also had two Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 31 /77 houses at Bhiwani bearing House No. U134 and V20, both of which were sold by Sh. Janardhan Gupta and the land of suit property was purchased by Sh. Janardhan Gupta on 26.12.1969 in his own name out of the said funds. The entire joint family of Sh. Gurdayal Mal i.e. father of Sh. Janardhan Gupta had shifted to the suit property in 1971. Mother of Sh. Janardhan Gupta expired in 1971 and his father expired in 1974 in the suit property. The suit property was constructed from time to time from the joint earnings of the members of the Joint Hindu Family or from the funds of ancestral properties of Late Sh. Gurdayal Mal, father of Sh. Janardhan Gupta. All the children of Sh. Janardhan Gupta had joint mess, worship and estate and the kitchen was also joint till March 1997. Oral partition of the ancestral property i.e. the suit property was done in March 1997 amongst the joint owners on which different brothers came in possession of different portions of the suit property. It is submitted that nothing material has come in the cross examination of DW1 to doubt this testimony. Also the sale deed of house no. U134 is already admitted by Sh. Deepak Gupta through his counsel Sh. Anuj Jain and is Ex.P1. Accordingly, Sh. Ajay Gupta has duly discharged the burden upon him to prove the fact that the suit property was a coparcenary property purchased out of the sale proceeds of the properties left by Late Sh. Gurdyalmal and joint funds of the earning members of the Joint Hindu Family.

70. I have heard the submissions made and carefully perused the record. Although none of the parties has proved on record the documents of purchase of the suit property, however, it is an admitted fact that the land of the suit property was purchased in the joint name of Sh. Janardhan Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 32 /77 Gupta and one Ratan Lal Gupta. Sh. Janardhan Gupta had placed on record a copy of sale deed for a sum of Rs. 28,000/ qua the suit property alongwith his written statement. The said sale deed and the stand of the parties is clear on the fact that the suit property was purchased in the name of Sh. Janardhan Gupta. Now, the dispute between the parties is that whether the suit property was a self acquired property of Sh. Janardhan Gupta or it was purchased out of the Joint Family Funds making it a joint family property/ coparcenary property. Since, admittedly the suit property is registered in the name of Sh. Janardhan Gupta, there is a presumption that it is his self acquired property. However, Sh. Ajay Gupta has put forth a case that the suit property was the coparcenary property and accordingly, onus to prove the same case was also on Sh. Ajay Gupta. Let us now examine the evidence led by the parties in support of their contentions.

71. Sh. Deepak Gupta/ PW1 has deposed in paragraph no. 2 of his evidence in affidavit Ex.PW1/A that the suit property was the self acquired property of Sh. Janardhan Gupta and the construction thereon was made from his self acquired sources. The relevant portions of the cross examination of PW1 on this point is reproduced hereinunder for the sake of clarity: Cross dated 11.08.2011 page - 2 " It is incorrect to say that this property is acquired from the funds Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 33 /77 arising out of sale of ancestral property and movables of undivided family of our ancestors. I cannot produce any document personally to show that the property was purchased by Sh. Janardhan Gupta with his own funds and built the same exclusively. I know that Sh. Janardhan Gupta is an income tax assessee. I do not know since when he has been so an assesee. "

Cross dated 18.01.2017 page2 " I am aware that my grandfather Sh. Janardhan Gupta had executed a Will codicil. Vol. He had executed two registered Will. I am in possession of the photocopy of registered two Wills which has been filed before this Hon' ble court by the defendant no. 3. .... it is correct that the initial Will dated 03.09.2007 did not make any bequest in my favour and the same was made in favour of sons of Sh. Janardhan Gupta.

72. Perusal of this cross examination of PW1/Deepak Gupta clearly shows that although he had failed to produce any document on record to show that the suit property was purchased by his grand father Sh. Janardhan Gupta out of his own funds but he has maintained his stand that Sh. Janardhan Gupta was having his own earnings and had purchased the suit property from his own funds. He did not falter during his cross examination on this aspect.

73. As regards Sh. Ajay Gupta, his case in his pleadings as defendant no. 1 and 2 in the first suit is that the suit property was the co parcenary property having been bought and built with ancestral movable and immovable property nos. U134 And V20, Bhooton Wali Gali, Naya Bazar, Bhiwani, Haryana as well as the income of members of Hindu Joint Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 34 /77 Family which continued upto March 1997. This is pleaded in paragraph no. 3 and 5 of preliminarily submissions in the written statement as well as paragraph no. 3 of reply on merits. Similarly, as plaintiff of the second suit, Sh. Ajay Gupta has made similar submissions in paragraph no. 4, 5 and 6 of his plaint. Sh. Ajay Gupta examined himself as DW1 and deposed on this aspect in paragraph no. 2 of his affidavit. The relevant portion of his cross examination as DW1 on this aspect is reproduced herein under for the sake of clarity: Cross dated 22.11.2019, page 1 " I do not know the occupation of my grandfather and I also do not know about his earnings. Again said, my grandfather was doing a labour work at shop at Khari Baoli between 1965 1970.... I do not have any idea as to since when my grandfather was residing at Bhiwani. My grandfather left Bhiwani and shifted to Delhi between the year 19601965. Again said, he had not shifted to Delhi and he used to come to Delhi for business purpose from Bhiwani."

Cross dated 22.11.2019, page 2 " My date of birth is 31.10.1966. In the year 1969, I was 34 years old approximately. In the year 1974, I was eight years old. I started working in the year 1989. ... I can not say about the qualification of my grandfather. My elder brother namely Sh. Abhimanyu Gupta is aged about 62 years of age at present, who started working and earning in the year 1978. I have not contributed any amount of money in the purchase as well as construction of the suit property. Vol. My grandfather and grandmother gave money to my father to purchase the Punjabi Bagh land, however, I have no documents in this regard and this fact was told by my parents. My grandparents gave money out of Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 35 /77 their earning and from rent of property at Bhiwani. My grandmother also gave jewlery to my parents. It is correct that the source of income by rent from Bhiwani and selling of jewellery by my grandmother or that this amount was given to purchase the suit property had not been explained by me in my affidavit of evidence. The documents with regard to ownership of property bearing no. V20, Bhooton Wali Gali, Naya Bazar, Bhiwani, Haryana is not available with me today. I can produce the same after procuring. I tried to search the ownership document of the said property i. e. V20 but I could not find the same. The property bearing no. U134, Bhooton Wali Gali, naya Bazar, Bhiwani, Haryana was sold in the year 1974. I do not have any idea as to when and for how much amount the property bearing no. V20, Bhooton Wali Gali, Naya Bazar, Bhiwani, Haryana was sold. The suit property was purchased in the year 1969.

Cross dated 22.11.2019, page 2 " The source of income for purchasing the suit property was the earning of my grandparents, their jewellery and their rental income as told by me above. I do not have any personal knowledge about the fact that the sale proceeds of property bearing no. V20, Bhooton Wali Gali, Naya Bazar, Bhiwani, Haryana was used to purchase the suit property, however, the said fact has been told to me by my mother. The sale proceeds of property bearing no. U134 Bhooton Wali Gali, Naya Bazar, Bhiwani, Haryana was not used to purchase the suit property, however, the same amount was used to further construction of the suit property. The suit property was purchased in 1969 as a vacant plot. In the year 1970, the construction over the suit property was started and it was constructed upto 500 sq. yds. approximately. front portion and one swimming pool was also constructed at the back of the suit property. ... I had taken electricity, water, telephone connection in my name for part of property in my possession and for the same I have taken NOC from my father. ".

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 36 /77 Cross dated 17.12.2019, page 1 "I have no documents to prove that the suit property was purchased for the benefit of the joint family. .....I do not remember as how much amount I have spent on the said renovation. I do not remember if I have any document in possession to prove the amount spent on renovation. I also do not remember whether the amount spent on renovation was shown in my Income Tax Return or not."

Cross dated 17.12.2019, page - 2 "... My grandfather was receiving rent of Rs. 56 from the property situated at Bhiwani. My father had a Joint Hindu undivided account in the Syndicate Bank, Punjabi Bagh, New Delhi. I can not bring the record of the same now as the matter is very old.

74. Perusal of above extracts of deposition of DW1/Sh. Ajay Gupta clearly shows that he has miserably failed to support his case that the suit property was purchased out of the funds generated from ancestral movable and immovable properties situated at Bhiwani. He had pleaded that there were two ancestal properties situated at Bhiwani bearing nos. V 20 and U134. He could not produce any document regarding the property bearing no. V20 even to show that the said property was owned by his grandfather leave alone the documents showing the generation of income by sale of the said property. As regards the property bearing no. U134, DW1 admitted that the said property was sold in the year 1974 while the suit property was purcahsed in the year 1969 and constructed by the year 1971. He also admitted during cross examination that the sale Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 37 /77 consideration of property no. U134 was not utilized in purchase of the suit property. DW1 tried to improve his case by stating that the sale consideration of the said property was used for making further construction in the suit property. But this testimony of DW1 during his cross examination is beyond his pleadings and his deposition as DW1. Moreover, it is not supported by any documentary evidence.

75. Sh. Ajay Gupta/DW1 again tried to improve his case during his cross examination by testifying that the earnings of his grand parents, their jewellery and rental income from properties at Bhiwani were used for purchasing the suit property. Again this testimony is neither supported by the pleadings of DW1/Sh. Ajay Gupta nor find mention in his affidavit in evidence (Ex. DW1/A). Moreover, he has miserably failed to support his contention in this regard with any documentary evidence. As per his own admission in his cross examination, his grandfather was receiving merely a rent of Rs. 5/6 per month from the property situated at Bhiwani. He could not tell the occupation or source of earning of his grandfather. There is no description of the jewellery of the grandmother which was sold for purchasing the suit property. There is no explanation on record to show what was the source of accumulation of Rs. 28,000/ for which amount the suit property was purchased in the year 1969. It is also admitted by DW1 during his cross examination that neither he nor his eldest brother was having any source of income till the year 1978. He admitted that he was merely 3 or 4 years old in the year 1969 when the suit property was purchased and his eldest brother Sh. Abhimanyu Gupta had started working and earning only in the year 1978. Accordingly, there is no Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 38 /77 evidence on record to support mere bald averments of Sh. Ajay Gupta/DW1 that the suit property was a coparcenary property having been purchased from ancestral movable and immovable properties as well as the income of members of Hindu Joint Family.

76. Sh. Janardhan Gupta, on the other hand, categorically pleaded in his Written Statement in both the suits that the suit property was his self acquired property purchased from his own funds. In his written statements filed in both the suits, Sh. Janardhan Gupta had categorically pleaded about his source of earnings stating that he was a practicing lawyer and had started practicing in the year 1963. He had also served as Deputy Chairman of Metropolitan Council from the year 1969 to 1971 and he received salary during the said period. Unfortunately, Sh. Janardhan Gupta expired before he could lead any evidence to prove the said averments. However, Sh. Ajay Gupta/DW1 has himself admitted the earning capacity of Sh. Janardhan Gupta in his cross examination. The relevant portions of cross examination of DW1/Sh. Ajay Gupta as regards the earning capacity of Sh. Janardhan Gupta are reproduced herein under for the sake of clarity. It is worthwhile to mention here that DW1/Sh. Ajay Gupta is the son of Sh. Janardhan Gupta.

Cross of Sh Ajay Gupta/ DW1 dated 17.12.2019, page 1 & 2 "..... Near about in the 1968, my father was doing part time business in partnership firm dealing with Jute goods. ... It is correct that my father completed his law in the year 1963 and thereafter, he is practicing as a lawyer. It is correct that in the year 1967, my father Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 39 /77 contested election of Metropolitan Council and served as Deputy Chairman of Metropolitan Council from the year 1965 to 1971 and during this period, he was receiving salary against the said post. It is wrong to suggest that my father joined Jamia Milia Islamia University as a Teacher after 1956. vol. My father was doing teaching work in Mundaka in Govt. School. However, I do not remember the year."

77. In view of this testimony of DW1/Sh. Ajay Gupta, the earning capacity of Sh. Janardhan Gupta at the time of purchase of suit property has clearly come on record. The fact that the documents pertaining to the suit property are admittedly in the name of Sh. Janardhan Gupta coupled with the admitted earning capacity of Sh. Janardhan Gupta at the time of purchase of the suit property and absence of evidence to support the claim of Sh. Ajay Gupta that the suit property was purchased out of the joint funds or sale proceeds of ancestral properties at Bhiwani, is sufficient to hold that the suit property was a self acquired property of Sh. Janardhan Gupta.

78. In addition to this, DW1/Sh. Ajay Gupta had also admitted having signed the written family arrangement dated 22.11.2009 which is marked as Mark X which records Sh. Janardhan Gupta to be the absolute owner of the suit property. Although Sh. Ajay Gupta tried to wriggle out of the consequences of his admission qua the said document by volunteering that he had not read the contents of the document before signing it but this mere bald statement is not sufficient to ignore the contents of the said document which is duly signed by Sh. Janardhan Gupta and his four sons.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 40 /77

79. In view of the reasons and discussions above and considering the over all evidence produced on record by both the parties, this question is answered by holding that the suit property has been proved on record to be the self acquired property of Sh. Janardhan Gupta and not a co parcenary property.

II. Whether the execution of Gift Deed Ex.PW1/4 has been duly proved on record?

80. Gift deed dated 05.11.2009 Ex.PW1/4 (also Ex.PW2/2) is another bone of contention between the parties. The gift deed is purported by Sh. Deepak Gupta and Smt. Ritu Gupta and as per them, it is duly proved on record. However, as per Sh. Ajay Gupta, who is challenging the said gift deed Ex.PW1/4, Sh. Deepak Gupta has failed to prove due execution of the gift deed Ex.PW1/4 by producing cogent evidence on record. Let us now examine the arguments, pleadings and evidence of the parties on this question.

81. It is argued by Sh. Anuj Jain, Advocate on behalf of Sh. Deepak Gupta and Smt. Ritu Gupta. (plaintiffs in the first suit and defendants no. 5 & 6 in the second suit) that the gift deed dated 05.11.2009 (Ex.PW1/4) is a validly executed gift deed by Sh. Janardhan Gupta (defendant no. 3 in first suit and defendant no. 1 in the second suit) who was the original owner of the suit property. The document Ex.PW1/4 Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 41 /77 is a registered document and has been duly proved. Its registration has been duly proved by examining the witness from the office of Sub Registrar/PW2 who proved the certified copy of the same as Ex.PW2/2. The witness to the gift deed Ex.PW1/4 is also examined as PW3 who has categorically deposed that the executant Sh. Janardhan Gupta, recipients Sh. Deepak Gupta and Smt. Ritu Gupta and her other witness namely Ms. Mamta Gupta had signed the gift deed Ex.PW2/2 in her presence. Even PW1/Sh. Deepak Gupta has categorically deposed about the execution of the gift deed in his evidence affidavit Ex.PW1/A. It is submitted that nothing material has come on record in the cross examination of PW1, PW2 and PW3 to cloud their testimony to this effect with doubt. It is further submitted that although, Sh. Janardhan Gupta had expired prior to leading of his evidence, however, in his written statement in both the suits, he had categorically admitted being the exclusive owner of the suit property in his own rights and having executed the gift deed Ex.PW1/4 in favour of Sh. Deepak Gupta and Smt. Ritu Gupta. Accordingly, it is argued that gift deed (Ex PW1/4) is duly proved on record.

82. On the other hand, Sh. Ajay Gupta and his wife (defendants no. 1 and 2 in the first suit and plaintiff in the second suit) have miserably failed to produce any evidence to show that the gift deed Ex.PW2/2 is illegal, invalid or void document as alleged by them. They had challenged the competence of Sh. Janardhan Gupta to execute the gift deed Ex.PW1/4 on the only ground that the suit property was not a self acquired property of Sh. Janardhan Gupta and was rather a coparcenary property having been bought and built up with funds generated from ancestral movable and immovable properties as well as income of the members of Hindu Joint Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 42 /77 Family which continued uptil March 1997. However, they have failed to support their averments in this regard by leading any cogent evidence. Admittedly, the suit property was earlier in the name of Sh. Janardhan Gupta. Accordingly, failure of Sh. Ajay Gupta to prove the incompetence of Sh. Janardhan Gupta for executing gift deed Ex.PW1/4 in respect of suit property is sufficient to hold that the gift deed Ex.PW1/4 is a valid and enforceable document transferring the rights in the suit property to Sh. Deepak Gupta and Smt. Ritu Gupta.

83. Per contra, it is argued by Sh. Ashwin Vaish, Advocate on behalf of Sh. Ajay Gupta (defendant no. 1 and 2 along with his wife in the first suit and plaintiff in the second suit) that Sh. Deepak Gupta and Smt. Ritu Gupta have failed to duly prove the gift deed Ex.PW1/4 on record. The witness to the gift deed who is examined as PW3 has failed to identify the signatures of the executant/donor or the attesting witnesses on the give deed Ex.PW1/4. Accordingly, the gift deed Ex.PW1/4 is not duly proved on record as required by law. The purported donor/Sh. Janardhan Gupta had never stepped into the witness box to identify his signatures on the gift deed (Ex.PW1/4). Admittedly, Sh. Janardhan Gupta was about 77 years of age at the relevant time of execution of gift deed (Ex.PW1/4). He was unwell and dependent upon his other sons who obtained the gift deed (Ex.PW1/4) from him by playing fraud, forgery and undue influence. The gift deed Ex.PW1/4 is also an unnatural document whereby the rights in the suit property have been transferred to the grandson and daughter in law of Sh. Janardhan Gupta leaving behind his own eight children. No doctor's certificate has been obtained or proved by Sh. Deepak Gupta and Smt. Ritu Gupta certifying that the executant of gift deed Ex.PW1/4 was in Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 43 /77 a fit, mental and physical state to execute the alleged gift deed. The purported gift deed Ex.PW1/4 also claims to hand over possession of the suit property to Sh. Deepak Gupta and Smt. Ritu Gupta but it is completely silent about 18 other family members including the alleged donor's own wife, children and grand children who were at the relevant time in actual, physical and peaceful possession of the suit property. It is submitted that leaving behind wife, children and several grand children of Sh. Janardhan Gupta while executing gift deed Ex.PW1/4 is sufficient to draw an inference that the gift deed Ex.PW1/4 was brought about by playing fraud and did not contain the real intent of the alleged owner. This is more so as Sh. Janardhan Gupta admittedly had amicable relations with all his other children, grandchildren and his wife and had expressed his different intent in his earlier Will dated 2007. Nothing has come on record to show what transpired between the parties from 2007 to 2009 leading to change of intent of Sh. Janardhan Gupta.

84. It is also submitted that Sh. Deepak Gupta and Smt. Ritu Gupta miserably failed to prove or explain as to how the suit property was the self acquired property of Sh. Janardhan Gupta. There is also no explanation as to why they seek to evict only Sh. Ajay Gupta and his wife on the basis of purported gift deed (Ex.PW1/4) leaving behind the other occupants of the suit property. Moreover, PW3 Smt. Jyotsna Aggarwal, who is a witness to the alleged gift deed (Ex.PW1/4) has testified that she is also entitled to a share in the suit property and the said issue shall be addressed by Sh. Deepak Gupta after this suit is over. This clearly shows the collusion between the parties to oust Sh. Ajay Gupta and his family Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 44 /77 from the suit property and the bogus nature of purported gift deed Ex.PW1/4. In these circumstances, it is argued that Sh. Deepak Gupta and Smt. Ritu Gupta have failed to prove the competence of Sh. Janardhan Gupta to execute the purported gift deed Ex.PW1/4. Accordingly, it is submitted that the gift deed Ex.PW1/4 is illegal, invalid and void document and no relief can be granted on the basis of the same.

85. Now, let us examine the law relating to proof of a gift Deed. The relevant provisions pertaining to a Gift Deed are reproduced herein under for the sake of clarity and convenience: Section 123 of Transfer of Property Act, 1882: Transfer how effected:

"For the purpose of making a Gift of Immovable Property, the transfer must be effected by a registered document, signed by or on behalf of donor and attested by at least two witnesses.

Section 68 of Indian Evidence Act, 1872: Proof of execution of document required by law to be attested:

"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.

"Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 45 /77 executed is specifically denied."

86. In view of these provisions, gift deed is required to be compulsorily signed by the donor; attested by two witnesses and registered under India Registration Act, 1908. Similar is the provision for execution of a Will which is required to be attested under Section 63 of Indian Succession Act, 1925 but a Will is not required to be compulsorily registered in terms of section 18(e) of the Registration Act, 1908. Section 68 of IEA makes it mandatory to examine one of the attesting witnesses for the purposes of proving the execution of a Will but such limitation is not applicable in respect of proof of execution of any other document which has been duly registered in accordance with provisions of Indian Registration Act, 1908, unless the execution is specifically denied. It is a settled law that not only the executant but also the persons who are interested in denying the execution of the document are entitled to invoke the aid of the proviso to Section 68 of the Indian Evidence Act. Accordingly, not only the executant but also, those who claim under him can specifically deny the execution of a registered document mandating the purporter of the document to prove the same by examining an attesting witness in proof of execution of such document. Reliance in this regard is placed upon the decision of Apex Court in Kannan Nambiar Vs. Narayani Amma 1984 SCC Online KER 174 as approved in Govind Bhai Chhota Bhai Patel & Ors. Vs. Patel Raman Bhai Mathur Bhai MANU/SC/1035/2019.

87. Hon' ble High court of Kerela has also observed in Kanan Nambiar's Case (Supra) that Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 46 /77 " 14... Ab initio we have to examine whether there is any specific denial of the execution of the document, in the pleadings. Before considering whether there is specific denial we have to consider what is the exact requirements demanded when the proviso enjoins a specific denial. 'Specific' means with exactness, precision in a definite manner (See Webster's 3rd New International denial in juxtaposition to general denial. See Dashrath Prasad Vs. Lallasoing (MANU/NA/0045/1950 : AIR. 1951 Nag. 343)

15. We think that specific denial of execution of gift deed is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be gathered, for the denial contemplated in the proviso.

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18. The question which elicited the above answer gives a clear understanding of the case of the Defendants as they understood their case. Defendants have no case that no document was executed by Anandan Nambiar. Their case is that the document is not valid because it has been executed under circumstances which would render the document invalid. There is no specific denial of the execution of the document. The respondent can seek the aid of the proviso to Section 68 of Evidence Act. No defect in not calling an attesting witness to prove the document. We do not think that we can ignore Ext. A1 gift deed on the ground that no attesting witness has been called for, for proving the gift".

88. Thus, in order to claim the benefit of proviso to Section 68 of the Indian Evidence Act, there has to be a clear denial of the execution of the gift deed by the person challenging it i. e. unambiguous and categorical Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 47 /77 statement that the donor did not execute it.

89. Now, let us examine the facts of the present case and the evidence produced on record in the light of the above law. In the present case, gift deed dated 05.11.2009 (Ex.PW1/4) has been purported by Sh. Deepak Gupta and. Smt. Ritu Gupta (plaintiffs in the first suit and defendant no. 5 and 6 in the second suit). Gift Deed Ex.PW1/4 is a registered document and has been duly proved to be so registered by examining a witness from the office of SubRegistrar who is examined as PW2 and has proved the certified copy of the said gift deed as Ex.PW2/2. The execution of gift deed has been duly admitted by Sh. Janardhan Gupta who is the donor of the suit property in his written statement filed in both the suits. It is Sh. Ajay Gupta who has disputed the validity of said gift deed (Ex.PW1/4). Let us examine the grounds of his dispute as per his pleadings as well as evidence.

Preliminary paras in the written statement of Sh. Ajay Gupta in first suit: "2 . That the above suit is not maintainable on the basis of gift deed dated 05.11.2009 which is void document and a civil suit in this respect bearing Cs (OS) No. 447/2010 titled as Sh.Ajay Gupta and Sh. Janardhan Gupta & Ors is pending in this Hon' ble court now fixed for 27.07.2010.

3. That the property bearing house no. 37/71, Punjabi Bagh, New Delhi was the coparcenary property having been bought and built with movable and immovable property nos. U134, Bhooton Wali Gali, Naya Bazar, Bhiwani, Haryana and Unit No. V20,Bhooton Wali Gali, Naya Bazar, Bhiwani, Haryana as well as income of Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 48 /77 members of Hindu Joint Family which continued upto March 1997 when an oral partition took place and the suit property fell to share of defendant no. 1 who is occupying the same as its owner. The suit is misconceived.

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9. ......the defendant no. 3 was closer to Sh. Vijay Gupta and Sh. Abhimanyu Gupta because of joint profession of Taxation on the income tax and sales tax side and all of them i.e. Sh. Janardhan Gupta, Abhimanyu Gupta, Vijay Gupta and Abhinav Gupta hatched a conspiracy against the answering defendant no. 1 to oust him from his property. Consequently, the defendant no. 3 executed a gift deed in favour of plaintiffs which is false and bogus document and had been executed by defendant no. 3 in favour of plaintiff in collusion and conspiracy of defendant no. 3 as well as Sh. Vijay Gupta, Sh. Abhinav Gupta and Sh. Abhimanyu Gupta. The said gift deed dated 05.11.2009 registered vide document no. 4369, in addl. Book no. I, volume 1295 on pages 109 to 115 in the office of SubRegistrar, Delhi is an illegal and void document created to deprive defendant no. 1 of his property by fraud and a suit bearing no. 447/2010 to declare the said gift deed as a void and illegal document is pending in this Hon' ble court. The defendant no. 3 was not competent to execute the gift deed in favour of the plaintiff as the gifted property was not owned by defendant no. 3 nor defendant no. 3 gave physical possession of Punjabi Bagh House to plaintiff although the physical possession of Pubjabi Bagh House was capable of being given to the alleged donees (plaintiff herein).

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11. That the defendant no. 3 Sh. Janardhan Gupta was not competent to transfer the suit property by gift deed or by any other mode as he was not exclusive owner of the said property.

12. That the suit property was a coparcenary property of the family of Sh. Gurdayalmal Gupta till March 1997 when it was partitioned by metes and bounds. Accordingly all its coparcenors are necessary parties."

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 49 /77 Reply on merits in the written statement of Sh. Ajay Gupta in the first suit:

6. "para 6 as stated is wrong and denied. It is wrong that defendant no.3 Sh. Janardhan Gupta was competent to transfer the suit property vide gift deed dated 05.11.2009. The said gift deed is a manipulated, forged and fabricated document and was got executed from defendant no. 3 in collusion, conspiracy and fraud by the plaintiff and Sh. Abhimanyu Gupta, Sh. Vijay Gupta and Sh. Abhinav Gupta, sons of defendant no. 3 Sh. Janardhan Gupta. The said gift deed is void document unenforceable against the answering defendants.

Plaint of Sh. Ajay Gupta in second suit: Grounds on page no. 11.

i. That the defendant no. 1 was not competent to execute gift deed dated 05.11.2009 in respect of Punjabi Bagh House which was acquired and built with ancestral properties and income of Joint Hindu Family Members of plaintiff and defendant nos. 1 to 4.

ii. That the defendant no. 1 was not the owner of Punjabi Bagh House. The said property was purchased in the name of defendant no. 1 who was the only son of Sh. Gurdyalmal, grandfather of the plaintiff for the benefit of all the coparcenor of Joint Hindu Family which continued till March 1997. The defendant no. 1 is only a trustee of Punjabi Bagh House of plaintiff and defendant no. 2 to 4. accordingly, defendant no. 1 was not competent to execute the gift deed in favour of defendant no. 5 and 6.

xxxxxxx iv. That the gift deed dated 05.11.2009 is fake, false and fictious documents executed in conspiracy with defendants no. 1 to 6 to defeat the plaintiff's right in the said property. v. The defendant no. 5 and 6 got executed the gift deed dated 05.11.2009 from defendant no. 1 under the influence and Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 50 /77 pressure on defendant no. 1 who is aged about 80 years.

Xxxxx vii. That the gift deed dated 05.11.2009 is totally false and baseless as defendant no. 1 has no authority to execute the said gift deed in favour of defendants no. 5 & 6.

xxxxx xi. That all defendant conspired and played fraud on plaintiff by executing gift deed dated 05.11.2009 against the plaintiff."

Suggestions given to PW1/Sh. Deepak Gupta in his cross examination dated 29.03.2017" ".... It is wrong to suggest that defendant no. 3 did not execute gift deed Ex.PW1/4 in a mentally sound condition and for this reason, he had not made any provision for his wife who was living in the same property. It is further wrong to suggest that due to his mental incompetence and undue influence, defendant no. 3 executed the gift deed Ex. PW1/4 in favour of his daughterin law after excluding all his son and daughters and grandchildren."

Evidence affidavit of DW1/Sh. Ajay Gupta in the first suit:

"10.... I say that the alleged gift deed dated 05.11.2009 is void document brought about as a result of fraud and coercion and a civil suit in this respect bearing CS(OS) No. 447/2010 entitling in Sh. Ajay Gupta Vs. Janardhan Gupta & Ors. is pending in this Hon' ble court."

Evidence affidavit of DW1/Sh. Ajay Gupta in the second suit:

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 51 /77 "12.... Thereafter, the deponent made enquiries and learned on 10.12.2009 on getting certified copy of gift deed dated 05.11.2009 Ex.PW1/E that a false and bogus gift deed had been executed in favour of defendants no. 5 & 6 in collusion and conspiracy of a;; the defendants....

13. ....That the defendnt no. 1 was not competent to execute the gift deed dated 05.11.2009 Ex.PW1/E in respect of Punjabi Bagh house which was bought and built from sale proceeds of ancestral movable and immovable properties and income of joint Hindu Family Members of deponent and defendants no. 1 to 4.

14. That defendant no. 1 was not owner of "Punjabi Bagh House".

The said property was purchased in the name of defendant no. 1 who was the only son of Sh. Gurdyal Mal grandfather of deponent for the benefit of all coparceners in Joint Hindu Family which continued till March, 1997. The defendant no. 1 was only a trustee of "Punjabi Bagh House" for me and defendant no. 2 to 4. Accordingly, defendant no. 1 was not competent to execute gift deed in favour of defendants nos. 5 & 6;

15. That physical possession of gifted property was not given by donor to donees. It is relevant to say that gifted property is in an area of 544 sq. yds. and physical possession of most of the said property was capable of being given to the donees defendants nos. 5 and 6;

16. That the gift deed dated 05.11.2009 is fake, false and fictious document executed in conspiracy with defendants nos. 1 to 6 to defeat the deponent's right in the said property;

17. That the defendant nos. 5 and 6 got executed gift deed dated 05.11.2009 from defendant no. 1 under influence and pressure on defendant no. 1 who is aged about 82 years old.

Xxxxxx

19. That the gift deed dated 05.11.2009 is totally false and baseless as defendant no. 1 has no authority to execute the said gift deed in favour of defendants no. 5 & 6.

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23. That all defendants conspired and played fraud on deponent by executing gift deed dated 05.11.2009 against the deponent.

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29. That defendant no. 1 was not competent to execute gift deed of Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 52 /77 "Punjabi Bagh House" in favour of anybody as it is Joint Hindu Family Property and defendant no. 1 had no right to do so."

90. A careful perusal of above reproduced pleadings and evidence of Sh. Ajay Gupta/DW1 clearly shows that he has not disputed the factum of execution of the gift deed (Ex.PW1/4) by Sh. Janardhan Gupta. Rather, he has disputed the competence of Sh. Janardhan Gupta to execute the said gift deed on the ground that Sh. Janardhan Gupta was not the exclusive owner of the suit property and it was a coparcenary property and acquired from joint funds. As held in the question no. I discussed above, Sh. Ajay Gupta has miserably failed to prove that the suit property was a coparcenary property and not a self acquired property of Sh. Janardhan Gupta. Rather it has been held that the evidence on record is sufficient to give a finding that the suit property was self acquired property of Sh. Janardhan Gupta rendering this objection of Sh. Ajay Gupta regarding competence of Sh. Janardhan Gupta to execute the gift deed meritless.

91. Since, the factum of execution of gift deed Ex. PW1/4 is not specifically and unambiguously disputed in my opinion, the purporters of the gift deed that are Sh. Deepak Gupta and Smt. Ritu Gupta were not required to examine the attesting witness of the gift deed when once its registration has been proved (by virtue of section 68 of the Indian Evidence Act). However, as an abundant precaution, they have examined one of the witness to the gift deed as PW3 who has specifically deposed that the executant/donor Sh. Janardhan Gupta, the donees, Sh. Deepak Gupta and Smt. Ritu Gupta and the second witness had signed the gift deed in her Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 53 /77 presence. Merely because she had not specifically identified their signatures on the document during her testimony, it is not sufficient to ignore her testimony to this effect. This is merely a technical defect, benefit of which cannot be given to Sh. Ajay Gupta especially when the witness was not even required to be examined as per law. This is moreso as PW3 is one of the daughter of Sh. Janardhan Gupta and not a stranger to the parties.

92. Now, let us consider the other objections to the execution of the gift deed taken by Sh. Ajay Gupta. As noted above, the sole ground taken by Sh. Ajay Gupta for challenging gift deed in his pleadings was that it was of false and fabricated document as Sh. Janardhan Gupta was not competent to execute gift deed in respect of the suit property. However, during the evidence, Sh. Ajay Gupta tried to challenge the gift deed on some other grounds.

93. Firstly, it is alleged that the gift deed has been executed in favour of Sh. Deepak Gupta who has admitted in his cross examination dated 29.03.2017 that Sh. Janardhan Gupta i. e. his grandfather was dependent on him due to his old age and physical illhealth. On the basis of this admission, it is argued by Sh. Ashwin Vaish, Ld. Counsel for Sh. Ajay Gupta that this admission of PW1 Sh. Deepak Gupta is sufficient to arrive at a conclusion that the gift deed has been executed by practicing undue influence upon Sh. Janardhan Gupta by Sh. Deepak Gupta who was in a position to influence Sh. Janardhan Gupta. I find no merit in the arguments of Ld. Counsel for Sh. Ajay Gupta as not only this submissions is beyond the pleadings of Sh. Ajay Gupta but also no details of alleged undue influence asserted by Sh. Deepak Gupta on Sh. Janardhan Gupta have been provided by Sh. Ajay Gupta either in his pleadings or evidence. It is also Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 54 /77 argued that Sh. Janardhan Gupta was mentally unwell and not in a position to make a sound decision at the time of execution of the gift deed. Again, this argument of Sh. Ajay Gupta and his suggestion in this regard given to witnesses of Sh. Deepak Gupta are beyond his pleadings and evidence on record.

94. The second line of argument of Ld. Counsel for Sh. Ajay Gupta is that the purported gift deed Ex.PW1/4 claims to hand over the possession of the suit property to Sh. Deepak Gupta and Smt. Ritu Gupta but it is completely silent about 18 others family members including the wife, children and grandchildren of Sh. Janardhan Gupta/Donor who were in actual, physical and peaceful possession of the suit property at the relevant time of execution of the gift deed. It is argued that the silence of the gift deed regarding other stake holders and relatives of Sh. Janardhan Gupta who were actually in possession of the suit property at the time of execution of the gift deed is sufficient to draw a presumption that the gift deed was executed by playing fraud or undue influence.

95. To counter this argument of Ld. Counsel for Sh. Ajay Gupta, Sh. Anuj Jain, Ld. Counsel for Sh. Deepak Gupta and Smt. Ritu Gupta has relied upon decision of Apex Court in Renikuntala Rajamma Vs. K. Sarwanamma (2014) 9 SCC 445 wherein it has been held as under: "17. We are in respectful agreement with the statement of law contained in above passage. There is indeed no provision in law that ownership in property can not be gifted without transfer of possession of such property. As noted earlier Section 123 does not Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 55 /77 make the delivery of possession of the gifted property essential for validity of a gift."

96. I have perused the said citation carefully. There is no dispute that as per section 123 of Transfer of Property Act, the only requirements for gifting of immovable property are registered instrument, signed by the donor and attested by at least two witnesses. Once these requirements are fulfilled the transfer of title in the immovable property by way of gift is completed. Law does not mandate any other requirement leave aside the transfer of possession of the gifted property by the donor to the donee. Accordingly, the argument of Ld. Counsel for Sh. Ajay Gupta that the fact that the physical possession of the suit property has not been transferred by Sh. Janardhan Gupta to Sh. Deepak Gupta and Smt. Ritu Gupta at the time of execution of gift deed makes the gift deed void and invalid is deprived of any merit. As regards the argument that the gift deed is an unnatural document, as it purports to gift the suit property to one of the grandson and one daughter in law of Sh. Janardhan Gupta leaving aside his other children, wife and grandchildren, I do not find any merit in this arguments. As held above, Sh. Janardhan Gupta was the absolute owner of the property gifted vide gift deed (Ex.PW1/4) and was thus, completely entitled to transfer it to anyone by way of gift or through any other mode. Mere bald argument that other legal representatives of Sh. Janardhan Gupta have been left out by him while executing the gift deed shows practice of fraud and undue influence in executing the gift deed without support from any kind of pleadings or evidence does not inspire the confidence of the court.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 56 /77

97. In view of reasons and discussion above and considering the over all evidence produced on record, I have no hesitation in holding that the execution of gift deed Ex.PW1/4 has been duly proved on record by Sh. Deepak Gupta and Smt. Ritu Gupta. On the other hand, Sh. Ajay Gupta has miserably failed to cloud the execution of gift deed Ex.PW1/4 with any doubt. This question is accordingly, answered in view of the above findings.

98. Now, I shall proceed to give my issue wise findings.

Issues in first suit titled as Deepak Gupta & Anr. Vs. Ajay Gupta & Ors.

Civ. DJ. No. 609563/2016

Issue no. a. Whether the suit is barred by limitation, if so, to what effect? OPD.

99. The onus to prove this issue was on defendants no. 1 and 2 as they had alleged in preliminarily para no. 4 of page no. 2 of their written statement that the suit was barred having been filed beyond a period of 12 years after the oral family partition took place in March 1997 amongst the members of Hindu undivided family constituting defendant no. 1/Sh. Ajay Gupta, Defendant no. 3/Sh. Janardhan Gupta, Sh. Abhimanyu Gupta, Sh. Vijay Gupta and Sh. Abhinav Gupta all sons of Sh. Janardhan Gupta.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 57 /77

100. Perusal of the plaint shows that the plaintiffs have filed the present suit alleging themselves to be owners of suit property by virtue of registered gift deed dated 05.11.2009. It is their case that Sh. Janardhan Gupta was the sole owner of the suit property and had permitted his children and their family members to reside therein. Accordingly, defendant no. 1 and his wife/defendant no. 2 were merely licensees in the suit property. After termination of their license vide legal notice dated 08.01.2010, the plaintiffs filed the present suit for recovery of possession of the suit property from defendants no. 1 and 2 who, as per their case were in unauthorized possession of the disputed portion of suit property after termination of their license w.e.f. 06.11.2009. The present suit is filed on 24.02.2010. It is submitted on behalf of the plaintiff that residuary clause 113 of schedule to Limitation Act, 1963 is applicable to the facts of the present case and plaintiff was entitled to file the present suit within a period of 3 years w.e.f. 06.11.2009. The present suit, having been filed on 24.02.2010, is well within the period of limitation.

101. Per contra, it is argued by the counsel for the defendants that since defendant no. 1 is in possession of suit property as an owner pursuant to oral partition between the parties since the year 1997 which was well within the knowledge of plaintiffs, the suit for obtaining possession from the defendants could have been filed only within the limitation period of 12 years. Since the suit has been filed much beyond the period of 12 years, the same is barred by limitation.

102. I have heard the submissions made and carefully perused the Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 58 /77 record. As held in my findings on "question no. I" above, the suit property is held to be a self acquired property of Sh. Janardhan Gupta. Accordingly, no question of partition of the suit property during the lifetime of Sh. Janardhan Gupta arises. Admittedly, Sh. Janardhan Gupta was alive in the year 1997 and had expired only during the course of the present suit. Moreover, the defendants no.1 and 2 have miserably failed to prove the factum of oral partition as alleged by them. Even otherwise, as per the pleadings of defendants no. 1 and 2, on oral partition the suit property was partitioned into four different portion which were handed over to the four brothers/ sons of Sh. Janardhan Gupta. This submission of factum of oral partition between a father and his four sons without giving any portion of the property to the father does not inspire the confidence of the court and appears to be highly unnatural.

103. Considering the pleadings and evidence produced on record, I have no hesitation in holding that the defendants no.1 and 2 have miserably failed to discharge the onus upon them to prove this issue. Since, defendants no. 1 and 2 have failed to prove that the suit property was the coparcenary property and was orally partitioned between the brothers and Sh. Janardhan Gupta, I find no reason for holding the suit to be barred by limitation having been filed beyond the period of 12 years after the alleged oral partition in March, 1997. On the other hand, the submission made on behalf of the plaintiffs that the suit has been filed within the period of limitation after termination of license of defendant no. 1 on 06.11.2009 appears to be a valid argument.

104. In view of the reasons given above, this issue is decided Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 59 /77 against the defendant no.1 and 2 and in favour of plaintiff holding that the suit is filed within the period of limitation.

Issue no. b. Whether the suit is liable to be rejected under Order VII Rule 11 (a) CPC? OPD

105. The onus to prove this issue was on the defendants no. 1 and 2 who have alleged in preliminarily para no. 13 of their WS that the plaint does not disclose any cause of action.

106. The term cause of action is not defined in CPC. However, as per settled law the term cause of action refers to a bundle of facts which entitle the plaintiff to bring about an action against the other party in a Court of Law. A cause of action, in law, is a set of facts sufficient to justify suing other party to obtain money, property or enforcement of a legal right against the other party. It is also a settled law that the cause of action for filing the suit has to be seen only from the plaint and documents annexed therewith. The defense of the defendant is immaterial in arriving at a conclusion whether the plaint discloses any cause of action or not.

107. In the present case, the plaintiffs have pleaded their cause of action by disclosing that they had become owners of the suit property by virtue of a gift deed executed by the erstwhile owner Sh. Janardhan Gupta in their favour and they have terminated the license of defendants no. 1 and 2 to remain in possession of the disputed portion of the suit property w.e.f. 06.11.2009. It is also alleged that despite service of legal notice in Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 60 /77 this regard upon defendants no. 1 and 2, they had failed to vacate the suit property giving rise to cause of action in favour of the plaintiff to file the present suit.

108. Considering the averments made in the plaint and the documents filed along with it, it can safely be held that plaint clearly discloses the cause of action for filing the suit. This issue is, accordingly, decided against the defendants no.1 & 2 and in favour of plaintiff.

Issue no. c: Whether the plaintiffs are the owners of the suit property on the basis of Gift Deed dated 05.11.2009, if so, to what effect ? OPP

109. The onus to prove this issue was on the plaintiffs. The entire evidence and arguments of both the parties on this issue have been discussed and appreciated in my findings on two basic points of controversy between the parties as noted in paragraph no. 64 of the judgment. In view of the said findings, it has been categorically held that the suit property was self acquired property of Sh. Janardhan Gupta and the plaintiffs have duly proved the execution of gift deed Ex.PW1/4 in their favour by Sh. Janardhan Gupta. Accordingly, the plaintiffs have become the owners of the suit property by virtue of gift deed dated 05.11.2009. This issue is, accordingly, decided in favour of the plaintiff and against the defendants.

Issue no. d: If the issue no. (c) is decided in affirmative, whether the defendant nos. 1 & 2 were licenses in respect of the portions shows in Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 61 /77 red in the site plan a E, F, G and H, if so, to what effect? OPP and Issue no. d(i): Whether the plaintiff is entitled to relief of possession/eviction of defendants no. 1 and 2 from the portion of the suit property as prayed in prayer clause i of the plaint? OPP

110. The onus to prove these issues was again on the plaintiffs. These two issues are taken up together as they are interconnected and require similar discussion. As held above, the plaintiffs have proved themselves to be owner of the suit property on the basis of gift deed dated 05.11.2009 (Ex.PW1/4) executed in their favour by the erstwhile owner Sh. Janardhan Gupta. It is also held above that the suit property was the self acquired property of Sh. Janardhan Gupta. Accordingly, his children including defendant no. 1 and his family members were residing in the suit property under the permissive license given by Sh. Janardhan Gupta. Thus, defendants no. 1 and 2 can be safely held to be the licensees in the disputed portion of the suit property which is admittedly in their possession.

111. Now, as per the case of the plaintiffs they had stepped into the shoes of Shri Janardhan Gupta, the erstwhile owner by virtue of the gift deed Ex. PW1/4, and terminated the license of the defendants no. 1 and 2 to reside in the disputed portion of the suit property w.e.f. 06.11.2009. Written notice dated 08.01.2010 along with its postal receipts is Ex.PW1/5 and Ex.PW1/6. The defendants have denied receipt of said legal notice. However, the address on the said legal notice is not denied/disputed.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 62 /77 Original postal receipts are on record. Accordingly, there is presumption under Section 27 of the General Clauses Act that the legal notice is duly served upon the defendants. Even otherwise, filing of the present suit can be considered sufficient notice of termination of the license of defendants no. 1 and 2 in view of decision of the Apex Court in Nopany Investment Pvt. Ltd. Vs. Santokh Singh HUF Appeal (Civil) 5761/2007 decided on 10.12.2007.

112. Since, the license of the defendants no. 1 and 2 to reside in the disputed portion of the suit property has been validly terminated by the plaintiffs, they are liable to hand over the possession of the suit property to the plaintiffs. The plaintiffs are thus entitled to the relief of possession of suit property. These issues are accordingly decided in favour of the plaintiffs and against the defendants holding that defendants no. 1 & 2 were licensees in the disputed portion of the suit property & plaintiffs are entitled to the relief of possession/eviction of defendant no. 1 & 2 from the said portion of the suit property.

Issue no.e: Whether the plaintiffs are entitled to damages, if so, at what rate and for what period? OPP

113. The onus to prove this issue was on the plaintiffs. In the present suit, the plaintiffs have sought damages @ Rs. 40,000/ per month for two months i. e. from 06.11.2009 till the filing of the suit against defendants no. 1 and 2 on the ground that they are in unauthorized occupation of disputed portion of the suit property since 06.11.2009. It is Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 63 /77 alleged in the plaint that the rates of usage and enjoyment of such portion as is being enjoyed for residential purposes by defendants no. 1 and 2 in the vicinity of suit property is Rs. 40,000/ per month. Accordingly, damages at the said rate are prayed.

114. PW1, in his evidence affidavit (Ex.PW1/A) in para no. 11, has deposed to this effect that disputed portion of suit property is eligible for a market rent of Rs. 40,000/ per month. Although, the ocular testimony of PW1 on this aspect is not supported by any documentary evidence or any witness from the neighborhood to prove the rate of rent in the area, however, the fact remains that this deposition of PW1 is also not challenged by defendants no. 1 and 2 in his cross examination and not even a single suggestion to contrary has been given to PW1 in this regard. It is also a matter of record that even defendants no. 1 and 2 have failed to prove on record any evidence to the contrary showing that the market rate of rent in the area is less than Rs. 40,000/ per month. In the absence of any specific evidence led by either of the parties, this court is required to take judicial notice of the size of the disputed portion of the suit property and location of the suit property while deciding the issue of damages.

115. It is an admitted fact that the suit property is situated in West Punjabi Bagh, Delhi and is admeasuring 489.57 sq. metres. Site plan Ex.PW1/3 shows that the portion of the suit property in possession of defendants no. 1 and 2 enclosed in point E,F,G, H includes two bed rooms with attached washrooms, one kitchen, one drawing room, one lobby and a small open area. It is not disputed by defendants no. 1 and 2 that this was Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 64 /77 not the area in his possession. Defendants no. 1 and 2 have not put forth any separate site plan showing any other area in their possession. In my considered opinion, considering the location of the suit property and the area of the disputed portion in possession of defendants no. 1 & 2, damages at the rate of Rs. 10,000/ per month in the year 2009 are considered to be sufficient damages for the disputed portion of the suit property.

116. Since the plaintiff has prayed for recovery of damages for only two months i. e. w. e. f. 06.11.2009 till the filing of the present suit, damages at the rate of Rs. 10,000/ per month for two months i. e. Rs. 20,000/ in all are awarded in favour of the plaintiff and against the defendants no. 1 & 2. This issue is accordingly, decided in favour of the plaintiff and against the defendants.

RELIEF:

117. In view of my issue wise findings given above the suit of the plaintiff is partly decreed and following reliefs are granted in favour of the plaintiff and against the defendant no.1 and 2:

(i) A decree of possession/eviction of defendants no. 1 & 2 from the disputed portion of the suit property i. e. portion marked as E, F, G, H on the ground floor of the property bearing no.. 37/71, West Punjabi Bagh, New Delhi as shown in the site plan Ex.PW1/3.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 65 /77

(ii) A decree of damages @ Rs. 10,000/ p.m. for a period of 2 months from 06.11.2009 till the filing of the suit i. e. Rs. 20,000/ (Rupees Twenty Thousand only) in all.

(iii) Costs of the suit.

118. Decree sheet be prepared accordingly. Site plan Ex.PW1/3 is made a part of the decree.

Issues in second suit titled as Ajay Gupta Vs. Deepak Gupta & Ors.

Civ. DJ. No. 609627/2016

Issue no.1: Whether the gift deed by defendant no. 1 in favour of defendant no. 5 and 6 regarding suit property is illegal, invalid and void document on the grounds mentioned in plaint?OPP

119. The onus to prove this issue was on the plaintiff. The entire evidence and arguments of both the parties on this issue have been discussed and appreciated in my findings on two basic points of controversy between the parties as noted in paragraph no. 64 of the judgment. In view of the said findings, it has been categorically held that the suit property was a self acquired property of Sh. Janardhan Gupta and defendant no. 5 and 6 herein i. e. Sh. Deepak Gupta and Smt. Ritu Gupta have duly proved the execution of gift deed Ex.PW1/4 in their favour by Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 66 /77 Sh. Janardhan Gupta. Accordingly, the plaintiff herein ie. Sh. Ajay Gupta has failed to discharge onus upon him to prove the issue under consideration. There is no evidence on record to hold that the gift deed Ex.PW1/4 executed by defendant no. 1/Sh. Janardhan Gupta in favour of defendants no. 5 and 6/Sh. Deepak Gupta and Smt. Ritu Gupta regarding the suit property is illegal, invalid or void document. This issue, is accordingly, decided against the plaintiff herein and in favour of defendants no. 5 and 6.

Issue No: 2: Whether defendant no. 1 was competent to execute the gift deed dated 05.11.2009 in favour of defendants no. 5 and 6? OPD1

120. The onus to prove this issue was on the defendant no. 1. As discussed above, defendant no. 1 had expired prior to leading his evidence. However, there is evidence on record regarding his competence to execute the gift deed as has come in the examination of witnesses examined on behalf of Sh. Deepak Gupta and Smt. Ritu Gupta on one side and Sh. Ajay Gupta on other side.

121. The entire evidence and arguments of both the parties on this issue have already been discussed and appreciated in my findings on two basic points of controversy between the parties as noted in paragraph no. 64 of the judgment. In view of the said findings, it has been categorically held that the suit property was self acquired property of Sh. Janardhan Gupta, accordingly, Sh. Janardhan Gupta/defendant no. 1 herein was duly competent to execute the gift deed dated 05.11.2009 (Ex.PW1/4) in favour of defendants no. 5 and 6 herein. This issue is, accordingly, decided Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 67 /77 in favour of the defendants and against the plaintiff herein.

Issue no. 3: Whether there was an oral family partition of property no. 37/71, Punjabi Bagh House in March, 1997 and plaintiff is occupying a portion in Pink Color in Annexure P1 as an owner? OPP

122. The onus to prove this issue was on the plaintiff. The plaintiff has miserably failed to bring on record any evidence regarding the alleged oral partition that had taken place in March, 1997. His contention of oral family partition is also not acceptable on following two grounds. Firstly, in view of my findings above, the suit property has been held to be the self acquired property of Sh. Janardhan Gupta and accordingly, ther is no question of partition of the suit property during the lifetime of Sh. Janardhan Gupta. Secondly, the contention of the defendant that the partiton had taken place between Sh. Janardhan Gupta and his four sons is not acceptable as it is contended that on oral partition, suit property was divided in to four portions between the four brothers without keeping any portion/share for Sh. Janardhan Gupta. This contention of the plaintiff herein is highly misconceived and unacceptable to the conscience of a prudent man and is highly improbable. In the absence of any specific evidence to support such an improbable contention, I am not inclined to accept the ocular testimony of DW1 to this effect, especially when the same has been duly rebutted by the opposite party.

123. Considering the overall evidence and material on record and reasons given above, this issue is decided against the plaintiff and in favour Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 68 /77 of the defendants.

Issue No: 4: Whether the suit is not correctly valued for purposes of Court Fees? OPD

124. The onus to prove this issue was on the defendant. The plaintiff has filed the present suit seeking declaration of nulity of a gift deed in respect of the suit property. The suit has been valued for the purposes of jurisdiction regarding the relief of declaration with consequential relief at Rs. 1,49,00,000/ and fixed court feees of Rs. 200/ has been paid for the relief of declaration and Rs. 130/ for the relief of permanent injunction.

125. In their joint written statement, defendants no. 5 and 6 have alleged in their preliminary objection no. 3 that the plaintiff has sought a relief of declaration and cancellation of a registered gift deed dated 05.11.2009 executed by Sh. Janardhan Gupta in their favour. Since gift deed is a registered document therefore, advolerem court fees is required to be affixed on the plaint for seeking declaration and cancellation of the registered document which has not been done by the plaintiff.

126. Both the parties i. e. plaintiff and defendants no. 5 & 6 have relied upon the decision of the Apex Court in Suhrid Singh Vs. Randhir Singh & Ors. cited as (2010) 12 SCC 112 to support their own version of Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 69 /77 valuation of the suit for the purposes of court fees. I have carefully perused the said judgment. The relevant paras of the judgment are reproduced herein under: " 1. Leave granted. The appellant filed a suit (Case No. 381 of 2007)on the fle of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarised below:

(I) for a declaration that two houses and certain agricultural lands purchased by his father, S. Rajinder Singh were coparcenary properties as they were purchased from the sale proceeds of ancestral properties and that he was entitled to joint possession thereof;

(ii) for a declaration that the Will dated 14.07.1985 with the codicil dated 17.08.1988 made in favour of the third defendant, and gift deed dated 10.09.2003 made in favour of the fourth defendant were void and non est "qua the coparcenary".

(iii) for a declaration that the sale deeds 20.04.2001, 24.04.2001 and 06.07.2001 executed by his father. S. Rajinder Singh in favour of the first defendant and sale deed dated 27.09.2003 executed by the alleged power of attorney holder of S. Rajinder Singh in favour of the second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the "coparcenary", as they were not for legal necessity or for benefit of the family; and

(iv) for consequential injunctions restraining defendants 1 to 4 from alienating the suit properties.

2. The appellant claims to have paid a court fee of Rs. 19.50 for the relief of declaration, Rs. 117 for the relief of joint possession and Rs.42 for the relief of permanent injunction, in all Rs. 179. The learned Civil Judge heard the appellantplaintiff on the question of court fee and made an order dated 27.02.2007 holding that the prayers relating to the sale deeds amounted to seeking cancellation of the sale deeds and therefore, ad volarem court fee was payable on the sale consideration in respect of the sale deeds.

xxxxxx

4. The limited question that arises for consideration is what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and and not "binding on the coparcenary", and for the consequential relief of joint possession and injunction.

xxxxxx

7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 70 /77 can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound down by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court f is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad volorem court fee on the consideration stated in the sale deed. If B, who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay fixed court fee of Rs. 19.50 under Article 17 (iii) of the Second Schedule of the Act. But if B, a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad volorem court fee as provided under Section 7 (iv) (c) of the Act.

8. Section 7 (iv) (c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.

9. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "coparcenary" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under Section 7 (iv) (c) of the Act. The trial court and the High Court were therefore, not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore, court fee had to be paid on the sale consideration mentioned in the sale deeds."

127. Ld. counsel for the plaintiff has also relied upon the decision of our own Hon'ble High Court of Delhi in Tara Chand Gaur Vs. Satish Chand Sharma (2019) 256 DLT 61 to stress upon the point that the possession of a coowner of a joint property is deemed to be constructive possession of all other coowners. It is argued that since plaintiff is suing on the basis of his joint rights in the suit property, he is to be deemed to be Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 71 /77 in constructive possession of the entire suit property. Even otherwise, plaintiff is admittedly in physical possession of the disputed portion of the suit property and is thus, liable to pay only fixed court fees.

128. Defendants no. 5 & 6, on the other hand, have relied upon the decision of the Apex Court in J. Vasantha & Ors. Vs. N. Raman Kanthammal AIR 2017 SC 3813 which has reiterated the law laid down in Suhird's case (Supra).

129. It is argued by Ld. Counsel for defendant nos. 5 & 6 that since the plaintiff is admittedly in possession of only a part of the suit property i.e. the disputed portion, while the registered gift deed is for the entire suit property, he is liable to pay advalorem court fees on a proportionate basis.

130. I have heard the submissions and given by thoughtful considerations to the issue.

131. Considering the law laid down by the Apex Court in Suhird's case (Supra), I am of the view that the plaintiff who is not an executant of the registered gift deed under challenge and is in part possession of the suit property, is liable to pay only the fixed court fees and not advalorem court fees on the valuation of the suit property. I also do not find any merit in the argument of defendants no. 5 & 6 that proportionate court fees should be paid on the value of the portion of the suit property which is not in possession of the plaintiff. In my opinion, this would amount to stretching the law to a large extent just to nonsuit a party. This is more so as plaintiff himself is claiming his possession in the disputed portion of the suit Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 72 /77 property as a joint owner.

132. In view of the reasons given above, this issue is decided in favour of the plaintiff and against the defendants.

Issue No. 5: Whether the defendants are liable to be restrained permanently to disposes shown in Pink colour in site plan Ex. P1 in his possession? OPP

133. The onus to prove this issue was on the plaintiff. In view of my findings given in the questions framed in para no. 64 of the judgment above, it is held that suit property was the self acquired property of Sh. Janardhan Gupta/defendant no. 1 who has duly gifted the same to defendants no. 5 and 6 by virtue of registered gift deed Ex.PW1/4. Accordingly, defendants no. 5 and 6 have been held to be owners of the suit property. Similar is my finding in issue no. (c) in the first suit. Defendants no. 5 & 6 herein have also been held entitled to the possession of the suit property in view of my issue wise findings in issues no. (d) & (d) (I) in the first suit and plaintiff herein is held to be a licensee in the disputed portion of the suit property continuing in possession after valid termination of his license by the owners of the suit property.

134. In view of these findings, an injunction can not be granted in favour of the plaintiff (i.e. a mere licensee) and against the defendants no. 5 & 6 ( i.e. the true owners) as prayed. This issue is, accordingly, decided in favour of the defendants and against the plaintiff.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 73 /77 Issue no. 6: Whether the defendants no. 5 and 6 have become owners of the suit property on the basis of Gift Deed dated 05.11.2009? OPD 5 & 6

135. The onus to prove this issue was on the defendants no. 5 & 6. The entire evidence and arguments of both the parties on this issue has been discussed and appreciated in my findings on two basic point of controversy between the parties as noted in paragraph no. 64 of the judgment. In view of the said findings, it has been categorically held that the suit property is self acquired property of Sh. Janardhan Gupta and the defendants no. 5 & 6 have duly proved the execution of gift deed Ex.PW1/4 in their favour by Sh. Janardhan Gupta. Accordingly, the defendants no. 5 & 6 have become the owners of the suit property by virtue of gift deed dated 05.11.2009. This issue is, accordingly, decided in favour of the defendants no. 5 & 6 and against the plaintiff herein.

Issue no. 7: Whether the plaintiff is entitled to the relief? OPP

136. The onus to prove this issue was on the plaintiff. The plaintiff has sought the relief of declaration declaring the Gift Deed dated 05.11.2009 executed by defendant no.1 in favour of defendants no.5& 6 and duly registered with the office of Sub Registrar (Ex.PW1/4) as invalid/illegal/void/enforceable. The consequential relief of permanent injunction has also been sought, restraining defendants no.5 & 6 from dispossessing the plaintiff from the disputed portion of suit property or Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 74 /77 creating any third party rights in the suit property.

137. The entire evidence and arguments of both the parties on this issue have been discussed and appreciated in my findings on two basic point of controversy between the parties as noted in paragraph no. 64 of the judgment. In view of the said findings, it has been categorically held that the suit property is self acquired property of Sh. Janardhan Gupta and the defendants no. 5 & 6 have duly proved the execution of gift deed Ex.PW1/4 in their favour by Sh. Janardhan Gupta. Accordingly, the defendants no. 5 & 6 have become the owners of the suit property by virtue of gift deed dated 05.11.2009.

138. In view of the above mentioned findings, the reliefs as prayed by the plaintiff cannot be granted in his favour as defendants no. 5 & 6 have duly proved their ownership over the suit property. The Gift Deed (Ex PW1/4) has been held to be a valid and enforceable document in view of my issuewise finding given in issue no. (c) of the first suit and issue no. 6 of the present suit. Accordingly, the plaintiff is not entitled for the reliefs of declaration and injunction as prayed in the suit. The gift deed being a valid document is binding upon the parties and plaintiff cannot be granted any injunction against the true owner of the suit property. This issue, is accordingly, decided in favour of the defendants and against the plaintiff.

RELIEF:

139. In view of my issue wise findings given above the suit of the Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 75 /77 plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.

CONCLUSION: In the first suit Civ. DJ No. 609563/2016 titled as Deepak Gupta & Anr. Vs. Ajay Gupta & Anr.:

140. In view of my issue wise findings given above the first suit is partly decreed and following reliefs are granted in favour of the plaintiff (Shri Deepak Gupta and Smt Ritu Gupta) and against the defendant no.1 and 2 (Shri Ajay Gupta and his wife).

(ii) A decree of damages @ Rs. 10,000/ p.m. for a period of 2 months from 06.11.2009 till the filing of the suit i. e. Rs. 20,000/ (Rupees Twenty Thousand only) in all.

(iii) Costs of the suit.

141. Decree sheet be prepared accordingly. Site plan Ex.PW1/3 is made a part of the decree.

Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 76 /77 In second suit Civ. DJ No. 609627/2016 titled as Ajay Gupta Vs. Janardan Gupta & Ors.:

142. In view of my issue wise findings given above the second suit is dismissed. No order as to cost. Decree sheet be prepared accordingly.

Digitally signed by

                                       SHIVALI            SHIVALI SHARMA

                                       SHARMA             Date: 2022.03.28
                                                          16:58:17 +0530
Announced in open court                         (SHIVALI SHARMA)

On: 28.03.2022. Additional District Judge03(West) Tis Hazari Court Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 77 /77

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Delhi District Court

Deepak Gupta vs Mr. Ajay Gupta on 28 March, 2022