Delhi District Court
Girish Malhotra vs Rajni Sharma on 18 January, 2020
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE
03, EAST DISTRICT, KARKARDOOMA COURTS: DELHI
RCA No. 221/16
Girish Malhotra
S/o Late Harish Kumar Malhotra
R/o FF8, 2nd Floor,
Mangal Bazar Road,
Laxmi Nagar, Delhi 110092 ................ Appellant
Versus
1. Rajni Sharma
W/o Sh. R.K. Sharma
R/o H. No. C2/75,
Sector 36, Noida, UP
2. Satish Malhotra
S/o Late Harish Kumar Malhotra
R/o H. No. 72/2, 4th Floor,
East Guru Angad Nagar
Delhi - 110092 ................... Respondents
Appeal filed on 08.02.2016
Arguments concluded on 09.12.2019
Judgment pronounced on - 18.01.2020
JUDGMENT
1. This is plaintiff's appeal against decree dt. 30.11.2015 arising out of a suit for declaration and permanent injunction. Parties shall be referred to in this judgment as per their ranks before Ld. Trial Court.
2. Late Harish Kumar Malhotra (for short 'HKM') had three sons, with plaintiff being the eldest, followed by Satish Malhotra (defendant no.2) and Rajnish Malhotra being the youngest. Late HKM was also blessed with a RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 1 of 21 daughter, namely, Sapna. Late HKM owned property no. FF8/459, Mangal Bazar Road, Laxmi Nagar, Delhi - 92. Late HKM executed a Will (Ex. PW1/B) dt. 02.01.1996, registered on 11.01.1996. Under the Will (Ex. PW1/B), insofar as it is relevant for this lis, the youngest son Rajnish Malhotra got the 1st floor, Satish Malhotra (defendant no.2) the residential ground floor and the plaintiff the 2nd floor of the aforesaid property. Daughter Sapna was given the right to residence in this property till her marriage. Relevant would it be to note here that Will (Ex. PW1/B) dt. 02.01.1996 is completely silent about the roof rights above the second floor of the aforesaid property. Late HKM, as it appears from the record, passed away on 23/24.10.1997.
3. It is pertinent to mention here that Will (Ex. PW1/B) dt. 02.01.1996 created preemption rights qua the aforesaid property. It reads as follows, "However, in the event if my any of my sons want to sell their share of this property, the first right to buy will be that of the other two sons and in case they do not want to purchase, they shall give in writing a 'No Objection' and then and only then the portion could be sold to an outsider. In the event there being no 'No Objection Certificate' from the other two brothers, any sale made will be illegal and void."
4. Thereafter, on 07.09.2008 Satish Malhotra (defendant no.2) sold out the ground floor (except two shops on ground floor) to Rajni Sharma (defendant no.1) vide registered sale deed Ex. DW1/X1.
5. Vide the said registered sale deed dt. 07.09.2008 (Ex. DW1/X1) Satish Malhotra (defendant no.2) also sold out 1/3rd portion of 'common roof rights' above the 2nd floor of the aforesaid property to Ms. Rajni Sharma (defendant no.1). It is this sale of 1/3 rd portion of the roof rights, which is essentially the basis of dispute between the parties.
6. Plaintiff avers that his younger brothers had got portions of the aforesaid property as per their choices; that under the Will he (plaintiff) was given the RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 2 of 21 roof rights too, together with the 2nd floor, though the Will made no explicit mention of the roof rights; that the 2nd floor, given to him (plaintiff) under the Will, had lesser market value than the other floors; that he (plaintiff) resides at the 2nd floor (top floor) with 'exclusive usage and control' of the terrace (roof rights); that water tanks of Rajnish Malhotra and Satish Malhotra (defendant no.2) are fitted in their respective portions; that neither Rajnish Malhotra nor Satish Malhotra (defendant no.2) ever had any occasion to use the roof for the last more than 12 years; that none of his two younger brothers, since 11.01.1996, ever used the roof for any purpose and that the same has been under his (plaintiff's) peaceful and continuous possession; that as such, his younger brothers have no right, title or interest of any kind in the roof; that by efflux of time he has become absolute owner of the roof.
7. Plaintiff goes on to aver that sale of the roof rights by defendant no.2 Satish Malhotra to defendant no.1 Rajni Sharma vide sale deed dt. 07.09.2008 (Ex. DW1/X1) was sans any right, title and interest. He asserts that in fact in the Will dt. 02.01.1996, late HKM had not empowered any of his sons to sell the roof rights to any person; that in fact, the roof rights had been given to him (plaintiff) as he had agreed to occupy the top/2 nd floor; that at the time of execution of the Will, late HKM had asked his sons to choose the floors and at that time Rajnish Malhotra and defendant no.2 Satish Malhotra agreed not to have any user right of the roof and also agreed not to interfere in the exclusive use of the roof of the 2nd floor; that Rajnish Malhotra and defendant no.2 Satish Malhotra since 1991 never had any access or used the roof and he (plaintiff) remained in exclusive possession and occupation thereof sans any interference from them; that as such execution of the sale deed dt. 07.09.2008 by defendant no.2 Satish Malhotra in favour of defendant no.1 Rajni Sharma thereby giving user rights of the roof is illegal and the same is a nullity to that extent.
RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 3 of 218. It is further the plaintiff's averment that he had been parking his vehicle in the ground floor passage even prior to execution of the Will dt. 02.01.1996; that defendant no.1 Rajni Sharma, who has been given ownership rights by defendant no.2 Satish Malhotra, has no right to interfere in the parking of his motorcycle in the ground floor passage; that the ground floor starts after the staircase approaching the first floor and second floor and not from the passage left for common use.
9. On these averments, plaintiff sought the following reliefs in the suit, filed on 03.11.2008:
(a) declare the sale deed dt. 07.09.2008, registered on 07.10.2008, executed by defendant no.2 Satish Malhotra in favour of defendant no.1 Rajni Sharma qua rights of use of the roof of the 2nd floor as null and void;
(b) restrain defendant no.1 Rajni Sharma, her associates, attorneys, beneficiary, legal heirs, representatives etc. from using, alienating or transferring or giving rights of user of the roof of the 2nd floor of property no. FF8/459, Mangal Bazar Road, Laxmi Nagar, Delhi - 92 as shown in red colour in the site plan;
(c) defendant no.1 Rajni Sharma be restrained from creating interference in the use of passage on the ground floor for parking the motorcycle of the plaintiff.
10. The two defendants filed their joint written statement. It is stated that after execution of the sale deed dt. 07.09.2008 defendant no.1 Rajni Sharma has become owner of the ground floor with 1/3rd roof rights. They state that plaintiff has no right to claim parking rights on the ground floor of the suit property as the same is under exclusive possession and ownership of defendant no.1 Rajni Sharma. It is denied that the terrace/roof is under exclusive use and control of plaintiff. It is stated that Rajnish Malhotra and defendant no. 2 Satish Malhotra as also the plaintiff were using the terrace floor and they have exclusive rights over the same in respect of 1/3 rd portion thereof and that after the sale of 07.09.2008, defendant no.1 Rajni Sharma also became 1/3 rd owner of the terrace. In the Will of late HKM there was no mention of the roof rights RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 4 of 21 as it was used for common purpose of all his sons who were each entitled to 1/3 share therein. They state that since 11.01.1996 defendant no.2 along with the other brothers were commonly using the roof rights. They further that since 1991 all the three sons of late HKM were using the terrace rights sans any interference from each other and hence the execution of the sale deed by defendant no.2 in favour of defendant no.1 giving user of terrace right is legal and justified. They aver that plaintiff never used to park his vehicle on the ground floor and he merely wants to create hindrance in the enjoyment of the property of defendant no.1 Rajni Sharma; that passage on the ground floor is the exclusive property of defendant no.1 Rajni Sharma and plaintiff only has easement rights on the ground floor which never included parking rights as the passage is very small and it creates lots of hindrance for defendant no.1 Rajni Sharma; that plaintiff has no right to park his vehicle in the exclusive property of defendant no.1 Rajni Sharma. Denying other averments, defendants seek dismissal of the suit.
11. The suit was tried on the following issues, framed on 05.05.2009:
1. Whether the plaintiff has no right to file the present suit? OPD
2. Whether the suit is not properly valued for the purpose of court fees and jurisdiction and the plaintiff has not paid requisite court fees? O PD
3. Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction as prayed? OPP
5. Relief.
12. In the trial, plaintiff entered the witness box as PW1. One Krishan Kumar Mehta, a witness to the Will dt. 02.01.1996 (Ex. PW1/B), was examined as PW2.
13. In defendants' evidence, the following witnesses were examined: (i) DW1 Rajni Sharma (defendant no.1), and (b) DW2 Satish Malhotra (defendant no.2).
RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 5 of 2114. On issues no.1 and 2, Ld. Trial Court held in favour of the plaintiff. However, on issues no. 3 and 4 the outcome was adverse to the plaintiff and consequently the suit was dismissed.
15. Arguments heard. Record perused.
16. Together with the appeal there is an application on record of the appellant, filed on 16.11.2017, under Order 47 Rule 27, CPC (sic Order 41 Rule 27, CPC). Appellant's counsel during the course of arguments had not agitated this application. By way of this application, plaintiff prays that he be permitted to examine Harmesh Dandhona, a witness to the Will Ex. PW1/B. It is stated in the application that the 2nd floor together with the terrace was bequeathed to him, but while drafting the Will, the same could not be mentioned. It is further stated that before the Ld. Trial Court because of ill health and other family issues, Harmesh Dandhona could not appear. Plaintiff alleges that Harmesh Dandhona has now disclosed that defendant no.2 Satish Malhotra had asked him (Harmesh Dandhona) not to involve himself in the dispute, and thus he was prevented from speaking the truth before Ld. Trial Court and that it in fact was the defendants who had prevented him from appearing before Ld. Trial Court. He submits that Harmesh Dandhona can now throw light on this aspect. Defendants in their reply to this application state that before Ld. Trial Court plaintiff had taken several adjournments, but did not produce Harmesh Dandhona on grounds that he was out of station or that he was ill etc.; that the plaintiff had closed his evidence stating that he did not wish to lead any further evidence; that his evidence will have no material bearing on the outcome of this case; that the application has been filed after two years of filing the appeal and no such ground was urged in the appeal; and that it is an afterthought. Under Rule 27 (1) of Order XLI, CPC additional evidence shall not be allowed unless one of the following conditions are satisfied: (a) improper refusal of evidence by Trial Court which ought to have RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 6 of 21 been admitted, or (b) nonproduction of evidence notwithstanding exercise of due diligence, or (c) requirement of the appellate court itself for pronouncing judgment i.e. impossibility to pronounce judgment without the additional evidence, or (d) any other substantial cause. In N. Kamalam vs. Ayyasamy, (2001) 7 SCC 503 it was, inter alia, observed: Incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up weak points in the case and to fill up the omission in the court of appeal - it does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the Appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in The Municipal Corporation of Greater Bombay vs. Lala Pancham and Others, AIR 1965 SC 1008 has been candid enough to record that the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In paragraph 9 of the judgment, this Court observed:
"This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports 'in a large measure' the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under cl. (b) of subrule (1) of Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the ground specified in the provision."
17. I do not think that plaintiff had made out a case for leading additional evidence under Rule 27 (1) of Order XLI, CPC. Record shows that the plaintiff had taken several adjournments before Ld. Trial Court to examine Harmesh Dandhona. Plaintiff did not apply before Ld. Trial Court for issuance of summons to Harmesh Dandhona or take coercive steps for his appearance. It seems to be an endeavour on plaintiff's part to fill in lacunae or gaps in his evidence. That apart, plaintiff wants to examine Harmesh Dandhona in support RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 7 of 21 of his plea that the 2nd floor together with the terrace was bequeathed to him, but while drafting the Will, the same could not be mentioned. I do not think that such evidence can have material bearing on this case as he cannot depose over and beyond the bequeaths made under the Will. It is the view of this Court that the application for leading additional evidence of the plaintiff merits dismissal. It is ordered accordingly.
18. Now to the merits of the appeal. It is not in dispute that property no. FF 8/459, Mangal Bazar Road, Laxmi Nagar, Delhi - 92 belonged to late HKM, who passed away in year 2007. It is the common ground of the parties that late HKM had executed the registered Will dt. 02.01.1996 (Ex. PW1/B). Parties to this lis do not dispute or lay any challenge to this Will. PW2 Krishan Kumar Mehta, a witness to this Will, in his evidence deposed about its due execution. PW2 testified that late HKM had executed the Will dt. 02.01.1996 (Ex. PW1/B) in his presence, and the same was read over to him (late HKM) and he (late HKM) put his signatures and thumb impressions in front of him (PW2) as also the other witness Harmesh Dandona. There is nothing in the cross examination of PW2 to create any doubt on the genuineness of this Will. In his crossexamination PW2 Krishan Kumar Mehta, inter alia, deposed, "It is correct that the Will Ex. PW1/B was prepared at the instructions of Sh. Harish Malhotra. It is correct that the Will contained all his wishes." The Will Ex. PW1/B stands proved under the law. And as already stated, this Will Ex.PW1/B of late HKM is not disputed by any of the sides and its genuineness not challenged.
19. Now the Will Ex. PW1/B is completely silent about the roof rights. Therefore, there arises no question of devolution of the roof rights by way of testamentary succession {in terms of the Will Ex. PW1/B} to the plaintiff. Consequently, plaintiff's claim that under the Will Ex. PW1/B, besides the 2 nd RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 8 of 21 floor, the entire roof rights were also 'given' to him is sans any merit and perfunctory at best.
20. In Ram Gopal v. Nand Lal, AIR 1951 SC 139 it was observed:
7. In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered, but that is only for the purpose of finding out the intended meaning of the words which have actually been employed [Vide Rajendra Prasad v. Gopal Prasad, 57 IA 296]. In the present case the instrument of grant has been described as a "Tamliknama" which means a document by which "Maliki" or ownership rights are transferred and the document expressly says that the grantee has been made a "Malik" or owner. There are no express words making the gift heritable and transferable; nor on the other hand, is there any statement that the transferee would enjoy the properties only during her lifetime and that they would revert to the grantor after her death."
21. This observation in Ram Gopal (supra) has been reiterated in several judgments, like Navneet Lal v. Gokul, AIR 1976 SC 794 and Shyamal v. kanti Guha (dead) through LRs. & Ors. v. Meena Bose, (2008) 8 SCC 115.
22. Therefore, 'surrounding circumstances' will not help the plaintiff in laying a claim over something that is not in fact bequeathed to him. As observed herein, help of the 'surrounding circumstances' will be taken to find the intended meaning of the words actually used in the Will and not for the purpose of laying claim over something that has not come to be devolved by way of the testament. In any event, it is the entire testament that will have to read as a whole to ascertain the 'surrounding circumstances'. Portions thereof cannot and will not be read divorced from the rest to discern the 'surrounding circumstances'. To say that the only and only 'surrounding circumstances' in the Will are that plaintiff got the top floor with lesser market value or that the access to the terrace is through second floor belonging exclusively to him will not be correct. What the plaintiff seems to overlook is that under the Will Ex. PW1/B, he was also given the right corner side portion with two sides open in a 400 sq. yards plot no. 3A, Malhotra Niwas, Khora Colony, Ram Krishna RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 9 of 21 Enclave, UP. His sister got the left side portion in this plot with his other two brothers getting the portions in between.
23. Therefore, I find that plaintiff's case claiming exclusivity over the terrace based on the Will Ex. PW1/B lacks substance. Ld. Trial Court was correct in observing (paragraph no. 19.18 of the impugned judgment) that such exclusivity of the terrace, if intended, must have been expressly stated in the Will.
24. In Gnanambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103, it was observed: A question is sometimes raised as to whether in construing a will the court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; but it can be invoked only when there is undoubted ambiguity in acertainment of the intentions of the testator. As Lord Justice Romer observed in Re Edwards; Jones v. Jones [1906 1 Ch 570 at p. 574] "It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning". It is in the light of the above principles that we should proceed to examine the contents of the will before us.
25. Construing the plain words in the Will Ex. PW1/B according to their plain meaning, it is evident that the terrace/roof did not come to be devolved on the plaintiff as claimed by him.
26. Next, it is the assertion of the plaintiff in his plaint that he has become 'absolute owner' of the roof 'by efflux of time'. Under the law one can of course become absolute owner of an immovable property of another by efflux of time through the mode of adverse possession in terms of the relevant provisions of the Limitation Act. Record reflects that late HKM passed away on 23/24.10.1997. PW2 Krishan Kumar Mehta in his crossexamination deposed about his passing away on 23/24.10.1997. Plaintiff Girish very much knew that the owner was none else, but his father late HKM till his demise on RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 10 of 21 23/24/10.1997. Rather it his own case that the owner was, none else but his father late HKM. In his crossexamination he (PW1) deposes, "It is correct that my father was the exclusive owner of the suit property." It is settled law that testament/Will takes effect only upon/after the death of the testator and not before. Given this, plaintiff Girish Malhotra could not have claimed adverse possession against his siblings qua the terrace till the time its owner (late HKM), and who the plaintiff very much knew was the owner, was alive. This is for the very simple reason that till his demise on 23/24.10.1997, ownership rights of the terrace, as also of all other floors of the property in question, vested in late HKM and not anyone else. Therefore, adverse possession, if any, during lifetime of late HKM could have been claimed against late HKM and not anyone else. Claim of adverse possession is a claim in denial of title of the true owner. In T. Anjanappa & Ors. v. Somalingappa & Ors., (2006) 7 SCC 570 there is an observation to the effect that the concept of adverse possession contemplates a hostile possession i.e. possession which is expressly or impliedly in denial of the title of the true owner. That apart, in his plaint, plaintiff does not claim adverse possession as against his father late HKM. He set up no pleadings to this effect. He led no evidence qua adverse possession as against his father. He has not pleaded a single overt act on the basis of which it could be inferred or ascertained that from a particular point of time his possession became hostile and notorious to the complete exclusion of HKM during his lifetime. Besides this, he cannot aver that his father late HKM had 'given' him the roof rights and simultaneously claim adverse possession against him. Till 23/24.10.1997, the children of late HKM had mere chance of succession, in the nature of spes successionis as set out under section 6 (a) of Transfer of Property Act, to the estate owned by late HKM. And consequently in any event plaintiff could not have set up adverse title till 23/24.10.1997 against one who only had spes successionis. Therefore, for these multiple RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 11 of 21 reasons, before 23/24.10.1997 there arose absolutely no question of adverse possession by the plaintiff.
27. Now to adverse possession, or rather to the claim of ownership by efflux of time, after 23/24.10.1997. Even if plaintiff' averments about his 'exclusive usage and control' over the terrace is accepted to be the gospel truth, yet he has no case to make out on this score. His claim to adverse possession as against his siblings can, at the best, commence on 23/24.10.1997. The civil suit came to be filed on 03.11.2008, even before expiry of statutory period of 12 years. It is settled law that generally rights of the parties are crystallised as on the date of filing of the suit. Reference in this regard can be had to the decision of Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256. Therefore, plaintiff's claims that his brothers have not used the terrace since 1996 or that plaintiff has been in peaceful and continuous possession of the terrace or that the water tanks are fitted in the respective portions of the other brothers or that in order to reach the roof one has to go through the portion belonging exclusively to the plaintiff (as deposed by DW2 Satish Malhotra) will not suffice to return a finding in plaintiff's favour.
28. Next, it bears repetition to state that plaintiff's claim is that his father, during his lifetime, had given the roof rights too to him, together with the 2 nd floor. As already noted hereinabove, Will Ex. PW1/B does not support such a claim. This claim is unfounded for another reason. For inter vivos transfer (see section 5 of Transfer of Property Act) of an immovable property i.e. transfer by one living person to another living person, it is essential that such a transfer takes place in terms of the extant provisions of Transfer of Property Act. The claim of the roof rights too having been given cannot qualify as a sale under section 54 of Transfer of Property Act. It neither qualifies as a mortgage under sections 58 of Transfer of Property Act. It is neither a transfer by way of lease under section 105 or an exchange under section 118 of the Act. It is also not a RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 12 of 21 gift as contemplated under sections 122/123 of Transfer of Property Act. In short, such a claim of the roof rights too having been given by the late father to the plaintiff is not something that can be traced to any provision under the Transfer of Property Act.
29. In short, there was no inter vivos transfer of the terrace/roof under the Transfer of Property Act. The terrace/roof neither came to be devolved through testamentary succession. In Gnanambal Ammal (supra) there is an observation to the following effect, "...These, in brief, are the dispositions made in the will. The plaintiff founds him claim upon para 13 of the will which, according to him, contains the entire disposition so far as the Kothangudi property is concerned. That village is given to Nagammal for her life with no disposition of the remaining interest. If the remainder has not been disposed of, there is no doubt that the plaintiff would be entitled to the property as the heir of the testator under the ordinary law of inheritance." Thus, it is clear that the remainder (roof/terrace) was not disposed of in terms of the Will Ex. PW1/B. Thus, the remainder (roof/terrace) of the property in question has to devolve under the ordinary law of inheritance. From this perspective too, the claim of the plaintiff that the entire terrace/roof belongs exclusively to him is a meritless one.
30. It was the contention of the plaintiff that no suggestion was given to him (PW1) that his father had not offered him the terrace or that both his brothers had not agreed to use the top floor and interfere in his possession. This argument is of no avail. Plaintiff's claim to the terrace is not traced to any provision under the Transfer of Property Act. Such a claim is neither set out in his favour in the testament/Will. His claim on the basis of efflux of time (adverse possession) is also unfounded. Therefore, whether or not such a suggestion was given to him in his crossexamination can hardly be of any avail. Not giving such suggestions in his crossexamination will not vest the RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 13 of 21 property in him either under the Transfer of Property Act or under the Indian Succession Act or by way of the Limitation Act.
31. The Will Ex. PW1/B as noted hereinabove had created preemptory rights. The defendants are relying on two NOCs in support of their case. NOC Ex. DW1/X purports to have been executed by plaintiff Girish Malhotra. NOC Ex. DW1/Y purports to have been executed by Rajnish Malhotra. Both these NOCs are not registered and are on stamp paper of Rs. 2/ each. It is pertinent to mention here that both these NOCs are in respect of the ground floor portion of the aforesaid property. Plaintiff attacks both these NOCs on several counts. As per the plaintiff, the NOCs are forged and fabricated; that being unregistered, they could not have been looked into in view of the bar of section 49 of Registration Act; that both the affidavits suffered from the vice of deficient stamping. All these objections of the plaintiff are meritless for the following reasons.
(a) NOCs Ex. DW1/X and Ex. DW1/Y are in relation to ground floor portion of the aforesaid property. A bare perusal of the plaint and the reliefs claimed therein would show that the sale deed Ex. DW1/X1, insofar as it relates to the ground floor portion, is not under challenge. In his prayer clause, the plaintiff prays that the sale deed Ex. DW1/X1 insofar as it relates to 'the rights of use of the roof of the second floor' be declared to be null and void. Besides this, he seeks permanent injunction against defendant no. 1 Ms. Rajni Sharma qua 'the user of the roof of the second floor' and the passage on the ground floor for parking. Therefore, what is apparent is that the plaintiff does not lay any challenge to the sale of the ground floor portion by defendant no.2 Satish Malhotra to defendant no.1 Ms. Rajni Sharma. In short, plaintiff is not aggrieved by the sale of the ground floor portion. Given this, the NOCs Ex. DW1/X and Ex. DW1/Y, which are solely in relation to the ground floor portion RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 14 of 21 and have no concern whatsoever with the roof/terrace, are absolutely irrelevant for determination of rights and liabilities of the parties in this lis.
(b) Secondly, to begin with, it was never the plaintiff's case in his plaint that the sale of the ground floor portion had been effected in contravention of the preemptory rights as set out in the Will Ex. PW1/B. Plaintiff knew right from the very inception the contents of the Will, and in particular the fact there were preemptory rights thereunder. It is not his case in his plaint that the sale of the ground floor had been effected without obtaining his NOC. It is not his case in his plaint that he had never in fact given any NOC. Given this, plaintiff's assertion, which came forth in the form of a suggestion to DW1 Rajni Sharma in her cross examination that NOCs Ex. DW1/X and DW1/Y are forged and fabricated, are sans any basis. Had it been plaintiff's assertion in his pleadings that he had executed no NOC whatsoever as required in terms of the preemption rights set out in the Will Ex. PW1/B, then perhaps he could have had an arguable case that his NOC Ex.DW1/X is forged and fabricated. The record does not show that Rajnish Malhotra has instituted any lis or is defending any lis with the assertion, inter alia, that he gave no NOC or that Ex. DW1/Y, purporting to be his NOC, is forged and fabricated.
(c) In M/s Trojan & Co. v. RM. N. N. Nagappa Chettiar, AIR 1953 SC 235 it was observed, "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found". This principle was reiterated in State of Orissa v. Mamta Mohanty, (2011) 3 SCC 436. Siddik v. Saran, AIR 1930 PC 57, Om Prabha Jain v. Abnash Chand, AIR 1968 SC 1083 and Abu Bakar v. Haran, AIR 1996 SC 112 are authorities for RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 15 of 21 the proposition that no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party.
(d) Next, plaintiff's objection as regards nonregistration of NOCs Ex. DW1/X and Ex. DW1/Y holds no water. There is nothing in law that prevents a preemptor from waiving his right of preemption and a deed whereby he waives such a right does not require registration, even if it is assumed that the value of the right is the value of the property. Direct authorities for this proposition of law are Ram Narain v. Gokul Ram, AIR 1952 Pepsu 17 and Mathura Das Chunnilal Agarwal v. Onkar Raoji Marathe, AIR 1949 Nag 387 : 1949 NLJ 468 : ILR (1949) Nag 771 : MANU/NA/0013/1949.
(e) Now to plaintiff's objection as regards stamp duty on NOCs Ex. DW1/X and Ex. DW1/Y. Will Ex. PW1/B does not say that No Objection has to be by way of affidavit(s). It speaks of No Objection 'Certificate'. Therefore, the fact that No Objection Certificates Ex. DW1/X and Ex. DW1/Y were given the heading of 'affidavit' will not make it chargeable to stamp duty. What was required was issuance of certificate(s) for giving the consent and not swearing of affidavit(s). It is the view of this court that such giving of consent through No Objection Certificate could even have been on a plain piece of paper. Even a letter giving consent for the sale and not pressing the preemption can suffice. To my mind, under the law giving of consent for the sale and waiving the preemption can also be through conduct. For example, where a vendor sells out his property under a sale deed witnessed by his own brother, the latter can very well be said to have, by way of his conduct, given his consent and waived off the preemption. The heading of 'affidavit' given to NOCs Ex. DW1/X and Ex. DW1/Y does not change its nature of being a No Objection 'Certificate' and/or a document giving consent for sale. The form or title RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 16 of 21 of the document is hardly material. To take an example, a document essentially in the nature of Gift will not become a Will merely because it is given the heading of Will and vice versa. The document has to be read as a whole to determine its dominant purpose. Secondly, in the Schedule to the Indian Stamp Act {Schedule inserted by way of Indian Stamp (Delhi Amendment) Act, 2001} I find no specific entry relating to pre emption waiver. Thirdly, it is certainly not that any and every deed requires stamp duty. For example, a Will or a Codicil can be executed on a plain piece of paper without any stamp duty. The fact that a certain Will or a Codicil came to be executed on a stamp paper will not and cannot alter its character.
32. Ld. Counsel for plaintiffappellant attacked the sale deed Ex. DW1/X1 on the premise that the written text of the same does not conform to the site plan [Ex. DW1/X1 (A)] attached therewith. The written text of the sale deed reflects that it is with respect to the ground floor (except two shops on ground floor) and 1/3rd portion of the common roof rights on the second floor. However, site plan [Ex. DW1/X1 (A)] attached with the sale deed is of the ground floor portion only. Ld. Counsel for the plaintiffappellant invited Court's attention to the crossexamination of DW2 Satish Malhotra wherein he stated, "It is correct that Ex. DW1/X1(A) is the same portion which I sold to defendant no. 1 which is shown in striped shape." This does not suffice to hold the sale deed to be void. The document has to be read as a whole to ascertain its true import. This document read as a whole clearly shows that what was intended to be sold was the ground floor (except two shops on ground floor) and 1/3rd portion of the common roof rights on the second floor. Secondly, annexing a site plan together with the sale deed is not a mandatory requirement under section 54 of Transfer of Property Act for completion of sale. Therefore, even de hors the site plan, the sale deed Ex. DW1/X1 would hold its ground;
RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 17 of 21and in such an event, the written text of the same in crystal clear terms would reflect as to what was intended to be sold. Thirdly, the law is that where there is a conflict between the earlier clause and a later clause and it is not possible to give effect to all of them, then the rule of construction is that it is the earlier clause that must override the later clause and not vice versa (Radha Sundar Dutta v. Mohd. Jahadur Rahim & Ors., AIR 1959 SC 24 : 1959 SCR 1309). Therefore, even accepting this argument of the plaintiff, yet in view of the extant law, it is the earlier clause of the sale deed that would prevail over the site plan which occurs later. This in effect means that it is the written text of the sale deed that would prevail. Next, the aforesaid oral statement of DW2 Satish Malhotra qua the subject matter of the sale deed Ex. DW1/X1, as appearing in his crossexamination, being somewhat at variance with the written text of the sale deed is no ground to hold the same to be void. What has been sold/purchased under a sale deed will have to be discerned from the instrument itself. It will not be discerned from the oral statements of either of the parties. In instant case, the vendor (Satish Malhotra) and the vendee (Rajni Sharma) do not allege any inter se foul play. And sections 91/92, Evidence Act, prohibit any such oral evidence to ascertain the subject matter of the sale deed.
33. Ld. Counsel for the plaintiffappellant further attacked the sale deed on the following premise. DW1 Satish Malhotra in his crossexamination deposed, "I did not give any construction right." It bears repetition to states that the rights sold under the sale deed will have to be discerned from the sale deed itself and not from oral statements of the parties; more so when the vendor (Satish Malhotra) and the vendee (Rajni Sharma) do not allege any inter se foul play.
34. Ld. Trial Court in the impugned judgment in paragraph no. 19.19 thereof observed that the condition of preemption as set out in the Will Ex. PW1/B was void being in conflict with section 10 of Transfer of Property Act.
RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 18 of 21This observation of Ld. Trial Court is not correct. Firstly, section 10 of Transfer of Property Act applies to "transfer of property" under Transfer of Property Act, 1882. Devolution of a property in terms of a Will is not "transfer of property" under Transfer of Property Act, 1882. Secondly, under the extant law, there is nothing wrong in creation of preemptory rights under a Will. Such preemptory rights are not violative of the rule against perpetuity as contained in section 114 of Indian Succession Act. Thirdly, in the case of K. Naina Mohamed Vs. A. M. Vasudevan Chettiar, (2010) 7 SCC 603, it has been held that preemption rights can very well be created under a Will and the same does not violate the rule against perpetuity.
35. The plaintiff gives the logic that since the top floor (2 nd floor) came to his share under the Will, therefore he was exclusively given the roof. Such an assertion of the plaintiff visavis the roof having been given exclusively to him has already been turned down hereinabove. Nonetheless, this logic of the plaintiff can be met with the other logic as was contended by the defendants. Under the Will Ex. PW1/B, the plaintiff was given the corner side portion with two sides open in the 400 sq. yards plot no. 3A, Malhotra Niwas (Khora Colony, Ghaziabad). Therefore, this logic being advanced by the plaintiff to lay exclusive claim over the roof/terrace can be of no avail.
36. The question now remains whether the creation of preemption rights under the Will Ex. PW1/B would also govern the transfer of the rights in the terrace/roof. In paragraph no. 29 of this judgment, it has already been held that roof/terrace of the property in question has to devolve under the ordinary law of inheritance. It is the view of this Court that preemption rights under the Will Ex. PW1/B would control only the dispositions made thereunder. The same would not control the devolutions otherwise than under the Will Ex. PW1/B. It will not control the devolutions under the ordinary law of inheritance.
RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 19 of 2137. Next, the entire crux of the plaintiff's case is that the roof/terrace of the property in question is exclusive to him. In his plaint, he claims such exclusivity not only against the two defendants but also against his brother Rajnish Malhotra. In the plaint, he stated that his brothers including Rajnish Malhotra had not used the roof since 11.01.1996; that respective water tanks of both his brothers are fitted in their respective portions; that his brothers including Rajnish Malhotra had no access to the roof since 1991. In short, the basic crux of plaintiff's case is that the roof is for him and him alone, exclusive to the defendants and also Rajnish Malhotra and it was on this very basis that the plaintiff claimed the relief of declaration. Given this, when such exclusivity was claimed against Rajnish Malhotra also, it is the view of this Court that Rajnish Malhotra too should have been joined as a necessary party. After all if the Court were to hold that the roof was exclusive to the plaintiff, such a finding could not have been returned without the presence of Rajnish Malhotra. In this view of the matter, the suit to my mind was hit by the proviso to Order I Rule 9, CPC. Further, the plaintiff asserts his exclusivity over the roof, but he does not claim the relief of declaration of his tilte over the roof. The defendants in their written statement had indeed raised a cloud over the exclusive claim of the plaintiff to the roof/terrace.
38. As regards the findings of Ld. Trial Court visavis the parking rights, the plaintiff has not laid any challenge. In his memorandum of appeal he has not made any averment about it. In the written submissions filed in this Court, there is again no averment about it. No arguments were advanced on this aspect before this Court. That apart, I have gone through the findings on this score of Ld. Trial Court. To my mind, the same calls for no interference.
39. Conclusion: In view of the foregoing discussion, plaintiff's case based on exclusivity of the terrace/roof of the property in question in his favor is bereft of any merit. This appeal lacks substance. It stands dismissed. No order RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 20 of 21 as to costs. Decree sheet be drawn up. Trial Court record be sent back with a copy the judgment. Appeal file be consigned to record room.
Digitally signed by MURARI MURARI PRASAD SINGH
Announced in the open Court
Location: Court
PRASAD No.7,
Karkardooma
SINGH Courts, Delhi
on 18.01.2020 Date: 2020.01.20
17:09:00 +0530
(M. P. SINGH)
Addl. District Judge03 (East)
Karkardooma Courts, Delhi
RCA No. 221/16 Girish Malhotra Vs. Rajnish Sharma and Anr. Page 21 of 21