Delhi District Court
Pramod Kumar Sharma vs . Pradeep Kumar Sharma on 25 April, 2018
Pramod Kumar Sharma Vs. Pradeep Kumar Sharma
IN THE COURT OF MS TYAGITA SINGH
SENIOR CIVIL JUDGECUMRENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
CS SCJ 84660/16
CNR NO.: DLST030014812016
IN THE MATTER OF:
SH. PRAMOD KUMAR SHARMA (DECEASED)
THROUGH LRS
1a. SMT. RUPA RANI SHARMA
W/O LATE SH. PRAMOD KUMAR SHARMA
1b. SH. PRANAV SHARMA
S/O LATE SH. PRAMOD KUMAR SHARMA
1c. SH. RAGHAV SHARMA
S/O LATE SH. PRAMOD KUMAR SHARMA
ALL RESIDENTS OF:
A1/73, SAFDARJUNG ENCLAVE,
NEW DELHI110029 ....PLAINTIFF
VERSUS
SH. PRADEEP KUMAR SHARMA
S/O LATE SH. BAL KISHAN SHARMA
R/O A1/73, (G.F.) SAFDARJUNG ENCLAVE,
NEW DELHI110029 ....DEFENDANT
CS SCJ 84660/16 Page 1 of 28
Pramod Kumar Sharma Vs. Pradeep Kumar Sharma
DATE OF INSTITUTION :16.03.2007
DATE OF JUDGMENT RESERVED ON :23.04.2018
DATE OF PRONOUNCEMENT :25.04.2018
DECISION :DISMISSED
Advocates appearing in the case:
Sh. V.L. Madan and Ms. Suneha Jain, Ld. Counsel for plaintiff.
Sh. Sanjay Sahani, Sh. Pravir Kumar Jain and Sh. Manish Makhija, Ld.
Counsels for defendant.
J U D G M E N T
1.Vide this judgment, I shall decide suit for cancellation and mandatory injunction filed by plaintiff Sh. Pramod Kumar Sharma against defendant Sh. Pradeep Kumar Sharma.
2. Brief facts of the case as mentioned in the plaint are as follows:
2.1 That Late Sh. Bal Kishan Sharma was owner of residential property no. A1/73, Safdarjung Enclave, New Delhi, (henceforth referred to as suit property) by virtue of Conveyanc Deed executed by DDA in his favour, dated 06.10.1964. The plaintiff and defendant are real brothers and both sons of Late Sh. Bal Kishan Sharma.
2.2. That Sh. Bal Kishan Sharma expired on 12.01.1972 without leaving any Will and he was survived by four legal heirs namely, Sh.CS SCJ 84660/16 Page 2 of 28
Pramod Kumar Sharma Vs. Pradeep Kumar Sharma Pramod Kumar Sharma (Plaintiff), Sh. Pradeep Kumar Sharma (defendant), their sister Smt. Satya Bala Sharma and their mother Smt. Urmila Devi Sharma.
2.3. That as per the understanding arrived between the legal heirs in December 1997, all the legal heirs submitted requisite documents to DDA, on the basis of which DDA mutated the suit property in favour of plaintiff vide file no. F.4(154)/63/LAB(R)/48 dated 01.01.2001, and as per the family arrangement, plaintiff was to give a sum of Rs. 30,00,000/ to the defendant. That there is one undated Memorandum of Understanding, in which it is mentioned that in December 1997, it was decided to sell the whole suit property to some third party or the plaintiff should purchase the shares of the remaining legal heirs in the suit property and it was also agreed that plaintiff shall give a sum of Rs. 30,00,000/ to the defendant, which was treated as a loan. The payment of Rs. 11,00,000/ had already been made by plaintiff to defendant.
2.4. That there is another Memorandum of Understanding (MOU) executed between plaintiff and defendant on 18.10.2000, in which it is mentioned that Rs. 19,00,000/ remained to be paid by plaintiff to the defendant, out of which plaintiff paid another sum of Rs. 5,00,000/ to the defendant and thereafter, only Rs. 14,00,000/ remained to be paid by the plaintiff to defendant as per the MOU.
CS SCJ 84660/16 Page 3 of 28Pramod Kumar Sharma Vs. Pradeep Kumar Sharma 2.5. That plaintiff executed GPA dated 02.01.2001 in favour of defendant in respect of ground floor, authorizing him to even sell away the ground floor of the suit property but the GPA was infact to be treated as security only as per the understanding between the family members.
2.6. That DDA executed Conveyance Deed in favour of plaintiff in respect of the suit property, which was registered on 27.04.2001. On the same day i.e. on 27.04.2001, plaintiff executed Gift Deed in respect of ground floor of the suit property in favour of the defendant but this Gift Deed was to be kept only as a security by the defendant till the plaintiff paid him balance amount of Rs. 14,00,000/ as indicated by the two MOUs discussed above, which was integral part of family settlement.
2.7. That plaintiff had filed suit no. 1346/2006 in Court of Ms. Savitri, Ld. Civil Judge, Delhi, which was rejected U/o VII Rule 11 CPC vide order dated 06.03.2007, however, rejection of plaint does not bar the plaintiff from filing fresh suit on the same cause of action, hence, plaintiff has filed present suit.
2.8. That the plaintiff ran into serious financial crisis during period 2001 to 2005 and he had to marry off both his children, due to which plaintiff could not pay the remaining amount of Rs. 14,00,000/ to CS SCJ 84660/16 Page 4 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma defendant. However, plaintiff offered to pay the remaining amount of Rs. 14,00,000/ to the defendant in July 2006 and requested the defendant to vacate the ground floor of the suit property, but defendant flatly refused to do so because the defendant intended to misuse the Gift Deed, which was merely kept as a security.
2.9. That the defendant was in process of negotiating for the sale of ground floor of the suit property with third parties, contrary to the agreed terms of family arrangement as per the two MOUs discussed above, due to which plaintiff has filed present suit for cancellation of Gift Deed and for mandatory injunction.
2.10. On the basis of above stated facts and circumstances, plaintiff prayed for relief of cancellation of the Gift Deed dated 27.04.2001 executed in favour of defendant in respect of ground floor of the suit property. In the alternative, plaintiff prayed for decree of mandatory injunction thereby directing the defendant to give notice U/s 19 of Punjab Preemption Act 1913 to the plaintiff before selling the ground floor of the suit property to any person.
2.11. It is pertinent to mention herein that during final arguments, Ld. Counsel for plaintiff had relinquished the second relief i.e. relief of CS SCJ 84660/16 Page 5 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma mandatory injunction of preemption, therefore, there is no need to discuss any facts and law in respect of right of preemption of plaintiff.
3. The defendant was duly served with summons and defendant filed written statement.
3.1. In the written statement, defendant has denied the facts mentioned in the plaint in respect of the oral MOUs. The defendant has admitted that late Sh. Bal Kishan Sharma, father of plaintiff and defendant, had died intestate on 12.01.1972. He stated that family settlement agreement dated 24.11.1997 was executed between the family members. However, he denied that any oral agreement/ family arrangement was entered between the parties in December 1997 after the agreement dated 24.11.1997.
3.2. The defendant further stated that plaintiff had executed registered Gift Deed dated 27.04.2001 in respect of the entire ground floor of the suit property in favour of the defendant, therefore, by virtue of registered Gift Deed, defendant is the sole and exclusive owner of the entire ground floor of suit property, therefore, plaintiff has no right to restrain the defendant from dealing with the ground floor portion of the suit property and defendant may dispose it off in any manner which he likes, since he is the absolute owner in possession of the ground floor as per registered CS SCJ 84660/16 Page 6 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma Gift Deed dated 27.04.2001.
3.3. The defendant further mentioned in the written statement that plaintiff being eldest brother, prevailed upon all the family members and pressurized them and got executed the Conveyance Deed of the suit property in his favour but there was condition of payment of Rs. 80,00,000/ to Smt. Urmila Devi, mother of the parties, but plaintiff has not paid the amout to the mother till date.
3.4. Defendant further stated that the previous suit of plaintiff was dismissed on 06.03.2007 by the Ld. Civil Judge, since he had concealed the fact of existence of the registered Gift Deed dated 27.04.2001 from the Court at the time of filing the previous suit.
3.5. It is further mentioned in the written statement that defendant had filed counterclaim in the previous suit of plaintiff, and the said counter claim was decreed by the Ld. Civil Judge vide order dated 21.03.2007 and plaintiff was directed to remove his notice board from the suit property within 30 days but plaintiff filed appeal against said order which is pending disposal.
3.6. The defendant alleged that the Punjab Preemption Act 1913, has CS SCJ 84660/16 Page 7 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma already been repealed long back in 1989 and is not applicable to the suit property in Delhi, therefore, plaintiff cannot claim any relief of pre emption in this suit.
3.7. The defendant had raised issue of limitation and pecuniary jurisdiction of the Court in preliminary objections and had stated that suit is bad for nonjoinder of Smt. Urmila Devi Sharma, i.e. mother of parties and Smt. Satya Bala Sharma i.e. sister of parties, as necessary and proper parties of the suit.
3.8. The defendant also objected that the suit had been filed without any cause of action since the defendant was absolute owner of the ground floor of suit property by virtue of registered Gift Deed dated 27.04.2001.
3.9. The defendant categorically denied that he had received any amount of Rs. 11,00,00/ as per any undated MOU or had received Rs. 5,00,000/ as per MOU dated 18.10.2000. He denied having received Rs. 16,00,000/ in total from plaintiff.
3.10. The defendant further denied that it was agreed between the parties that after receiving Rs. 30,00,000/ in total, defendant will vacate the ground floor of the suit property in favour of plaintiff. He also denied that CS SCJ 84660/16 Page 8 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma Gift Deed was to be kept as security only till the time payment of Rs. 30,00,000/ was made by plaintiff to the defendant.
3.11. The defendant alleged that plaintiff had displayed two signboards falsely claiming to be owner of suit property, due to which defendant had suffered huge loss as he could not sell away his property, for meeting his requirements, and a suit for damages vide CS (OS) 864 of 2007 had been filed by him, which was pending before Hon'ble High Court of Delhi. The defendant denied that he is in use and occupation of ground floor of suit property merely as a licencee of the plaintiff. He vehemently contended that he is the absolute owner of the ground floor of suit property by virtue of registered Gift Deed dated 27.04.2001.
3.12. On the basis of above stated facts and circumstances, the defendant prayed that plaintiff has no cause of action to file the present suit and the suit may be dismissed.
4. Replication was filed by the plaintiff, reiterating the facts mentioned in the plaint and denying the facts mentioned in the written statement except those facts which were matter of record. In the replication, plaintiff denied that Smt. Urmila Devi Sharma and Smt. Satya Bala Sharma are the necessary parties to the suit and has denied that CS SCJ 84660/16 Page 9 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma plaint does not disclose any cause of action. He denied that he has not paid the amount mentioned in the MOU dated 18.10.2000 to Smt. Urmila Devi Sharma and Smt. Satya Bala Sharma.
5. Following issues were framed vide order dated 13.05.2013 of Hon'ble Mr. Justice Manmohan of Hon'ble High Court of Delhi:
"1. Whether the plaintiff is entitled for the decree of cancellation of Gift Deed dated 27.04.2001 executed in favour of the defendant? OPP
2. If issue no.1 is answered in negative, whether the plaintiff is entitled to preemptive purchase of the property in question under the Punjab Preemption Act? OPP
3. Whether the suit of the plaintiff is barred by limitation? OPD
4. Whether the plaintiff is guilty of suppression of Family Settlement dated 24.11.1997? If so, its effect? OPD
5. Whether the suit of the plaintiff has been properly valued for the purposes of Courtfees and jurisdiction? OPD
6. Whether the suit of the plaintiff is bad for nonjoinder of the parties? If so, its effect? OPD
7. Relief."
6. Thereafter, case was fixed for recording of evidence before Joint CS SCJ 84660/16 Page 10 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma Registrar. However, on ground of pecuniary and territorial jurisdiction, case was transferred to the Ld. Predecessor Court through Ld. District & Sessions Judge (South).
7. After transfer of the case to this Court, the defendant failed to appear in the Court. Court notice was also issued to the defendant in interest of justice but despite service of court notice to the defendant, defendant failed to appear in Court.
8. During trial, plaintiff had expired and his legal heir Smt. Rupa Rani Sharma (Wife), Sh. Pranav Sharma (son) and Sh. Raghav Sharma (son) were impleaded as legal representatives of deceased plaintiff Sh. Pramod Kumar Sharma.
EVIDENCE ON RECORD
9. LR of plaintiff namely Sh. Raghav Sharma examined himself as PW1 and tendered his affidavit of evidence as Ex. PW1/A. He reiterated all the facts mentioned in the plaint in his affidavit of evidence also. He exhibited/ marked following documents on judicial record:
CS SCJ 84660/16 Page 11 of 28Pramod Kumar Sharma Vs. Pradeep Kumar Sharma Serial Documents Exhibits No.
1. Copy of Lease Deed dated 06.10.1964 Mark X-1 (7 pages)
2. The original undated MOU Ex. PW1/1
3. Copy of Special Power of Attorney dated 23.09.1999 Mark X-2 in favour of Late Smt. Urmila Devi Sharma
4. Copy of Special Power of Attorney dated 23.09.1999 Mark X-3 in favour of Smt. Satyabala Sharma
5. Original MOU dated 18.10.2000 Ex. PW1/2
6. Copy of Mutation Letter dated 01.01.2001 Mark X-4
7. Copy of GPA dated 02.01.2001 Mark X-5 (4 pages)
8. Copy of Conveyance Deed dated 26.04.2001 Mark X-6 (4 (inadvertently written as 27.04.2001) pages)
9. Copy of Gift Deed dated 27.04.2001 Mark X-7 (6 pages)
10. Despite grant of opportunity on many dates, defendant failed to appear in Court and failed to crossexamine the witness, therefore, opportunity of crossexamination of PW1 was given to defendant and treated as NIL on 21.12.2017.
11. Plaintiff examined PW2 Sh. Sant Ram, the summoned witness from Lease Administration Branch DDA, who brought official record pertaining to suit property no. A1/73, Safdarjung Enclave, New Delhi. He exhibited following documents on record:CS SCJ 84660/16 Page 12 of 28
Pramod Kumar Sharma Vs. Pradeep Kumar Sharma Serial Documents Exhibits No.
1. Copy of application alongwith documents for mutation Ex. PW2/1 (colly.) of the aforesaid property filed on behalf of Late Smt. (running into 36 Urmila Devi Sharma with DDA pages)
2. Copy of Mutation Letter dated 11.07.1997 in favour of Ex. PW2/2 Late Smt. Urmila Devi Sharma
3. Copy of Letter dated 01.09.1997 sent by deceased Ex. PW2/3 plaintiff to DDA
4. Copy of show cause notices from DDA to Late Smt. Ex. PW2/4 (colly.) Urmila Devi Sharma in respect of false documents (running into 4 pages)
5. Copy of Relinquishment Deed dated 25.11.1990 Ex. PW2/5 (colly.) (running into 3 p ages)
6. Copy of Special Power of Attorney dated 23.09.1999 Ex. PW2/6 executed by Late Smt. Urmila Devi Sharma in favour of Sh. Pradeep Kumar Sharma
7. Copy of Special Power of Attorney dated 23.09.1999 Ex. PW2/7 executed by Smt. Satya Bala Sharma in favour of Sh.
Pradeep Kumar Sharma
8. Copy of Conveyance Deed dated 26.04.2001 Ex. PW2/8 (colly.) (running into 3 pages) Defendant failed to appear to crossexamine PW2 Sh. Sant Ram also.
12. After closure of plaintiff's evidence, case was fixed for defendant's evidence. Defendant failed to appear and failed to lead any defence evidence, due to which defendant's evidence was closed on 02.02.2018 as it is a more that 10 years old case and no further adjournment could be given to defendant for leading evidence.
CS SCJ 84660/16 Page 13 of 28Pramod Kumar Sharma Vs. Pradeep Kumar Sharma
13. After closure of defendant's evidence, case was fixed for final arguments. Final arguments were heard on last date and case was fixed for order for today.
ISSUEWISE FINDINGS Issue no.3. Whether the suit of the plaintiff is barred by limitation? OPD Issue no.4. Whether the plaintiff is guilty of suppression of Family Settlement dated 24.11.1997? If so, its effect? OPD Issue no.5. Whether the suit of the plaintiff has been properly valued for the purposes of Courtfees and jurisdiction? OPD And Issue no.6. Whether the suit of the plaintiff is bad for nonjoinder of the parties? If so, its effect? OPD
14. All these issues are being decided together as onus to prove all these issues was upon defendant and findings upon these issues shall have bearing upon the case on merits.
15. It is pertinent to mention herein that though the defendant has not appeared in Court, after transfer of the case file to this Court, despite CS SCJ 84660/16 Page 14 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma service of Court notice, and defendant has not led any evidence and not addressed arguments on these issues, however, decision upon these issues is necessary for proceeding further with the case.
16. Issue no.3 pertains to bar of limitation. In this regard, it is pertinent to mention herein that plaintiff has stated in para no. 23 of the plaint that cause of action arose in his favour against the defendant firstly in July 2006 when plaintiff had offered to pay balance amount of Rs. 14,00,000/ to the defendant and defendant had refused the same. However, in the opinion of the Court, cause of action had not arisen in July 2006 for the first time.
17. In this suit, decree of cancellation U/s. 31 of Specific Relief Act 1963 has been claimed. Perusal of article 59 of the Schedule of the Limitation Act 1963 reveals that period of limitation for filing suit for cancellation/ setting aside of any instrument or decree or for rescission of a contract is three years from the time when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded, first becomes known to him.
18. It is pertinent to mention herein that the impugned Gift Deed had been executed by plaintiff himself in favour of defendant on 27.04.2001.
CS SCJ 84660/16 Page 15 of 28Pramod Kumar Sharma Vs. Pradeep Kumar Sharma Therefore, plaintiff was well aware on the very date of execution of the document, regarding the facts entitling him for filing the suit for cancellation of the instrument/ Gift Deed. This suit was filed by plaintiff on 16.03.2007 i.e. approximately after six years from date of execution of the Gift Deed. Moreover, it is very important to note that as per Section 31 of Specific Relief Act 1963, any written instrument can be cancelled only if it is void or voidable at the option of the person requiring the instrument to be cancelled. Plaintiff has not brought any evidence to show that the instrument of Gift Deed was void or voidable at his option under any given facts or circumstances.
19. In this regard, it is pertinent to mention herein that the original Gift Deed has not been exhibited on record, rather, the copy of Gift Deed dated 27.04.2001 has been merely marked as Mark X7. Perusal of the document Mark X7 reveals that no such circumstances/ contingencies have been mentioned in the Gift Deed upon existence/ happening of which, the Gift Deed could have been cancelled. Therefore, it cannot be said that limitation period started in this case, on any later date, after the date of execution of Gift Deed, upon happening of any contingent event.
20. Hence, in my considered opinion, the suit has been filed by plaintiff after expiry of the limitation period of three years from the date of execution of the instrument i.e. Gift Deed dated 27.04.2001. Therefore, CS SCJ 84660/16 Page 16 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma the suit is barred by limitation. Issue no.3 is decided in favour of defendant and against the plaintiff.
21. As far as issue no. 4 is concerned, it is pertinent to mention herein that though both the parties have admitted the execution of family settlement dated 24.11.1997 and one copy of said family settlement had also been filed on record, however, it has not been exhibited on record in evidence of plaintiff.
22. Perusal of plaint reveals that plaintiff had not mentioned about the agreement dated 24.11.1997 and had only mentioned that the family members had arrived at settlement in December 1997. Plaintiff has also talked about one undated MOU and another MOU dated 18.10.2000. However, he has not mentioned anything about the agreement dated 24.11.1997.
23. In the written statement of defendant, defendant disclosed about the family settlement agreement dated 24.11.1997, copy of which is on record. In the replication, plaintiff admitted the execution of family settlement dated 24.11.1997. Thereafter, defendant did not lead any evidence and plaintiff did not exhibit the family settlement agreement dated 24.11.1997. Plaintiff alleged that the original agreement dated CS SCJ 84660/16 Page 17 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma 24.11.1997 is in possession of defendant, due to which it could not be brought on record.
24. Therefore, it is clear from pleadings that, though the plaintiff had initially not mentioned in the plaint regarding execution of the agreement dated 24.11.1997, however, he admitted the said document in replication. Therefore, plaintiff is not guilty of suppression of family settlement dated 24.11.1997. Issue no.4 is decided in favour of plaintiff and against defendant.
25. Issue no.5 relates to valuation of the plaint for purpose of Court fees and jurisdiction. Perusal of valuation clause reveals that plaintiff has valued the suit for decree of cancellation at Rs. 200/ and for alternative relief of mandatory injunction at Rs. 130/. Gift Deed dated 27.04.2001, was executed without any consideration. Therefore, there was no need for valuation of the suit as per market rate of the suit property. Hence, the suit of plaintiff has been properly valued for the purpose of Court fees and jurisdiction. Issue no.5 is decided in favour of plaintiff and against the defendant.
26. Issue no.6 pertains to nonjoinder of necessary parties. Defendant had alleged that plaintiff has not made his mother and sister as necessary CS SCJ 84660/16 Page 18 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma parties to the suit though they also had equal share in the estate of deceased Sh. Bal Kishan Sharma. However, present suit has been filed by plaintiff against defendant only for cancellation of Gift Deed in respect of ground floor of the suit property. Gift Deed was executed between plaintiff and defendant only and there was no other party to the Gift Deed. Therefore, there was no need to make mother Smt. Urmila Devi Sharma and sister Smt. Satya Bala Sharma as necessary parties to this suit. Issue no.6 is decided in favour of plaintiff and against the defendant. The suit is not bad for nonjoinder of parties.
Issue no. 1. Whether the plaintiff is entitled for the decree of cancellation of Gift Deed dated 27.04.2001 executed in favour of the defendant? OPP
27. The onus to prove this issue was upon plaintiff. Plaintiff has exhibited certain documents on record. The copy of Gift Deed has been marked as Mark X7. PW2 Sh. Sant Ram from office of Lease Administration Branch, DDA, has exhibited copy of Conveyance Deed dated 26.04.2001 in respect of entire suit property no. A1/73, Safdarjung Enclave, New Delhi, in favour of plaintiff Sh. Pramod Kumar Sharma as Ex. PW2/8. This document reflects that after the settlement arrived at between all the legal heirs of Late Sh. Bal Kishan Sharma, the suit CS SCJ 84660/16 Page 19 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma property was transferred in name of plaintiff Sh. Pramod Kumar Sharma vide Conveyance Deed Ex. PW2/8 dated 26.04.2001. Soon after execution of the Conveyance Deed in favour of plaintiff, he executed the Gift Deed dated 27.04.2001 in favour of defendant as per the mutual understanding between the parties.
28. Though the plaintiff has alleged that it was agreed between the parties that plaintiff will pay lump sum amount of Rs. 30,00,000/ to the defendant and after receiving the entire amount, the defendant will vacate the ground floor of the suit property and will hand over the vacant possession of the ground floor to plaintiff, however, no such condition has been mentioned in the Gift Deed itself, copy of which is Mark X7. The plaintiff has relied upon two MOUs Ex. PW1/1 and Ex. PW1/2. Perusal of both the MOUs reveals that no such condition has been mentioned even in the said MOUs, that the defendant will hand over vacant possession of the ground floor of suit premises to the plaintiff after receiving the amount of Rs. 30,00,000/ from plaintiff. Both the MOUs mention certain terms and conditions including payments made by plaintiff to the defendant, however, there is no such condition in both the MOUs that after making the entire payment of Rs. 30,00,000/, the plaintiff will be entitled to get back the ground floor of suit property from the defendant. Rather, clause no.2 of undated MOU Ex. PW1/1 clearly reflect that ground floor shall be given to Mr. Pradeep Kumar Sharma CS SCJ 84660/16 Page 20 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma (defendant herein).
29. It is pertinent to mention herein that after the execution of said MOUs, the Conveyance Deed dated 26.04.2001 was executed in favour of plaintiff in respect of the entire building of suit property no. A1/73, Safdarjung Enclave, New Delhi. Thereafter, the plaintiff voluntarily executed the Gift Deed dated 27.04.2001 in favour of the defendant.
30. Perusal of terms and conditions of Gift Deed Mark X7, reveals that plaintiff has clearly stated that donee (defendant herein) is already in physical possession of the ground floor of suit property and the ground floor is free from all kinds of encumbrances. Plaintiff specifically mentioned in clause 5 of the Gift Deed that he has been left with no right, title or interest in the portion of the suit property gifted to the donee and donee shall become absolute owner of the same and shall be fully competent to transfer the same to any person. It is also mentioned in clause 10 of the Gift Deed that donor has executed this Gift Deed voluntarily without any outside pressure. The Gift Deed was signed by the donor (plaintiff herein) and donee (defendant herein) and it was also signed by two witnesses. On the basis of this Gift Deed, defendant had already got the ground floor of the suit property mutated in his name in the record of MCD, as is reflected from documents annexed with written statement.
CS SCJ 84660/16 Page 21 of 28Pramod Kumar Sharma Vs. Pradeep Kumar Sharma
31. Certain specific provisions of law are being reproduced herein for ready reference.
Section 31 of Specific Relief Act, 1963, reads as under:
"31. When cancellation may be ordered (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
Section 122 of Transfer of Property Act reads as under:
"122. "Gift" defined "Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void."
Section 126 of Transfer of property Act is reproduced as under:
"126. When gift may be suspended or revoked The donor and donee may agree that on the happening of any specified event CS SCJ 84660/16 Page 22 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma which does not depend on the will of donor, a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."
Section 92 of Indian Evidence Act is reproduced as under:
"92. Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
...................................................
................................................... Proviso (4) - The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents."
32. As per Section 31 of Specific Relief Act, written instrument can be cancelled only if it is void or voidable at the option of the person CS SCJ 84660/16 Page 23 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma requiring the cancellation of the document. The plaintiff has failed to prove on record how the instrument of Gift Deed dated 27.04.2001 was void or voidable at his option. Perusal of provisions of Transfer of Property Act, in respect of gifts clearly reveals that gift is a transfer of movable or immovable property made voluntarily and without any consideration, by the donor to the donee. Once a gift is accepted by the donee, it cannot be revoked by the donor except under the conditions mentioned in Section 126 of Transfer of Property Act 1882.
33. As per Section 126 of Transfer of Property Act, gift may be revoked either on happening of any specified event which does not depend upon the will of the donor, or in the circumstances, in which a contract can be rescinded as per provisions of Indian Contract Act 1872.
34. In this case, the plaintiff has failed to show any circumstances mentioned in provisions of Indian Contract Act, on the basis of which the Gift Deed can be cancelled or rescinded. The plaintiff has not alleged herein any facts and circumstances of coercion, undue influence, fraud, misrepresentation or mistake or any other circumstances, under which the gift could be rescinded as a contract void or voidable at option of the plaintiff.
CS SCJ 84660/16 Page 24 of 28Pramod Kumar Sharma Vs. Pradeep Kumar Sharma
35. The only ground mentioned in entire plaint, pleadings and evidence of plaintiff is that, it was agreed between the parties that the Gift Deed shall not be acted upon by defendant and the ground floor of suit property (which is subject matter of the Gift Deed), shall be handed over by the defendant to the plaintiff upon payment of entire amount of Rs. 30,00,000/ by the plaintiff to the defendant. It has been alleged by the plaintiff that he could not make payment of entire amount of Rs. 30,00,000/, due to financial constraints and due to marriage of his children.
36. However, plaintiff has not filed any documentary evidence on record to prove that he actually had any such financial constraint between year 2001 to 2005 as alleged by him. Moreover, he has failed to prove on record any documentary evidence like cheque/ bank transaction etc., or any independent oral evidence of payment of any cash amount to the defendant, (except the MOUs Ex. PW1/1 and Ex. PW1/2), to substantiate his claim that the amount of Rs. 16,00,000/ has already been paid to the defendant. The plaintiff has also not proved on record the averments that he had offered to make payment of remaining amount of Rs. 14,00,000/ to defendant in July 2006 and defendant had refused the same. Moreover, the averments of these facts does not amount to any circumstances beyond the control of plaintiff, which make the gift void or voidable at the option of plaintiff as per Section 126 of Transfer of Property Act. Gift CS SCJ 84660/16 Page 25 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma once made is an absolute document and it can be rescinded only void or voidable at the option of one party.
37. Moreover, it is important to mention herein that Section 92 of Indian Evidence Act 1872 bars the plaintiff from bringing any oral evidence in respect of the Gift Deed, which is a document required by law to be executed in writing and it is registered document. Proviso 4 of Section 92 (enumerated above) is clear in this regard, that no evidence of any oral agreement shall be admitted in respect of a document required by law to be in writing, or document which has been registered as per law of registration.
38. Thus, it is clear from discussion upon abovestated relevant provisions of law, that no such circumstances have arisen, to enable the plaintiff to rescind the contract of "Gift" voluntarily executed by himself in favour of the defendant. Therefore, on the basis of above stated discussion on merits also, no ground for cancellation of Gift Deed dated 27.04.2001 is made out in favour of plaintiff. Issue no.1 is decided against the plaintiff and in favour of the defendant.
Issue no.2. If issue no.1 is answered in negative, whether the plaintiff is entitled to preemptive purchase of the property in question under the CS SCJ 84660/16 Page 26 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma Punjab Preemption Act? OPP
39. The onus to prove this issue was upon plaintiff. During final arguments, Ld. Counsel for plaintiff prayed that she wants to relinquish the alternative prayer of preemption as claimed in the plaint. Moreover, it is pertinent to mention herein that as per article 97 of the schedule of Limitation Act 1963, right to sue to enforce a right of preemption can be filed within a period of limitation of one year from the date when the purchaser takes possession under the sale sought to be impeached or from the date when the instrument of sale is registered. However, in this case, no such sale has been registered in favour of any purchaser, by the defendant. Therefore, right of preemption claimed by plaintiff by way of this suit was a premature relief which could not be granted to plaintiff in any manner. Ld. Counsel for plaintiff has himself relinquished this relief during final arguments, therefore, this issue does not require any further discussion. Issue no.2 is deleted in view of the fact that relief of pre emption has been relinquished by the Ld. Counsel for plaintiff at the time of final arguments.
Issue no.7 Relief
40. On the basis of my findings qua issue no. 1 and 3, the suit of CS SCJ 84660/16 Page 27 of 28 Pramod Kumar Sharma Vs. Pradeep Kumar Sharma plaintiff fails on the ground of limitation as well as on merits. No ground for cancellation of Gift Deed dated 27.04.2001 is made out in favour of plaintiff. Plaintiff is not entitled to any relief in this case. The suit of plaintiff stands dismissed.
41. Parties shall bear their own costs. Decree sheet be prepared accordingly.
42. File be consigned to Record Room.
(Announced in the open (Tyagita Singh)
Court on 25.04.2018) SCJcumRC (South), Saket Courts
New Delhi
CS SCJ 84660/16 Page 28 of 28