Delhi District Court
Kailash Nath Mehta vs Union Of India on 29 May, 2012
1
Suit no. 851/11/97
KAILASH NATH MEHTA VS UNION OF INDIA
IN THE COURT OF SH N.K. GOEL : ADDL. DISTRICT JUDGE (5)
WEST DELHI
Suit No. 851/11/97
In re.
Sh. Kailash Nath Mehta
S/o Late Sh. Rattan Chand Mehta,
presently residing at 37, Sagar Kunj, 78,
Napean Sea Road, Bombay.
(Through his LRs Sh. Sumit Mehta
and Sh. Sanjay Mehta) ................Plaintiff
Vs.
1. Union of India(Service to be effected through
" the Home Secretary, Government of India), New Delhi.
"
" 2. The Lt. Governor, Delhi Administration,
" Raj Niwas, New Delhi.
"
" 3. The Delhi Development Authority
" (through its Vice-Chairman),
" Vikas Sadan, INA Market, New Delhi.
"
" 4. Shri Shyam Krishan Gupta
" S/o Sh. Krishan Gupta.
"
"
2
Suit no. 851/11/97
KAILASH NATH MEHTA VS UNION OF INDIA
Ä 5. Ms. Madhu Gupta
Ä W/o Sh. Shyam Krishan Gupta,
Ä both stated to be residents of 2/37,
Ä Sarvpriya Vihar, New Delhi. .................Defendants
Date of Institution : 01-04-1997
Reserved on : 19-05-2012
Date of Decision : 29-05-2012
SUIT FOR DECLARATION, CANCELLATION
& CONSEQUENTIAL RELIEFS
JUDGMENT
1. The late plaintiff Sh. Kailash Nath Mehta filed this suit for declaration, cancellation and consequential reliefs. His case in, nut shell, is that he is the owner of Property No. 2/37, Sarvpriya Vihar, New Delhi (in short, the suit property) which he purchased vide deed of perpetual sub-lease dated 31.12.1974 and registered as document no. 671 in Additional book no. 1, Volume no. 3474 on pages 43 to 48 on 21.05.1975 by the Sub- Registrar, New Delhi executed in his favour on behalf of the President of India as the lessor through defendant no. 3; that he constructed a residential house thereon after obtaining sanction for the building plans and on completion 3 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA of the property all necessary clearances and completion certificate were issued in his favour and that his name was mutated in all the official records as owner of the property; that while exercising the complete ownership rights in the said property even since then, he had rented out the same to M/s Touchwood Pvt. Ltd at monthly rent of Rs.1750/- in February, 1987 and regularly received the rent till July, 1996; that vide notice dated 23.07.1996 he terminated the tenancy of the tenant and asked it to vacate the suit property on or before 31.08.1996, the last date of tenancy month of August, 1996; that however, the counsel for the tenant (M/s Touchwood Pvt. Ltd) also acting on behalf of defendant nos. 4 & 5, in his two replies, came out with the allegation that the said tenant was "no longer" a tenant and further alleged that defendant nos. 4 & 5 had obtained a deed of conveyance from defendant no. 3 in their favour and it was also alleged that a sum of Rs.1,75,000/- was allegedly still payable by the alleged purchasers to the plaintiff for a sale consideration for "sale" of the property and also enclosed a pay order for the said amount alongwith his replies to the plaintiff; that the plaintiff made immediate enquiries from the office of defendant no. 3 and discovered that a fraud 4 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA had been committed by interested persons, clearly with the connivance of and in collusion and conspiracy with the officers and employees of defendant no. 3 who in utter violation of and contrary to the conversion scheme, behind the back of the plaintiff and without any intimation or notice, purported to convey proprietary rights of the plaintiff in the suit property in faovur of defendant nos. 4 & 5. It is pleaded that on account of his professional obligation, the plaintiff had been residing in Bombay and he used to visit Delhi occasionally; that he had good relations with defendant no. 4 and his brother; that on one such visit in 1987, the plaintiff was approached and pursuaded by these persons to agree to sell off the suit property to them on what they represented to be a good price and paid Rs. 1 Lacs as advance , but however, considering that he would be left with no accommodation in Delhi should he or his children decided to come back and settle down here and realizing that the price offered was much below the market value, he backed out and advance was returned and the deal was cancelled with mutual consent; that defendant no. 4 and his brother Sh. B.K Gupta stated that they were in urgent need of residential accommodation and on their suggestion that instead of outright 5 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA sale, atleast the suit property be rented out in the name of M/s Touchwood Pvt. Ltd in which they stated that they were the directors, the plaintiff agreed to the proposal; that a sum of Rs.4,25,000/- by cheque issued by M/s Touchwood Pvt. Ltd was paid to him by them as security amount and defendant no. 4 and his brother Sh. B.K Gupta purported to tear the documents which they had got signed from him (the late plaintiff) in respect of the cancelled agreement just as he was leaving for airport to catch his flight to Bombay; that now after more than nine years and in response of notice of termination of tenancy the evidently well planned fraud played by these persons came to light only on receipt of counsel's replies. It is further pleaded that even on showing of the DDA records and according to the explicit rules regarding conversion such an application for conversion and conveyance of the suit property could not have been entertained much less processed by defendant no. 3 for the simple reason that the documents produced showed that a sum of Rs.1,75,000/- was still due and payable to the so called intending vendor i.e plaintiff ; that no DDA official would have, in discharge of his duties, sanctioned any such conversion and even if it had been stated to be done, the same must be 6 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA attributed to criminal conspiracy between the so-called purchasers and the officials of defendant no.3. It is pleaded that till July, 1996 the plaintiff had been receiving rent from the tenant paid by cheques and accounted for as such that he could not have "sold" the suit property in 1987 and continued to receive rent; that further even in 1987 the property of the plaintiff was worth Rs.12 Lacs and it could not have been sold for Rs.6,95,000/- as is being falsely presented now. It is further stated that on 23.09.1996 the plaintiff called upon defendant nos. 1, 2 and 3 to initiate immediate action for withdrawal and cancellation of the so-called sale deed/conveyance deed in favour of defendant nos. 4 and 5 but to no avail. It is stated that the so called "conveyance " in favour of defendant nos. 4 and 5 is totally void, illegal and fraudulent and has no validity in the eyes of law and is liable to be cancelled, revoked and withdrawn. Hence, it is prayed that a decree for declaration thereby declaring the plaintiff to be continuous, absolute owner in the possession of the suit property and no one else has any ownership right, title or interest in the suit property be passed in favour of the plaintiff and against the defendants. It is further prayed that pursuant thereto a decree for declaration of deed of conveyance dated 20.01.1994 7 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA or bearing any other date stated to have been executed by defendant no. 3 in favour of defendant nos. 4 & 5 be passed "whereby the defendants or any of them, who may have custody or possession of the document, to produce the said purported document or deed of conveyance in the court and to direct the cancellation thereof" by the court.
2. No WS has been filed on behalf of defendant nos. 1 and 2 and vide order dated 23.02.1998 it was ordered that "they will not have any further opportunity to file the WS". Subsequently they were proceeded ex-parte.
3. Defendant no. 3 has pleaded that the suit property was sub-leased in the name of the plaintiff; that the Government of India announced the scheme of conversion from lease hold to free hold and under the scheme Sh. Bal Kishan Gupta to whom the plaintiff had appointed a general power of attorney applied for conversion from lease hold to free hold in favour of Sh. Shyam Kishan Gupta and Smt. Madhu Gupta in whose names agreement to sell was made by the plaintiff and, thus, the plaintiff is not entitled to any relief since the conversion from lease hold to free hold has already been allowed/granted in the names of Sh. Shyam Kishan Gupta and Smt. Madhu Gupta vide conveyance deed executed on 17.01.1994. It 8 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA is stated that the conversion from lease hold to free hold is permissible in the case of built-up properties and "in support of the building is constructed, the applicant is thus required to furnish a copy of 'D' form and completion certificate"; that the applicant in support of building constructed furnished an attested copy of 'D' form dated 21.08.1987 and also completion certificate dated 09.11.1987. It is stated that the conversion scheme does not speak about obtaining receipt of money consideration and, therefore, DDA is not in picture about money consideration. Hence, it is prayed that the suit be dismissed.
4. In their joint written statements defendant nos. 4 and 5 have, inter alia, pleaded that the suit is not maintainable and is liable to be dismissed under the provisions of Section 34 of the Specific Relief Act as in the absence of the relief of recovery of possession in regard to the suit property, the suit filed by the plaintiff is not legally constituted; that the suit has not been valued properly and correctly for the purposes of court fee and jurisdiction and to avoid the payment of court fee the plaintiff has intentionally not claimed the relief of possession; that the suit filed by the plaintiff is barred by law of limitation as the plaintiff is seeking cancellation 9 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA of registered conveyance deed dated 17.01.1994 executed by the Government authorities on the basis of registered GPA dated 13.02.1987 executed by the plaintiff himself. In the written statements of defendant nos. 4 and 5 relevant facts are stated to be as hereunder:-
" i) That vide agreement to sell dated 13.2.87, the plaintiff had agreed to sell the suit property in favour of answering defendants for total sale consideration of Rs.6,95,000/-.
ii) That a total of sum of Rs.5,20,000/- had been paid by the defendants to the plaintiffs vide crossed account payee cheques No. 264720 dated 17.11.86 and cheque no. 838002 dated 13.02.1987 both drawn on Canra Bank, Lajpat Nagar, New Delhi and duly acknowledged vide receipt dated 13.02.87. The balance sum of Rs.1,75,000/- was agreed to be paid at the time of execution of the sale deed.
iii) That in confirmation and acceptance of the above transaction, the plaintiff had also executed a registered General Power of Attorney dated 13.02.87 in favour of Shri Bal Krishan Gupta S/o Late Mr. Shrikrishan Gupta who is the 10 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA brother of defendant No.4. The said registered attorney had fully authorized the aforementioned Bal Krishan Gupta to sell and dispose and transfer and convey the suit property on behalf of the plaintiff. The same was irrevocable in nature.
iv) That in furtherance to the above, the plaintiff had also executed a registered Will dated 13.02.87 in favour of answering defendants.
v) That the plaintiff had also handed over the original perpetual sub-lease deed dated 31.12.74 to the answering defendants vide acknowledgment dated 13.2.87.
vi) That the entire and complete possession of the suit property, both physical and constructive had also been handed over by the plaintiff to the answering defendants.
vii) That after purchasing the suit property from the plaintiff the defendants had got carried out the necessary construction in the suit property and spent the necessary amount on the same. Since then the defendants have been living and occupying the suit property peacefully. 11
Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA
viii) That the answering defendants, in order to protect and safeguard their interest in the suit property and also in accordance with the practice prevailing in the market, had got executed a lease agreement dated 13.2.87 from the plaintiff in favour of M/s Touchwood Pvt. Ltd, a company in which the defendant no. 4 was the Managing Director alongwith his brother Shri Bal Krishan Gupta as Director. This lease agreement was only a protection cover and nothing more. A sum of Rs.1750/- per month was shown as rent which otherwise was an amount equal to 1 percent of the balance sale consideration amount of Rs.1,75,000/- and was agreed to be paid by the defendants to the plaintiffs till the time the plaintiff executes the sale deed. the said amount was paid towards monthly interests at the @ 12% per annum.
ix) That in continuation to the above, the answering defendants, had got the necessary conveyance deed executed by D.D.A and duly registered in their favour dated 12 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA 17.1.94. The said conveyance deed is absolutely legal, proper and binding upon the parties.
x) That the intentions of the plaintiff however became dishonest and malafide resulting into sending of legal notice dated 23.07.96 which was duly replied by the answering defendants and also by M/s Touchwood Pvt Ltd. vide reply dated 3.8.96. The necessary rejoinder dated 20.9.96 and reply to the same dated 11.1.97 were also exchanged.
xi) That the plaintiff has also filed eviction petition under Section 14(1)(b) of the Delhi Rent Control Act against M/s Touchwood Pvt. Ltd. in the court of Additional Rent Controller, Delhi. The said proceedings are contested by the answering defendants. "
5. It is pleaded that from 1987 till 1994 and till date the defendant nos. 4 and 5 have continued and shall continue for all time in future as the lawful and absolute owners of the suit property against the world at large including the plaintiff. Receipt of notice and sending of the replies has not been denied but it is stated that in the above said circumstances defendant nos. 13
Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA 4 and 5 had also returned back to the plaintiff Rs. 1,75,000/- towards the sale consideration vide demand draft bearing no. 551383/- dated 02.08.1996 drawn and payable on Oriental Bank of Commerce, service branch, Bombay but, however, the plaintiff for malafide and dishonest reasons has till date not accepted the payment. It is denied that a sum of Rs. 5, 25,000/- had been paid as security to the plaintiff. It is denied that conveyance deed dated 17.01.1994 executed in the favour of defendant nos. 4 & 5 is a result of any criminal or fraudulent act. The other averments made in the plaint have been denied. It is prayed that the suit be dismissed.
6. On 23.03.1999 documents of the defendant nos. 4 and 5 were got admitted/denied from the plaintiff. The admitted documents are exhibited as Ex.D4-5/1 to Ex.D4-5/5.
7. On 22.04.1999 an application u/o 39 rule 10 CPC was moved on behalf of the plaintiff for revalidation of demand draft no. 55183 dated 02.08.2006 in the sum of Rs. 1,75,000/- or in the alternative for deposit of the said amount in the court subject to adjudication by the court. From a perusal of the order sheet dated 23.07.1999 it transpires that the demand demand 14 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA was got revalidated by the defendant nos. 4 and 5 and handed over to the counsel for the plaintiff.
8. Admission/denial of documents of the plaintiff was got done on 22.02.2000 and the documents of the plaintiff admitted by defendant nos. 4 and 5 are exhibited as Ex.P-1 to P-56.
9. On 10.11.2000 the following statements of the late plaintiff and defendant no. 4 were recorded u/o 10 rule 2 CPC:-
"Statement of Sh. Kailash Nath Mehta, plaintiff Under Order X Rule 2 CPC. On SA.
I admit that I executed GPA, Will and agreement to sell, all dated 13th February, 1987 on 13th February, 1987 in favour of S.K Gupta, defendant no. 4.Amount of Rs. 1 lac which I received in cash, was returned by my wife to defendant No. 5 in installments whenever she happened to visit Delhi. That amount was paid in installments within a period of 3-4 months. Said GPA, Will and agreement to sell were torn by defendant no. 4 in my presence and thrown in dustbin in his house sometime in the afternoon on 13th February, 1987 itself. I came to know about 15 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA the execution of conveyance deed in favour of defendants 4 & 5 by the DDA through a letter sent to me by the counsel of these defendants alongwith a demand draft.
Statement of Sh. S.K Gupta, defendant No. 4 Under Order 10 Rule 2 CPC. On S.A Suit property was converted into freehold in the year 1994. To secure possession of the suit plot, rent agreement was executed. Rs. 1,750/- per month was being paid towards rent calculated as interest @ 1% on unpaid amount of Rs.1,75,000/-. Amount of Rs. 1,750/- was being regularly paid sometime upto August 1996. My wife never met the wife of plaintiff excepting on one occasion when the papers were executed in the year 1987. Amount of Rs. 1 lac was not refunded by the wife of plaintiff in cash to my wife at any point of time. After conversion of property into freehold in the year 1994. I did not send any notice to plaintiff to execute sale deed in our favour after receipt of balance amount of Rs.1,75,000/-. Volunteered: I had told the plaintiff on phone to receive the said amount and execute 16 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA conveyance deed. Cheque which was given to the plaintiff was for Rs.4,25,000/- instead of Rs.4,20,000. This cheque was from the account of Touchwood Pvt. LTd."
10. On 06.09.2001 an application was moved on behalf of defendant nos. 4 and 5 to return the original agreement to sell dated 13.02.1987, GPA and the Will of the same date. Certified copies of the documents were taken on record and the original documents were accordingly returned to defendant nos. 4 and 5 subject to their furnishing an undertaking to the court that they shall produce the original as and when required.
11.On 06.09.2001 following issues were framed:
1. Whether the civil suit of the plaintiff is liable to be dismissed under Section 34 of the Specific Relief Act in the absence of relief of recovery of possession?
2. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction?
3. Whether the suit of the plaintiff is barred by time?
4. Whether the plaintiff is the owner of the property in dispute?
5. Whether defendants No. 4 and 5 have become the owners 17 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA of the property in dispute?
6. Whether plaintiff is entitled to the relief by declaration, cancellation of the documents?
7. Whether plaintiff had returned the advance amount of Rs. 1 Lac to defendants No. 4 and 5?
8. Whether the deed dated 13th February, 1987 was cancelled as alleged in paragraph 7 of the plaint and whether Rs. 1 lac was paid as alleged in the same paragraph?
9. Relief.
12.The plaintiff died during the pendencey of the suit. An application u/o 22 rule 3 CPC was filed for substituting his LRs on the record. The application was allowed vide order dated 25.01.2007 passed by my one of the Ld. Predecessors and Sh. Sumit Mehta and Sh. Sanjay Mehta are substituted in place of the deceased plaintiff.
13.Plaintiff Sh. Sumit Mehta has examined himself as PW-1. He has also been partly cross-examined at a great length. His further cross- examination was deferred on 30.05.2009. However, on 18.03.2010 GPA of the plaintiff and also the proxy counsel for the plaintiff stated that they 18 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA do not want to get PW-1 cross-examined since "he is down with nervous break down and it will not be possible for him to appear before the court for the purpose of cross-examination". Thus, defendant nos. 3, 4 and 5 were not granted full opportunity to cross-examine PW-1.
14.PW-2 is the GPA of the late plaintiff and he has tendered his affidavit in evidence which is Ex.PW-2/A. He has relied upon documents Ex.P-1 to Ex.P-87. In his cross-examination, PW-1 has admitted documents Ex.PW-1/D-1 and Ex. PW-1/D-2. PW-3 Col.(Retd.) Sh. M.L Chopra has tendered his affidavit in evidence which is Ex.PW-3/A.
15.On the other hand, defendant no. 4 has examined himself as DW-1 and tendered his affidavit Ex. DW-1/A and relied upon document Ex.DX. In his cross-examination he has admitted the correctness of the letters Ex. P-1 to Ex.P-50. DW-2 is Smt. Madhu Gupta W/o Sh. S.K Gupta(defendant no.
5) who has filed her affidavit Ex.DW-2/A in evidence. DW-3 is Sh.Bal Kishan Gupta who has filed his affidavit Ex.DW-3/A in evidence.
16. No evidence has been adduced on behalf of defendant no.3/DDA.
17. Brief written synopsis have been filed on behalf of the plaintiff, defendant no. 3 and also defendant nos. 4 and 5.
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Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA
18.I have gone through the judicial file very carefully. My findings on the issues are as follows:-
19.Issue no. 1 The submission of the Ld. Counsel for defendant nos. 4 and 5 is that defendant no. 4 & 5 are in admitted possession of the entire suit property but since the plaintiff has not sought the relief of possession in the suit property the suit is barred under the proviso to Section 34 of the Specific Relief Act. According to him, the present suit being a simpliciter suit for declaration without seeking the relief of possession of the suit property does not lie. On the other hand, in his written arguments the Ld. Counsel for the plaintiff has contended that legal objection that the suit is not maintainable as there is no claim for possession in the suit is not sustainable on the face of it. It is submitted that "the claim of the plaintiff is that M/s Touchwood Pvt. Ltd For which notice of termination of tenancy was given. The eviction has nothing to do with the suit claim declaration and cancellation of bogus conveyance deed".
20.Relevant portion of Section 34 of the Specific Relief Act reads as under:-
"Discretion of court as to declaration of status or right--any person entitled 20 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA to any legal character, or to any right as to any property, may institute as suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
------"
Thus, to maintain a suit under this Section the followings essentials must be established:-
1) That the plaintiff is a person entitled to any legal character or any right as to property ;
2) that the defendant is a person denying or interested to deny the plaintiff's title to such character or right;
3) the declaration sued for is a declaration that the plaintiff is entitled to a legal character or to a right to property ; and
4) when the plaintiff is able to seek further relief than a mere 21 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA declaration of title, he must seek such relief.
Thus, by virtue of the proviso to Section 34 of the said Act if the plaintiff does not seek the relief of possession of the suit property in such a case, the suit is not maintainable and is hit by the proviso to Section 34.
21. In the present case, the plaintiff has sought a decree for declaration that he is and continuous to be the absolute owner of the suit property and no one else except him has any ownership right, title or interest in the suit property. Admittedly, the late plaintiff is not in possession of the suit property. The same is in possession of defendant nos. 4 and 5. Thus, after his death his LRs are also not in possession of the suit property. The defendants have denied the plaintiff's title to the suit property. The defendants have denied that the late plaintiff had any right, title or interest in the suit property. Therefore, the suit squarely falls within the ambit of Section 34 of the Act. However, admittedly the late plaintiff did not seek possession of the suit property in the plaint. It is, no doubt, true that in Para 11 of the plaint he has made a prayer to grant leave and permission of the court to restrict the claim to the reliefs made in the plaint without other rights in any way "being prejudiced by the provisions Order 2 Rule 2 22 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA CPC". However, from a perusal of the same Para i.e Para 11 of the plaint it becomes crystal clear that the said leave and permission had been sought with regard to the relief by way of liquidated damages/compensation. Though no such leave and permission had/has been pressed during the pendency of the suit nor any such leave or permission has either been granted to him by the court, even then the relief for possession of the suit property does not fall within the ambit of Order 2 Rule 2 CPC.
22. As I shall discuss hereinbelow, defendant nos. 4 and 5 have proved that they have become the owners of the suit property. Therefore, a simpliciter suit for declaration without there being the relief of possession of the suit property is certainly not maintainable by virtue of the proviso to Section 34 of the Specific Relief Act. Therefore, I hold that the suit is liable to be dismissed u/s 34 of the Specific Relief Act. Accordingly, I decide this issue in favour of the defendants and against the plaintiff.
23.Issue no. 2.
The onus to prove this issue is on defendant nos. 4 and 5. It is the contention of the counsel for these defendants that it is not clear from Para 14 of the plaint as to whether the valuation of the suit at Rs. 23
Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA 6,75,000/- is for the relief of declaration or the relief for a decree of cancellation of the deed of conveyance dated 20.01.1994 and both the reliefs should have been separately valued for the purpose of court fee and jurisdiction and ad-valorem court fee on each prayer been paid. According to him, even otherwise the valuation of the deed of conveyance is at Rs. 6,95,000/- and not Rs. 6, 75,000/- and moreover as per the averments made in Para 9 of the plaint itself the value of the suit property in the year 1987 was Rs. 12 Lacs and, hence, its value could not have been less than Rs. 12 Lacs in the year 1997 which is the year for filing the suit and, hence, the suit is not properly valued for the purposes of court fee and jurisdiction. No contention has been raised on the issue on behalf of the plaintiff.
24. As I shall hereinbelow in detail, it has been proved on the record that the plaintiff had entered into an agreement to sell the suit property with defendant nos. 4 and 5 for a total sale consideration of Rs. 6,95,000/-. It is, no doubt, true that the case of the plaintiff is that since the said sale consideration was on a lesser side and the market value of the suit property in the year 1987 was worth over Rs. 12 Lac and for this reason 24 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA the agreement to sell had been cancelled. However, it has been proved on the record that the agreement to sell was made for an amount of Rs. 6,95,000/-. Therefore, the valuation of the suit at Rs. 6,95,000/- for a decree for declaration with consequential relief for a decree for cancellation of deed of conveyance dated 20.01.1994, in my opinion, is not illegal or, in other words, has not been undervalued. Accordingly I hold that the suit has been properly valued for the purposes of court fee and jurisdiction. The issue is decided accordingly in favour of the plaintiff and against the defendants.
25. Issue no. 3.
The onus to prove this issue is on the defendant nos. 4 and 5. It is contended on behalf of the defendant nos 4 and 5 that the present suit which appears to have been filed on or after 21.03.1997 is time barred since the period of limitation for filing a suit for declaration is three years under Article 58 of the Limitation Act. The contention is that declaration has been sought in respect of the documents which were executed by the plaintiff way back on 13.02.1987 and the conveyance deed had been executed by the DDA in favour of the defendants on 17.01.1994 and the 25 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA conveyance deed being a registered document notice of the same is deemed to have been served upon every person including the plaintiff and, therefore, the suit is highly time barred. On the other hand, Para 30 of the written arguments filed on behalf of the plaintiff reads as under:-
" Legal objection has been raised that the suit is time barred. It is not so. The plaintiff came to know of the fraud when the defendants alleged that they had obtained conversion in reply to the notice of terminal."
Thus, the contention raised on behalf of the plaintiff is that the suit is not time barred.
26.As I shall discuss hereinbelow, the execution of Will, GPA and agreement to sell all dated 13.02.1987 (copies Ex-PW-1/D-1, Ex. PW-1/D-2 and Ex. PW-1/3 respectively) by the late plaintiff in favour of defendant nos. 4 and 5 has been duly proved. On the basis of these documents defendant nos. 4 and 5 have got the suit property converted from lease hold property to free hold property from defendant no. 3/DDA vide conveyance deed dated 20.01.1994. The suit filed on or about 21.03.1997 is thus, time barred. I hold accordingly. Therefore, I decide this issue in favour of the defendants and against the plaintiff.
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Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA
27. Issue nos. 4, 5, 6, 7 and 8 All these issues are inter-connected and, hence, can be conveniently disposed off together. In the written arguments filed on behalf of the plaintiff, the contentions raised on his behalf may be summarized as under:-
a) The late plaintiff was the owner of the lease hold suit property and he had raised the construction of a residential house on it through one Sh. Khoob Chand, contractor who was introduced to the late plaintiff by PW-3 Sh. M.L Chopra in the year 1986 after getting the building plans approved and thereafter by obtaining the completion certificate,
b) That the late plaintiff had agreed to sell the suit property to defendant nos. 4 and 5 for an amount of Rs. 6,95,000/- but, however, on being told that the sale consideration amount was less and the market value of the suit property was no less about amount Rs. 12 Lacs, the late plaintiff had cancelled the documents under the circumstances detailed in Para 7 of the plaint and as deposed by the witnesses he 27 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA returned Rs. 1 Lac taken as advance money,
c) That on being pursuaded by defendant no. 4 and his brother Sh. B.K Gupta the late plaintiff had let out the suit property to M/s Touchwood Pvt Ltd @ 1750/- p.m who paid the rent to him regularly till July, 1996,
d) That M/s Touchwood Pvt Ltd paid an amount of Rs.
4,25,000/- towards security amount and not towards sale consideration,
e) That under the 1992 scheme of conversion of DDA there was specific provision that no conversion will be made in case any sale consideration was still payable and since as per the case of defendant nos. 4 and 5 themselves a sum of Rs. 1,75,000/- out of the sale consideration was still payable on which an interest of Rs. 1750/- p.m was being paid by them to the plaintiff conveyance deed should not have been registered by defendant no. 3,
f) That from the documents admitted by defendant nos. 4 and 5 it stands proved on the record that the amount of Rs. 28
Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA 1750/- p.m was infact being paid by M/s Touchwood Pvt. Ltd towards rent and M/s Touchwood Pvt. Ltd paid the rent right from the date of inception of the tenancy in the year 1987 till July, 1996,
g) That defendant nos. 4 and 5 have failed to prove that what they had purchased from the plaintiff on 13.02.1987 was a vacant plot and they had raised the construction themselves. Para 24 of the written arguments is reproduced as hereunder:-
"It need be stated that if all the construction were being made prior to 13.02.1987 then the entire case of defendant nos. 4 and 5 of being purchasers falls to the ground".
h) That if the suit property was not a constructed property, then there was no question of giving it on tenancy to M/s Touchwood Pvt. Ltd and "it would have been denied that Rs. 4.25 Lakh was taken as security by Sh. K.N Mehta from M/s Touchwood Pvt. Ltd. The figure given in the written statement Rs. 5.20. i.e Rs. 1 lakh and Rs. 4.20 lakh, do not 29 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA tally with figure of Rs. 4.25 lakh. Nothing was produced on record to show that it was not a bonafide tenancy. In fact each and every document including the admitted documents Ex.P-1 to P-50 would confirm this tenancy. The counsel for defendant nos. 4 & 5 replied saying that Touchwood Pvt. Ltd was no longer a tenant; amounting thereby that the tenancy was terminated later on i.e after Feb. 1987(Para 25), It is submitted that "the sequence of events put forth by the plaintiff is not only tenable but need to be accepted as the correct sequence".
28.It is contended on behalf of defendant no. 3/DDA that the Government of India/DDA had announced the scheme of conversion from lease hold to free hold and under the scheme Sh. Bal Krishan Gupta to whom the plaintiff had appointed a GPA applied for conversion of the suit property from lease hold to free hold in favour of defendant nos. 4 and 5 in whose names agreement to sell had been made by the plaintiff and the conversion was allowed vide conveyance deed executed on 17.01.1994 and thus, the plaintiff is not entitled to any relief.
29.The contentions raised on behalf of defendant nos. 4 and 5 are that 1) the 30 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA amount of Rs. 1 Lakh which was received by the plaintiff as advance in cash was never returned by him to these defendants as neither PW-1 nor PW-2 has proved this fact and, on the other hand, from the statements of the defendants it has been proved that the said amount had never been returned by the late plaintiff to the defendants, that the amount of Rs. 1 Lakh was infact paid by means of a cheque dated 17.11.1986 which was encashed by the plaintiff on 19.11.1986, 2) that the documents dated 13.02.1987, namely, Ex.PW-1/D-1, and Ex. PW-1/D-2 had been got registered in the office of the Sub-Registrar on 13.02.1987 itself between 3.30p.m to 4.00 p.m and as the court should take judicial notice of the fact that the documents are returned to the beneficiary by the office of the Sub- Registrar after about 10 days of making due endorsement of the documents, there was no occasion for defendant no. 4 or his brother to have torn the said documents on 13.02.1987 in the evening and, thus, the claim of the plaintiff is false, 3) that the transaction could not have been cancelled by the late plaintiff in view of Section 202 of the Contract Act and the GPA Ex.PW-1/D-2 which was a part of the sale transaction coupled with interest, the said transaction could not have been determined and 31 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA terminated unless the said interest was also restored; there is nothing on the record that the financial benefits which were derived by the late plaintiff from defendant nos. 4 and 5 were ever restored to them and on the contrary the late plaintiff had received the balance sale consideration of Rs. 1,75,000/- during the pendency of the suit; all these documents go to show that the sale transaction in question was never cancelled nor the same could have been cancelled, 4) that defendant no. 4 had paid the amount of Rs. 1 Lakh by means of a cheque on 17.11.1986 to the plaintiff against the total sale consideration of Rs. 6,95,000/-; an amount of Rs. 5000/- was to be reimbursed by defendant nos. 4 and 5 to the plaintiff towards the cost of documentation and thus, an amount of Rs. 4,25,000/- was paid by means of a cheque to the late plaintiff on 13.02.1987 simultaneously with the execution and registration of various documents i.e Will Ex.PW-1/D-1, GPA Ex.DW-1/D-2 and agreement to sell PW-1/D-3 ,5) that defendant nos. 4 and 5 got constructed the ground floor and got the water and electricity connection installed in August 1987 and got issued the occupancy certificate from defendant no. 3 DDA on 15.09.1987 and he finally shifted his residence on 02.10.1987; that 32 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA defendant nos. 4 and 5 have been regularly paying property taxes of the suit property since 1987, 6) that defendant nos. 4 and 5 constructed first floor and part second floor in the suit property in the year 1996-1997 after getting the building plan sanctioned in their names, 7) that judgment D-X passed by the Ld. ARC, Delhi on 09.05.2002 in the eviction petition filed by the late plaintiff against M/s Touchwood Pvt. Ltd thereby dismissing the eviction suit by holding that the late plaintiff is no more the owner of the suit property has attained finality and operates as res judicata and, thus, it is proved on the record that the plaintiff is not the owner of the suit property and it is the defendant nos. 4 and 5 who are the owners thereof. Hence, it is prayed the suit be dismissed with exemplary costs.
30.As stated hereinabove, documents of the defendant nos. 4 and 5 have been admitted on behalf of the plaintiff and the same have been exhibited as Ex. D-4-5/1 to Ex.D-4-5/5 on 23.03.1999 and the documents of the plaintiff have been admitted on behalf of the defendants and exhibited as Ex.P-1 to P-56 on 22.03.2000. It is also borne out from the record (order sheet dated 23.07.1999) that the demand draft of Rs. 1,75,000/- had been got revalidated by the defendants and handed over to the counsel for the 33 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA plaintiff. Thus, the remaining amount of Rs.1,75,000/-has also been received by the plaintiff during the pendency of this suit.
31.In his affidavit Ex.PW-1/A, PW-1 (the son of the late plaintiff and now one of the plaintiffs) has reiterated almost all the averments made in the plaint. Therefore, I do not think it to expedient to discuss the averments made in the affidavit. In his incomplete cross-examination he has stated that his father had told him about the lease agreement between him (late plaintiff) and M/s Touchwood Pvt Ltd in the year 1987 but the transaction did not take place in his (PW-1's ) presence. According to him, his father never told him that the former had also executed any other document in favour of defendant nos. 4 and 5. However, as per the second version his father had told him in the year 1987 that he had also executed an agreement to sell in favour of defendant nos. 4 and 5 and "apart from the said document he did not tell me regarding any other document having been executed by him in favour of defendant nos. 4 and 5 at any time". PW-1 has volunteered to say that his father had told him that the agreement had been torned and cancelled on the same date on which it was executed. He has stated that he is not aware whether his father had also executed and 34 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA registered a Will dated 13.02.1987 in favour of defendants or that his father had executed a GPA in favour of Sh. Bal Krishan Gupta on 13.02.1987 and the same had been registered or whether his father had handed over the original perpetual lease deed to Sh. S.K Gupta( D-4) on 13.02.1987. He has, however, admitted that original perpetual lease deed Ex. D-4-5/5 is on the court record and the same had been handed over by his father to defendant no. 4 . Thus, it would be seen that whatever PW-1 has deposed is based on hearsay evidence i.e he does not have personal knowledge of the facts and it was his father who had told him about the above stated facts.
32.In his further cross-examination he has admitted the original Will dated 13.02.1987, registered POA dated 13.02.1987 and original agreement to sell dated 13.02.1987 all executed by his late father and the copies thereof as Ex.PW-1/D-1, Ex/PW-1/D-2 and Ex. PW-1/D-3 respectively. He has also admitted the correctness of the original registered conveyance deed dated 17.01.1994 copy of which is Ex. PW-1/D-4. He has further admitted that his late father had filed an eviction petition bearing no. 180/96 u/s 14(1)(b) of the DRC act against M/s Touchwood Pvt. Ltd and the same 35 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA had been dismissed vide judgment dated 09.05.2002 and his late father had not challenged the said judgment by filing any appeal and the said order has attained finality. In his further cross-examination he has stated that he had visited the suit property about ten years back but he cannot admit or deny if the property is 2 ½ storey. He has stated that he cannot admit or deny if the suit property was constructed only upto DPC as on 13.02.1987 when the same had been given by his late father to " Mr. Gupta" (perhaps referring to D-4). He has stated that he cannot admit or deny if the water connection, electricity connection, sewer connection had been installed in the suit property for the first time on 13.02.1987 or whether defendant nos. 4 and 5 had got the ground floor completed in the year 1987 after taking possession of the suit property on 13.02.1987 from his late father or whether defendant nos. 4 and 5 had occupied the first floor on 02.10.1987.
33.In his further cross-examination he has stated that 'by the words "Exercising Complete ownership right" as used by me in para 5 of affidavit of point , I mean that Mr. Kailash Nath Mehta is the owner of the suit property". He has admitted that neither he nor his late father had raised 36 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA any construction in the suit property after 13.02.1987. He has further stated that his father had never informed regarding execution or registration of any document for cancellation of the registered GPA, Will dated 13.02.1987 executed by him in favour of defendant though his second version is that he " cannot recollect". He has admitted that defendant no. 4 is in possession of the suit property since 1987 though he has volunteered to add that defendant no. 4 is in possession as a tenant. He has stated that he cannot admit or deny if his father had spent an amount of Rs. 5000/- for getting the documents i.e agreement to sell, GPA etc prepared and registered in Feb, 1987. He has, however, admitted that the sale consideration was agreed between his father and defendant no. 4 at Rs. 6,95,000/- and a cheque of Rs. 4,25,000/- had been given by defendant no..4 to his late father though he has also added the words " it was a security amount". He has denied that the said cheque of Rs. 4,25,000/- was a part of sale consideration and not the security deposit. He has admitted that another cheque of Rs. 1 Lac had been given to his late father though he has volunteered to add that the same had been returned. In his further cross-examination he has not been able to disclose 37 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA the mode of return of Rs. 1 Lac.
34.In his further cross-examination he has stated that it is not in his knowledge if there was an agreement between the plaintiff and defendant that the defendant would continue to pay Rs. 1750/- (equivalent to 1% of the remaining payment of Rs. 1,75,000/-) to the late plaintiff till the time the said amount was paid to the late plaintiff. PW-1 has admitted the signature of his father on Form no. 1449 of the DDA which is Ex. PW-1/D-5. In his further cross-examination he has stated that he is not aware whether the payment of Rs. 1750/- p.m by the defendant to the plaintiff was being termed as rent instead of interest for the reason that his late father was to avail the benefit of Section 24 of the Income Tax Act. In his further cross- examination he has stated that he is not aware whether his mother Smt. Laxmi Mehta was involved in the transaction in question in any manner but "she was aware of the same". He has denied that all the rights, title and interest in the suit property stood transferred in favour of defendant nos. 4 and 5 on 13.02.1987 and his late father was left with no right, title or interest of any nature in the suit property or that the suit property was rightly converted from lease hold to free hold by the DDA in January, 1994 38 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA after following the due process of law. He has stated the he is not aware if there was no prior relationship between defendant nos. 4 and 5 and his late father and the only transaction between them was the transaction in question.
35.Very interestingly enough, in his further cross-examination he has stated that his father had discussed the matter with him before executing the alleged sale document dated 13.02.21987 and the family was not in favour of selling of the property by the late plaintiff and the decision for not selling the property had been taken by the family on 13.02.1987 itself after execution of the sale documents. As I have stated hereinabove, thereafter PW-1 has not been produced for his further cross-examination and, thus, defendant nos. 4 and 5 could not get full opportunity and defendant no. 3 not any opportunity to further shake his testimony made in the affidavit Ex. PW-1/A.
36.In any case, whatever has been deposed by PW-1 is either based on the information stated to have been given to him by his late father or he has made several versions under a state of confusion or by making improvements on his earlier versions. The most important fact which 39 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA stands proved from his statement is that his late father had executed the original documents the copies of which are Ex.PW-1/D-1 to Ex.PW-1/D-3 and his late father had also received a cheque of Rs. 4,25,000/- from the defendants at the time of execution of the documents on 13.02.1987, that the said documents were got registered by his late father in favour of defendant nos. 4 and 5 in the office of Sub-Registrar on 13.02.1987 itself, that his late father had not executed any document for cancellation of the registered Will and GPA both dated 13.02.1987.
37.According to him the decision with regard to not selling the suit property by his late father to defendant nos. 4 and 5 had been taken by his family on 13.02.1987 itself after the execution of the sale documents by his late father in favour of defendant nos. 4 and 5. Thus, if we believe the version of PW-1 all these incidents had taken place on one and the same day. One very important fact which can easily be gathered and collected from the affidavit Ex. PW-1/A and the statement of PW-1 is that nowhere has he stated about the presence of PW-2 Anil Kumar Diwan during the entire episode which took place on 13.02.1987.
38.In view of this background, now I shall discuss the statement of PW-2 40 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA who is the father-in-law of PW-1 Sumit Mehta. He represents himself to be the attorney of the late plaintiff as well as the attorney of PW-1 though he has not proved any such attorney or authority letter on the court record. At the same time, I must say that defendant nos. 4 and 5 have also not challenged his authority to depose on behalf of the late plaintiff.
39.According to his affidavit Ex. PW-2/A he had been got introduced to the late plaintiff sometimes in the year 1983-84 by one Sh. A.K Puri, the then General Manager (Planning) State Bank of India, New Delhi LHO and PW-1 was got married to his (PW-2's) daughter Ashima Diwan in 1995, since the late plaintiff was a resident of Bombay and was not maintaining good health, he (PW-2) became his general attorney and has been doing pairvi work in the case for the past over ten year, that the late plaintiff constructed a residential house in the suit property after getting the building plan sanctioned and on completion got issued all the necessary clearances, completion certificate and also got his name mutated in all the official records as the owner of the property, the late plaintiff had been exercising complete ownership rights in the suit property ever since then and had rented out the same in Feb, 1987 to M/s Touchwood Pvt. Ltd at a 41 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA monthly rent of Rs. 1750/- and had received rent from the tenant till July, 1996, the late plaintiff terminated the tenancy of the tenant vide notice dated 13.07.1996. He has deposed about the two replies received from defendant nos. 4 and 5 and M/s Touchwood Pvt. Ltd thereby stating that M/s Touchwood Pvt Ltd was no longer a tenant and that defendant nos. 4 and 5 had obtained a deed of conveyance executed from defendant no. 3 in their favour "on the property being made free hold". As per his affidavit the late plaintiff made enquries from the DDA and came to know about the fraud played upon him by defendant nos. 4 and 5 in connivance of and in collusion and conspiracy with the officers and employees of defendant no. 3 DDA and about the conversion of the lease hold property into free hold property in utter violation of and contrary to the conversion scheme and also without intimation or notice to the late plaintiff. He has deposed about the documents by the late plaintiff in favour of defendant nos. 4 and 5 and about the letting out of the suit property to M/s Touchwood Pvt Ltd and about the cancellation of the agreement. According to him the agreement had been destroyed in his presence. According to him, since in 1987 the property was worth Rs. 12 Lac and it could not have been sold for Rs. 42
Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA 6,95,000/-, the late plaintiff whose signatures he can identify because the late plaintiff had signed in his presence on a number of times had got the suit property constructed from one Khoob Chand who was introduced to the late plaintiff by M.L Chopra, an employee of State Bank of India. According to PW-1 he can also identify the signatures of Khoob Chand.
40.In his cross-examination PW-2 has, inter alia, stated that he had never gone to Mumbai from 1984 to 1990 to meet the late plaintiff and during this period the late plaintiff had never come to meet him at Delhi and that he never consulted the late plaintiff with regard to his family matter including marriages of his children or about sale purchase of the property and also that the late plaintiff never discussed any such matter with him during this period. I must say at once that when neither the late plaintiff nor PW-2 had met with each other from 1984 to 1990 and the plaintiff had no occasion to talk to PW-2 with regard to the sale of the suit property during this period, how could there be any occasion for PW-2 to witness the incident dated 13.02.1987. It is perhaps for this reason that PW-2 at once realized his mistake and he again said that he (late plaintiff) used to discuss the matter with regard to the sale of property with him (PW-2) on 43 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA different occasions during 1984 to 1990 and the late plaintiff had specifically discussed with him about the sale of the suit property to defendant nos. 4 and 5. Let the things remain as they are.
41.In his further cross-examination PW-2 has stated that so far as he remembers their first personal meeting in this regard had taken place on 13.02.1987 in the office of Mr. Puri in afternoon hours and that the late plaintiff told him (PW-2) that the former had already sold the suit property to defendant nos. 4 and 5 on which he (PW-2) told the late plaintiff that the late plaintiff had sold out the property at a very low price and also advised him to cancel the deal and the late plaintiff had not still encashed the cheque given against the sale consideration because according to the late plaintiff it was a friendly deal. Thus, from the said version made by PW-2 his case seems to be that the late plaintiff had come to the office of Mr. Puri on 13.02.1987 after executing the sale documents in respect of the suit property in favour of defendant nos. 4 and 5 which means that according to PW-2 the late plaintiff had executed the document before "afternoon hours".
42.In his further cross-examination PW-2 has stated that the late plaintiff 44 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA agreed with him and he (PW-2) alongwith the late plaintiff went to the house of defendant no. 4 at Panchsheel Enclave where the late plaintiff told defendant no. 4 that the former had sold the suit property to the later at much low price and, therefore, the former wanted to cancel the deal; that after hot discussion defendant no. 4 first did not agree to the proposal of the late plaintiff but afterward defendant no. 4 asked the late plaintiff to let out the suit property to him as he did not have any other other accommodation; that the late plaintiff agreed to let out the suit property to defendant no. 4 provided he gets back the cheque and give him another cheque as security money and return the documents which had already been executed and were in possession of defendant no. 4; that defendant no. 4' s brother B.K Gupta tore the documents then and there in PW-2's presence but he (PW-2) cannot tell the details of the documents. He has further stated that the late plaintiff did not ever tell him about the details of the documents executed by him in favour of defendant no. 4 at the time of making sale of the suit of the suit property but since the late plaintiff and defendant no. 4 were friends and it was his (PW-2's) first meeting with defendant no. 4 at his residence, he (PW-2) felt satisfied that with the 45 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA destruction of the documents by defendant no. 4's brother that the deal had been cancelled and also because there was a friendly atmosphere at that time. He has stated that he does not know whether documents destroyed were written on stamp papers or plain papers or whether those documents were registered one or unregistered one but this incident took place on the same day i.e 13.02.1987(5 p.m/5.30 p.m). Thus, if we believe the said version of PW-2 it would meet that on 13.02.1987 itself the late plaintiff had executed the sale documents in respect to the suit property in favour of defendant nos. 4 and 5, then he went to the office of Mr. Puri in afternoon hours and thereafter he alongwith PW-2 went to the house of defendant no. 4 where the above conversation took place between the plaintiff and defendant no. 4 and defendant nos. 4's brother tore the documents.
43.Following portion of his cross-examination is material. The same is reproduced hereunder:-
"Q. Whether any payment was also made in cash on that date? Ans. No. However, one rent agreement in the name of one company Ms/ Touchwood had been executed between the late plaintiff and 46 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA M/s Touchwood through Mr. Gupta and his brother. The cheque for Rs.4,20,000/- given to the late plaintiff towards sale consideration of the suit property had been returned to Mr. Gupta who in turn issued another cheque for Rs.4,25,000/- in favour of the late plaintiff towards security".
44.From this para of the statement of PW-2, his case appears to be that the rent agreement had been executed in the name of the said company at the house of defendant no. 4 on that date itself after defendant no.4's brother had torn the sale documents.
45.In his further cross-examination PW-2 has stated that it was in his knowledge that defendant no. 4 had already given Rs. 1 Lac in cash to the late plaintiff but he does not know whether any other payment was also made by defendant no. 4 to the late plaintiff.
46.He has, inter alia, stated that since he already knew about the details of the suit property, he had advised late plaintiff to cancel the deal because according to the late plaintiff the deal has been finalized for Rs.5,20,000/-. I must say at once that there is conclusive evidence on the record to prove that the total sale consideration was Rs. 6,95,000/- and not Rs.5,20,000/-. 47
Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA Therefore, PW-2 has told a white lie that as per the information given to him by the late plaintiff the deal had been finalized for Rs.5,20,000/- in his presence.
47.PW-2 has stated that he has no knowledge that the late plaintiff had not carried out construction in the suit property after February, 1987. According to the case of the plaintiff the plaintiff had carried out the construction of the ground floor. Now PW-2 has stated that he does not now whether first floor and second floor also exist in the suit property. He has admitted the signatures of the late plaintiff on Ex.PW-1/D-1, Ex.PW-1/D-2 and Ex.PW-1/D-3 which are the copies of the Will, original GPA and agreement to sell respectively but he has volunteered to say that all these documents were supposed to have been torn by defendant no.4's brother on 13.02.1987.
48.In his further cross-examination PW-2 has admitted that defendant no. 4 had made a payment of Rs. 1 Lac to the late plaintiff by means of cheque no. 264720 dated 17.11.1986 drawn on Canara Bank, Lajpat Nagar, New Delhi and he came to now later on that the said amount was paid towards the advance against the sale consideration of the suit property. He has 48 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA stated that the agreement to sell was not executed on that date. I must say at once that the Will in favour of defendant no. 4, GPA in favour of Bal Krishan Gupta (brother of defendant no. 4) and also the agreement to sell in favour of defendant no. 4 copies of which are Ex.PW-1/D-1, Ex.PW-1/D-2 and Ex.PW-1/D-3 respectively are all dated 13.02.1987. The Will and the GPA had been got registered. As per the endorsement these documents were got registered in the office of Sub-Registrar on 13.02.1987. In his further cross-examination PW-2 has also stated that the lease deed in favour of M/s Touchwood was executed in his presence on 13.02.1987 itself. According to PW-2 the meeting had lasted for about 2 and half hours to three hours on 13.02.1987 and after 5.30 p.m he did not meet defendant no. 4 and he does not know if the late plaintiff had also not meet defendant no. 4 on that date after 5.30 p.m.
49.PW-2 has not been able to take a consistent view. He has changed his version according to his convenience. Thus, he has created an atmosphere of ambiguity and uncertainty by making different and self contradictory statements at various places in his cross-examination.
50.In his affidavit Ex. PW-2/A, PW-2 has stated that the the present suit was 49 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA prosecuted by him as the late plaintiff was staying in Mumbai and later on account of progressive renal failure and complete breakdown in his health, he was unable to come to Delhi. According to him, during the life time of the plaintiff, he (PW-2) was his general attorney in Delhi and attended to all the court proceedings on his behalf. I have very carefully gone through the ordersheets recorded in the suit. In neither of the ordersheets his attendance has been recorded either as a general attorney of the plaintiff or in other capacity. The plaint has been filed under the signatures of the late plaintiff. Admittedly, the late plaintiff had filed a suit for eviction against M/s Touchwood Pvt. Ltd in the court of Ld. ARC/Delhi and that eviction petition had been dismissed. Now the version of PW-2 in his cross- examination is that that eviction suit was instituted by the late plaintiff himself and he (PW-2) had never attended that case. Very surprisingly enough, PW-2 has stated that he cannot admit or deny whether the suit for ejectment had infact been dismissed on 09.05.2002 by the court of Sh. V.K Bansal, the then ARC/Delhi. According to PW-2 he had attended to all the court proceedings on behalf of the late plaintiff in this suit because the late plaintiff was staying in Mumbai and also because of his ill health he 50 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA was unable to come to Delhi. The late plaintiff could not be said to be unable to appear before the court in the suit but to be able to attend and to prosecute the eviction suit. PW-2 even does not know whether suit for ejectment has been dismissed by the Ld. ARC/Delhi. As I have stated hereinabove, no such GPA stated to be executed by the late plaintiff in favour of PW-2 has been proved on the court record. Therefore, in the facts and circumstances of the case discussed hereinabove, it is highly unbelievable that PW-2 had infact been acting as a general attorney for the late plaintiff in Delhi and it is PW-2 who had been prosecuting the case on behalf of the late plaintiff. While saying so, I am not oblivious of the facts that the defendants have not challenged the authority and competency of PW-2 to depose on behalf of the late plaintiff.
51.In his further cross-examination PW-2 has stated that only the ground floor was constructed in the suit property in the year 1996 and he does not know if defendant no. 4 had constructed the first floor or second floor in the suit property in the year 1996-97 or that the first floor and second floor also exist in the suit property.
52.Without making the judgment more voluminous I must say at once that in 51 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA the agreement to sell dated 13.02.1987 copy of which is Ex. PW-1/D-3, the suit property has been described as the single storeyed immovable property. Therefore, it stands proved on the record that it was the late plaintiff who had got constructed the ground floor of the suit property. It is also proved on the record that the ground floor had been constructed by the late plaintiff from Khoob Chand, contractor who had been introduced to him PW-3. Therefore, I do not think it necessary to discuss the statement of PW-3 who has been examined to prove that the said Khoob Chand had been introduced to the late plaintiff by him. I also do not think it necessary to discuss the receipts issued by Khoob Chand to the late plaintiff.
53.Will and GPA were got registered in the office of Sub-Registrar on 13.02.1987 by the late plaintiff in favour of defendant nos. 4 and 5 and the brother of defendant no. 4. From a reading of the provisions contained in Section 61(2) of the Registration Act it transpires that after the presentation of document for registration before the Sub-Registrar the same has to go through several formalities and entries are required to be made in several registers and only thereafter the registration of the document is deemed to be complete and the document is returned to the 52 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA person who presented the same for registration or to such other person (if any) as he is nominated in writing in this behalf. As provided in Section 52, at the time of presentation of a document, a receipt of the document is required to be given by the registering officer to the person presenting the same. Therefore, it is highly impossible that all these formalities are done in each and every case on the same day and the document duly registered is returned to the person concerned on the same day. Thus, the office of Sub-Registrar must be taking some days, may be one day or may be two days or may be more in getting these formalities completed and only then to return the documents to the person concerned. Therefore, the version made by the late plaintiff and tried to be proved on his behalf that the late plaintiff alongwith PW-2 had gone to the house of defendant no. 4 on 13.02.1987 and defendant nos. 4 and 5 had agreed to cancel the deal and that the brother of defendant no. 4 had torn the documents then and there is highly unbelievable. Therefore, I am not inclined to believe that the sale transaction had infact been cancelled on 13.02.1987 itself.
54. Suffice it to say that nothing material favourable to the late plaintiff has been extorted from the mouths of DW-1, DW-2 and DW-3. Receipts 53 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA Ex.P-1 to Ex.P-50 are the admitted documents. Vide these documents defendant no. 4 had transmitted to the late plaintiff a sum of Rs. 1750/- p.m in respect of the suit property towards payment of rent on behalf of M/s Touchwood Pvt. Ltd and correspondence had been exchanged between them on the same subject. These documents admitted by defendant nos. 4 and 5 are very strong piece of evidence to indicate that M/s Touchwood Pvt. Ltd. had infact been inducted as a tenant in respect to the suit property by the late plaintiff at monthly rent of Rs. 1750/- and the rent was continued to be paid till July, 1996.
55. However, this is an admitted fact that on 13.02.1987 while making payment of the amount of the sale consideration to the late plaintiff an amount of Rs.1,75,000/- had remained to be payable to him by defendant nos. 4 and 5. In affidavit Ex. DW-1/A the version of defendant no. 4 is that the rate of interest was agreed to be paid @ 1 % per month till the time the balance payment of Rs. 1,75,000/- was made and accordingly the payment of interest was camouflaged as payment of rent but, however, there was never a transaction of tenancy. Admittedly, no such tenancy agreement is on the file nor it is the case of the late plaintiff that any such 54 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA tenancy agreement had been reduced into writing. Interest @ 1% on the amount of Rs. 1,75,000/- comes to Rs. 1750/- p.m. Defendant no. 4 consistently paid the same amount to the late plaintiff meaning thereby that the rate of rent, if the payment was infact being made towards the rent, was never increased during this long period of about ten years. It is, no doubt, true that in his cross-examination DW-1 has stated that the payments shown in letters Ex. P-1 to P-50 (regarding payment of rent) have been shown in income tax returns as payment made towards rent. but, however, to my mind in the facts and circumstances of the case discussed hereinabove, the said fact in itself is not sufficient to hold that the said amount had been paid to the late plaintiff towards rent. Therefore, I am of the considered opinion that it has not been proved on the record that any such tenancy in respect to the suit property had infact been created in favour of M/s Touchwood Pvt. Ltd on 13.02.1987 by the late plaintiff or that Rs. 1750/- p.m was agreed to be paid towards monthly rent or that the above stated payments were made towards the monthly rent. In the facts and circumstances of the case discussed hereinabove, I do not feel any hesitation in holding that the payment of Rs. 1750/- was 55 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA infact being made towards interest on the amount of Rs. 1,75,000/- calculated @ 1 %.
56. Much emphasis has been led on behalf of the plaintiff on the fact that since a total payment of Rs. 5,25,0000/- (Rs.4,25,000/- and Rs. 1,00,000/-) by means of two separate cheques were made by defendant no. 4 to the late plaintiff and a balance amount of Rs.1,75,000/- remained to be paid to the late plaintiff, the payment of Rs. 4,25,000/- had infact been made towards the security amount. Rs. 4,25,000/-+Rs. 1,00,000/-+ Rs.1,75,000/- comes to Rs.7,00,000/-. The amount of the sale consideration was infact Rs. 6,95,000/-. In this regard, the version of DW-1 is that the late plaintiff had informed him that expenses of about Rs.5000/- had been incurred by him on documentation which amount he (DW-1) was supposed to reimburse to the plaintiff. Thus, he (DW-1) had made a payment of Rs.4,25,000/- to the late plaintiff on 13.02.1987 itself by means of a cheque and as such total payment of Rs. 5,20,000/- stood paid to the plaintiff towards part sale consideration after adjusting an amount of Rs. 5000/- towards documentation charges.
57. In his cross-examination DW-1 has admitted that the cheque of 56 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA Rs. 4,25,000/- had been issued from the account of M/s Touchwood Pvt Ltd. However, he has denied that the said amount was given to the late plaintiff as security amount while taking the suit property on rent. According to him, the total sale consideration was fixed at Rs. 6,95,000/- but, however, he had paid Rs. 5000/- towards documentation charges. He has denied that documentation charges are always paid in cash by the purchaser and he had also paid the same in cash. Thus, it seems to have become the admitted case of the plaintiff that the documentation charges have to be borne out or paid by the purchasers. In the present case defendant nos. 4 and 5 were the purchasers of the suit property. The amount of Rs. 5000/- incurred by the late plaintiff towards documentation charges has also not been disputed. Therefore, there is every possibility to infer that by entering into agreement to sell dated 13.02.1987, the documentation charges amounting to Rs. 5000/- had also been included in the cheque of Rs. 4,25,000/-. Therefore, the plaintiff is not entitled to derive any benefit from this fact.
58. Now, what has to be seen is whether it has been proved on the record that the late plaintiff had returned the amount of Rs. 1 Lakh taken by him 57 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA from defendant no. 4 by means of a cheque.
59.In his cross-examination DW-1 has denied that Smt. Laxmi Mehta (wife of the late plaintiff) had taken Rs. 1 Lakh as loan from his wife in August/September, 1986 because of the paucity of funds for raising construction in the suit property. Thus, altogether a new story has been introduced on behalf of the plaintiff in the cross-examination of DW-1. No further suggestion has been put to DW-1 that the late plaintiff had returned the amount of Rs. 1 Lakh to defendant no. 4 either in lump-sum or in installments or by which mode of payment.
60. In her cross-examination DW-2 has denied that due to paucity of funds for raising construction in the suit property Smt. Laxmi Mehta had taken Rs. 1 Lakh from her as a loan or that in the year 1987 when the late plaintiff visited Delhi to look after the construction in the suit property they pursuaded him to sell the property to them on the ground that his wife had already taken Rs. 1 Lakh as loan amount from her (DW-2) and they shall pay the to-be-agreed amount of the sale consideration to him or that on their allurement the late plaintiff had agreed to sell the suit property to them for an amount of Rs. 6,95,000/- and the amount of Rs. 1 Lakh taken 58 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA as a loan in 1986 had been agreed to be adjusted in the said amount. Thus, there is no evidence on the record to prove that the late plaintiff had returned the amount of Rs. 1 Lakh to defendant no. 4. Therefore, I hold that the plaintiff has failed to prove that the amount of Rs. 1 Lakh given by defendant no. 4 to the late plaintiff by means of cheque no. 264720 dated 17.11.1986 had been returned to defendant no. 4.
61.Admittedly, the Will and GPA both dated 13.02.1987 had been got registered in the office of Sub-Registrar. There is no evidence on the record which may even show that the late plaintiff had executed any document thereby making cancellation of these two registered documents. An unsuccessful attempt has been made on behalf of the plaintiff to prove that the transactions taken place on 13.02.1987 had been cancelled on the same day and the brother of defendant no. 4 had torn the documents in the presence of PW-2. However, as I have held above, the said fact has not been proved. DW-2 Bal Kishan who is the brother of defendant no. 4 has denied about any such fact in toto.
62. Therefore, in my considered opinion, if any such deal had infact been cancelled in the evening of 13.02.1987 itself, then the late plaintiff was 59 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA required to get the cancellation documents registered in this behalf or atleast by asking defendant no. 4 to reduce this fact in writing and to sign. Therefore, when it has been proved on the record that PW-2 is not a reliable witness and PW-1 has not been reproduced for his further cross- examination and, thus, defendant nos. 4 and 5 have not gotten full opportunity to cross-examine him, I am not inclined to believe that defendant nos. 4 and 5 had infact cancelled any such deal on that date or on any other date or that defendant no. 4's brother had torn the documents.
63. Admittedly, defendant nos. 4 and 5 had got the conveyance deed dated 17.01.1994 in respect to the suit property executed in their favour from defendant no. 3. As per the case of the plaintiff, since defendant nos. 4 and 5 had still to pay Rs. 1,75,000/- towards the sale consideration, defendant no. 3 ought not to have executed the conveyance deed in favour of defendant nos. 4 and 5. In his cross-examination PW-2 has stated that to his knowledge before converting the property to lease hold property to free hold property in question, it was the duty of the DDA to see whether the transferee had made full payment of consideration 60 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA amount to transferor. In my considered opinion, it was "not to the knowledge of PW-2" that the DDA had to verify this fact from the transferees i.e defendant nos. 4 and 5. The case of the defendant/DDA is that conversion scheme does not speak about the obtaining of receipt of money consideration and, therefore, defendant/DDA was not in picture about money consideration. Therefore, it has not been proved on the record that defendant/DDA was bound or under legal obligation to verify from defendant nos. 4 and 5 whether any amount was infact due to be paid by them to the late plaintiff or it was mandatory for the DDA to send any notice to the plaintiff as Sh. Bal Kishan, brother of defendant no. 4 had been authorized by the late plaintiff to, inter alia, execute the sale documents in respect to the suit property. The copy of registered GPA is Ex. PW-1/D2. Therefore, I hold that defendant no. 3/DDA had executed the conveyance deed in question in favour of defendant nos. 4 and 5 according to law.
64. In view of the above discussion, I hold that the plaintiff has failed to prove that the advance amount of Rs. 1 Lakh given by defendant nos. 4 and 5 to him had been returned to them. I further hold that the plaintiff has failed 61 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA to prove that the registered Will, GPA and agreement to sell all dated 13.02.1987 had also been cancelled by defendant nos. 4 and 5 on 13.02.1987 itself. I further hold that the late plaintiff ceased to be the owner of the suit property with the execution of the agreement to sell and on receipt of the part sale consideration from defendant nos. 4 and 5.
65. Section 54 of the Transfer of Property Act defines "sale" to mean a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. In the present case, Rs. 5,20,000/- had been paid by defendant nos. 4 and 5 to the late plaintiff on 13.02.1987. The amount of Rs. 1,75,000/- was promised to be paid in lieu of which defendant nos. 4 and 5 had agreed to pay Rs. 1750/- p.m as interest to the late plaintiff which they paid till July, 1996. Admittedly, the remaining amount of Rs. 1,75,000/- has been received by the late plaintiff during the pendency of the suit. Thus, in my judgment, the sale of the suit property by the late plaintiff to defendant nos. 4 and 5 on 13.02.1987 was sale as defined in Section 54 of the Transfer of Property Act and the plaintiff is not the owner of the suit property and it is defendant nos. 4 and 5 who have become the owners of the suit property. Therefore, I further hold that the plaintiff is not 62 Suit no. 851/11/97 KAILASH NATH MEHTA VS UNION OF INDIA entitled to any relief. These issues are decided accordingly in favour of the defendants and against the plaintiff.
66.Issue no. 9 Relief.
In view of my above discussion, I do not find any merits in the suit and dismiss it. However, in the facts and circumstances of the case parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
(Announced in the open court on 29-05-2012) (NK Goel) Addl. District Judge-05 (WEST) Tis Hazari Courts, Delhi.