Delhi District Court
Smt. Anita Gupta vs . Sh. Naresh Gupta on 14 August, 2023
Smt. Anita Gupta Vs. Sh. Naresh Gupta
IN THE COURT OF ADDITIONAL DISTRICT JUDGE
02, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dinesh Kumar, DHJS
CS DJ No. 283/2019
Filing No. 1090/2019
CNR No. DLST010028552019
In the matter of
Smt. Anita Gupta
W/o Sh. Rajesh Kumar Gupta
R/o D5/335, Gali No. 5,
Sangam Vihar, New Delhi110062
.............Plaintiff
Versus
Sh. Naresh Gupta
S/o Sh. Brij Mohan Gupta
R/o D5/183, Gali No.5,
Sangam Vihar, New Delhi
.............Defendant
Date of Institution : 01.05.2019
Date of reserving the judgment : 04.08.2023
Date of pronouncement : 14.08.2023
Decision : Suit Dismissed.
CS DJ No. 283/2019
CNR No. DLST010028552019
Page 1 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023
Smt. Anita Gupta Vs. Sh. Naresh Gupta
SUIT FOR POSSESSION, RECOVERY OF ARREARS
OF RENT, DAMAGES/MESNE PROFITS AND
PERMANENT INJUNCTION
JUDGMENT
1. Vide this Judgment, I shall dispose of the Suit filed by the plaintiff for possession, recovery of arrears of rent, damages/mesne profits and permanent injunction. Brief facts of the case, as per the plaint, are as under: 1.1. The plaintiff is the absolute owner of the property bearing No. D5/335, Gali No.5, Sangam Vihar, New Delhi110062, measuring 100 sq. yards (hereinafter referred as "the Suit Property") and residing with her family at first floor by virtue of the title documents. 1.2. In the month of June 2010, the defendant had approached the plaintiff to take the ground floor of the suit property on rent @ Rs.7,600/ per month, excluding electricity and water charges. The said ground floor consists of a shop and hall in the back. The tenancy was oral as defendant and the plaintiff's husband were having good friendly relations for the last many years. The site plan showing the suit property in red colour is attached with the plaint.
CS DJ No. 283/2019CNR No. DLST010028552019 Page 2 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta 1.3. The defendant initially was paying monthly rent on time to time upto April 2013. After that, the defendant stopped paying rent and illegally occupied the suit property since then. The defendant even did not pay the electricity consumption charges, as earlier agreed, due to which the electricity was disconnected. The defendant also filed a false criminal case against plaintiff and her husband.
1.4. The plaintiff sent a legal notice dated 24.01.2019 to the defendant through speed post and courier, terminating his tenancy, asking him to vacate the suit property, hand over peaceful physical possession of the property, and to pay arrears of rent @7600/ per month w.e.f. 2013 till January 2019, failing which the defendant would be liable to pay Rs.15,000/ per month as damages. The legal notice was duly served upon the defendant, but the defendant did not comply the legal notice. He has threatened to create third party interest in the suit property.
1.5. There is no other alternative and efficacious remedy available to the plaintiff in the eyes of the law CS DJ No. 283/2019 CNR No. DLST010028552019 Page 3 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta except to file the present suit. The suit property is situated at Delhi. This Court has jurisdiction to entertain and try the present suit. Hence, the present suit has been filed with the following prayer:
a) "Pass decree of possession in favour of the plaintiff and against the defendant thereby directing the defendant, his legal heirs, successors, assignees, servants, agent or any other person in occupation to handover the peaceful and vacant possession of the suit property i.e. entire ground floor of property bearing No. D5/335, Gali No. 5, Sangam Vihar, New Delhi110062, as shown red in the site plan attached, to the plaintiff;
b) "Pass a decree in favour of the plaintiff and against the defendant thereby directing the defendant, his legal heirs, successors, assignees, servants, agents to pay the arrears of rent of Rs.2,73,600/ (Rupees Two Lakh Seventy Three Thousand Six Hundred Only) @Rs.7600/ pm w.e.f. April 2016 to March 2019, to the plaintiff.
c) Pass a further decree of pendente lite and future damages/mesne profits in favour of the plaintiff and against the defendant No.1 thereby directing the defendant to pay a sum of Rs.15,000/ per month to the plaintiff from March 2019 until handing over of the peaceful and vacant physical possession of the suit property to the plaintiff alongwith interest @ 24% per annum;CS DJ No. 283/2019
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d) pass a decree for permanent injunction in favour of the plaintiff and against the defendant, his legal heirs, successors, assignees, servants, agent, thereby restraining the defendant, his associates, agents, servants, heirs, successors, assignees and attorneys or any other person acting on behalf of defendant from subletting, transferring, selling, parting with the possession, alienating disposing off or creating any kind of third party interest in the suit property i.e. entire ground floor of property bearing No.D5/335, Gali No.5, Sangam Vihar, New Delhi110062 or any part thereof, as shown red in the site plan annexed herewith;
e) award costs of the suit proceedings in favour of the plaintiff and against the defendant;
f) award such other or further orders/relief, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice."
2. Summons were issued to the defendant. The defendant appeared and filed his Written Statement (WS). The defendant has contested the suit on the following grounds: 2.1. The plaintiff and her husband are professional cheaters and grab money of public at large by playing forgery and cheating with them. They have cheated number of people and made wrongful gain from them.
CS DJ No. 283/2019CNR No. DLST010028552019 Page 5 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta There are may cases against them under Section 420/406/32 IPC known to the defendant. There is an FIR bearing No. 115/2017 under Section 420/406/32 IPC at PS Sangam Vihar, in which defendant is also one of the complainant, and plaintiff and her husband is on Court Bail in that case.
2.2. The plaintiff is not the owner of the property and never entered into any contract (oral or written) with defendant. The defendant is rightful owner of the property vide Mortgage Deed signed and executed by husband of plaintiff against a loan of Rs.11,50,000/, which he could not return. As per the agreement, the possession of ground floor was handed over to the defendant by the plaintiff and her husband. The plaintiff and her husband requested for some time to vacate and handover the complete property to the defendant, but till today they did not do so under one pretext or the other. 2.3. The present petition is filed to cheat the defendant by grabbing the amount lent to the husband of the plaintiff. Despite asking many times for vacating the property, the plaintiff requested for more time so that CS DJ No. 283/2019 CNR No. DLST010028552019 Page 6 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta they could make other arrangement for their stay. The GPA filed along with the suit is forged and fabricated as plaintiff and her husband work together to cheat people. 2.4. In the month of December, 2010, Sh. Rajesh Kumar Gupta, the husband of plaintiff and owner of the suit property, approached the defendant and asked for loan of Rs.15,00,000/. The defendant being neighbour of the plaintiff's husband agreed to give him loan but he was having only Rs.11,50,000/ at that time, therefore he lent out that amount for a year on 20.12.2010. The husband of the plaintiff mortgaged the suit property .The agreement dated 24.12.2010 was signed and executed by the defendant and husband of plaintiff. As per the agreement, the husband of the defendant could not pay back the amount till 20.12.2011, so he gave possession of ground floor to the defendant in the month of January 2012 and promised to either pay back the loan amount alongwith 24% p.a. or hand over the whole property to the defendant, as soon as he makes some arrangement for residence of his family.
2.5. The defendant is under possession of the ground CS DJ No. 283/2019 CNR No. DLST010028552019 Page 7 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta floor of the suit property since January 2012. The plaintiff and her husband kept on requesting defendant to give them more time to vacate the premises as they were suffering from financial crises.
2.6. The plaintiff never served any notice upon the defendant. The defendant was never having any agreement with plaintiff but he was under agreement with her husband. No cause of action arises against the defendant. There is no contract between plaintiff and answering defendant. No document, no agreement, no rent receipts has been filed by the plaintiff. Hence, it is prayed that the suit of the plaintiff may be dismissed.
3. The plaintiff has filed replication. She has denied the allegations made in the written statement and reiterated the facts stated in the plaint. She would also state that the alleged mortgage deed filed by the defendant is a forged and fabricated document.
4. On the basis of the pleadings, following issues have been framed vide order dated 17.12.2019 : "1. Whether the plaintiff has become the owner on the basis of the General Power of Attorney dated 17.08.2009? If so, its effect? OPP CS DJ No. 283/2019 CNR No. DLST010028552019 Page 8 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta "2. Whether the Power of Attorney dated 17.08.2009 has been validly executed in favour of the plaintiff? OPP "3. Whether the defendant has been inducted as a tenant by the plaintiff in the suit premises and whether there is a relationship of landlady and tenant between the plaintiff and defendant? OPP "4. Whether the plaintiff and her husband Sh. Rajesh Kumar Gupta have no right to claim possession for without payment of the money advanced as a loan in a mortgage deed dated 24.12.2010? OPP "5. Whether the plaintiff has locus to file the present suit? OPP "6. Whether no cause of action accrued in favour of the plaintiff for filing the suit? OPD "7. Whether the defendant is in possession in terms of mortgage deed dated 24.12.2010? If so, its effect? OPD "8. Whether the mortgage deed dated 24.12.2010 is a forged and fabricated document? Onus on parties.
"9. Relief."
5. The plaintiff has examined herself as PW1. She has tendered her evidence by way of affidavit Ex. PW1/A. She has reiterated the facts stated in the plaint. She has relied upon the following documents :
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a) Copy of Aadhar Card of the PW1 is Ex.PW1/1 (OSR).
b) GPA dated 17.08.2009 executed by husband of PW1 in her favour is Ex.PW1/2 (OSR).
c) Office copy of the legal notice dated 24.01.2019 is Ex.PW1/3.
d) Original courier receipt is Ex.PW1/4.
e) Original post receipt is Ex.PW1/5.f) Site plan is Ex.PW1/6
g) Chain of title documents is Ex.PW1/7 (colly) (OSR).
6. The witness was cross examined by Ld. Counsel for the defendant. During cross examination of the witness, she was also shown the copy of the mortgage deed stated to be executed by her husband in favour of the defendant in respect of the suit property. The said deed is exhibited as Ex. PW1/DX1. The plaintiff did not examine any other witness. PE was closed vide order dated 22.10.2022 at the request of Ld. Counsel for the plaintiff.
7. Defendant examined himself as DW1. He tendered his affidavit in evidence as Ex.DW1/A. He has reiterated the CS DJ No. 283/2019 CNR No. DLST010028552019 Page 10 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta facts stated in the Written Statement. He relied upon the already exhibited document i.e. Ex.PW1/DX1 (colly).
8. Defendant further examined Sh. Kailash Chand Meena as DW2. He has deposed regarding execution of the mortgage deed Ex. PW1/DX1 (Colly) in his presence. He would depose, interalia, that on 20.12.2010, Sh. Naresh Gupta called him at his home. Sh. Rajesh Gupta, husband of the plaintiff and Mr. Ram Vilas were already present there. He came to know that Mr. Naresh Gupta was advancing loan of Rs. 11,50,000/ to Sh. Rajesh Gupta. All of them had counted the rupee notes and the amount was finally handed over to Sh. Rajesh Gupta in their presence. It was agreed between Rajesh Gupta and Naresh Gupta that they will execute a Mortgage Deed within a day or two. A mortgage deed dated 24.12.2010 was prepared, signed and executed by Sh. Rajesh Gupta and Sh. Naresh Gupta against the loan of Rs. 11,50,000/ in his presence. He had witnessed the said mortgage deed along with another witness Sh. Ram Vilas. He has identified his signatures on the said document.
9. DW1 and DW2 were duly cross examined by Ld. Counsel for the plaintiff. DE was closed on 21.03.2023 at the CS DJ No. 283/2019 CNR No. DLST010028552019 Page 11 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta request of Ld. Counsel for the defendant.
10. Ld. Counsel for the plaintiff would argue that the plaintiff has proved her case as per law. She has shown that she is the rightful owner of the suit property on the basis of a GPA executed by her husband in her favour. The defendant is a tenant in the suit property at a monthly rent of Rs. 7,600/ per month excluding electricity and water charges. The tenancy was oral tenancy. The defendant has failed to prove any right of ownership in the suit property, therefore, the case of the plaintiff stands proved. The defendant has taken a false defence that the property was mortgaged by the husband of the plaintiff for a sum of Rs. 11,50,000/. He has not examined husband of the plaintiff to prove the said fact. The original documents are still in possession of the plaintiff. The alleged mortgage deed is a forged and fabricated document. There is no proof of the alleged payment of Rs. 11,50,000/ to the husband of the plaintiff. The defendant has admitted in his cross examination that he had never seen the original documents of the suit property. DW2 is an interested witness produced by the defendant. His testimony is not believable. In his cross examination, DW2 has admitted that the CS DJ No. 283/2019 CNR No. DLST010028552019 Page 12 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta defendant was a tenant in the suit property. Hence, the plaintiff has proved that she is the owner and the defendant is the tenant in the suit property. The defendant has not brought any evidence to rebutt the statement of the plaintiff that the rent of the suit property is Rs. 7,600/ per month. Therefore, the plaintiff has proved the rent to be Rs. 7,600/ per month. The defendant has not paid the rent since May 2013 and he is illegally occupying the suit property since then. The plaintiff has proved that she had served a legal notice dated 24.01.2019 terminating the tenancy and asking the defendant to vacate the suit property, to hand over the vacant possession and to clear the arrears of rent. However, the defendant has failed to do so. Therefore, the plaintiff is entitled to a decree of recovery of possession of the suit property by way of ejectment of the defendant. The plaintiff is also entitled to a decree of recovery of arrears of rent @ 7,600/ per month w.e.f. April 2016 to March 2019. The rent of similar property in the locality is Rs. 15,000/ per month. Therefore, the plaintiff is also entitled to mesne profits @ Rs. 15,000/ per month starting from March 2019 till possession is hand over. Hence, it is prayed that the suit may be decreed in favour of CS DJ No. 283/2019 CNR No. DLST010028552019 Page 13 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta the plaintiff and against the defendant.
11. Ld. Counsel for the defendant, on the other hand, would argue that the plaintiff has failed to prove her case against the defendant. The plaintiff has claimed herself to be the absolute owner of the suit property. However, there is no ownership document produced by the plaintiff in her favour. She has falsely alleged that the defendant is her tenant and that the rent of the suit property is Rs. 7,600/ per month. She has failed to lead any evidence to show that suit property was given on rent to the defendant by the plaintiff as averred by her. The plaintiff has no locusstandi to file the present suit against the defendant. The defendant, on the other hand, has proved that he had come in the possession of the suit property as the husband of the plaintiff had taken a loan of Rs. 11,50,000/ from him and mortgaged the suit property. He also executed a mortgage deed which is Ex. PW1/DX1. The document has been proved as per law by the testimony of the defendant as DW1 and the testimony of DW2. The plaintiff could have examined her husband to show that the mortgage deed was not executed by him. She has not examined her husband because the defendant has brought true facts before CS DJ No. 283/2019 CNR No. DLST010028552019 Page 14 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta the Court. The plaintiff is not the owner of the suit property. She has filed one unregistered power of attorney on record stated to be executed by her husband. Thus, the plaintiff also admits that her husband is the owner of the suit property. Therefore, she could not have filed this suit as owner of the suit property and it could have been filed only as attorney of her husband. The plaintiff has done so deliberately to avoid confrontation of her husband with the document mortgage deed Ex. PW1/DX1. Rather, she has claimed herself to be the absolute owner of the suit property. Thus, she has no locus standi to file the present suit. There is no evidence on record to prove tenancy between the parties. The Court must also consider the fact that the plaintiff has averred that the defendant did not pay the rent since May 2013. However, the present suit has been filed in May 2019. There is no explanation on record as to why the plaintiff waited for such a long period to file a suit for possession even though, the defendant was allegedly not making payment of rent for the last 6 years. The plaintiff did not take any legal action even after coming to know that the defendant has a mortgage deed of the suit property in his possession. It shows that the CS DJ No. 283/2019 CNR No. DLST010028552019 Page 15 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta plaintiff has made a false averment that the mortgage deed is a forged and fabricated document. She is well aware that the document is a valid document executed by her husband. The statement made by the DW2 has to be read along with his entire statement. It cannot be read in isolation. The plaintiff has failed to prove her case as per law. Hence, it is prayed that the suit may be dismissed.
12. I have heard the rival submissions and carefully perused the material on record. My issue wise findings are as hereinafter:
13. Issues No. 1 & 2- These issues are taken together as they require common discussion and they are interconnected. The issues read as under: "1. Whether the plaintiff has become the owner on the basis of the General Power of Attorney dated 17.08.2009? If so, its effect? OPP "2. Whether the Power of Attorney dated 17.08.2009 has been validly executed in favour of the plaintiff? OPP"
14. The plaintiff in the plaint and in her affidavit of evidence, Ex. PW1/A, has stated that she is the absolute owner of the property bearing no. D5/335, Gali No. 5, Sangam Vihar, New Delhi - 110062 measuring 100 sq. yds.CS DJ No. 283/2019
CNR No. DLST010028552019 Page 16 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta In support of the said averment, she has relied upon one general power of attorney Ex. PW1/2 (OSR) i.e. a GPA stated to be executed by Mr. Rajesh Kumar Gupta, husband of the plaintiff, in her favour.
15. The GPA Ex.PW1/2(OSR) is an unregistered document. However, it is shown to be notarized by a Notary Public. Section 85 of the Indian Evidence Act provides that the Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge / Magistrate, Indian Consul or Vice Consul, or representative of the Central Government, was so executed and authenticated. In the present case, the GPA Ex. PW1/2 is a power of attorney stated to be executed by the husband of the plaintiff in her favour and the same has been shown to be executed before and authenticated by a Notary Public. Nothing has come on record to prove otherwise. Therefore, it is proved that power of attorney Ex. PW1/2 dated 17.08.2009 has been validly executed by husband of the plaintiff in her favour. The issue no. 2 is accordingly decided in favour of the plaintiff.CS DJ No. 283/2019
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16. It is settled position of law that a person cannot become owner of immovable property on the basis of a power of attorney executed by the owner of such a property in favour of such a person. Section 5 of the Transfer of Property Act, 1882 (`TP Act' for short) defines `transfer of property' as under:
"5. Transfer of Property defined: In the following Sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself or to himself and one or more other living persons; and "to transfer property" is to perform such act."
"in this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals."
17. Section 54 of the TP Act defines `sale' thus:
"Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised. Sale how made. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he CS DJ No. 283/2019 CNR No. DLST010028552019 Page 18 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta directs, in possession of the property. Contract for sale.A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
18. Section 17 of the Registration Act provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs. 100 and upwards to or in immovable property. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights CS DJ No. 283/2019 CNR No. DLST010028552019 Page 19 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.
19. There is no such registered document in favour of the plaintiff shown to be executed by the owner of the property i.e. her husband or by any other person. It is also settled position of law, as mentioned under Section 54 of the TP Act, that there is no sale without consideration even CS DJ No. 283/2019 CNR No. DLST010028552019 Page 20 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta though, inadequacy of consideration cannot be a ground to challenge a sale of immovable property. In the present case, there is no document on record to show that any sale consideration was passed from the plaintiff to her husband or to any other person claiming to be the owner of the suit property.
20. The plaintiff has claimed herself to be the owner of the suit property on the basis of a General Power of Attorney stated to be executed by her husband in her favour. Hon'ble Supreme Court of India in Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 has discussed the scope of a power of attorney in respect to an immovable property. It has held as under:
"Scope of Power of Attorney "13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by CS DJ No. 283/2019 CNR No. DLST010028552019 Page 21 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
"Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powersof Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
"An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."
21. Thus, it is settled position of law that the term power of attorney (POA) refers to a legal authorization that gives a designated person the power to act for someone else. As such, a POA gives the agent or attorneyinfact the authority to act on behalf of the principal. However, it is not an CS DJ No. 283/2019 CNR No. DLST010028552019 Page 22 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him. Hence, I am of the considered opinion that in the present case, the plaintiff does not become the owner of the suit property on the basis of the general power of attorney (GPA) dated 17.08.2009 which is Ex. PW1/2 (OSR). The issue no. 1 is accordingly decided against the plaintiff.
22. Issue No. 7 & 8: These issues are taken together as they require common discussion. They are taken prior to other issues as findings of these issues shall help in deciding the other issues. The issues no. 7 and 8 read as under :
"7. Whether the defendant is in possession in terms of mortgage deed dated 24.12.2010? If so, its effect? OPD "8. Whether the mortgage deed dated 24.12.2010 is a forged and fabricated document? Onus on parties."
23. It has been argued by the Ld. Counsel for the defendant that the defendant had come in possession of the suit property in terms of mortgage deed dated 24.12.2010.
CS DJ No. 283/2019CNR No. DLST010028552019 Page 23 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta The plaintiff has denied the said averment. The plaintiff has averred that the mortgage deed is a forged and fabricated document while the defendant has averred that it is a valid mortgage deed.
24. I have considered the submissions and the material on record.
25. The defendant has brought the alleged mortgage deed on record as PW1/DX1 (colly). For the ready reference, the said document reads as under:
MORTGAGE DEED This Usufructuary Mortgage Deed is executed at New Delhi on this 24th day of Deember 2010. Mr. Rajesh Kumar Gupta S/o Shri Bhori Lal Gupta R/o D5/335, Sangam Vihar, New Delhi - 110062, the mortgagor of the one part in favor of Mr. Naresh Kumar Gupta S/o Shri Brij Mohan Gupta R/o D183, Gali No. 5, Sangam Vihar, New Delhi - 110062, the mortgagee of the other part.
1.Name of Mortgagor : Mr. Rajesh Kumar Gupta. 2.
Name of Mortgagee : Mr. Naresh Kumar Gupta. 3. Consideration amount : Rs. 11,50,000/ (Rupees Eleven Lacs Fifty Thousand Only). 4.Description of property: built up Property / house bearing No. D 5/335, measuring 100 sq.yds., in Khasra No. 1417 Situated at Block - D, Gali No. 5, Sangam Vihar, New Delhi - 110062. 5. Nature of document : All Original Document (GPA) of property bearing no. D 5/335, Sangam Vihar, New Delhi - 110062.
WHEREAS the mortgagor Mr. Rajesh Kumar Gupta is in need of money for personal use unavoidable personal obligations and has approached the said Mr. CS DJ No. 283/2019 CNR No. DLST010028552019 Page 24 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta Naresh Kumar Gupta, the mortgagee to advance Rs. 11,50,000/ on the security of the property / house described hereto above. NOW THIS DEED WITNESSES AS HEREUNDER (1) That the amount of Rs. 11,50,000/ was paid to the mortgagor on 20/12/2010. (2) That the total amount Rs. 11,50,000/ will be return within 01 year or before 20.12.2011 to mortgagee. (3)That this mortgage deed shall return in force for 01 year and within 01 year, the mortgagor shall return the whole amount to the mortgagee. When mortgage return amount to the mortgagee then mortgagee will return all property / house documents to the mortgage. (4) That if the mortgagor fails to pay the said entire amount within the period of 01 year then the mortgagee shall be entitled to get the ownership of the above said property / house transferred in his own name. (5) That the period of mortgage can be extended with mutual consent of both the parties. (6) That this mortgage deed shall remain in force for 01 year and within this period the aforesaid entire mortgage dues are to be fully paid. (7) That the mortgagor shall not hereafter encumber charge or do anything or cause to be done anything whereby the security of the said property / house is impaired. (8) That mortgagor will not sell the above property / house without paying the full payment without NOC from mortgagee and has approached the said Mr. Naresh Kumar Gupta, the mortgagee to advance Rs. 11,50,000/ on the security of the property / house described hereto above. NOW THIS DEED WITNESSES AS HEREUNDER That in pursuance of this agreement and in consideration of the sum of Rs. 11,50,000/ (Rupees Eleven Lacs Fifty Thousand Only) paid by the mortgagee to the mortgagor hereby covenant and bind as hereunder: (1) That the amount of Rs. 11,50,000/ was paid to the mortgagor on 20/12/2010. (2) That the total amount Rs. 11,50,000/ CS DJ No. 283/2019 CNR No. DLST010028552019 Page 25 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta will be return within 01 year or before 20.12.2011 to mortgagee. (3) That this mortgage deed shall return in force for 01 year and within 01 year, the mortgagor shall return the whole amount to the mortgagee. When mortgage return amount to the mortgagee then mortgagee will return all property / house documents to the mortgage. (4) That if the mortgagor fails to pay the said entire amount within the period of 01 year then the mortgagee shall be entitled to get the ownership of the above said property / house transferred in his own name. (5) That the period of mortgage can be extended with mutual consent of both the parties. (6) That this mortgage deed shall remain in force for 01 year and within this period the aforesaid entire mortgage dues are to be fully paid. (7) That the mortgagor shall not hereafter encumber charge or do anything or cause to be done anything whereby the security of the said property / house is impaired. (8) That mortgagor will not sell the above property / house without paying the full payment without NOC from mortgagee the terms mentioned herein before mentioned the morgagee shall have option to recover the full amount of said dues together and costs from the property or from the person of mortgagor. (10) That if the mortgagor fails to pay the said capital amount within 01 year then the Mortgagee shall be entitled to get ownership right of said property / house and possession of the said property / house. The Mortgagor shall be bound to execute necessary documents for transfer of the said Flat to the Mortgagee. If the Mortgagor refuses / neglects to transfer the said Flat in the name of the Mortgagee then the Mortgagee shall get the said property / house transferred in his name through the competent court of law through specific performance of agreement. The Mortgagee shall also be at liberty to recover the said amount through the competent court of law or through CS DJ No. 283/2019 CNR No. DLST010028552019 Page 26 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta other judicial process at the cost, risk and consequences of the first party. (11) That the said agreement shall bind the heirs, successors, executors, administrators or assigns of the mortgagor. IN WITNESS WHEREOF the said mortgagor has hereto signed on the day, month and year mentioned as above. Place: New Delhi Date:24.12.2010."
26. In starting of this document, words 'Usufructuary Mortgage Deed' have been used. However, perusal of this document would show that the document does not fulfill the conditions of a usufructuary mortgage. Section 58 of the Transfer of Property Act defines various terms in relation to mortgage including different types of mortgages prevalent in the country. It reads as under:
"Section 58. Mortgage, mortgagor, mortgagee, mortgagemoney and mortgage deed defined. "(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being arc called the mortgagemoney, and the instrument (if any) by which the transfer is effected is called a mortgage deed.
"(b) Simple mortgage. Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgagemoney, and agrees, expressly or impliedly, that, in the event of CS DJ No. 283/2019 CNR No. DLST010028552019 Page 27 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgagemoney, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. "(c) Mortgage by conditional sale. Where the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
"(d) Usufructuary mortgage. Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgagemoney, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. "(e) English mortgage. Where the mortgagor binds himself to repay the mortgagemoney on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re transfer it to the mortgagor upon payment of the mortgagemoney as agreed, the transaction is called an CS DJ No. 283/2019 CNR No. DLST010028552019 Page 28 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta English mortgage.
"5[(f) Mortgage by deposit of titledeeds. Where a person in any of the following towns, namely, the towns of Calcutta, Madras and Bombay], and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of titledeeds.
"(g) Anomalous mortgage. A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of titledeeds within the meaning of this section is called an anomalous mortgage."
27. Section 59 of the Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of titledeeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. A usufructuary mortgage is where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage money. The mortgagee is also entitled to receive the rents and profits accruing from such property. In the present case, as the document would show, there is no mentioning of handing over of the possession of CS DJ No. 283/2019 CNR No. DLST010028552019 Page 29 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta the suit property by the mortgagor to the mortgagee. Even the defendant has not averred that the possession was handed over to him at the time of execution of the said document alleged ot be mortgage deed. The defendant in his Written Statement, in para 3 of the para wise reply on merits, has stated as under:
"3. .... It is submitted that in the month of December 2010, the husband of plaintiff owner of suit property namely Sh. Rajesh Kumar Gupta approached the Defendant and asked for a loan of Rs.15,00,000/. The defendant, being neighbour of the plaintiff's husband agreed to give him loan but he was having only Rs.11,50,000/ at that time, so he lent out that amount for a year on 20.12.2010. The husband of the plaintiff Sh. Rajesh Kumar Gupta mortgaged the "suit property" bearing no.D5/335, Sangam Vihar, New Delhi110062. An agreement dated 24/12/2010 was signed and executed by the defendant and husband of the plaintiff. As per the agreement the husband of the defendant could not pay back the amount till 20/12/2011, so he gave possession of ground floor to the defendant in the month of January 2012 and further promised to either pay back the loan amount alongwith 24% p.a. or will handover the whole property to the defendant as soon as he makes some arrangements for residence of his family...."
28. Thus, even as per the averments made by the defendant, he had not obtained possession at the time of execution of the said document but after one year of giving the alleged loan. Therefore, the alleged mortgage does not CS DJ No. 283/2019 CNR No. DLST010028552019 Page 30 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta appear to be a usufructuary mortgage.
29. The alleged mortgage deed is also not a mortgage by deposit of title deeds. Even though the document Ex,PW1/DX1(colly), alleged to be a mortgage deed, contains at page 1 of the document at point no.5. 'Nature of document: All original document (GPA) of property bearing no.......; and it also contains at page 2 point no.3 that "when mortgage(sic) return amount to the mortgagee then mortgagee will return all property/house documents to the mortgage." However, the record would show that the defendant was not in possession of any of the documents of the property in question. All the original documents of the suit property have been filed in the Court by the plaintiff. The defendant in his cross examination as DW1 has admitted that he had never seen the original title deed of the suit property. In such circumstances it can be safely held that the alleged mortgage is not a mortgage by deposit of title deeds.
30. Perusal of the document Ex.PW1/DX1 (colly) would show that it can be considered to be a simple mortgage deed. Now, admittedly, this document is an unregistered document. Section 59 of the Transfer of Property Act requires CS DJ No. 283/2019 CNR No. DLST010028552019 Page 31 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta registration of all types of mortgage deeds, except mortgage by deposit of title deeds, if the principal money if Rs.100 or more. It reads as under:
"59. Mortgage when to be by assurance. Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of titledeeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
"Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property."
31. Section 17 of the Registration Act also requires registration of such a document. Further Section 49 of the Registration Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. As already discussed, the alleged mortgage deed Ex. PW1/DX1 is an unregistered document and therefore, it cannot be considered in evidence. Therefore, this document cannot be allowed to be used as a document in evidence to prove creation of any mortgage over the suit property by the husband of the plaintiff in favour of the defendant. Be that as CS DJ No. 283/2019 CNR No. DLST010028552019 Page 32 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta it may, as already discussed, even otherwise, this document does not contain any averment to the effect that the defendant had obtained the possession of the suit property at the time of advancing the alleged loan to the husband of the plaintiff. The averment of the defendant is not proved from the record also. Hence, issue no. 7 is accordingly decided against the defendant.
32. There is nothing on record to show that the mortgage deed dated 24.12.2010 is a forged and fabricated document. However, in view of the findings of issue no.7 that the document cannot be considered in evidence being an unregistered document, the Court is not required to give any findings on issue no.8.
33. Issue No. 4: This issue reads as under :
"4. Whether the plaintiff and her husband Sh. Rajesh Kumar Gupta have no right to claim possession for without payment of the money advanced as a loan in a mortgage deed dated 24.12.2010? OPP"
34. It has been held while deciding issue no. 7 that the document Ex. PW1/DX1 cannot be read in evidence as it is unregistered document and that it does not prove creation of CS DJ No. 283/2019 CNR No. DLST010028552019 Page 33 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta any mortgage ove the suit property. Therefore, the defendant cannot retain the possession of the suit property on the basis of his claim that he has a right to remain in possession unless the loan is repaid by the husband of the plaintiff. The issue is accordingly decided against the defendant.
35. Issues no. 3, 5 and 6 : These issues are taken jointly as they require common discussion. The issues read as under :
"3. Whether the defendant has been inducted as a tenant by the plaintiff in the suit premises and whether there is a relationship of landlady and tenant between the plaintiff and defendant? OPP"
"5. Whether the plaintiff has locus to file the present suit? OPP "6. Whether no cause of action accrued in favour of the plaintiff for filing the suit? OPD"
36. The plaintiff has averred in the plaint and in her affidavit of evidence that in June 2010, the defendant had approached her to take the suit property on rent @ Rs. 7,600/ per month excluding electricity and water charges. The tenancy is stated to be oral as the defendant and the husband of the plaintiff were having good friendly relations for last many years.
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37. It is an admitted fact that the defendant is in possession of the suit property. However, the defendant has denied the averments made by the plaintiff. He has stated that the plaintiff is not the owner of the suit property and that he never entered into an agreement of rent with the plaintiff or her husband and therefore, there is no question of any rent being paid by him in respect of the suit property.
38. There is no evidence on record, except the self serving statement of the plaintiff, that the defendant is her tenant in the suit property. Self serving statement of the plaintiff is not sufficient to prove the said fact.
39. Ld. Counsel for the plaintiff, during arguments, has relied upon a certain portion of the cross examination of the DW2 to submit that DW2 has admitted that the defendant is a tenant in the suit property. The relevant portion reads as under:
"...It is correct that defendant Naresh Gupta took the ground floor of plaintiff on rent in June 2010. (Vol. Naresh Gupta took the possession of ground floor of the plaintiff's house in the year 2012). I can not say whether the suit property i.e. the ground floor of the house of the plaintiff was taken by the defendant at a monthly rent of Rs.7600/."
40. The testimony of witness DW2 has to be read as CS DJ No. 283/2019 CNR No. DLST010028552019 Page 35 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta whole to understand the meaning of his statement. The witness was suggested that the defendant had taken the suit property on rent in June 2010. while he admitted the first part he voluntarily stated that the possession of the suit property was taken by the defendant in the year 2012. This statement of the witness corroborates the averment of the defendant that he had come in possession of the suit property in the year 2012. However, the plaintiff has claimed that she had inducted the plaintiff as tenant in the suit property in June 2010. Thus, statement of the witness falsify the claim of the plaintiff. The witness does not know what was the rent of the suit property and therefore it also does not prove the claim of the plaintiff that the suit property was given on rent @ Rs.7600/ p.m. As the rent is not proved on record, the defendant can at best be considered a permissive user of the husband of the plaintiff in the suit property and not a tenant. Therefore, the statement of the DW2 can be of no assistance to the plaintiff.
41. Perusal of the record would show that the defendant has admitted that he had obtained the possession of the suit property from the husband of the plaintiff in January 2012.
CS DJ No. 283/2019CNR No. DLST010028552019 Page 36 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta His claim is that he had obtained the possession against the mortgage deed Ex. PW1/DX1 (Colly) when the husband of the plaintiff failed to repay the loan amount. However, as already discussed, the said document Ex. PW1/DX1 (Colly) is of no assistance to the defendant, as the said document, in the absence of registration, does not create any right in favour of the defendant as required under Section 59 of the Transfer of Property Act, 1882.
42. The plaintiff has failed to prove her ownership to the suit property. The material on record has also proved that she is not the owner of the suit property. She has a power of attorney shown to be executed by her husband in her favour. So at best she could act as attorney of her husband. As already discussed, the GPA Ex. PW1/2 does not create any rights of ownership in favour of plaintiff of the suit property. She has failed to prove that she had inducted the defendant as a tenant in the suit property in the year 2010 as claimed by her.
43. In view of the discussion hereinabove, I hold that the plaintiff has failed to prove that she had inducted the defendant as a tenant in the suit premises. Thus she has failed CS DJ No. 283/2019 CNR No. DLST010028552019 Page 37 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023 Smt. Anita Gupta Vs. Sh. Naresh Gupta to prove that there existed relationship of landlord - tenant between her and the defendant. Therefore, she has no locus to file the present suit and no cause of action accrues in favour of the plaintiff. Issues no. 3, 5 and 6 are accordingly decided against the plaintiff and in favour of the defendant.
44. Issue No. 9 Relief: In the light of the discussion hereinabove, I hold that the plaintiff is not entitled to any relief. The suit of the plaintiff is dismissed. The parties shall bear their own cost.
45. The decree sheet be prepared accordingly.
Pronounced in the open Court on this 14th day of August 2023 (DINESH KUMAR) ADDL. DISTRICT JUDGE02 SOUTH, SAKET COURTS, NEW DELHI.
Digitally signed by DINESHDINESH KUMAR Date: KUMAR 2023.08.14 12:39:43 +0530 CS DJ No. 283/2019 CNR No. DLST010028552019 Page 38 of 38 Dinesh Kumar/ADJ02/South/Saket/ND/14.08.2023