Delhi District Court
Rajeev Kapoor vs Jagdeep Kapoor & Ors on 13 August, 2018
IN THE COURT OF MS. VANDANA JAIN, LD. ADDITIONAL DISTRICT
JUDGE07, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
CS no. 9109/16
Rajeev Kapoor Vs Jagdeep Kapoor & Ors
In the matter of :
Rajeev Kapoor S/o Late Sh. P.R.Kapoor
R/o D9, 2nd Floor, Kailash Colony,
New Delhi110048
................plaintiff
Versus
1. Jagdeep Kapoor S/o Late Sh. P.R.Kapoor
R/o D9, Ground Floor, Kailash Colony,
New Delhi110048
2. Sh. Sudesh Kapoor W/o Sh. Jagdeep Kapoor
R/o D9, Ground Floor, Kailash Colony,
New Delhi110048
3. Khushi Kapoor (Minor)
Through Natural Guardian
D/o Jagdeep Kapoor
R/o D9, Ground Floor, Kailash Colony,
New Delhi110048
.............Defendants
Date of institution: 10.09.2013
Date of pronouncement of order : 13.08.2018
Rajeev Kapoor Vs Jagdeep Kapoor & Ors 1/15
JUDGMENT
1. By this judgment, I shall dispose off two cross suits filed by two brothers against each other. The former suit titled as Rajeev Kapoor Vs Jagdeep Kapoor is for possession and permanent injunction with respect to ground floor of property bearing number D9, Kailash Colony, New Delhi. The second suit titled as Jagdeep Kapoor Vs Rajeev Kapoor is filed by Jagdeep Kapoor against Rajeev Kapoor challenging the registered gift deed dated 12.07.2002 executed by the mother of the parties in favour of Rajeev Kapoor and for getting it declared as null and void and consequential relief of injunction, not to use this registered gift deed.
Facts of the first suit:
2. The brief facts as adumbrated in brief in the first suit are that plaintiff is the absolute owner of ground floor and second floor of the property bearing number D9, Kailash Colony, New Delhi and defendant no.1 (now deceased, real brother of the plaintiff) is in illegal occupation of the ground floor of the property bearing number D9, Kailash Colony, New Delhi (hereinafter referred to as 'suit property'). The present suit is for possession of the suit property and a consequential relief of permanent injunction. Defendant no.2 and 3 are the wife and adopted daughter of defendant no.1 and 2. Since defendant no.1 has expired, the legal heirs i.e. defendant no.2 and 3 are contesting the suit, being the only legal representatives.
3. It is alleged in the plaint that the property as stated above was purchased by Kailashwati, mother of plaintiff and defendant no.1, in the year 1959 by way of registered sale deed and at that time it was a single storey structure with a partly constructed first floor. Subsequently first floor and second floor were Rajeev Kapoor Vs Jagdeep Kapoor & Ors 2/15 constructed.
4. By way of registered gift deed dated 12.07.2002, Kailashwati had transferred the ground floor i.e. the suit property in favour of plaintiff. A gift deed of same date was executed by Kailashwati in favour of another son Mr. Pawan Kapoor (with respect to first and second floor along with terrace of the abovesaid property).
5. It is averred that Pawan Kapoor (bachelor) expired on 27.12.2008 leaving behind three legal heirs i.e. three siblings, the plaintiff, defendant no.1 and one sister Kanchan Ahuja. By way of a relinquishment deed duly registered dated 19.02.2009, Mrs. Kanchan Ahuja and defendant no.1 relinquished their one third share each in the second floor of the said property in favour of the plaintiff. Similarly, by way of another relinquishment deed duly registered dated 19.02.2009, Mrs. Kanchan Ahuja and plaintiff relinquished their one third share each in the first floor of the said property in favour of defendant no.1 and he was also given amount of Rs.2.80 lacs available in the bank account of Pawan Kapoor.
6. The plaintiff became the owner of the ground floor by virtue of a gift deed executed by his mother in his favour and that of second floor by the aforesaid relinquishment deed. He permitted defendant no.1 to reside on the ground floor i.e. the suit property and use the same for his residence since the first floor was in the occupation of a tenant and defendant no.1 promised that he and his family would shift to the first floor and vacate the ground floor.
7. The first floor was rented out to one Bani Brata Ghosh by defendant no.1 Rajeev Kapoor Vs Jagdeep Kapoor & Ors 3/15 by way of lease agreement on 01.04.2011 for a period of eleven months which was again renewed for a further period of eleven months and was again renewed for a period of four months till 31.05.2013, who is still in occupation of first floor. Defendant no.1, against the wishes of plaintiff rerented the first floor to the tenant for the third time and failed to keep his promise of handing over the possession of ground floor back. The suit property already stands mutated in favour of plaintiff by virtue of mutation dated 23.05.2003 and he has been regularly paying property tax with respect to ground and second floor. Despite repeated requests the defendants have failed to vacate the suit property and hence, this suit.
8. Summons of the suit were sent on which defendants appeared and filed a joint WS stating that the gift deed dated 12.07.2002 is void as the plaintiff had manipulated their mother and tricked her to enter into the gift deed qua the ground floor as she was not in a perfect state of mind at the time of entering into the alleged gift deed.
9. It is further averred that there existed an oral family settlement that after the demise of Mr. P.R.Kapoor (father of plaintiff and defendant no. 1) in 1999 that the eldest brother that is Mr. Pawan Kapoor shall be the registered owner of the first and the second floor and Smt. Kailash Wati (mother) shall be the owner of the ground floor of the property. Whereas the plaintiff would be entitled to be in the possession of the second floor, Mr. Pawan Kapoor shall be in the possession of the first floor and defendant no.1 would be entitled to be in the possession of the ground floor of the suit property along with the mother. Therefore in this regard on 12th July 2002, the registration of gift deed qua the eldest brother was supposed to happen but the plaintiff tricked the mother as Rajeev Kapoor Vs Jagdeep Kapoor & Ors 4/15 well as the elder brother and got the relevant documents signed under a false pretext and got the alleged gift deed in his favour qua the suit property.
10. It is further stated that this fact of execution of alleged gift deed was never disclosed either to the defendants or to other legal heirs of Smt. Kailashwati and the defendants have come to know about the same only on receiving the summons of this suit. It is stated that plaintiff can only claim upto one third share as a surviving legal heirs of Smt. Kailash Wati after she has expired.
11. It is further stated that the plaintiff was never in the possession of the suit property since beginning and it is wrongly mentioned in the gift deed that the plaintiff is already in possession of the suit property.
12. It is further submitted that the suit is barred by limitation as the defendants is in possession of suit property since 1959, as he was living with his mother on the ground floor since beginning. It is further stated that the alleged gift deed was never known to defendant no.1 or to Kanchan Ahuja.
13. It is further stated that the defendant has also challenged the mutation order done by SDMC in favour of plaintiff dated 23.05.2003. It is further stated that the defendant has become the owner of suit property by virtue of adverse possession since 1959.
14. All allegations with respect to assuring the plaintiff to vacate the ground floor after vacation of first floor by the tenant are denied. It is averred the suit of plaintiff is false and frivolous and is liable to be dismissed.
Rajeev Kapoor Vs Jagdeep Kapoor & Ors 5/15
15. Replication to the written statement of the defendant was filed by the plaintiff wherein the contents of the plaint were reiterated and the averments made in the written statement were denied.
Facts of the second case:
16. The facts given in the second suit filed by Jagdeep Kapoor against his brother Rajeev Kapoor are same as given in the written statement filed by him in the first suit filed by his brother Rajeev Kapoor against him. Since the written statement of the first suit has already been produced above, the facts are not being repeated herein for the sake of brevity. Similarly, the contents of the written statement filed by Rajeev Kapoor in this case are similar to the contents of the plaint filed by him in his suit i.e. first case and are not again repeated for the sake of brevity.
17. After completion of pleadings, following common issues were framed in the 1st case:
1. Whether the plaintiff is the absolute owner of the suit property being the ground floor of property bearing no.D9, Kailash Colony, New Delhi?OPP
2. Whether the gift deed dated 12.07.2002 executed in favour of the plaintiff by the mother of the parties is null and void? OPD
3. Relief.
18. Following issues were framed in 2nd suit.
19. Thereafter, the evidence was recorded in common in both cases and Rajeev Kapoor Vs Jagdeep Kapoor & Ors 6/15 Rajeev Kapoor was given an opportunity to lead evidence first. Plaintiff examined six witnesses.
20. PW1 is Rajeev Kapoor plaintiff himself.
21. PW2 is Kanchan Ahuja, sister of plaintiff and defendant no.1.
22. PW3 is Swaran Singh, one of the attesting witness to the gift deed 12.07.2002.
23. PW4 is Bir Singh, from assessment and collection department, SDMC, who proved the house tax receipts with respect to the suit property and mutation order dated 19.08.2013 in favour of Rajeev Kapoor.
24. PW5 is Rajeev Mehto from Punjab & Sind Bank, who proved the statement of account of Mr. Pawan Kapoor and disbursement report dated 13.10.2009 with respect to amount of Rs.2,72,510.90/, transferred from the account of Pawan Kapoor in the account of Jagdeep Kapoor.
25. PW6 is Dheeraj Kumar, record keeper from SubRegistrar V, Mehrauli, who produced the original gift deeds dated 12.07.2002, one in favour of Pawan Kapoor and another in favour of plaintiff Rajeev Kapoor.
26. All the witnesses were cross examined by the opposite counsel or were given opportunity to cross examine.
27. Thereafter, the defendant Jagdeep Kapoor examined himself in support Rajeev Kapoor Vs Jagdeep Kapoor & Ors 7/15 of his defence raised in first suit and in support of his averment made in the second suit. Thereafter, DE was closed.
28. I have heard the final arguments on behalf of both parties in both the suits and carefully perused the records.
29. Ld. Counsel for plaintiff has argued that the plaintiff has become the sole owner of the ground floor of the property bearing number D9, Kailash Colony by virtue of a gift deed dated 12.07.2002 executed by his mother in his favour and has got the same mutated in his favour on 23.05.2003. It is further argued that the plaintiff had given the possession of the ground floor of the property to the defendant in February 2009 with a permission to live on the same as first floor was in occupation of the tenant and defendant no. 1 promised that as soon as the tenant would vacate the ground floor, he and his family would shifted to the first floor and would vacate the ground floor.
30. It is further argued that the first floor was rented out to the tenant w.e.f.
01.04.2011 vide Lease Agreement of eleven months which were again renewed for further eleven months and thereafter, again renewed for period of four months. It is argued that defendant no. 1 is forcibly ocupying the ground floor as he is continue only receiving the rent from the first floor. It is argued that he is entitled to get back the possession of suit property.
31. On the other hand, Ld. Counsel for the defendant has argued that the gift deed relied upon by the plaintiff is null and void as it was got registered through the mother of the parties by playing fraud upon her. It is argued that before filing of this suit, the defendant was not even aware about the execution Rajeev Kapoor Vs Jagdeep Kapoor & Ors 8/15 of this registered gift deed in favour of the plaintiff. It is further argued that an oral settlement had taken place after the death of the father of the plaintiff and defendant no. 1 between the mother, two brothers and sister Kanchan Ahuja and their brother Pawan Kapoor would be the sole owner of first and second floor and defendant no. 1, plaintiff, Kanchan Ahuja (sister), Kailashwati (mother) would have 1/4th share each in the ground floor of the property. It is further argued that the plaintiff was in possession of the second floor and defendant no. 1 was in possession of the ground floor alongwith his mother, Pawan Kapoor was in possession of first floor.
32. It is further argued that after the death of his brother Pawan Kapoor in the December 2008, another family settlement took place whereby plaintiff and Kanchan Ahuja relinquished their share in favour of defendant no. 1 with respect to first floor of the property and he became an absolute owner of the same and similarly defendant no. 1 and Kanchan Ahuja relinquished their share in favour of plaintiff with respect of the 2 nd floor of the suit property and therefore, plaintiff became the owner of the second floor.
33. The ground floor was owned by all the three parties i.e. plaintiff, defendant no. 1 and Kanchan Ahuja. It is stated that signature of the mother on the alleged gift deed have been taken on the pretext that it was pertaining to the elder brother Pawan Kapoor and therefore, the same be declared as null and void, as claimed by the defendant in his cross suit.
34. I shall decide the issues in the main suit first which would itself decide the issues of the cross suit filed by the defendant herein against the plaintiff, both being inter connected. Both the issues in the main suit are taken up Rajeev Kapoor Vs Jagdeep Kapoor & Ors 9/15 together.
1. Whether the plaintiff is the absolute owner of the suit property being the ground floor of property bearing no.D9, Kailash Colony, New Delhi?OPP
2. Whether the gift deed dated 12.07.2002 executed in favour of the plaintiff by the mother of the parties is null and void? OPD
35. The onus to prove the issue no. 2 was the defendant and onus to issue no.
1 was upon the plaintiff. In order to prove issue no. 1, plaintiff has examined PW6 i.e. Record Keeper from Sub Registrar office who has duly proved the registration of the gift deed dated 12.07.1982 in his favour with respect to the ground floor of the said property and another gift deed duly registered on the same date i.e. 12.07.2002, with respect of the first and second floor of the said property in favour of Pawan Kapoor. In order to prove the gift deed, section 123 of Transfer of the Property Act 1882 provides that for the purpose of making the gift deed for immovable property, the transfer must be effected by the registered instrument signed by and on behalf of the donor and attested by atleast two witnesses. Here on persuing the gift deed on the fact of it, the contents appears to have been satisfied. Gift deed has been registered. It has been signed by donor Smt. Kailashwati and has been attested by two witnesses.
36. PW3 is Sh. Swaran Singh, one of the attesting witness of the gift deed.
He has stated that he had appended signature to the registered gift deed at the asking of the donor on payment of some amount/consideration. In this regard, Ld counsel for defendant has taken an objection the gift deed is not proved as attesting witness has not identified his signatures or that of donor on the gift Rajeev Kapoor Vs Jagdeep Kapoor & Ors 10/15 deed.
37. As a matter of fact, gift deed and the signatures thereon were not shown to the witness as is clear from his testimony and therefore, his testimony can not be read. However, order to deal with this argument, it is stated that from the perusal of the record, it is gathered that defendant no. 1 had not disputed the execution of the gift deed by the mother Kailashwati in favour of the plaintiff with respect of the ground floor. Section 58 of Indian Evidence Act provides that facts which are admitted need not be proved. Execution of gift deed is not in disute. However, the objections is that the plaintiff had manipulated the mother or had played fraud upon her by saying that gift deed which she was allegedly executing was with respect of first and second floor in favour of their brother Pawan Kapoor and not of the ground floor in favour of plaintiff. It is pertinent to mention here that the gift deed executed on the same date before the Sub Registrar office at the same time with respect to first and second floor of the property in favour of Pawan Kapoor is not disputed by the defendant. It is also worthwhile to note here that both the gift deed have been registered one after the other and registration of the gift deed in favour of plaintiff was prior in time than that of Pawan Kapoor.
38. The only defence taken by the defendant is that the plaintiff had played fraud upon the mother or that he had tricked her. During his cross examination, he was put specific question with respect to the same and he replied that he had stated so as his mother used to say that he had a share in the gift deed alongwith his sister and brother. He was again put a question as to how did he say that the gift deed executed by his mother was not out of her free will and consent to which he gave the same answer as above. He was also asked about Rajeev Kapoor Vs Jagdeep Kapoor & Ors 11/15 the state of mind of the mother as in the WS he has also alleged that his mother was not keeping well and was not in a good state of mind to which he had replied that she was suffering from cancer and that is why she was not in a good state of mind. It is common knowledge that the person suffering from Cancer and under going the chemotheraphy can not said to be mentally unfit or not in a state of mind to think rationally. It is only a disease which affects the health of a person unless otherwise proved. It is not pleaded or proved, that due to cancer, she was not able to think rationally or was not in a sound state of mind. This averment of defendant is apparently false for the reason that the gift deed executed by the mother in favour of another brother on the same date is admitted to be rightly executed whereas the gift deed in favour of the plaintiff herein executed by the mother is assailed on the ground of mother being unwell. The defendant can not be allowed to approbate and reprobate at the same time. Further, defendant had relied upon the oral settlement arrived between the mother Kailashwati, two brothers and sister after death of father. As per the settlement the defendant no. 1, plaintiff Kanchan Ahuja and Kaialshwati was to get 1/4th share each in the ground floor. It is admitted by defendant no. 1 in his cross examination that the two other siblings who were alive at the date of alleged oral settlement were not made part of the same and therefore, this plea of oral settlement can not survive, as all the siblings were not party to the same. Even otherwise PW2 Sister Kanchan Ahuja who was stated to be party to a oral settlement has completly denied the same as is clear from her affidavit of evidence, that no such oral settlement has ever taken place. As against the averment of the defendant, she has also stated that she was aware of the registration of the gift deed in favour of plaintiff with respect of the ground floor before filing of this suit, therefore, PW2 had demolished the defence of the defendant with respect to the oral settlement.
Rajeev Kapoor Vs Jagdeep Kapoor & Ors 12/15
39. Further , defendant no. 1 has admitted that plaintiff had been paying house tax with respect to the ground floor of the said property. It is also stated by him during evidence that he does not have any document to show that he is the owner of the ground floor. The suggestion has been put to the plaintiff during his cross examination that defendant no. 1 had become the owner of the ground floor of the property by way of adverse possession. At one point, the defendant had claimed that he is entitled to 1/4th share in the ground floor being the co owner and on the other hand, he claims right in the property claiming that he has become owner by way of adverse possession. Both the pleas are mutually destructive and could not be set up together. This very fact demolishes the entire defence of the defendant.
40. Further, it has come on record that wife of one of the brother of plaintiff defendant no. 1, after his death, had filed a probate case against the other family members in wich the plaintiff defendant no. 1, Pawan Kapoor and mother Kaialsh Wati had filed the written statement which was duly signed by defendant no. 1 wherein it was acknowleged that plaintiff was the owner of the ground floor by virtue of gift deed. The defendant had admitted the signature on the written statement however the contents of the written statement were denied on account of lack of knowlege and it was pleaded by Ld counsel for the defendant that written statement was not accompanied with affidavit of defendant no. 1 and the vakalatnama authorising the advocate to file written statement was not signed by defendant in that case.
41. The defendant no. 1 was not an illiterate person and as per his affidavit and the cross examination, he had worked in several companies meaning Rajeev Kapoor Vs Jagdeep Kapoor & Ors 13/15 thereby he was aware of the significance of his signature appended on any document. Since he had admitted his signature on the WS , the other pleas with respect to non signing of vakalanama by him and non presence of his affidavit alongwith the written statement are inconsequential. This WS shows that he was aware of the execution of the gift deed in favour of the plaintiff since March 2003. In view of the aforesaid findings given above , it is proved that the duly registered gift deed was executed by the mother of plaintiff/defendant no.1 in favour of plaintiff on 12.07.2002 making him absolute owner of the ground floor of the property bearing no. D9, Kailash Colony, therefore, issue no.1 is decided in favour of plaintiff and against the defendant and issue no. 2 is decided in favour of plaintiff and against defendant.
42. In view of both findings of both these issues , issue no. 1 and 2 in the cross suit are decided against Jagdeep Kapoor, who is plaintiff therein.
Relief 1.
43. In the suit titled as Rajeev Kapoor Vs Jagdeep Kapoor , the decree of possession with respect of suit property i.e. ground floor of D9, Kailash Colony, New Delhi is passed in favour of plaintiff and against the defendants. Defendant are directed to vacate the suit property within two months from the date of judgment.
Relief II
44. Defendants are restrained from creating any third party interest in the suit property.
45. The suit of plaintiff Rajeev Kapoor is decreed in aforesaid terms.
Rajeev Kapoor Vs Jagdeep Kapoor & Ors 14/15
46. Cross suit filed by the defendant Jagdeep Kapoor is dismissed, relief therein are declined.
47. No order as to costs in both the cases.
48. Decree sheeet be prepared in both the cases.
49. Files be consigned to record room. Digitally signed by VANDANA VANDANA JAIN Announced in the open court JAIN Date:
2018.08.14 on 13.08.2018 15:16:03 +0500 (VANDANA JAIN) ADDITIONAL DISTRICT JUDGE07/ SOUTH EAST DISTRICT/SAKET COURTS/ NEW DELHI/13.08.2018 Rajeev Kapoor Vs Jagdeep Kapoor & Ors 15/15