Delhi District Court
Sh. Tej Bhan Singh vs Late Dharam Raj on 19 April, 2018
IN THE COURT OF SHRI NARESH KUMAR LAKA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST,
SAKET COURTS, NEW DELHI
CS No. 11218/16
1.Sh. Tej Bhan Singh S/o. Late Sh. Dariya Singh R/o. 44, Ram Puri Harijan Basti, Kalkaji, New Delhi
2. Smt. Raj Rani D/o. Late Sh. Dariya Singh R/o. 44, Ram Puri Harijan Basti Kalkaji, New Delhi ..... Plaintiffs V E R S U S
1. Late Sh. Dharam Raj through Legal Representatives:
1A. Smt. Sunita Kumari
W/o. Late Sh. Dharam Raj
R/o. 44, Ram Puri Harijan Basti, Kalkaji, New Delhi 1B. Smt. Geeta W/o. Late Sh. Dharam Raj R/o. H.No. 203, Balmiki Mohalla, Village Tekhand, New Delhi20 1C. Smt. Savita D/o. Late Sh. Dharam Raj R/o. 7/77, Type1, Panchkuiya Road, R.K. Ashram Lane NDMC Center, Delhi01 1D. Smt. Pooja D/o. Late Sh. Dharam Raj R/o. 44, Ram Puri Harijan Basti, Kalkaji, New Delhi CS No.11218/16 Page No. 1 of 17 Tej Bhan Singh Vs. Late Dharam Raj
2. Sh. Dilbagh Singh, S/o. Late Sh. Dariya Singh R/o. 44, Ram Puri Harijan Basti, Kalkaji, New Delhi ..... Defendants Date of Institution : 19.09.2014 Arguments concluded : 12.04.2018 Date of decision : 19.04.2018 Result : Decreed SUIT FOR DECLARATION, CANCELATION, PARTITION, PERMANENT AND MANDATORY INJUNCTIONS J U D G M E N T Suit in brief It is the case of the plaintiff that Sh. Dariya Singh (father of the plaintiffs and defendant no. 1) was the owner/lessee of the property bearing no. 44, Rampuri, Harijan Basti, Kalkaji, New Delhi (suit property) and said Dariya Singh and his wife already expired and dispute arose between the legal heirs. The plaintiff no. 1 and defendant no. 1 and 2 are brothers and plaintiff no. 2 is their sister. The defendant no. 1 already expired and present suit was filed through his legal representatives.
2. The plaintiffs claimed that the defendant no. 1 was the eldest brother and on account of his dominating position in the family, he got registered one relinquishment deed dated 19.09.1981 from the plaintiffs and defendant no. 2 and subsequently the conversion of the CS No.11218/16 Page No. 2 of 17 Tej Bhan Singh Vs. Late Dharam Raj suit property as well as mutation took place in the name of defendant no. 1 only on the basis of said relinquishment deed which were got registered fraudulently. It is also specifically claimed that both of the plaintiffs were minors at the time of registration of the said relinquishment deed and as such it was a document void ab initio.
Defence in brief
3. The defendant no. 1A to 1D (LRs of defendant no. 1) only contested this case and filed their joint written statement. The defendant no. 2 also filed his written statement but he supported the case of the plaintiff. In the written statement filed by defendants no. 1A to 1D, it is stated that the claim of the plaintiffs is based on false information and in fact they had executed the relinquishment deed with their free consent. It is also claimed that the plaintiffs have not only executed the relinquishment deed but also executed various others documents on the basis of which, the conversion of the suit property took place in favour of the defendant no. 1 and at that time both the plaintiffs were major.
4. Thus, it is claimed that the defendant no. 1 is the absolute and exclusive owner of the suit property and the present suit has been filed after considerable delay just to harass the defendants.
Replication, Issues and Trial
5. The plaintiff filed replication to the written statement of the defendant no. 1A to 1D wherein the averments made in the plaint CS No.11218/16 Page No. 3 of 17 Tej Bhan Singh Vs. Late Dharam Raj were reiterated/reaffirmed and the allegations of the defendants were controverted. From the pleadings of parties, following issues were framed on 12.01.2017.
1. Whether relinquishment deed dated 19.09.1981 is a forged and fabricated document and thus void ab initio? OPP
2. Whether the relief of declaration is barred by limitation? OPD1
3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD1
4. Whether plaintiff is entitled to decree of partition as prayed for? OPP
5. Whether plaintiff is entitled to relief of declaration as prayed for? OPP
6. Whether plaintiff is entitled to relief of permanent injunction as prayed for? OPP
7. Whether plaintiff is entitled to relief of mandatory injunction as prayed for? OPP
6. In order to prove its case, the plaintiff led his evidence by examining three witnesses i.e. Sh. Tej Bhan (PW1), Smt. Rajrani (PW
2), Ms. Dinesh Rani (PW3).
7. In order to prove its case, the defendant led his evidence by examining one witness i.e. Smt. Sunita Kumari (DW1).
CS No.11218/16 Page No. 4 of 17Tej Bhan Singh Vs. Late Dharam Raj
8. I have heard arguments addressed by Ms. Rachna Maheshwari and Ms. Uma Prasona, Ld. Counsel for plaintiff and Sh. Y.S. Chauhan, Ld. Counsel for LRs of the defendant no. 1. File perused.
REASONS FOR DECISION Issue no. 1. Whether relinquishment deed dated 19.09.1981 is a forged and fabricated document and thus void ab initio? OPP
9. At the outset, counsel for plaintiff stated that this issue has been framed on the point of genuineness/forgery of the relinquishment deed but it should be read as an issue on the validity of the relinquishment deed on account of incompetency of the executor i.e. plaintiffs being minors and on account of playing of fraud by the defendant no. 1. Counsel for defendant no. 1 accedes for including the said issues in this issue.
10. From the pleadings of the parties, it is clear that both the parties have admitted the execution of relinquishment deed dated 19.09.1981 in favour of defendant no. 1 and, as such, no determination is required on the point of its execution. The crucial issue which needs determination is with regard to competency of the plaintiffs to execute the said relinquishment deed and its validity for want of free consent.
Validity of relinquishment deed on the point of the incompetency CS No.11218/16 Page No. 5 of 17 Tej Bhan Singh Vs. Late Dharam Raj on behalf of plaintiff no. 1 and 2.
11. There is a dispute on the age of the plaintiffs as on the date of execution of relinquishment deed dated 19.09.1981 which is the core issue to determine the competency of both the plaintiffs.
12. As regards the plaintiff no. 1, namely, Sh. Tej Bhan Singh, he has claimed his date of birth as 02.03.1966 and in order to support the said date, the plaintiff has placed on record various documents which include his school leaving certificate, admission/withdrawal register, affidavit etc.
13. Counsel for the defendant no. 1 vehemently argued that the plaintiff has also obtained various other documents, like Aadhar Card, Ration Card, Voter ID Card etc. and different dates of birth/age has been shown in these documents and therefore it is claimed that the plaintiff no. 1 was major as on the date of execution of relinquishment deed.
14. The record reveals that the plaintiff examined PW3 Ms. Dinesh Rani, TGT, Government School of Kalkaji, Delhi and she proved on record the admission/withdrawal record of Sh. Tej Bhan Singh (plaintiff no. 1) as Ex. PW3/1. She has also proved the school application form and an affidavit filed/submitted by Sh. Dariya Singh, father of the plaintiff no. 1. All these documents clearly prove the date of birth of the plaintiff no. 1 as 02.03.1966. The other documents CS No.11218/16 Page No. 6 of 17 Tej Bhan Singh Vs. Late Dharam Raj showing different date of birth, as alleged by counsel for defendant no. 1 are not significant since PW1 replied in his crossexamination that at the time of making these subsequent documents, the date of birth of the plaintiff as per the school record was not informed to the issuing authorities.
15. The documents of the school record pertained to very old period i.e. of the year 1977 and therefore they are more trustworthy and credible than the other documents of subsequent period. The affidavit of the father of the plaintiff no. 1 submitted to the school at the time of taking admission is also a most important document which was filed when there was no dispute between the parties.
16. Counsel for defendant no. 1 did not bring any contrary evidence to doubt the authenticity or genuineness of the aforesaid documents produced by the School Authority. Accordingly, I hold that the plaintiff no.1 succeeded in proving his date of birth as 02.03.1966 and calculating from the said date, the plaintiff no. 1 was minor at the time of execution of relinquishment deed dated 19.09.1981.
17. As regards the date of birth of plaintiff no. 2, it is claimed that she is younger to the plaintiff no. 1 and her year of birth is claimed by the plaintiffs as 1968 whereas the defendant no. 1 claimed it to be 1960. It is also claimed by the plaintiffs that plaintiff no. 2 was illiterate and no document showing her date of birth was prepared but copy of an Electoral Card has been placed on record which shows her CS No.11218/16 Page No. 7 of 17 Tej Bhan Singh Vs. Late Dharam Raj age as 28 years as on 01.01.1995.
18. PW2 Raj Rani, (Plaintiff no. 2) also deposed that she is illiterate and she does not know her date of birth. Counsel for defendant no.1 argued that on the date of execution of relinquishment deed dated 19.09.1901, plaintiff no. 2 was married and accordingly there is a presumption that she was married since she was major. I do not find any presumption in law that a marriage is solemnized after attaining the age of majority only. In the earliest time, marriages were perform at the very early age of girl well before attaining age of majority.
19. Accordingly, this argument is rejected which is not based on law or fact but on assumption/guess. Plaintiff no. 2 has also placed on record Electoral Card which shows her age as 28 years as on the date of 01.01.1995. It shows that plaintiff no. 2 born in 1967. The counsel for defendant no. 1 did not give any suggestion to any of the PWs as to who was younger out of the two plaintiffs. It draws an inference that the plaintiff no. 2 was younger to the plaintiff no. 1. Accordingly, I hold relinquishment deed that the plaintiff no. 2 was also minor as on the date of execution of relinquishment deed dated 19.09.1981.
Free Consent and Fraud
20. The relevant Sections of the Indian Contract Act, 1872 on the point of free consent, undue influence, misrepresentation are CS No.11218/16 Page No. 8 of 17 Tej Bhan Singh Vs. Late Dharam Raj reproduced as under for a better understanding:
"Section 14 'Free Consent' defined Consent is said to be free when it is not caused by (1) coercion, as defined in Section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in Section 17, or (4) misrepresentation, as defined in Section 18, or (5) mistake, subject to the provisions of Section 20, 21 and 22.
Section 16. 'Undue influence' defined - A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain as unfair advantage over the other.
Section 18 'Misrepresentation' defined 'Misrepresentation' means and includes (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, through he believes it o be true;
(2) any breach of duty which, without an intent to deceive, gains any advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.
Section 19A Power to set aside contract induced by undue influence When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the CS No.11218/16 Page No. 9 of 17 Tej Bhan Singh Vs. Late Dharam Raj party whose consent was so caused.
21. The relinquishment deed was executed by plaintiff no. 1, plaintiff no. 2 and defendant no. 2 in favour of defendant no.1. The defendant no. 1 is admittedly the eldest brother of the two plaintiffs and the defendant no. 2. It is the case of the plaintiff that the defendant no. 2 being eldest member of the family, used to perform all the family affairs and obligations.
22. In the written statement, it is admitted that the defendant no. 1 had been performing all the family obligations including the eduction of his younger sister/brothers being a joint family. It shows that defendant no. 1 being the eldest brother (having huge gap of age between himself and other siblings) was in dominating position to take decision affecting the entire family. He was also working in a bank, which shows that he must be having all the basic knowledge of execution of document and its effect.
23. It is claimed by both the plaintiffs as well as defendant no. 2 that after expiry of their father, defendant no. 1 got executed relinquishment deed from plaintiff no. 1, plaintiff no. 2 and defendant no. 2 on account of obtaining compensation, gratuity, pension and other services benefits. The defendant no. 1 did not bring on record any contrary evidence. In the normal circumstances, the stand of the plaintiffs appears to be highly probable especially when the plaintiff no. 1 and 2 were minor. The defendant no. 1A to 1D did not take any plea CS No.11218/16 Page No. 10 of 17 Tej Bhan Singh Vs. Late Dharam Raj to justify as to why plaintiff no. 1, plaintiff no. 2 and defendant no. 2 would have relinquished their right in the suit property without any consideration. It clearly raised grave doubts on the conduct of defendant no. 1 to acquire absolute ownership right over the suit property by playing fraud upon the said three persons.
24. From the conjoined reading of Section 16 and 18 of the Indian Contract Act, it is apparently clear that the facts of the present case are clearly covered within the purview of said Sections.
25. In the light of aforesaid evidence on record, I hold that the relinquishment deed was a void document since its inception on account of incompetency of plaintiff no. 1 and plaintiff no. 2 being the minors and also on account of fraud played by the defendant no. 1 upon plaintiff no. 1, plaintiff no. 2 as well as defendant no. 2.
26. Accordingly, said relinquishment deed is declared a null and void document since the inception. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
Issue no. 2. Whether the relief of declaration is barred by limitation? OPD1
27. Counsel for defendant no. 1 has vehemently argued that the present suit was filed beyond the period of limitation as the relinquishment deed was executed long back in 1981 and plaintiff was CS No.11218/16 Page No. 11 of 17 Tej Bhan Singh Vs. Late Dharam Raj knowing about its existence since the beginning as well as in the subsequent proceedings conducted before the Government Agencies as well as Hon'ble High Court of Delhi where a case was filed by defendant no. 1 seeking regularization of some more adjoining portion of suit property.
28. From the evidence produced on record by plaintiffs, it is found that the plaintiffs were not aware of the execution of the said relinquishment deed and that they have subsequently come to know about the when the legal heirs of defendant no. 1 started claiming to be absolute owners of the suit property. The defendant no. 1A to 1D did not bring on record any evidence to show that the plaintiffs were aware of the execution of the relinquishment deed. Even, if it is presumed that the plaintiffs were aware of the execution of the said relinquishment deed, from the circumstances of the case and the decision on the issue no. 1, I hold that the plaintiffs were aware of execution of some document but they were not knowing that the said documents was a relinquishment deed which had taken away the right/share of the plaintiff from the suit property. Their knowledge was confined on the point of execution of some document for the purpose of obtaining service benefit of their father and for conversion of the suit property in the name of their eldest brother.
29. As per the provisions of Indian Limitation Act, the period of limitation starts from the date of acquiring knowledge of existence of a fact and the factum of divesting the right of the plaintiff to the suit CS No.11218/16 Page No. 12 of 17 Tej Bhan Singh Vs. Late Dharam Raj property by way of relinquishment deed came to their knowledge only when the LRs of the defendant no. 1 started claiming their absolute ownership in the suit property.
30. Accordingly, counting the said period from 2014, I hold that the present suit is within the period of limitation having been filed in the year 2014. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
Issue no. 3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD1
31. The onus to prove this issue was on the defendant no. 1 but no evidence has been led with regard to the aforesaid issue of valuation. It is a settled position of law that the plaintiff is the master of his own case and the valuation done by him has to be taken as correct unless contrary is proved on record. Keeping in view of the paragraph no. 22 of the plaint regarding valuation and jurisdiction and that no contrary evidence has been led by the defendant no. 1, it is held that the suit has been properly valued for the purpose of court fee and jurisdiction. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
Issue no. 4. Whether plaintiff is entitled to decree of partition as prayed for? OPP
32. When it has already been held that relinquishment deed in CS No.11218/16 Page No. 13 of 17 Tej Bhan Singh Vs. Late Dharam Raj question was void since the beginning, all the subsequent mutation/conversion of the suit property in the name of the defendant no. 1 alone consequently became invalid. It is also a settled position of law that the mutation of the property does not confer any right, title or interest and it is only entering the name of the owner in the record of Government for some specific purposes.
33. After the expiry of the father of the parties intestate, the property is divisible as per Section 6 of the Hindu Succession Act r/w its Schedule (Class I). Accordingly, the shares of the parties is determined in respect of the suit property as under:
1. Plaintiff no. 1 - 1/4th share
2. Plaintiff no. 2 1/4th share
3. Defendant no. 1 (defendant no. 1A to 1D) - 1/4th share
4. Defendant no. 2 - 1/4th share
34. In the light of aforesaid division of shares, a preliminary decree is passed in favour of the parties. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
Issue no. 5. Whether plaintiff is entitled to the relief of declaration as prayed for? OPP
35. In view of my finding on the issue no. 1, the plaintiff is also entitled for a relief of declaration to the effect that the relinquishment deed in question is void ab initio. Accordingly, the said CS No.11218/16 Page No. 14 of 17 Tej Bhan Singh Vs. Late Dharam Raj document is declared as null and void. As such, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
Issue no. 6. Whether plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
36. In view of my finding on the above issues, the plaintiffs are also entitled for the relief of permanent injunction and therefore, defendant no. 1A to 1D are restrained to interfere in the peaceful possession of the plaintiffs in the suit property. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
Issue no. 7. Whether plaintiff is entitled to relief of mandatory injunction as prayed for? OPP
37. There is no specific prayer with regard to the relief of mandatory injunction in the suit but there are two prayers for the relief of permanent injunction. In the light of my decision on the other issues, the defendant no. 1A to 1D are restrained from for selling, transferring, alienating or creating any third party interest or dealing with the suit property in any manner without due process of law.
38. Although, no specific prayer has been made but as per Order 7 Rule 7 CPC, this court can grant a relief which has not been specifically asked for but if the same is made out from the facts and evidence produced on record. In view of the said provision, declaration of the relinquishment deed as null and void and to meet the ends of CS No.11218/16 Page No. 15 of 17 Tej Bhan Singh Vs. Late Dharam Raj justice, the plaintiff is also granted a relief of mandatory injunction to the effect that the mutation of the property with the Government Agencies like DDA, L&DO, MCD etc. may be got done in the name of all the shareholders of the suit property i.e. plaintiff no. 1, plaintiff no. 2, defendant no. 1 or (defendant no. 1A to 1D) and defendant no. 2. Likewise, the plaintiffs will be within their right to get a formal cancellation deed registered in respect of the registered relinquishment deed 19.09.1981, if desired but if no such steps are taken by the plaintiffs as indicated above, the substantial right of the plaintiffs, which are decreed hereinafter, will not be undermined. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
Relief/Conclusion
39. In view of my findings on the aforesaid issues, the suit of the plaintiff is decreed as under:
1. A decree is passed declaring the relinquishment deed dated 18.09.1981 as null and void ab initio.
2. A decree is also passed for cancellation of relinquishment deed dated 18.09.1981 as null and void ab initio.
3. A decree is passed for permanent injunction and the defendant no. 1A to 1D are restrained to interfere in the peaceful possession of the suit property without due process of law.
4. A decree is passed for permanent injunction and the defendant no. 1A to 1D are restrained from selling, CS No.11218/16 Page No. 16 of 17 Tej Bhan Singh Vs. Late Dharam Raj transferring, alienating or creating any third party interest and dealing with the suit property in any manner without due process of law.
5. A preliminary decree is also passed for partition of the suit property dividing the shares as under:
1. Plaintiff no. 1 - 1/4th share
2. Plaintiff no. 2 1/4th share
3. Defendant no. 1 (defendant no. 1A to 1D) - 1/4th share
4. Defendant no. 2 - 1/4th share
40. Decreesheet/preliminary decreesheet be prepared accordingly. All the parties are given an option to divide the suit property by metes and bounds, if it is feasible, or otherwise, or to offer their bid for buying the suit property by one or more sharers. They are directed to appear in person in this regard on 20.07.2018.
Announced & dictated in the open court on 19.04.2018 (Naresh Kumar Laka) Additional District Judge03 South East District, Saket, New Delhi.
CS No.11218/16 Page No. 17 of 17Tej Bhan Singh Vs. Late Dharam Raj