Delhi District Court
Ashok Kumar Sharma W/O Late Kishori Lal ... vs Smt. Usha Kush W/O Sh. Naresh Kush on 9 September, 2019
IN THE COURT OF SH. M.P. SINGH, ADDITIONAL DISTRICT JUDGE
03 (EAST), KARKARDOOMA COURTS, DELHI
CS No. 2414/16
In the matter of:
Ashok Kumar Sharma w/o late Kishori Lal Sharma
R/o H. No. 358, Old Post Office Gali,
Chhota Bazar, Shahdara, Delhi .......Plaintiff
Versus
1. Smt. Usha Kush w/o Sh. Naresh Kush
R/o C158, Surajmal Vihar, Delhi 32
2. Sh. Naresh Kush s/o Sh. Hari Kishan Kush
R/o C158, Surajmal Vihar, Delhi 32 ......Defendants
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
Suit filed on - 08.03.2016
Arguments heard on - 31.08.2019
Judgment pronounced on - 09.09.2019
JUDGMENT
1. Plaintiff's case is as follows: I) Plaintiff claims to be absolute owner and in possession of property no. B101/2, in khasra no. 442 of village Uldhanpur, Kanti Nagar, Delhi - 51 measuring 107 sq. yards (for short the 'suit property'). He is paying the house tax of the suit property. Its water connection is in his name. To buttress his averments visavis possession of the suit property, plaintiff avers that he let out three room set with common facilities of CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 1 of 26 latrinecumbath and passage to a tenant namely Shiv Dutt (PW2) who has been regularly paying the rent to him against rent receipts.
II) Late Bhagwat Prasad Sharma (for short 'BPS') was plaintiff's real paternal uncle. He had no son. He had only one daughter namely Ms. Usha Kush (defendant no.1), who is married to Naresh Kush (defendant no.2). Defendant no.1, postmarriage, is residing at her matrimonial house.
III) BPS was very close to the plaintiff and his family members. In March 2012, BPS, in his old age, requested the plaintiff to provide him space in the suit property as he had no son. Plaintiff, acceding to this request, executed a registered gift deed dt. 16.03.2012 (Ex. DW1/P1) in favour of BPS qua the suit property for 'certain period'. It was also agreed on 16.03.2012 that BPS would later on, at plaintiff's request, transfer the suit property to his children. Plaintiff had executed the gift deed due to good family relations and the trust and confidence reposed in him by BPS. BPS passed away on 01.11.2015. As deposed by plaintiff (PW1) BPS was around 80 years of age at the time of his demise.
IV) Plaintiff however alleges that contents of the gift deed were neither read over to him nor he was allowed to read the same; that he executed the gift deed due to misrepresentation and undue influence on the part of BPS at the time of its execution and registration; that BPS cheated and played a fraud upon him with malafide intention; that BPS gave him no consideration at the time of execution and registration of the CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 2 of 26 gift deed; and that the transaction was a 'temporary' one entered into in good faith, although he (plaintiff) had no intention to transfer or sell the suit property to anyone; and that he had never handed over physical possession of the suit property to BPS. Neither were any of the two defendants ever in its possession.
V) Plaintiff avers that he had constructed the suit property for his livelihood and that of his children and family members. The original title deeds of the suit property were already in possession of BPS being the elder member of the family. Plaintiff avers that he had given the original title deed to BPS in good faith and due to blind trust that he had reposed in him.
VI) Plaintiff subsequently requested BPS to execute the transfer documents of the suit property in favour of his children, but the latter kept on deferring the matter on one filmsy ground or the other. Due to implementation of circle rate in the locality and due to paucity of funds with the plaintiff, BPS could not execute transfer deed of the suit property favour of plaintiff's children. The transfer of the suit property from BPS to plaintiff's children was/is expensive and as such the same could not be done during lifetime of BPS.
VII) After demise of BPS, defendants visited the suit property and claimed themselves to be its owner(s). They started to contact local property dealers in order to create third party interest and compel plaintiff's tenant (PW2 Shiv Dutt) to vacate so that they could earn good market CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 3 of 26 price from the prospective buyer.
VIII) Plaintiff then wrote a letter dt. 06.11.2015 (Mark D) to the Sub Registrar for cancellation of the gift deed. The SubRegistrar in his reply dt. 16.11.2015 (Mark E) stated that he was not competent under the law to cancel/revoke the registered deed and that it was actually the court of competent jurisdiction that could do the needful. Plaintiff then approached SubRegistrar's office on 18.02.2016 and handed over an application (Ex. PW1/11) for cancellation of the gift deed, but to no avail.
IX) The defendants are now allegedly threatening the plaintiff to hand over its vacant possession to them. On these averments, following reliefs are sought for: (a) Declaratory decree that the registered gift deed dt. 16.03.2012 is null and void, illegal, inoperative and not binding on the plaintiff, (b) Declaratory decree that plaintiff is the absolute owner of the suit property, (c) Permanent injunction decree to restrain the defendants from interfering or claiming any right, title or interest in the suit property and also to restrain them from creating any third party interest or from dispossessing plaintiff's tenant and his other family members.
2. Defendants, in their written statement filed on 06.04.2018, state that the gift deed had been executed in favour of BPS after complying with all the essential requirements of gift and that after demise of BPS on 01.11.2015, defendant no.1 Ms. Usha Kush, being the only heir of late BPS, became CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 4 of 26 absolute owner of the suit property in terms of a registered Will dt. 28.04.2014 of late BPS. Defendants aver that plaintiff out of his own free will had executed a registered gift deed after complying with all the essential requirements of gift and had handed over its possession to BPS. It is averred that defendant no.1 Ms. Usha Kush is in symbolic possession of the suit property after her father's demise. Defendants submit that the suit property already stands mutated in the name of defendant no.1 Ms. Usha Kush. Plaintiff is thus, according to defendants, left with no right, title or interest in the suit property. Defendants allege that plaintiff, in connivance with his tenant, is in illegal possession of the suit property and that the rent receipts are forged and fabricated. They go on to state that it was after receiving notice of the present suit that they came to know that plaintiff in connivance with his tenant had trespassed into the suit property after demise of BPS. They deny the other averments of the plaintiff. Besides this, the defendants also take the following legal objections: The suit has not been property valued and the plaintiff has not affixed appropriate Court fees; that the suit is bad for mis joinder and nonjoinder of necessary party; that the suit is time barred; that no cause of action ever arose in plaintiff's favour and the plaint merits rejection under Order VII Rule 11, CPC; and that the plaintiff has suppressed true and correct facts. Defendants seek dismissal of the suit.
3. Plaintiff in his replication, filed on 18.07.2016, reiterated and reaffirmed his averments as set out in the plaint and refuted defendants' averments as averred in their written statement.
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4. Issues framed on 24.11.2016 are as follows:
1. Whether the suit has not been valued properly and the Court Fee is deficient as alleged by the defendant? OPD
2. Whether the suit is bad for misjoinder/ nonjoinder of the parties as alleged by the defendant? OPD
3. Whether the suit is barred by limitation as alleged by the defendant? OPD
4. Whether the plaintiff has no cause of action and the suit is liable to be rejected under Order VII Rule 11 CPC, as alleged by the defendant? OPD
5. Whether the plaintiff is guilty of suppressing the material facts from the Court as alleged by the defendant? OPD
6. Whether the plaintiff is entitled for a decree of declaration in respect of the gift deed dated 16.03.2012 as prayed for? OPP
7. Whether the plaintiff is entitled to a decree of declaration declaring the plaintiff as absolute owner of the suit property? OPP
8. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
9. Relief.
5. In plaintiff's evidence following two witnesses were examined: PW1 Ashok Kumar Sharma. He is the plaintiff himself.
PW2 Shiv Dutt. He entered the witness box to depose that he was plaintiff's tenant in the suit property.
6. In defendants' evidence, following three witnesses were examined: CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 6 of 26 DW1 Usha Kush. She is defendant no.1 and daughter of the donee (BPS).
DW2 Naresh Kush. He is defendant no.2 and husband of defendant no.1 Usha Kush. He is also the soninlaw of the donee (BPS). He is also an attesting witness to the gift deed Ex. DW1/P1.
DW3 Ram Naresh, an official from office of SubRegistrarIV, Vivek Vihar/ Nand Nagri. He entered the witness box to prove the factum of registration of the Will dt. 28.04.2014 (Ex. DW1/C) of late BPS.
7. I have heard the arguments of Ld. counsels Amarjeet Singh and Inderjeet Singh for the plaintiff and Ld. counsel Akhil Chaudhary for the defendants. Record perused.
8. Issuewise findings are as follows:
9. Issue No.2 The issue is whether the suit is bad for misjoinder/ non joinder of parties as alleged by defendants; onus being on defendants to prove it. Firstly, under the law misjoinder of a party cannot be fatal to plaintiff's case. It is only nonjoinder of a necessary party that renders a suit bad (Proviso to Order I Rule 9, CPC). Therefore, even on the premise that any of the two defendants may have been misjoined, the suit cannot be held to be bad. Secondly, so far as the issue of nonjoinder of necessary party is concerned, the defendants do not state as to who it was who should have been necessarily joined, but not actually joined, to instant lis. They in their written statement merely state that the suit is bad on this count without even CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 7 of 26 specifying as to who should have been necessarily joined as a party. That apart, having gone through the record, I do not think that any other person ought to have been necessarily joined as a party. For these reasons, this issue is decided in plaintiff's favour and against the defendants.
10. Issue No.1 The issue is whether the suit has not been valued properly and the court fee is deficient as alleged by defendants; onus being on defendants to prove it. The valuation of the relief of permanent injunction at Rs. 130/ and payment of fixed Court fee thereon cannot be said to be erroneous (see Delhi High Court Rules Chapter - 3 Part C & D, Volume - I). Valuation of the relief of declaration of ownership qua the suit property at Rs. 200/ and payment of fixed Court fee thereon is also adequate (see Delhi High Court Rules Chapter - 3 Part C & D, Volume - I). Plaintiff is the executant of the gift deed. The gift deed reflects the market value of the suit property to be Rs. 37,50,000/ . The valuation for the purpose of declaration of the gift deed being null and void, inoperative and illegal and not binding on the plaintiff at Rs. 37,50,000/ and payment of ad valorem Court fee thereon is also correct. Defendants' counsel argued that in terms of the decision in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors. AIR 2010 SC 2807, the plaintiff, himself being the executant of the gift deed, ought to have sued for its cancellation and not for its declaration. This is hardly germane for the present issue for the reason that the plaintiff has already paid ad valorem Court fee for the relief of declaration visavis the gift deed. That apart, the relief of declaration as prayed for by the plaintiff visavis the gift deed can CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 8 of 26 be taken by this Court to be actually one for the relief of cancellation of the gift deed. This issue is accordingly answered in plaintiff's favour and against the defendants.
11. Issue No.6 The issue is whether plaintiff is entitled for a declaratory decree qua the gift deed dt. 16.03.2012 as prayed for; onus being on plaintiff to prove it. In Asokan Vs. Lakshmikutty & Ors., JT 2007 (13) SC 598 Apex Court held that the following are the essentials of a gift under the Transfer of Property Act: (i) the absence of consideration, (ii) the donor, (iii) the donee,
(iv) the subject matter, (v) the transfer, and (vi) the acceptance. In the case at hand, the gift deed is a registered one, duly signed by two attesting witnesses, namely, Naresh Kush and Pramod Kumar. A bare reading of the gift deed would show that there is 'absence of consideration'. In fact it is the plaintiff himself who in his plaint states that that BPS gave him no consideration at the time of execution and registration of the gift deed. The gift deed in question has a 'donor' as also a 'donee' and its 'subject matter' is the suit property. The gift deed also clearly records 'transfer' of the property from the donor to the donee. Further, the gift deed (clause 3 thereof) states that the donee has 'accorded his acceptance of the above said mentioned gift'. The fact that BPS had 'accepted' gift is also evident from the averments in the plaint itself; in the plaint, plaintiff himself avers that he had given the original title deeds of the suit property to BPS. In Asokan (supra) there is an observation that runs as follows, "14. Gifts do not contemplate payment of any consideration or compensation. It is however, beyond any doubt or dispute that in order to CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 9 of 26 constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the done also raises a presumption of acceptance. [See Sanjukta Ray v. Bimelendu Mohanty, AIR 1997 Orissa 131; Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415; Samrathi Devi v. Parsuram Pandey, AIR 1975 Patna 140]." In the instant case, all the essentials of a gift under section 122, Transfer of Property Act have been duly complied with. Being a registered instrument, the gift deed Ex. DW1/P1 carries with it the presumption under section 114, Evidence Act. Section 34, Registration Act, inter alia, contemplates the registering authority being satisfied with the identity of the executant and whether or not the executant had in fact executed the document before he can order for registration of the document presented for registration. Furthermore, the SubRegistrar had duly made the necessary endorsements in compliance with section 58, Registration Act on the gift deed Ex. DW1/P1. Endorsement on the gift deed Ex. DW1/P1 would reflect that plaintiff himself had presented it for registration before the SubRegistrar. Further, as per SubRegistrar's endorsement on the gift deed Ex. DW1/P1 plaintiff had admitted the contents thereof as correct and put his signatures and thumb impressions thereon in SubRegistrar's presence. Now, all these statutory endorsements cannot be set at naught on the mere self CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 10 of 26 serving ipse dixit of the plaintiff.
12. Now to plaintiff's various contentions as set out in the plaint. Plaintiff's contention is that 'possession' of the suit property was never transferred to the donee (BPS) and as such the gift deed was void. Even accepting as gospel truth that possession of the suit property was not transferred to the donee and that it always remained with the donor, yet the gift deed cannot be held to be invalid or inoperative. Under sections 122/123, Transfer of Property Act, gift of an immovable property is to be made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses and such gift should be 'accepted' by or on behalf of the donee. A bare reading of sections 122/123, Transfer of Property Act would show that 'transfer of possession' of the immovable property covered under the registered gift deed is not sine qua non for making the gift valid. What is material is 'acceptance' of the gift and not 'transfer of possession' of the immovable property. In this regard, reference can be had to a three Judge Bench decision of Supreme Court of India in Renikuntla Rajamma (D) by LRs Vs. K. Sarwanamma, JT 2014 (8) SC 283. For this proposition, Apex Court decisions in Asokan (supra) and K. Balakrishnan Vs. K. Kamalam, JT 2004 (1) SC 572 can also be referred to. Therefore, it is not at all necessary that the donee must have taken 'possession' of the suit property covered under the gift deed. On the part of the donee what is essential is that he must have 'accepted' the gift. In the case at hand, as already noted hereinabove, the donee (BPS) had accepted the gift.
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13. The contention that that BPS gave no consideration to the plaintiff at the time of execution and registration of the gift deed is noted only to be rejected. A gift deed under the law requires no consideration.
14. It was next the plaintiff's contention that he executed the gift deed owing to misrepresentation and undue influence on the part of BPS and that BPS had cheated and played a fraud upon him with malafide intention. This contention is sans any merit. Order VI Rule 4, CPC mandates that 'in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.' The plaint is conspicuous by absence of the requisite particulars qua the allegations of misrepresentation, fraud and undue influence. The plaint sets out no particulars qua the allegation of undue influence. Even as regards the allegation of fraud and cheating no particulars are specified in the plaint. The alleged representation of BPS that he would subsequently execute ownership documents in favour of plaintiff's children is actually no misrepresentation under the law. In short, the plaint falls short of complying with the requirements of Order VI Rule, 4 of CPC. Secondly, in order to make out a case of undue influence the plaintiff has to, in the very first place, establish that BPS was in a dominant position visàvis him. Without first establishing this, the plaintiff cannot draw up a case of undue influence and in this context the report of Anil Rishi Vs. Gurbaksh Singh, CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 12 of 26 AIR 2006 SC 1971 can be referred to. Thirdly, it is highly doubtful if BPS was in a position to exert undue influence on the plaintiff. BPS, as per plaintiff himself, was in his old age (around 80 years) when the gift deed was executed. BPS, as per the plaintiff himself, had no son and his only daughter had been living in her matrimonial house postmarriage and not with BPS. As per the plaintiff himself, he (plaintiff) had been living in the suit property with his family members. Therefore, given the averments of the plaintiff himself it appears to be highly doubtful that BPS, enfeebled by age, in the evening of his life at 80, living without the company of his only child, was in a position to dominate the will of the plaintiff, who was much younger to him and who had the benefit of the company of his family members. Fourthly, plaintiff himself in his plaint (paragraph no. 5 thereof) avers, "The said gift was also registered in the office of SubRegistrar, Delhi in good faith............The said transaction was a temporary transaction in good faith, although the plaintiff had no intention to transfer or sell the said property to any body since from the very beginning till date." Therefore, the averments that the transaction was entered into and registered in 'good faith' cannot go hand in hand with the allegations of misrepresentation, fraud, undue influence etc. Fifthly, in the two complaints (Mark D dt. 06.11.2015 and Ex. PW1/11 dt. 18.02.2016) to SubRegistrar no particulars of fraud or undue influence were given. The averments about the alleged representation of BPS, as set out in the complaint Mark D dt. 06.11.2015, is actually no misrepresentation in the eyes of law. Sixthly, plaintiff (PW1) in his crossexamination states, "It is correct that I have carefully gone through the each document which I executed before I CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 13 of 26 signed." Seventhly, during the lifetime of BPS plaintiff lodged no complaint with any authority that BPS cheated him, committed fraud, exerted undue influence and made misrepresentations. His two complaints (Mark D dt. 06.11.2015 and Ex. PW1/11 dt. 18.02.2016) made to the SubRegistrar were after the demise of BPS. It is significant to note that in one of his complaints (Ex. PW1/11 dt. 18.02.2016) to the SubRegistrar plaintiff avers that he had executed the gift deed Ex. DW1/P1 for 'religious purpose' and it actually contains no allegations of fraud, cheating, undue influence or misrepresentation. In Prem v. Birbal, (2006) 5 SCC 353 it has been held, "There is presumption that a registered instrument is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption." Plaintiff's allegations of fraud, undue influence, misrepresentation and cheating have actually no basis either in law or on facts.
15. Plaintiff's next stand is that it had been mutually agreed on 16.03.2012 that BPS would later on, at plaintiff's request, transfer the suit property to his children. In his complaint dt. 06.11.2015 (Mark D) to the SubRegistrar plaintiff had made a similar averment that BPS had given an assurance that if the gift deed was executed in his favour he would transfer the ownership rights in favour of his son / legal heirs. This plea is hardly tenable. Firstly, if the ownership rights have to be transferred to one's own children / legal heirs, why would one then adopt a circuitous route of first executing a gift deed in CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 14 of 26 favour of someone else and then asking that donee, and that too when the donee is in the evening of his life and much older in age, to then execute ownership documents in favour of his children / legal heirs. Such transfer of ownership to one's own children / legal heirs can be done directly even without adopting such a circuitous and complex route. I am unable to fathom a reason for adopting such a complex and circuitous route of transfer of ownership rights to one's own children. This assertion of the plaintiff is hardly a convincing one. Secondly, sections 91/92 of Evidence Act bar such an oral plea. Thirdly, this is actually no misrepresentation within the meaning of section 18 of Contract Act.
16. It was next the plaintiff's contention that contents of the gift deed were neither read over to him nor he was allowed to read the same. This argument is not correct. Firstly, plaintiff (PW1) in his crossexamination concedes, "It is correct that I have carefully gone through the each document which I executed before I signed." Secondly, a bare perusal of the rear side of the registered gift deed Ex. PW1/D1 would show that there is an endorsement of the SubRegistrar to the following effect, "Contents of the document explained to the parties who understand the conditions and admit them as correct." In the face of this endorsement of the SubRegistrar and his own admission in his crossexamination, the plaintiff is not correct in arguing that the contents of the documents had not been read over or that he was not allowed to read the same.
17. It was next the plaintiff's contention that the gift was a 'temporary' CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 15 of 26 one entered into in good faith, although he (plaintiff) had no intention to transfer or sell the suit property to anyone. This contention is meritless. Plaintiff is trying to make out a case contrary to law. Section 122/123, Transfer of Property Act do not provide for a gift deed to be 'temporary'. Further, contrary to sections 91/92, Evidence Act plaintiff cannot assert that gift deed was 'temporary'. Plaintiff's serving ipse dixit that he executed the gift deed although he had lacked the intention to execute the same is noted only to be rejected. The gift deed is a registered one executed by the plaintiff and therefore to say that he lacked the intention to execute the same has no basis in law and on facts of the case. The plaintiff knew what he was executing. He concedes in his crossexamination that before executing the gift deed he had carefully read the same. It is not his case that he was not in his senses at the time of execution of the gift deed. His allegations of fraud, misrepresentation, undue influence and cheating have no basis at all. Therefore, to say that he lacked the intention to execute the gift deed is devoid of any merit.
18. Plaintiff's counsel pointed out that election card numbers of the donee and the donor on the gift deed Ex. DW1/P1 was incorrect and as such the gift deed was defective. Firstly, this is no ground to say that the gift deed is defective. This does not put the registered gift deed in the category of void or voidable documents. This innocuous error ipso facto will not render the registered instrument inoperative. Secondly, putting the election card number or the number of any other document of identity proof of individual(s) in an CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 16 of 26 instrument is essentially for the purpose of identification of the parties. In the case at hand, identity of the parties is not in dispute. Thirdly, the law (Explanation 3 to section 91 of Evidence Act) in fact provides for leading oral evidence to show as to what was the correct number of the election card of the parties. In this context, in Karan Madaan & Ors. v. Nageshwar Pandey, 2014 SCC OnLine Del 1277 it was observed, "Explanation 3 only states that the statement of a fact in a document, "other than the facts referred to in this section" may be proved by leading oral evidence. The "fact referred to in this section" are the "terms of a contract, or a grant, or of any other disposition of property" which have been reduced to the form of the document. For instance, if the age or address, or paternity of a party is recorded in an instrument, it shall be open to the parties to lead evidence to establish that the same is not correctly recorded, or that the same is in fact, different from what the instrument records. However, this explanation cannot be invoked to disprove the terms of a contract, or of a grant, or of any other disposition of property."
19. Plaintiff's counsel next pointed out that the gift deed Ex. DW1/P1 was defective as paragraph no. 16 thereof stated that 'both the parties hereby declare that the abovesaid property under sale has never been booked'. It was his argument that mention of the word 'sale' in the gift deed renders the same inoperative. This appears to be an innocuous typographical error. This can be no reason to hold the gift deed to be defective. This neither puts the registered gift deed in the category of void or voidable documents. That apart, it is well CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 17 of 26 settled that in understanding a deed or a document the same has be read as a whole to ascertain its true import. In L & T Komatsu Ltd. v. Senior Sub Registrar, Yelahanka & Ors., AIR 2004 Kar 308 it has been held, "It is well settled principle of interpretation that in understanding a Deed or a document, particularly a document, conveying title, it should be read as a whole..." Reading as a whole the registered gift deed Ex. DW/P1 it is evident that it is a gift deed and not a sale deed. And mention of word 'sale' at a solitary place in the instrument will not alter the nature of the instrument Ex. DW1/P1 or render the same void/ inoperative.
20. It was next the contention that gift deed Ex. DW1/P1 was defective inasmuch as there was no reference therein of the fact that an old tenant (PW2 Shiv Dutt) was in occupation thereof. This can be no ground to render the gift deed Ex. DW1/P1 as inoperative. As already noted hereinbove, the gift deed Ex. DW1/P1 complies with all the essential requirements of a gift under the Transfer of Property Act as set out in Asokan (supra). Under the law, there is no mandatory requirement to make mention in the gift deed of the factum of a tenant occupying the immovable property covered under said deed. That apart, under the law a landlord (in the instant case the donor Ashok Kumar Sharma) continues to retain legal possession although the actual possession, user and control may be with the tenant (Sadashiv Shyama Sawant v. Anita Anant Sawant, (2010) 3 SCC 385. And as already noted hereinabove, transfer of possession of the immovable property covered under the gift deed from the donor to the donee is not an essential requirement of gift under the CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 18 of 26 Transfer of Property Act.
21. It was next the contention that gift deed Ex. DW1/P1 was not attested / witnessed by two 'independent' witnesses. The two witnesses to the gift deed are Naresh Kush (defendant no.2 in this suit and donee's soninlaw) and Pramod Kumar. As per the plaintiff, Pramod Kumar is a close friend of Naresh Kush. Under section 123 of Transfer of Property Act a gift deed is to be attested by 'at least two witnesses'. Section 123 of Transfer of Property Act does not say that the witnesses should be 'independent' witnesses. Secondly, the law nowhere says that relative or a friend of either the donee or the donor cannot attest or witness a gift deed.
22. It was next the contention that the gift deed was executed on the basis of an unregistered General Power of Attorney (for short 'GPA') dt. 24.08.1977. As per the plaintiff, the said unregistered GPA could not have empowered him to transfer the suit property by executing the gift deed. It was also contended that plaintiff was the lawful attorney qua undivided ½ share in the suit property and that the gift deed could not have been executed by him (plaintiff) alone unless the suit property was divided by metes and bounds. It is certainly not that the plaintiff was unaware of these facts when he was executing the gift deed. And if despite this, he went ahead and executed the gift deed he himself and none else is to blame. That apart, it is rather strange that plaintiff asks the court to exercise its discretion and grant him the discretionary relief of declaration to avoid his own folly. Further, such averments were not at all set out in the plaint. Only if the plaintiff had made CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 19 of 26 such averments in the plaint, that the defendants could have given an adequate reply thereto. Order VI Rule 2 (1), CPC requires that all the material facts should be averred in the pleadings. The plaintiff cannot seek to make out a case which is not there in his pleadings. We have no evidence as to whether the said GPA was backed by consideration or not. If at all there was consideration to back up the said GPA, the same could not have been terminated without the attorney's consent (section 202, contract Act). Further, there is nothing in law that a donor cannot gift his undivided share in an immovable property. For these reasons, this Court is not inclined to accept this stand of the plaintiff.
23. Plaintiff pointed out that gift deed Ex. DW1/P1 mentions that Ashok Kumar, Shri Jai Bhagwan Gupta, Shri Inder Singh and Shri Ram Kishore Gupta are the actual owners and bhoomidar of the property/ khasra. As per the plaintiff 'if' the said fact was correct then the plaintiff could not have executed the gift deed in favour of BPS. This argument is of no avail. These persons may been the bhoomidars several decades ago. In fact, the contents of the gift deed reflect that the colony wherein the immovable property is situated has already been regularised. There is no agricultural activity being carried out in the suit property. Further, the plaintiff himself has conditioned this argument with a big 'if'. As on date, it is not clear as to whether all those persons are the bhoomidars or not. We have no evidence to this effect on record. The plaintiff had neither set out the requisite averments to this effect in his plaint. And as such, the defendants had no opportunity to counter this CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 20 of 26 with their own suitable reply in their pleadings. Without any pleadings or any evidence on this score, this Court will not return any finding in favour of the plaintiff on this score. That apart, the plaintiff cannot seek to obtain a discretionary relief from this Court in his favour in order to avoid his own folly.
24. It was pointed out that the attesting witness (DW2 Naresh Kush), as per his own admission in his crossexamination had not gone through the gift deed Ex. DW1/P1 before signing the same. The contention was that for this reason the gift deed Ex. DW1/P1 was inoperative. A gift deed cannot be held to be inoperative for this reason. In this regard, in Chanderkala Krishna Dhole Vs. Bhimrao Dattu Kadam & Ors. 2019 SCC OnLine Bom 459, it was observed,
21. I have gone through the evidence of Mr. Ghadage, attesting witness and I found it reliable, cogent consistent and stood to the test of cross examination. Thus, there is a compliance of provisions of Section 68 of the Evidence Act. However, evidence of this witness has been disbelieved by the learned appellate Court, only on the ground that, this witness did not read the contents of the Will and put his signature at the instance of Mr. Salunke (scribe). The learned appellate Court thus held that since the attesting witness knew nothing about the contents of the Will, his evidence was falling short of the requirements of Section 68 of the Evidence Act.
22. In my view, the reasons for discarding the evidence of this attesting witness are unfounded and not acceptable. The requirement of Section 68 of the Evidence Act is to prove the execution of document, which is required by law to be attested. Therefore, what is to be proved, is execution of the Will and not the contents of it. Thus, the learned Appellate Court has committed an error by discarding the evidence of this witness.
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25. To sum up the discussion on this issue, it is held that the gift deed Ex. DW1/P1 is a valid instrument. Plaintiff has miserably failed to prove that the gift deed Ex. DW1/P1 dt. 16.03.2012 is null and void, illegal, inoperative and not binding upon him (plaintiff). Plaintiff is not entitled to the discretionary relief of declaration visavis the registered gift deed Ex. DW1/P1 dt. 16.03.2012. He can neither be entitled for cancellation of the gift deed Ex. DW1/P1 dt. 16.03.2012. It is ordered accordingly. This issue is thus answered against the plaintiff and in defendants' favour.
26. Issue No.7 The issue is whether plaintiff is entitled to a decree of declaration declaring him to be the absolute owner of the suit property; onus being on plaintiff to prove it. The outcome of issue no.6 a fortiori entails that plaintiff is entitled to a declaratory decree declaring him to be the absolute owner of the suit property. This issue is answered against the plaintiff and in defendants' favour.
27. Issue No.8 The issue is whether the plaintiff is entitled to a decree of permanent injunction as prayed for; onus being on plaintiff to prove it. The outcome of issue no.6 a fortiori entails that plaintiff is entitled to the discretionary relief of permanent injunction against the defendants. This issue is answered against the plaintiff and in defendants' favour.
28. Issue No.3 The issue is whether suit is time barred as alleged by defendants; onus being on defendants to prove it. The suit is ex facie time barred. Under Article 58 of the Schedule of Limitation Act, 1963 limitation to CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 22 of 26 obtain any other declaratory relief is 03 years and the time begins to run when the right to sue first accrues. Under Article 59 of the Schedule of Limitation Act, 1963 limitation to sue for cancellation / setting aside an instrument is again 03 years and time begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside first became known to him. In the case at hand, plaintiff was very much aware about the nature of the gift deed Ex. DW/P1 and the contents thereof at the time of its execution/ registration. He in his crossexamination stated, "It is correct that I have carefully gone through the each document which I executed before I signed." That apart, the contents of the plaint would itself show that the plaintiff was aware about the nature of the document that he had executed in favour of BPS. So long as BPS was alive the plaintiff had no grievance. It was only after the demise of BPS that the plaintiff started to raise allegations. That apart, the gift deed is registered. SubRegistrar's endorsement thereon would show that contents thereof had been explained to the plaintiff who had understood the conditions and admitted them as correct. Plaintiff was thus very much aware about the nature of the gift deed and the contents thereof. It is actually none of the case of the plaintiff that he did not know as to what he had executed. As already noted hereinabove, plaintiff's allegations of cheating, fraud, undue influence and misrepresentation have no basis. The suit filed on 08.03.2016, in relation to the gift deed Ex. DW1/P1 dt. 16.03.2012, is ex facie time barred. This issue is thus answered against the plaintiff and in defendants' favour.
29. Issue No.5 The issue is whether plaintiff is guilty of suppressing CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 23 of 26 material facts from the Court as alleged by defendants; onus being on defendants to prove it. There can certainly be no denial from the settled principle of law that suppression of 'material' fact by a litigant disqualifies him from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But what is essential is that the suppressed fact must be a 'material' fact. It must be material in the sense that had it not been suppressed it would have had an effect on the merits of the case. Decisions reported as Mayar (H.K.) Ltd. & Ors. vs. Owners & Parties, Vessel M.V. Fortune Express & Ors., (2006) 3 SCC 100, M/s S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar & Ors., AIR 2004 SC 2421 and Virender Nath Gautam vs. Satpal Singh & Ors., AIR 2007 SC 581 can be referred to in this context. Defendants' stand is that plaintiff resorted to suppression of 'material' facts by not truly stating that the gift deed had been executed out of his (plaintiff's) free will and volition after complying with all the essential requirements of gift and that he (plaintiff) had trespassed into the suit property after demise of BPS. This is hardly a suppression of 'material' fact on plaintiff's part. Had it been plaintiff's case that he had executed the gift deed out of his own free will and volition, he would not have in the very first place knocked the doors of this Court by bringing the present action. Further, from plaintiff's point of view, the allegation that he had trespassed into the suit property was not germane. These are actually defences of the defendants. A plaintiff, in a given case, by not accepting defence of defendant(s) to be correct does not in fact invite the accusation of having suppressed material facts. As to which of the CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 24 of 26 two versions is actually correct is essentially a matter of trial. The fact that the version of a litigant does not match with that of the adverse party does not necessarily mean that he suppressed material facts. It is held that there has not been suppression of 'material' facts on plaintiff's part. This issue is answered against the defendants and in plaintiff's favour.
30. Issue No.4 The issue is whether plaintiff has no cause of action and the suit is liable to be rejected under Order VII Rule 11 CPC, as alleged by defendants; onus being on defendants to prove it. To determine as to whether or not plaintiff's case merits rejection, for want of cause of action, under Order VII Rule 11 of CPC, it is only and only the averments in the plaint and the documents annexed therewith that are germane. For this, defendants' defence(s) or averments in their written statement are not at all to be considered. Rejection of plaintiff's case under Order VII Rule 11, CPC is essentially based on a plea of demurrer taking averments in the plaint to be correct. From a bare reading of the plaint it is evident that the allegations of undue influence, cheating and fraud are without substance and devoid of the necessary particulars as required under Order VI Rule 4, CPC. The alleged representation is no misrepresentation within the meaning of section 18 of Contract Act. The averment that gift was incomplete as plaintiff did not hand over possession of the suit property to the donee is devoid of substance as handing over of possession of the immovable property is not an essential requirement of the gift deed. Given these averments in the plaint, this Court is of the view that it was fit case where the plaint ought to have been rejected for CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 25 of 26 want of cause of action under Order VII Rule 11, CPC. This issue is accordingly decided against the plaintiff and in defendants' favour.
31. Relief - This suit stands dismissed. No order as to costs. Decree sheet be drawn up. File be consigned to record room.
Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi ANNOUNCED IN THE OPEN Date: 2019.09.09 16:34:14 +0530 COURT ON 09.09.2019 (M. P. SINGH) ADJ3 (EAST) KKD COURTS DELHI/ 09.09.2019 CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 26 of 26