Delhi District Court
Smt. Sunita Vig vs Veena Soin on 27 May, 2023
IN THE COURT OF SH. ARUN KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-05 (CENTRAL)
TIS HAZARI COURTS, DELHI
CS DJ no. 627/2017
CNR no. DLCT01-002339-2017
Smt. Sunita Vig.
D/o Sh. R.P. Malhotra,
W/o Late Sh. Pravesh Vig,
R/o 58/9, Ground floor,
Old Rajindra Nagar,
New Delhi-110060 .......Plaintiff
Versus
1. Veena Soin,
2. Anuradha,
Both Resident of:
58/9, Second floor,
Old Rajinder Nagar,
New Delhi-110060. ........Defendants
Date of Institution of Petition : 14.02.2017
Date of Judgment : 27.05.2023
Suit for Recovery of Possession, Damages/Mesne Profits as
well as for Permanent Injunction
JUDGMENT:
1. By this judgment, I shall dispose of the present suit of the plaintiff for recovery of possession of second floor of the property bearing no.58/9, Old Rajinder Nagar, New Delhi- 110060 (hereinafter referred to as the "suit property"), damages/mesne profits @ Rs.50,000/- per month along with interest @15% per annum w.e.f. 01.02.2017 till handing over of actual, vacant, peaceful and physical possession of the suit CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 1 of 52property by the defendants to the plaintiff and for permanent injunction restraining the defendants from subletting, assigning, parting with possession of the suit property and from creating any third party interest in the same.
2. The aforesaid suit has been filed by the plaintiff on 13.02.2017 claiming herself to be the owner of the suit property on the basis of a registered gift deed dated 28.10.2016 executed by her mother Smt. Tripta Malhotra in her favour and the defendants to be in unauthorized occupation of the same. It is the case of the plaintiff as per the plaint that defendant no.1 was married with the brother of the plaintiff viz. Sh. Arun Aditya Malhotra and the marriage of defendant no.1 was dissolved through a decree of divorce dated 10.02.1993, whereas, defendant no.2 is the daughter of defendant no.1. After dissolution of marriage of defendant no.1 with the brother of plaintiff, mother-in-law of defendant no.1 (mother of the plaintiff namely Smt. Tripta Malhotra), at her request, allowed the defendant no.1 to enjoy the suit property on license basis keeping in view her past relationship with Smt. Tripta Malhotra and the fact that she was having a minor child with her i.e. defendant no.2.
3. Defendant no.1, according to plaintiff, had promised her mother-in-law that she will vacate the suit property as and when demanded by the later, however, despite repeated demands of Smt. Tripta Malhotra, defendant no.1 had failed to vacate the same. Since, according to plaintiff, defendant no.1 has committed mental and physical cruelty upon Smt. Tripta Malhotra while threatening her to create third party interest in the CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 2 of 52suit property, feeling apprehensive about the said threats, Smt. Tripta Malhotra executed the registered gift deed in respect of the suit property in favour of plaintiff.
4. After acquiring the ownership of the suit property through the aforesaid registered gift deed, according to plaintiff, she had repeatedly asked both the defendants to deliver the possession of the suit property to the plaintiff, however, the defendants have failed to comply with the said demands of the plaintiff including with the demand through legal notice dated 09.01.2017. On the other hand, according to plaintiff, the defendant no.1 has, unlawfully and illegally, let out the suit property to different persons and she is getting occupancy charge to the tune of Rs.50,000/- per month approximately. Since, according to plaintiff, the defendants are enjoying the suit property as unauthorized occupants, they are liable to pay occupancy charges/mesne profits to the tune of Rs.50,000/- per month with effect from 01.02.2017 until delivery of possession of the suit property by the defendants to the plaintiff, in as much as, if the suit property is let out to any other person, the same may fetch the rent to the tune of Rs.50,000/- per month.
5. Besides, according to plaintiff, since the defendants are threatening to hand over the actual vacant and peaceful possession of the suit property to some other person by way of sale/transfer/mortgage or by way of letting out the same to third parties and the prospective buyers and brokers are visiting the suit property, the plaintiff is also entitled to an injunction restraining the defendants from creating any third party right, title or interest in the suit property in any form whatsoever. The CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 3 of 52plaintiff has thus filed the present suit for recovery of possession of the suit property, mesne profits/damages and permanent injunction against the defendants.
6. Upon receipt of the plaint, summons of the suit were directed to be issued to the defendants vide order dated 14.02.2017. Both the defendants appeared in response to the summons of the suit and filed a joint written statement on 14.11.2017.
7. In their written statement, defendants have objected to the maintainability of the present suit on the ground that plaintiff has filed the present false and frivolous suit, without any cause of action in her favour, by concealing the material facts so as to deprive the defendants from the legal and legitimate share in the suit property despite they being the only legal heirs of Mr. Arun Aditya Malhotra, who was the real brother of the plaintiff. It has further been alleged by the defendants that the plaintiff has filed the present suit on the basis of forged and fabricated documents, in as much as, at the time of alleged execution of the gift deed dated 28.10.2016, Smt. Tripta Malhotra was both physically and mentally fragile and weak and was suffering from various old ages diseases.
8. It is further the case of defendants that Smt. Tripta Malhotra at the relevant time was dependent on her care taker and she was not able to either walk on her own or raise her hand and needed assistance in all her daily chores. Moreover, according to defendants, the condition of Smt. Tripta Malhotra was such that she was not in her sound mind at the time of alleged execution of the gift deed and hence, the gift deed in CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 4 of 52question was executed in suspicious circumstances. It is further alleged by the defendants in their written statement that the plaintiff had already received her share from the parental properties and in her greed for more, she had used her force, undue influence and dominion over her mother namely Smt. Tripta Malhotra at a time when she was most vulnerable and not able to defend and understand the nature and consequences of her acts.
9. Both the defendants, according to them, have always been in possession of the suit property, being the inheritor of Mr. Arun Aditya Malhotra, brother of the plaintiff, and the only members of the family who had ever lived in the suit property since 1977 and have paid for maintenance and upkeep of the same. It is further their case that there had never been any legal contract or verbal communication in respect of the alleged lease or license as alleged by the plaintiff and in fact, no fee or rent was every paid either by Mr. Arun Aditya Malhotra or by the defendants to Smt. Tripta Malhotra. Dispute in respect of the suit property, according to defendants, has been raised by the plaintiff only after she sold her family house in Model Town in year 2000 against which she bought an apartment in Rohini and subsequently moved to a rented apartment at Pitam Pura after selling the same.
10. It is further their case that the plaintiff had liquidated her assets so as to enable her to demand a share in her parental property. After her marriage, according to defendants, the plaintiff had only stayed on the ground floor of the property, of which the suit property is a part, during her visits to her parents CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 5 of 52and since 2003 she had intention to move to the ground floor of the aforesaid property. However, due to her strained relations with her mother, she waited until her mother moved to Dehradun, whereafter, the plaintiff has trespassed into the ground floor of the above said property and had taken illegal possession thereof.
11. Smt. Tripta Malhotra, according to defendants, has for the first time moved with the plaintiff to the ground floor of the above said property in September 2016 after her discharge from the hospital and it appears very strange and unlikely that when she was under the influence of medication and not physically capable of taking care of herself, she would have executed the gift deeds in respect of ground floor as well as the second floor of the aforesaid property in October 2016.
12. It has further been alleged by the defendants that defendant no.1, along with her husband Mr. Arun Aditya Malhotra, had moved to the suit property in September 1977 and lived their until May 1985. Husband of defendant no. 1 namely Mr. Arun Aditya Malhotra, according to defendants, left his family on 01.05.1985, whereafter, he did not return to the family due to which the defendant shifted to the ground floor while keeping the possession as well as keys of the suit property. Living room in the suit property, according to defendants, was used to store belongings of the defendants, whereas, the remaining two rooms of the suit property were rented out by the defendant no.1 who was receiving the rental income from the same. Over the years, according to defendants, it was reiterated by the in-laws of defendant no.1 that the rights in the suit property in addition to another floor will be given to them since they had already given CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 6 of 52residential plots to all their children except Mr. Arun Aditya Malhotra.
13. According to defendants, Smt. Tripta Malhotra had made it clear on a number of occasions that even after re-marriage of defendant no.1, the property share of defendants being the legal heirs of Mr. Arun Aditya Malhotra shall remain unchanged. In December 1992, according to defendants, defendant no.1 had remarried to Mr. Harkishan Singh Soin with the consent of both her in-laws namely Sh. Rajinder Paul Malhotra and Smt. Tripta Malhotra. Since, the second husband of the defendant no.1 was a Canadian citizen, after marriage, he sponsored both the defendants to Canada. Defendant no.1 has accordingly moved to Canada in September 1996, whereas, defendant no.2 has joined them in May 1997.
14. As and when they visited India, according to defendants, they had stayed with Smt. Tripta Malhotra on the ground floor of the suit property and it was in May 2006 when the living conditions on the ground floor became unbearable due to conduct of plaintiff, who had moved to the ground floor, the defendants were forced to move to the suit property. Since, according to defendants, the second floor of the property was lying vacant for more than five years, it required a lot of repairs and entire money on the same was spent by defendant no.1. In 2007, according to defendants, defendant no.1 rented out two rooms of the apartment on a need basis and in October 2009 she got a third bedroom constructed in the suit property on her own cost and expenses, which was never objected to by Smt. Tripta Malhotra or anyone else in the family, which remained unoccupied until CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 7 of 522010.
15. Thereafter, during each of the visits of the defendants to India, their primary residence had always been the suit property and during the visit of defendants in the year 2013, they noticed that Smt. Tripta Malhotra had much difficulty in hearing. In the year 2016, according to defendants, Smt. Tripta Malhotra was rushed to hospital on several occasions and it was during the aforesaid period that the plaintiff had informed the defendant no.1 that her mother had given the defendants so much but now she would not let her give any of it to the defendants. In May 2017, according to defendants they made several attempts to contact Smt. Tripta Malhotra but they were not allowed by the plaintiff and it was only on 2nd June 2017 that defendant no. 2 was able to meet her grandmother under stiff resistance from the plaintiff. During the aforesaid discussion, according to defendants, it was evident that Smt. Tripta Malhotra was extremely weak and was showing signs of dementia compared to her last visit in September 2016 and her health seemed to have drastically declined.
16. Thus, the defendants had resisted the suit of the plaintiff on the ground the gift deed dated 28.10.2016 is a forged and fabricated document and the possession of the suit property was given to defendant no.1 and her late husband Mr. Arun Aditya Malhotra, as per the family settlement and since then she is in possession of the same. Defendants have denied that the possession of the suit property was handed over by Smt. Tripta Malhotra to the defendants purely on license basis or that either defendant no.1 had ever promised to Smt. Tripta Malhotra to CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 8 of 52vacate the suit property as and when required by her or Smt. Tripta Malhotra had ever required the defendants to vacate the suit property. Defendants have relied upon the email communication dated 04, 05, 07 and 08 December 2016 of the plaintiff with defendant no.2 to prove that relationship of defendants with Smt. Tripta Malhotra was cordial and genuine and the present suit has been filed by the plaintiff to gain control over the suit property and to deprive the defendants of their legal rights over the same.
17. The defendants have denied the receipt of legal notice dated 09.01.2017 and has refuted the claim of plaintiff in respect of mesne profits. They have thus prayed for dismissal of the suit of plaintiff with exemplary costs.
18. A replication to the aforesaid written statement of defendants was thereafter filed by the plaintiff on 20.03.2018, wherein, she has once again reiterated the averments made by her in the plaint and had denied the contrary averments made by the defendants in their written statement.
19. It is significant to note that after entering appearance in the present suit, the defendants have filed a suit against the plaintiff herein on 12.06.2018, seeking a decree of declaration in respect of the registered gift deeds dated 28.10.2016 and 08.03.2016 in respect of the suit property as well as the ground floor of property no.58/9, Old Rajinder Nagar, Delhi, purportedly executed by Smt. Tripta Malhotra in favour of plaintiff herein, as null and void, besides, a decree of mandatory and permanent injunction on almost identical grounds which have been taken by the defendants in their written statement in the present suit and CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 9 of 52the same was registered as CS DJ 2062/2018. After the defendant (plaintiff herein) had appeared in the aforesaid suit and filed her written statement, Issues were settled in the aforesaid suit simultaneously with the settlement of issues in the present suit on 15.11.2018. Vide order dated 15.11.2018 in the connected suit bearing no. CS No.2062/18 it was observed by Ld. Predecessor of this Court that the aforesaid suit is clubbed with the present suit for the purpose of evidence and hence, the evidence led by the parties in one case shall be read as evidence in both the cases.
20. On the pleading of the parties, following issues were settled by Ld. Predecessor of this Court vide order dated 15.11.2018:-
1. Whether Gift Deed dated 28.10.2016 in favour of the plaintiff, in respect of the suit property is a forged and fabricated document? OPD.
2. Whether the plaintiff is entitled to decree of possession of the suit property i.e. 2 nd floor of property no. 58/9, Old. Rajinder Nagar, New Delhi-
60, as shown in site plan attached with the plaint? OPP
3. Whether the plaintiff is entitled to decree of recovery of damages of Rs. 50,000/- as prayed for? OPP.
4. Whether the plaintiff is entitled to decree of permanent injunction against the defendants, as prayed for? OPP
5. Relief.
21. Subsequently, vide order dated 28.09.2019, issue no.3 hereinabove was amended and the amended issue no. 3 reads as CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 10 of 52under:
"3. Whether the plaintiff is entitled to the decree of recovery of damages of Rs. 50,000/- per month with interest as prayed for? OPP"
22. Plaintiff has thereafter examined herself as PW1 i.e. as the sole witness in support of her case and tendered her evidence by way of affidavit Ex. PW1/A along with following documents:-
i) Ex PW1/1 (OSR): Copy of registered Gift deed dated 28.10.2016.
ii) Ex PW1/2: Site Plan of the suit property.
iii) Ex PW1/3: Legal demand notice dated 09.01.2017.
iv) Ex PW1/4(colly): Postal receipts regarding dispatch of legal demand notice.
v) Ex PW1/5: Letter dated 30.01.2017 of NDMC addressed to the plaintiff.
vi) Ex PW1/6 (OSR): House Tax receipt in respect of the suit property.
23. PW1 was duly cross-examined by Ld. Counsel for defendants and was confronted with several photographs Ex. PW1/D1 to Ex. PW1/D8. She was also confronted with the letters mark PW1/X1 to Mark PW1/X3 written by the mother of the plaintiff namely Smt. Tripta Malhotra.
24. No other witness was examined on behalf of the plaintiff. Thereafter, on a separate statement of Ld. Counsel for plaintiff, PE was closed vide Order dated 02.02.2019.
25. Defendants have examined themselves as the only witnesses in their evidence. Defendant no.2 has examined herself as DW-1 and tendered her evidence by way of affidavit Ex. DW-1/A along with following documents:-
CS DJ no. 627/2017Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 11 of 52
i) Ex. DW1/1(colly): Rent agreement, water bills, electricity bills, house tax receipts and construction bills in respect of the suit property.
ii) Ex. DW1/2(colly): Letter written by late Tripta Malhotra to DW1.
iii) Ex. DW1/3(colly): Photographs of DW1 along with her mother and Late Tripta Malhotra.
iv) Ex. DW1/4(Colly): Copies of passports of defendant no.2 showing her regular visits to India.
26. She was duly cross-examined by Ld. Counsel for plaintiff and was confronted with a document Mark DW1/PA, besides, the documents which are part of Ex. DW1/1(colly) and the photograph Ex.DW-1/PX1. Moreover DW1 has produced 19 greeting cards during her cross-examination, which are Ex.DW1/PX2A to 2P.
27. Defendant no.1 has examined herself as DW2 and tendered her evidence by way of Ex.DW-2/A in her evidence along with medical certificate purportedly issued by Handa Nursing Home in respect of Smt. Tripta Malhotra which is Ex.DW-2/1. She was duly cross-examined by Ld. Counsel for plaintiff and discharged.
28. No other witness was examined on behalf of defendants and hence, on the statement of Ld. Counsel for defendants, DE was closed vide Order dated 30.10.2019. Matter was thereafter adjourned for final arguments.
29. Final arguments on behalf of both the parties were thereafter heard. Besides, brief synopsis of written submissions has also been filed on behalf of the defendants on 12.05.2023.
30. It is submitted by Ld. Counsel for plaintiff that the plaintiff has filed the present suit on the basis of her ownership, acquired through registered gift deed dated 28.10.2016 executed by her CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 12 of 52mother late Mrs Tripta Malhotra in her favour. On the other hand, according to him, the defendants were merely licensees in respect of the suit property, having been permitted to stay therein by the erstwhile owner of the suit property viz. Smt. Tripta Malhotra. He submits that the plaintiff has been able to prove her ownership over the suit property by tendering a copy of the registered gift deed dated 28.10.2016 and since, there was no specific denial on the part of defendants of execution of the same by Smt. Tripta Malhotra, the plaintiff was not required to examine any attesting witness to the gift deed within the meaning of Section 68 of the Indian Evidence Act.
31. Once, according to him, the plaintiff has been able to prove her ownership over the suit property, it was incumbent upon the defendants to prove that they had any right, title or interest in the suit property sufficient to resist the present suit of plaintiff for recovery of possession of the suit property. However, according to him, the defendants have failed to prove the existence of any right, title or interest in them in respect of the suit property so as to defeat the claim of the plaintiff for recovery of possession of the suit property along with mesne profits @ ₹ 50,000/- per month. Thus, according to him, the plaintiff is entitled to a decree for recovery of possession of the suit property, besides, mesne profits @ ₹ 50,000/- per month w.e.f. 01.02.2017 until the defendants hand over vacant and peaceful physical possession of the suit property to the plaintiff. He submits that the plaintiff is also entitled to a decree of permanent injunction restraining the defendants from parting with possession of the suit property as well as from creating any third CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 13 of 52party right, title or interest as prayed for by the plaintiff in the plaint.
32. On the other hand, it is submitted by Ld. Counsel for defendants that the plaintiff has failed to prove her ownership over the suit property. He submits that the claim of plaintiff as to her ownership over the suit property is solely based upon the registered gift deed dated 28.10.2016. However, according to him, the plaintiff has failed to prove the same as per the provisions of Section 68 of the Indian Evidence Act, 1872. He submits that the defendants in their pleadings have specifically denied the execution of alleged registered gift deed dated 28.10.2016 within the meaning of proviso to Section 68 of the Indian Evidence Act, however, the plaintiff has failed to prove the same by examining at least one of the attesting witnesses to the said deed.
33. Even otherwise, according to him, upon a comparison of purported signatures of Smt. Tripta Malhotra on the registered gift deed dated 08.03.2016 with her alleged signatures on registered gift deed Ex. PW1/2, it is apparent that the purported signatures of Smt. Tripta Malhotra on the aforesaid two deeds are entirely different from each other. The aforesaid variation in the purported signatures of Smt. Tripta Malhotra on both the gift deeds, according to him, in the absence of production of any document containing admitted signatures of Smt. Tripta Malhotra by the plaintiff, showing the manner in which she used to sign, creates sufficient doubt about the due execution of gift deed dated 28.10.2016 by Smt. Tripta Malhotra. Not only, according to CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 14 of 52him, the plaintiff has failed to produce any such document, but she has also failed to summon any witness from the bank of Smt. Tripta Malhotra alongwith her admitted signatures for comparison of her purported signatures on the two gift deeds dated 08.03.2016 and 28.10.2016. In fact, according to him, plaintiff has categorically stated during her cross-examination that the signatures on the alleged registered gift deed dated 28.10.2016 were done by Smt. Tripta Malhotra in the presence of brother of plaintiff namely Sh. Sudhir Malhotra and she could not even depose about the manner in which Smt. Tripta Malhotra used to sign.
34. Under the aforesaid circumstances, according to him, it was incumbent upon the plaintiff either to produce Sh. Sudhir Malhotra as a witness to prove the signatures of Smt. Tripta Malhotra on the registered gift deed dated 28.10.2016 or in the alternative to examine at least one of the attesting witnesses to the deed. In support of his aforesaid submission Ld. Counsel for defendants has relied upon the judgments of Hon'ble Supreme Court in K Laxmanan Vs. Thekkayil Padmini & Ors.(2009) 1 SCC 354 and in Govindbhai Chhotabhai Patel & Ors. V. Patel Ramanbhai Mathurbhai AIR 2019 SC 4822.
35. Besides, according to him, a valid Gift requires the transfer of possession of the gifted property by the donor to the donee. Although, according to him, clause 2 and 13 of the gift deed dated 28.10.2016 state that the donor had handed over the peaceful, vacant and physical possession of the suit property to the Donee at the time of execution of the gift deed and the Donee had thereby accepted the same from the donor, however, during CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 15 of 52her cross-examination dated 07.01.2019, plaintiff has categorically admitted that she had never remained in physical possession of the suit property and in fact, it is the defendants who are in possession of the same. He further submits that the plaintiff has further categorically admitted that even in the year 2016, when the registered gift deed was purportedly executed by Smt. Tripta Malhotra in favour of plaintiff, the defendants were in physical possession of the suit property.
36. From the aforesaid admissions, according to him, it is apparent that no physical possession of the suit property was ever handed over by the donor to the plaintiff. He submits that mere execution of a gift deed, in the absence of delivery of possession of the property, cannot make the gift complete. In the case in hand, according to him, admittedly the possession of the suit property had not been handed over by the donor to the plaintiff, although, a recital to the contrary has been incorporated in the gift deed and hence, the alleged gift was not complete.
37. Besides, according to him, even the acceptance of the gift is one of the pre-conditions of a valid gift in terms of Section 122 of the Transfer of Property Act, however, in the case in hand, the plaintiff cannot be said to have accepted the gift, in as much as, admittedly the defendants continued to be in possession of the suit property even after 28.10.2016 and it was the defendant no. 1, who continued to collect the rent in respect of the same. The aforesaid facts, coupled with the fact that the cordial relationship between the defendants and the donor has not been denied by the plaintiff, according to Ld. Counsel for defendants, indicate that there was no valid acceptance of the gift by the alleged donee i.e. CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 16 of 52the plaintiff herein.
38. It is further submitted by Ld. Counsel for defendants that the plaintiff has alleged the defendants to be the licensees in the suit property, however, according to him, during her cross- examination, plaintiff has categorically admitted that it was defendant No. 1 who had got one room in the suit property constructed at her own cost and expenses, for giving the same on rent and even during the period when she was not residing in the suit property, she had given the same on rent and was realizing rent from the tenants, without any objection from Smt. Tripta Malhotra who has even not filed any suit/litigation objecting to the said construction by defendant No. 1 in the suit property. In view of the aforesaid admissions, according to him, the alleged license of the defendants had become irrevocable in nature in view of the provisions of Section 60(b) of the Indian Easements Act, which could not have been revoked either by Smt. Tripta Malhotra or by the plaintiff merely by serving a legal notice.
39. Under the aforesaid circumstances, according to him, the present suit of plaintiff is liable to be dismissed with exemplary costs.
40. In rebuttal, it is submitted by Ld. Counsel for plaintiff that in view of the authoritative pronouncement of Hon'ble Supreme Court in Renikuntla Rajamma v. K. Sarwanamma (2014)9 SCC 445, delivery of possession of any immovable property is not an essential pre-requisite for making a valid gift in terms of Section 123 of the Transfer of Property Act, 1882 which supersedes the rule of ancient Hindu Law which might have required delivery of possession of the immovable property as an essential condition CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 17 of 52for completion of a gift.
41. So far as the plea of Ld. Counsel for defendants regarding the license of defendants having become irrevocable in terms of section 60(b) of the Indian Easements Act, on account of raising of construction by the defendants in the suit property which was of the permanent character, without any objection on the part of plaintiff or the erstwhile owner of the suit property, is concerned, it is submitted by him that the aforesaid contention of Ld. counsel for defendants is beyond the pleadings of defendants in her written statement. He submits that the defendants have categorically denied the existence of any license in her favour in respect of the suit property and hence, at the stage of final arguments, Ld. counsel for defendants cannot be permitted to turn around and say that the license in favour of defendants in respect of the suit property had become irrevocable on the ground that she had raised some construction in the suit property, which was of permanent character, without any objection on the part of the licensor. In support of his aforesaid submission, Ld. Counsel for defendants has relied upon the judgment of Hon'ble Supreme Court in Ram Sarup Gupta (Dead) by LRs v. Bishun Narain Inter College & Ors. (1987)2 SCC 555 and the judgment of Hon'ble Delhi High Court in Rakesh Gupta v. Ramesh Gupta 2015 SCC OnLine Del 11183 .
42. Besides, according to him, in view of the authoritative pronouncement of Delhi High Court in A. N. Kaul v. Neeraj Kaul (2018)3 RCR(civil) 501, even if, it is assumed for the sake of arguments that the alleged license of the defendants in respect of the suit property had become irrevocable in terms of Section CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 18 of 5260(b) of the Indian Easements Act, the remedy, if any, for the defendants is not to resist a suit for recovery of possession of the suit property by the registered owner of the same, but, to seek compensation in terms of Section 64 of the Act.
43. It is further submitted by him that since the execution of registered gift deed dated 28.10.2016 by late Smt. Tripta Malhotra has not been specifically denied by the defendants, it was not incumbent upon the plaintiff to prove the registered gift deed by examining at least one of the attesting witnesses to the deed in terms of Section 68 of the Indian Evidence Act.
44. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record, including the judgments relied upon by Ld. Counsels for the parties. My issue wise findings on the issues settled by Ld. Predecessor of this Court vide order dated 15.11.2018 are as follows:
Issue No. 1: Whether gift deed dated 28.10.2016 in favour of the plaintiff, in respect of the suit property is a forged and fabricated document? OPD
45. Onus to prove the aforesaid issue was upon the defendants, in as much as, in their written statement, the defendants have alleged that the registered gift deed dated 28.10.2016 is forged and fabricated. It is submitted by Ld. Counsel for defendants that the defendants in the present case have placed on record a certified copy of registered gift deed dated 08.03.2016, in respect of ground floor of the property in question, which was also purportedly executed by late Smt. Tripta Malhotra in favour of CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 19 of 52the present plaintiff. He submits that a bare perusal of the registered gift deed dated 28.10.2016 alongwith registered gift deed dated 08.03.2016 shows that the signatures of late Smt. Tripta Malhotra in two deeds are altogether different when compared with each other. The aforesaid facts, according to him, clearly indicates that the registered gift deed dated 28.10.2016 relied upon by the plaintiff in support of her ownership over the suit property is forged and fabricated, in as much as, signatures on the same are not of late Smt. Tripta Malhotra.
46. It is further submitted by him that PW1, during her cross- examination, could not identify the signatures of alleged donor, which, according to plaintiff, had been signed by the donor in the presence of Sh. Sudhir Malhotra. However, according to him, the plaintiff has neither produced Sh. Sudhir Malhotra as a witness nor has she produced either of the attesting witnesses to the registered gift deed dated 28.10.2016, in terms of Section 68 of the Indian Evidence Act and hence, the registered gift deed dated 28.10.2016 has not been proved by the plaintiff as per the applicable rules of evidence. On the other hand, according to him, the testimony of DW1 and DW2 regarding the registered gift deed dated 28.10.2016 being forged and fabricated remained uncontroverted and the same has further been corroborated by comparison of purported signatures of the alleged donor on the registered gift deed dated 08.03.2016 vis a vis her purported signatures on the registered gift deed dated 28.10.2016. Thus, according to him, the defendants have been able to discharge their onus to prove the aforesaid issue.
47. On the other hand, it has been alleged by Ld. Counsel for CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 20 of 52plaintiff that the defendants have failed to lead even an iota of evidence regarding alleged forgery and fabrication of registered gift deed dated 28.10.2016 by the plaintiff. He submits that since the defendants have failed to specifically deny the execution of registered gift deed dated 28.10.2016 by Smt. Tripta Malhotra, it was not mandatory for the plaintiff to examine at least one of the attesting witnesses to the same in terms of proviso appended to Section 68 of the Indian Evidence Act. He submits that the plaintiff has duly tendered the registered gift deed dated 28.10.2016 in her evidence, which is not only duly registered in the office of sub- registrar concerned as per the provisions of the Indian Registration Act, 1908, but has also been attested by two witnesses in terms of Section 123 of the Transfer of Property Act, 1882. Under the aforesaid circumstances, according to him, the plaintiff has been able to prove the same as per the applicable provisions of law of evidence and since the defendants have failed to prove that the same was either forged or fabricated, the present issue should be decided against the defendants.
48. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record.
49. As has already been observed hereinabove, the plaintiff has based her claim of ownership over the suit property on the registered gift deed dated 28.10.2016 which has been tendered by her in her evidence as Ex. PW1/2. It is significant to note that it is Section 123 of the Transfer of Property Act, 1882, which regulates the mode of making a valid gift and the same inter-alia provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 21 of 52attested by at least two witnesses. Moreover, Section 122 of the Act defines the gift as a transfer of certain existing movable or immovable properties made voluntarily and without consideration by one person called the donor to another called Donee and accepted by or on behalf of the Donee. It further requires that in order to constitute a valid gift, acceptance must be made during the lifetime of the donor when the donor is still capable of giving. It renders the gift void if the donor dies before acceptance.
50. Now, in the case in hand, a bare perusal of the registered gift deed dated 28.10.2016 shows that the same is not only purportedly signed by the donor and two attesting witnesses but the same has also been duly registered as per the provisions of Indian Registration Act, 1908. Moreover, the registered gift deed also contains a recital regarding acceptance of the gift by the plaintiff and the plaintiff has also put her signatures on the registered gift deed as an acknowledgment of acceptance of the gift. Defendants have sought to contend that the plaintiff has not been able to prove the aforesaid registered gift deed dated 28.10.2016 as per applicable rules of evidence, in as much as, none of the attesting witnesses to the registered gift deed has been examined by the plaintiff in her evidence.
51. Now, it is significant to note that it is Section 68 of the Indian Evidence Act which provides the manner in which a document, required by law to be attested, is to be proved. Since, it has already been observed hereinabove that a gift deed is required under section 123 of the Transfer of Property Act, 1882, to be attested by at least two witnesses, the same is required to be CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 22 of 52proved in the manner contemplated under Section 68 of the Indian Evidence Act, 1872.
52. Section 68 of the Indian Evidence Act makes it mandatory to examine at least one of the attesting witnesses to the document, which as per law is required to be attested, for the purpose of proving the execution thereof, however, such limitation is not applicable in respect of proof of execution of any document (other than a will) which has been registered in accordance with the provisions of Indian Registration Act, 1908 unless the execution thereof is specifically denied.
53. Thus, the answer to the question whether the registered gift deed dated 28.10.2016 has been duly proved by the plaintiff as per the provisions of Section 68 of the Indian Evidence Act or not, depends upon answer to the question whether the execution thereof has been specifically denied by the defendants or not.
54. Before proceeding to examine the aforesaid question, I would like to reproduce relevant pleadings of defendants in their written statement qua the registered gift deed dated 28.10.2016, which are as follows:
"Preliminary objections:
10. That the plaintiff has filed the present suit based on forged and fabricated documents. It is pertinent to mention here that the gift deed dated 28.10.2016 is forged and fabricated document as Smt. Tripta Malhotra, mother of plaintiff at the time this gift deed is alleged to be executed was both physically and mentally fragile and weak. She is suffering from various old-age diseases and is very dependent on her caretaker. She is not able to walk on her own, CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 23 of 52
raise her hands and needed assistance with all her daily chores. It is pertinent to mention here that the condition of Smt. Tripta Malhotra is such that she was not in her sound mind at the time the alleged gift deed is stated to be executed by her. Thus, the gift deed in question is executed in suspicious circumstances.
11. That the plaintiff who had already received her share from parental property in her greed has used her force, undue influence, and dominion over her mother i.e. Smt. Tripta Mahotra at the time she was most vulnerable and not able to defend/understand the nature and consequences of her act.
16. ... It seems that the support worker was responsible for cooking, feeding and assisting her with her daily chores. Therefore, it appears very strange and unlikely that in October 2016 when Smt. Tripta Malhotra, Smt. Tripta Malhotra was under the influence of medication and not physically capable of taking care of herself that she decided to give the ground floor and 2nd floor of property to the plaintiff.
Parawise Reply:
2. That the contents of para 2 of the suit are false and hence denied. It is specifically and vehemently denied that the plaintiff is the owner of the 2nd floor of property bearing No. 58/9, Old Rajinder Nagar, New Delhi - 110060 by virtue of a registered gift deed dated 28.10.2016. It is stated that gift deed dated 28.10.2016 is forged and fabricated document and the plaintiff should be put to strict test regarding the same. It is further stated that defendant no. 1 and her late husband namely Arun Aditya Malhotra as per family settlement were given the possession of CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 24 of 52
2nd floor way back in 1977 and since then the property is in possession of defendant no.1. That the contents of above paras may be read as part and parcel of the para under reply and the same are not repeated here for the sake of brevity.
9. That the contents of para 9 of the suit are false and hence denied. It is specifically and vehemently denied that it is worthwhile to mention that defendant no. 1 has committed mental and physical cruelties upon Smt. Tripta Malhotra and also threatened to create third party interest of the property. It is stated that it was plaintiff whose relation with her mother Smt. Tripta Malhotra was estranged to such an extent that plaintiff was not even allowed to enter the premises of the property when Smt. Tripta Malhotra was hale and hearty and it was only when Smt. Tripta Malhotra shifted to Dehradun that plaintiff trespassed and illegally got the possession of the ground floor of the property where the disputed property is situated. It is further stated that in 2011/2012 when Mrs. Tripta Malhotra returned from Dehradun, she still could not go back to her own house because her relation with the plaintiff continued to be estranged. However, in September 2016, plaintiff decided to take Smt. Tripta Malhotra back to house because she intended to take advantage of her mother's failing health and fabricated documents without her clear consensus. That the contents of above paras may be read as part and parcel of the para under reply and the same are not repeated here for the sake of brevity.
10. That the contents of para 10 of the suit are false and hence denied. It is specifically and vehemently denied that feeling apprehensive of the threats of CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 25 of 52defendant no. 1, Smt. Tripta Malhotra had executed a Gift Deed in favour of the plaintiff by virtue of which plaintiff is now the sole and exclusive owner of the said property. It is stated that plaintiff is relying on false and fabricated document that is above stated Gift Deed, as at the time the alleged gift deed is stated to be executed Smt. Tripta Malhotra was seriously ill and not in her sound faculty and thus, plaintiff used this opportunity to unduly influence and create a false and fabricated document for her illegal goal of usurping the property. That the contents of above paras may be read as part and parcel of the para under reply and the same are not repeated here for the sake of brevity." (Emphasis mine)
55. It is on the basis of the aforesaid pleadings, more particularly pleadings in para 2 and 10 of the parawise reply of the written statement of defendants that it has been alleged by Ld. Counsel for defendants that the defendants have specifically denied the execution of registered gift deed dated 28.10.2016 by late Smt. Tripta Malhotra making it mandatory for the plaintiff to examine at least one of the attesting witnesses to the registered gift deed dated 28.10.2016.
56. I do not find any force in the aforesaid submission of Ld. Counsel for defendants. A meaningful reading of the aforesaid pleadings of the defendants in their written statement qua the registered gift deed dated 28.10.2016 leaves no manner of doubt that primarily the defendants have sought to dispute the registered gift deed dated 28.10.2016 on the ground that after hospitalization, Late Smt. Tripta Malhotra had become both CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 26 of 52physically as well as mentally fragile and it was under the aforesaid circumstances, i.e. when she was under the influence of medication and was not in a sound disposing state of mind, that the plaintiff in order to usurp the suit property, used this opportunity to unduly influence and create a false and fabricated document for her illegal goal. It was under the aforesaid facts and circumstances that defendants have alleged the registered gift deed dated 28.10.2016 to be a forged and fabricated document.
57. It is significant to note in this regard that the plea of defendants in their written statement regarding the registered gift deed dated 28.10.2016 being forged and fabricated document cannot be read in isolation, in as much as, if the same is so read, the plea of the defendants regarding the said registered gift being forged and fabricated cannot co-exist with her plea of execution of the same by late Smt. Tripta Maholtra under undue influence of the plaintiff. Even otherwise, in my considered opinion allegation of the registered gift deed being forged and fabricated cannot be considered to be a specific denial of execution of the same by Smt. Tripta Malhotra within the meaning of proviso to Section 68 of the Indian Evidence Act, 1872, in as much as, forgery of a document does not necessarily mean that the document does not bear the signatures of the executor but the same may also indicate manipulation in the document after obtaining the signatures of the executor thereon.
58. While taking the aforesaid view that the aforesaid pleading of the defendants in their written statement does not amount to specific denial of execution of registered gift deed dated 28.10.2016 by late Smt. Tripta Malhotra within the meaning of CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 27 of 52proviso to section 68 of the Indian Evidence Act, 1872, I draw support from the following observations of Hon'ble Supreme Court in Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai, (2020)16 SCC 255 : 2019 SCC OnLine SC 1245 made in similar facts and circumstances, while dealing with similar pleadings and arguments:
"25. The argument of the learned counsel for the appellants is that the attesting witnesses of the gift deed are Bhikhabhai Ramabhai and Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and Vaid Alkaben Vinodchandra are the witnesses at the time of registration of the document. It is argued that the attesting witnesses of the document have not been examined which is a mandatory requirement to prove execution of the gift deed in terms of Section 68 of the Evidence Act. The High Court has held that the appellants have not denied specifically the execution of the gift deed, therefore, it was not necessary for the donee to examine one of the attesting witnesses.
26. Issue 1 framed by the trial court is whether the gift deed is fabricated. Such issue arises on the basis of averments made in the plaint wherein, the appellants have admitted the execution of the gift deed but alleged that donee has made unsuccessful effort for grabbing the property. The appellants have, inter alia, pleaded that Chanchalben, wife of the donor, died in August 1997. Thus, there was no reason for the donor to execute the gift deed as real nephews of the donor were taking complete control of the donor. The other ground of challenge was that the attesting witnesses have no relation with the donor nor are they friends of the donor. It was also alleged that the gift is not for religious reasons or to any religious trust or institution or for public use nor the consent has been sought by the donor from the appellants. The specific averments in the plaint are as under:CS DJ no. 627/2017
Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 28 of 52
"(2) The deceased Chhotabhai Ashabhai who was the father of Plaintiffs 1 to 4, and Plaintiffs 1 to 4 were living in USA (America) since many years and the deceased Chhotabhai Patel and the mother of Plaintiffs 1 to 4, Chanchalben wife of Chhotabhai Ashabhai who had expired in and around August 1997, and since August 1997, deceased Chhotabhai Ashabhai was living alone thus, taking advantage of his loneliness the defendant on 15-11-1997 executed one gift deed which was registered in the office of Sub-
Registrar, Padra at Sr. No. 1004 and made unsuccessful efforts for grabbing the said property thus, the plaintiffs are constrained to file this suit, on the grounds which are stated as under:
(a) The deceased Chhotabhai Ashabhai was not in any manner related to the defendant Ramanbhai Mathurbhai.
(b) The deceased Chhotabhai Ashabhai Patel and his wife Chanchalben were living in America since many years prior to 1997.
(c) Chanchalben the wife of deceased Chhotabhai Ashabhai had expired during the period of August 1997, thus, on 15-11-1997, there was no reason for Chhotabhai to execute the gift deed, not only that but the real nephews of the deceased Chhotabhai Ashabhai who were living at Ghayaj were taking complete care of deceased Chhotabhai Ashabhai, thus, outside their knowledge, at any time the deceased Chhotabhai had no reason to execute the deed.
(d) In the gift deed dated 15-11-1997, the witnesses that have signed (1) Bhikhabhai Ramabhai and (2) Karshanbhai Dhulabhai who were not having any kind of relations with the deceased Chhotabhai Ashabhai and/or they were not even related as his friends. There was no reason of making the gift deed in their presence.CS DJ no. 627/2017
Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 29 of 52(e) In the gift deed dated 15-11-1997 the details of the date of the unregistered will executed by deceased Chhotabhai Ashabhai is kept blank and the date and registration number of the registered will is also kept blank, and in this manner, with incomplete details the gift deed is registered which is made hastily which supports the facts of the plaintiffs.
(f) In the gift deed dated 15-11-1997 it is clearly evident that the signature of the deceased Chhotabhai Ashabhai is forged, and in this manner on the basis of the forged signature the gift deed is registered, in this regard we are constrained to file the present suit.
(g) The gift deed dated 15-11-1997 which is contrary to the provisions of law, therefore, also by such gift deed the defendant does not acquire any rights, interests or claims on the said property ..."
27. The appellants refer to will dated 3-12-2001 said to be executed by the donor in their favour. But no issue has been framed in respect of the will propounded by the appellants. In fact, no attesting witness of the will has been examined. Therefore, the will relied upon by the appellants cannot be said to be proved.
28. The High Court held that the appellants have not led any evidence that signature of their father on the gift deed was forged as neither the specimen signature nor writings of their father for the purpose of comparing the disputed signature on the gift deed have been attempted. There is no report of an expert in respect of signatures of the donor on the gift deed nor any request was made for sending the document to the Forensic Science Laboratory. The High Court [Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2018 SCC OnLine Guj 4763] held as under: (Patel Ramanbhai Mathurbhai case [Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2018 SCC OnLine Guj 4763] , SCC OnLine CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 30 of 52Guj para 68) "68. In my view, the plaintiffs have miserably failed to prove any forgery. If it is the case of the plaintiffs that the signature of their father on the disputed gift deed is forged, then the burden is on them to establish and prove by leading cogent evidence that the signature is forged by another. A mere doubt or assertion or an allegation of forgery by itself is not sufficient to even prima facie draw an inference of fraud. The plaintiffs tried to rely upon the "will" said to have been executed by their late father just two days before his demise in the year 2001.
One of the cousins of the plaintiffs took out the "will" out of the blue and handed over to the plaintiffs. The plaintiffs tried to capitalise on this "will" because in the said "will", there is a thumb impression of the father of the plaintiffs i.e. the testator. The plaintiffs thereby tried to create a doubt in the mind of the courts below that the father was illiterate and was unable to put his signature. However, if the plaintiffs wanted to rely upon the "will", they should have produced the original and proved the same in accordance with law by examining one of the attesting witnesses to the said "will". The "will" has not even been exhibited, and therefore, there is no question of looking into the same. The entire approach of the trial court could be said to be erroneous and has led to a serious miscarriage of justice. I am of the view that the plaintiffs have practically led no evidence even to prima facie create a doubt that the signature of their father on the gift deed is forged. The plaintiffs could have produced the specimen signature or writings of their father, if any, for the purpose of comparing the disputed signature on the gift deed. The trial court could have been asked to seek an opinion of an expert in this regard by sending the document to the Forensic Science Laboratory. Nothing of this sort was CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 31 of 52done. All that has been asserted in the evidence is that the father had no good reason to execute the gift deed in favour of the defendant, more particularly, when the sons were taking good care of their father. This hardly could be termed as evidence with regard to fraud or forgery. The plaintiffs have not even pleaded or deposed that their father was illiterate and was not able to put his signature. If the evidence on record is looked into, then the plaintiffs have in substance just expressed doubts as regards the signature of their father."
29. At this stage, we may reiterate that though the learned trial court has discussed the evidence on record but in view of the finding that the property is ancestral, no finding was recorded whether the gift deed is forged or not as per the issue framed. The first appellate court in a short judgment affirmed the finding of the learned trial court. The trial court has not returned any finding that the gift deed is forged. Therefore, the High Court was within its jurisdiction to decide Issue 1 on the basis of evidence led by the parties.
30. The appellants challenged the gift deed on account of probabilities as the witnesses were not related to the family or the friends or that the gift was not for religious or charitable purposes. The other challenge was on the ground of forgery or fabrication. The entire reading of the plaint does not show that there was any specific denial of execution of the gift deed."(Emphasis mine)
59. So far as the reliance by Ld. Counsel for defendants on the judgment of Hon'ble Supreme Court in K. Laxmanan v. Thekkayil Padmini & Ors. (2009) 1 SCC 354 is concerned, as observed by Hon'ble Supreme Court in para 34 of its judgment in Govindbhai's case supra, the decision of the aforesaid case was based on categorical finding of Hon'ble Supreme Court that as a CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 32 of 52matter of fact plaintiff in the said case had specifically denied the execution of the gift deed in question by the donor, which is not so in the case in hand.
60. Merely because, the signatures of executor/donor Smt. Tripta Malhotra on the registered gift deeds dated 08.03.2016 and 28.10.2016 are not the same, it does not mean that her signatures on the registered gift deed dated 28.10.2016 are forged and fabricated, in as much as, the defendants have failed to admit either of the two signatures of Smt. Tripta Malhotra as her true signatures nor have they produced any other document having the admitted signatures of Smt. Tripta Malhotra.
61. Moreover, the fact of execution of two separate registered gift deeds by Smt. Tripta Malhotra, in respect of two different floors of the property in question, in favour of the present plaintiff can also not be the subject matter of adverse comment by the defendants or by this Court, in as much as, being the exclusive owner of the suit property as well as the ground floor of the property in question, it was within her powers to execute separate gift deeds in respect of different floors at different points of time. Moreover, it is well settled legal position that suspicion, howsoever strong, may not take the place of proof.
62. In view of the aforesaid discussion, in my considered opinion, defendants have failed to discharge their onus to prove that the registered gift deed dated 28.10.2016 was either forged or fabricated. Issue no. 1 is thus decided against the defendants.
Issue No. 2: Whether the plaintiff is entitled to decree of possession of the suit property i.e. 2nd CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 33 of 52floor of property no. 58/9, Old. Rajinder Nagar, New Delhi-60, as shown in site plan attached with the plaint? OPP
63. Onus to prove the aforesaid issue was upon the plaintiff. As has already been observed hereinabove, plaintiff has categorically alleged in her plaint that she is the absolute owner of the suit property by virtue of registered gift deed dated 28.10.2016. It has further been observed hereinabove that the plaintiff has been able to prove the aforesaid registered gift deed dated 28.10.2016 as per the applicable rules of law of evidence. It is significant to note that although, in her plaint, the plaintiff has alleged the defendants to be the licensees of Smt. Tripta Malhotra in respect of the suit property, which license, according to her, has already been revoked by the plaintiff by serving upon the defendants a legal notice dated 09.01.2017, however, the defendants in para No. 13 of the preliminary objections and in para 5 and 6 of the reply on merits of their written statement had categorically denied the fact that the possession of the suit property was handed over by late Smt. Tripta Malhotra to the defendants on the basis opf any license. It has been alleged by the defendants that they had come in possession of the suit property on the basis of a family settlement i.e. as natural legal heirs of late Sh. Arun Aditya Malhotra.
64. It is significant to note that in para (j) of their preliminary submissions, forming part of their written statement, it has been alleged by the defendants that the suit property, which was lying vacant for over a period of 5 years, required a lot of repairs, which were carried out by the defendant no. 1 at her own costs CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 34 of 52and expenses. Further, in para no. (k), it has been alleged that in the year 2007, defendant no. 1 had rented out two rooms of the suit property on a need basis, whereas, in October, 2009, a third bedroom was built by defendant no. 1 in the suit property at her own costs and expenses, without any objection from Smt. Tripta Malhotra or anyone else in the family. However, in my considered opinion, in view of categorical denial of the defendants, in para no. 13 of their preliminary objections and para 5 and 6 of parawise reply of their written statement, of existence of any license in respect of the suit property in their favour, the aforesaid pleadings in para (j) and (k) of their preliminary submissions cannot be considered to be sufficient so as to support the contention of Ld. Counsel for defendants, during the course of final arguments, that the alleged license of the defendants in respect of the suit property had become irrevocable in terms of section 60(b) of the Indian Easements Act since the defendants have raised construction in the suit property, while acting upon the aforesaid license, which is of a permanent character, without any objection on the part of either the plaintiff or Late Smt. Tripta Malhotra.
65. Thus, in my considered opinion, the contention of Ld. Counsel for defendants based on Section 60(b) of the Indian Easements Act is liable to be rejected being beyond pleadings and evidence and he cannot be permitted to make out a new case at the stage of final arguments, which is altogether different than the case pleaded by the defendants in their written statement. While taking the aforesaid view, I derive support from the authoritative pronouncement of Hon'ble Supreme Court in Ram CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 35 of 52Sarup Gupta (Dead) by LRs v. Bishun Narain Inter College & Ors. (1987)2 SCC 555. Relevant observations of Hon'ble Supreme Court in the aforesaid judgment are being reproduced hereinbelow for ready reference:
"6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 36 of 52
question of absence of pleadings in appeal. In Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735 : (1966) 2 SCR 286, 291] a Constitution Bench of this Court considering this question observed:
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another."
7. ......
8. ......
9. Licence as defined by Section 52 of the Act means grant of permission, by a person to the other, a right to do or continue to do, in or upon, the immovable property of the grantor, something which would, in CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 37 of 52the absence of such right, be unlawful. Such right does not amount to an easement or any interest in the property. The rights so conferred is licence. The grant of licence may be express or implied which can be inferred from the conduct of the grantor. Section 60 provides that a licence may be revoked by the grantor unless: (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution. Revocation of licence may be express or implied. Section 62 enumerates circumstances on the existence of which the licence is deemed to be revoked. One of such conditions contemplates that where licence is granted for a specific purpose and the purpose is attained, or abandoned, or if it becomes impracticable, the licence shall be deemed to be revoked. Sections 63 and 64 deal with licensee's right on revocation of the licence to have a reasonable time to leave the property and remove the goods which he may have placed on the property and the licensee is further entitled to compensation if the licence was granted for consideration and the licence was terminated without any fault of his own. These provisions indicate that a licence is revocable at the will of the grantor and the revocation may be expressed or implied. Section 60 enumerates the conditions under which a licence is irrevocable. Firstly, the licence is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting upon the licence executes work of permanent character and incurs expenses in execution. Section 60 is not exhaustive. There may be a case where the grantor of the licence may enter into agreement with the licensee making the licence irrevocable, even though, neither of the two clauses as specified under Section 60 are fulfilled. Similarly, even if the two clauses of Section 60 are fulfilled to render the licence irrevocable yet it may not be so if the parties agree to the contrary. In Muhammad Ziaul CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 38 of 52Haque v. Standard Vacuum Oil Co. [55 CWN 232] the Calcutta High Court held that where a licence is prima facie irrevocable either because it is coupled with a grant or interest or because the licensee erected the work of permanent nature there is nothing to prevent the parties from agreeing expressly or by necessary implication that licence nevertheless shall be revocable. On the same reasoning there is nothing to prevent the parties agreeing expressly or impliedly that the licence which may not prima facie fall within either of the two categories of licence (as contemplated by Section 60) should nevertheless be irrevocable. The same view was taken by Das, J. (as he then was) in Dominion of India v. Sohan Lal [AIR 1955 EP 40] . Bombay High Court has also taken the same view in M.F. De Souza v. Childrens Education Uplift Society [AIR 1959 Bom 533 : 61 Bom LR 750 : ILR 1959 Bom 1127] . The parties may agree expressly or impliedly that a licence which is prima facie revocable not falling within either of the two categories of licence as contemplated by Section 60 of the Act shall be irrevocable. Such agreement may be in writing or otherwise and its terms or conditions may be express or implied. A licence may be oral also in that case, terms, conditions and the nature of the licence, can be gathered from the purpose for which the licence is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of the licence.
10. ....
11. In Gujarat Ginning and Manufacturing Co. Ltd. v. Motilal Hirabhai Spinning and Manufacturing Co. Ltd. [AIR 1936 PC 77 : 63 IA 140] protection of Section 60(b) of the Act was invoked by a party who had made constructions on his own land and not on the land of the licensor and in that factual backdrop the Privy Council held that the expression "acting upon the licence" must mean "acting upon; a right granted to do upon the land of the grantor something which would be unlawful in the absence of such CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 39 of 52right". A man does not "acting upon a licence"
execute works and incur expense upon his own property as that he can do without anyone's licence. These observations do not support the appellant; on the other hand they show that if a man executes work of permanent character and incurs expenses on the property of other person under a licence he may have done so "acting upon the licence". In Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan [(1976) 4 SCC 112 : AIR 1976 SC 2506 : (1977) 1 SCR 411] the plaintiff had raised plea of tenancy failing which he claimed to be in possession of the land, in part performance of an agreement for sale. On the rejection of both the pleas the plaintiff- appellant therein raised a further plea that he was protected under Section 60(b) of the Indian Easements Act as he had executed works of permanent character on the land incurring heavy expenses. This Court rejected the submission on the ground of absence of pleadings, issues and evidence. While rejecting the appellant's submissions the court observed that even assuming that the appellant had executed work of a permanent character on the land it could not be said that he had done so "acting upon the licence" as required by Section 60(b) of the Easements Act. The court observed that the appellant improved the land by executing work of a permanent character, he did so, in the belief that being a tenant he would become statutory purchaser of the land or that the oral agreement of sale will one fine day be implemented. The execution of the work was done either in the capacity as a tenant or as a prospective purchaser but not as a licensee. The decision has no application to the facts of the present case as admittedly the school was a licensee and in that capacity it executed works of a permanent character, by incurring expenses and this plea was raised at the initial stage before the trial court." (Emphasis mine)
66. It is next sought to be contended by Ld. Counsel for CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 40 of 52
defendants that since admittedly the possession of the suit property was never handed over by the donor to the donee i.e. the plaintiff herein, pursuant to the execution of registered gift deed dated 28.10.2016, although the gift deed contains a recital to the contrary, the gift of the suit property by late Smt. Tripta Malhotra, in favour of plaintiff herein, can't be considered to be a valid gift in terms of Section 123 of the Transfer of Property Act, 1882.
67. I do not find any force in the aforesaid submission made on behalf of defendants in view of the authoritative pronouncement of Hon'ble Supreme Court in Renikuntla Rajamma v. K. Sarwanamma (2014)9 SCC 445, wherein, it has been categorically held by Hon'ble Supreme Court that a bare reading of Sections 122 and 123 of the Transfer of Property Act, 1882 makes it abundantly clear that transfer of possession of the property covered by the registered document of gift, duly signed by the donor and attested as required, is not a sine qua non for making a valid gift in respect of an immovable property under the provisions of the Transfer of Property Act, 1882. Relevant observations of Hon'ble Supreme Court in this regard are being reproduced hereinbelow for ready reference:
"11. Sections 124 to 129 which are the remaining provisions that comprise Chapter VII deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and onerous gifts including effect of non-acceptance by the donee of any obligation arising thereunder. These provisions do not concern us for the present. All that is important for the disposal of the case at hand is a CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 41 of 52
careful reading of Section 123 (supra) which leaves no manner of doubt that a gift of immovable property can be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. When read with Section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the lifetime of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Act. A conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear that "transfer of possession" of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of the Transfer of Property Act, 1882.
12. Judicial pronouncements as to the true and correct interpretation of Section 123 of the TP Act have for a fairly long period held that Section 123 of the Act supersedes the rule of Hindu law if there was any making delivery of possession an essential condition for the completion of a valid gift.
13. A Full Bench comprising five Hon'ble Judges of the High Court of Allahabad has in Lallu Singh v. Gur Narain [AIR 1922 All 467] referred to several such decisions in which the provisions of Section 123 have been interpreted to be overruling the Hindu law requirement of delivery of possession as a condition for making of a valid gift. This is evident from the following passage from the above decision where the High Court repelled in no uncertain terms the contention that Section 123 of the TP Act merely added one more requirement of law, namely, attestation and registration of a gift deed to what was already enjoined by the Hindu law and that Section 123 did not mean that where there was a registered instrument duly signed and attested, other requirements of the Hindu law stood dispensed with:CS DJ no. 627/2017
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"7. Dr Katju, on behalf of the appellant, has strongly contended that by Section 123 it was merely intended to add one more requirement of law, namely, that of attestation and registration, to those enjoined by the Hindu law, and that the section did not mean that where there was a registered document duly signed and attested, all the other requirements of the Hindu law were dispensed with. Section 123 has, however, been interpreted by all the High Courts continuously for a very long period in the way first indicated, and there is now a uniform consensus of opinion that the effect of Section 123 is to supersede the rule of Hindu law, if there was any, for making the delivery of possession absolutely essential for the completion of the gift. We may only refer to a few cases for the sake of reference, Dharmodas Das v. Nistarini Dasi [ILR (1887) 14 Cal 446] , Balbhadra v. Bhowani [ILR (1907) 34 Cal 853] , Alabi Koya v. Mussa Koya [ILR (1901) 24 Mad 513] , Madhavrao Moreshvar Pant Amatya v. Kashibai Kom Dattubhai [ILR (1910) 34 Bom 287] , Man Bhari v. Naunidh [ILR (1882) 4 All 40] , Balmakund v. Bhagwan Das [ILR (1894) 16 All 185] and Phul Chand v. Lakkhu [ILR (1903) 25 All 358] . Where the terms of a statute or ordinance are clear, then even a long and uniform course of judicial interpretation of it may be overruled, if it is contrary to the clear meaning of the enactment but where such is not the case, then it is our duty to accept the interpretation so often and so long put upon the statute by the courts, and not to disturb those decisions, vide the remarks of Their Lordships decisions, of the Privy Council in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur [(1916-
17) 44 IA 65 : (1917) 5 LW 654 : AIR 1916 PC 182] . We are, therefore, clearly of opinion that it must now be accepted that the provisions of CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 43 of 52
Section 123 do away with the necessity for the delivery of possession, even if it was required by the strict Hindu law."
14. The logic for the above view in Lallu Singh case [AIR 1922 All 467] flowed from the language of Section 129 of the TP Act which as on the date of the decision rendered by the High Court of Allahabad used the words "save as provided by Section 123 of the Act". Section 129 of the TP Act was, before its amendment in the year 1929, as under:
"129. Saving of donations mortis causa and Muhammadan law.--Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law or, save as provided by Section 123, any rule of Hindu or Buddhist law."
A plain reading of the above made it manifest that the "rules of Hindu law" and "Buddhist law" were to remain unaffected by Chapter VII except to the extent such rules were in conflict with Section 123 of the Transfer of Property Act. This clearly implied that Section 123 had an overriding effect on the rules of Hindu law pertaining to gift including the rule that required possession of the property gifted to be given to the donee. The decisions of the High Courts referred to in the passage extracted above from Lallu Singh case [AIR 1922 All 467] have consistently taken the view that Section 123 supersedes the rules of Hindu law which may have required delivery of possession as an essential condition for the completion of a gift. The correctness of that statement of law cannot be questioned. The language employed in Section 129 before its amendment was clear enough to give Section 123 an overriding effect vis-à-vis rules of Hindu law.
15. Section 129 was amended by Act 20 of 1929 whereby the words "or, save as provided by Section 123, any rule of Hindu or Buddhist law" have been deleted. Section 129 of the TP Act today reads as CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.
Judgment dated 27.05.2023 Page 44 of 52under:
"129. Saving of donations mortis causa and Muhammadan law.--Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law."
The above leaves no doubt that the law today protects only the rules of Muhammadan law from the rigours of Chapter VII relating to gifts. This implies that the provisions of Hindu law and Buddhist law saved under Section 129 (which saving did not extend to saving such rules from the provisions of Section 123 of the TP Act) prior to its amendment are no longer saved from the overriding effect of Chapter VII. The amendment has made the position more explicit by bringing all other rules of Hindu and Buddhist law also under the Chapter VII and removing the protection earlier available to such rules from the operation of Chapter VII. Decisions of the High Court of Mysore in Revappa v. Madhava Rao [AIR 1960 Mys 97] and the High Court of Punjab and Haryana in Tirath v. Manmohan Singh [AIR 1981 P&H 174] , in our opinion, correctly take the view that Section 123 supersedes the rules of Hindu law insofar as such rules required delivery of possession to the donee.
16. The matter can be viewed from yet another angle. Section 123 of the TP Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word "transfer must be effected"
used by Parliament insofar as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or "by CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 45 of 52
delivery". The difference in the two provisions lies in the fact that insofar as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property."(Emphasis mine)
68. So far as the plea of Ld. Counsel for defendants that the gift in question is not complete, for want of acceptance of the same by the plaintiff herein during the lifetime of the executor i.e. the donor, is concerned, it is significant to note that the last para of the registered gift deed clearly contains a recital to the effect that the plaintiff had accepted the aforesaid property and gift from the donor and the gift deed even bears the signatures of the plaintiff in acknowledgment of acceptance of the said gift. In my considered opinion, the aforesaid recital in the gift deed, coupled with the signatures of plaintiff at the bottom of gift deed acknowledging the acceptance of the gift, amounts to sufficient proof of acceptance of the gift of the suit property by the plaintiff from her late mother Smt. Tripta Malhotra within the meaning of Section 122 of the Transfer of Property Act, 1882.
69. In view of the aforesaid discussion, since, in my CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 46 of 52
considered opinion, the plaintiff has been able to prove her ownership over the suit property by virtue of registered gift deed dated 28.10.2016, whereas, defendants have failed to prove the existence of any right, title or interest in the suit property in their favour, plaintiff is entitled to a decree for recovery of possession of the suit property in her favour and against the defendants. It is significant to note in this regard that although the defendants in the present suit have denied the receipt of legal notice revoking their license to stay in the suit property, the same stood admitted by the defendants in the connected suit filed by them for declaration of the registered gift deed dated 28.10.2016, besides registered gift deed dated 08.03.2016 in respect of ground floor of the suit property, as null and void.
70. Even otherwise, it is well settled through a long line of judgments of Hon'ble Supreme Court as well as Hon'ble Delhi High Court that service of summons of a suit for recovery of possession of the immovable property, along with a copy of notice terminating the lease/revoking the license, is sufficient to terminate not only the tenancy of a tenant but also to revoke license in respect of an immovable property similar to that of the defendants in the present case.
71. In view of the aforesaid discussion, in my considered opinion, the plaintiff has been able to discharge her onus to prove the present issue.
72. Issue no. 2 is thus decided in favour of plaintiff.
Issue No. 3: Whether the plaintiff is entitled to the decree of recovery of damages of Rs. 50,000/- per month with interest as prayed for? OPP.CS DJ no. 627/2017
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73. Onus to prove the aforesaid issue was upon the plaintiff. It has been alleged by the plaintiff that the defendants have failed to vacate the suit property despite revocation of their license and if the suit property is let out in the open market, the same can fetch a rent of ₹ 50,000/- per month approximately and hence the plaintiff is entitled to recovery of the aforesaid amount, along with interest, from the defendants w.e.f. 01.02.2017 till the date of actual vacation of the suit property by the defendants.
74. In their written statement, defendants have failed to specifically deny the aforesaid pleadings of the plaintiff regarding the monthly letting value of the suit property, although, they have denied their liability to pay the aforesaid amount on the ground that the plaintiff has no legal right or authority over the suit property, the possession of which is with the defendants since 1977.
75. It has already been observed hereinabove that the plaintiff has been able to prove her ownership over the suit property on the basis of registered gift deed dated 28.10.2016, whereas, the defendants have failed to prove any right, title or interest in the suit property in their favour particularly after service of legal notice dated 09.01.2017 by the plaintiff upon the defendants revoking their license to stay in the suit property. Thus, in my considered opinion, plaintiff is entitled to mesne profits/damages/user charges in her favour for the period during which the defendants have remained in unauthorized occupation of the suit property after 01.02.2017. The plaintiff has failed to adduce any evidence regarding the monthly letting value of the CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 48 of 52
suit property as on the date of filing of the present suit except by way of a bald statement to this effect by her in her evidence by way of affidavit. However, the defendants, in their evidence, have tendered three rent agreements in respect of different rooms in the suit property which indicate that in the year 2017 defendants had been receiving a total rent of ₹ 22,500/- in respect of three rooms of suit property.
76. It is further significant to note that as per the evidence led on behalf of the parties, it has come on record that the suit property initially was consisting of one big hall and two small rooms, however, in the year 2009, defendant No. 1 has constructed third bedroom in the suit property. As per the evidence led on behalf of the defendants only three out of the four rooms had been let out by the defendants to different tenants at a total monthly rent of ₹ 22,500/-.
77. Under the aforesaid circumstances, in my considered opinion, interest of justice would be served by awarding mesne profits/damages @ ₹ 25,000/- per month in favour of plaintiff and against the defendants w.e.f. 01.02.2017 till the date of handing over of vacant and peaceful possession of the suit property by the defendants to the plaintiff. In the peculiar facts and circumstances of the present case, I do not deem it appropriate to award any interest on the amount of mesne profits awarded in favour of the plaintiff in her favour considering that defendant no. 1 has admittedly spent substantial amount for improvements in the suit property out of her own pocket.
78. Issue no. 3 is thus partly decided in favour of plaintiff.CS DJ no. 627/2017
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Issue No. 4: Whether the plaintiff is entitled to decree of permanent injunction against the defendants, as prayed for? OPP
79. Onus to prove the aforesaid issue was upon the plaintiff. It has been alleged by the plaintiff in her plaint that after the receipt of legal notice dated 09.01.2017, the defendants had been regularly threatening the plaintiff that they would hand over the actual, vacant, peaceful and physical possession of the suit property to some other person by way of sale, transfer, mortgage and/or creating any 3rd party interest in respect of the suit property and/or by way of letting out the same. Similar deposition was made by the plaintiff in para 8 of her evidence by way of affidavit. The aforesaid testimony of plaintiff has remained uncontroverted during her cross-examination.
80. It has already been observed hereinabove that the plaintiff has been able to prove her ownership over the suit property, whereas, defendants have failed to prove the existence of any right, title or interest in them in respect of the suit property. Under the aforesaid circumstances, in my considered opinion, plaintiff is entitled to the decree of permanent injunction restraining the defendants from subletting, assigning and/or otherwise parting with possession and/or creating any 3rd party interest by way of sale, transfer or mortgage etc. in the suit property in favour of any 3rd person except the plaintiff in any manner whatsoever.
81. Issue no. 4 is thus decided in favour of plaintiff.
Issue No. 5: Relief.CS DJ no. 627/2017
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82. In view of my findings on issues no. 1 to 4, in my considered opinion, plaintiff is entitled to a decree for recovery of possession of the suit property i.e. the 2nd floor of property bearing No. 58/9, Old Rajinder Nagar, New Delhi-60, for recovery of mesne profits/damages @ ₹ 25,000/- per month w.e.f. 01.02.2017 till the date of actual handing over of the vacant and peaceful possession of the suit property by the defendants to the plaintiff and a decree of permanent injunction restraining the defendants from subletting, assigning and/or otherwise parting with possession of the suit property and/or from creating any 3 rd party interest in the suit property by way of sale, transfer or mortgage etc. The plaintiff is also held entitled to the costs of the suit as per rules.
83. The suit is thus hereby disposed off directing the defendants to handover vacant and peaceful physical possession of the suit property i.e. the 2nd floor of property bearing No. 58/9, Old Rajinder Nagar, New Delhi-60 to the plaintiff and to pay to the plaintiff mesne profits/ damages @ Rs. 25,000/- per month w.e.f. 01.02.2017 till the date of actual handing over of possession of the suit property by them to the plaintiff and the costs of the suit to the plaintiff as per rules. Defendants are further permanently restrained from subletting, assigning and/or otherwise parting with possession of the suit property and/or from creating any 3rd party interest in the suit property by way of sale, transfer or mortgage etc.
84. Decree sheet be prepared accordingly, however, the same shall not be executed until the court fee on the amount of mesne profits w.e.f. 01.02.2017 until the date of decree is not paid by CS DJ no. 627/2017 Sunita Vig Vs. Veena Soin & Anr.Judgment dated 27.05.2023 Page 51 of 52
the plaintiff in terms of Section 11 of the Court Fees Act, 1870, as amended upto date.
Announced in the open court on this 27th day of May, 2023. This judgment consists of 52 signed pages. ARUN Digitally signed by ARUN KUMAR KUMAR GARG Date: 2023.05.27 GARG 15:59:10 +05'30' (ARUN KUMAR GARG) Additional District Judge-05 (Central) Tis Hazari Courts, Delhi.CS DJ no. 627/2017
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