Delhi District Court
Smt. Jagjit Kaur vs Smt. Ranjit Kaur @ Bobby on 21 April, 2018
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 04 (WEST), TIS HAZARI COURTS, DELHI
RCA No. 61126/16
Smt. Jagjit Kaur
W/o Sh. Navneet Sharma
R/o H.No. 24/53A
2nd Floor, Tilak Nagar
Delhi 110018. ........ Appellant
versus
1. Smt. Ranjit Kaur @ Bobby
W/o late S. Harminder Singh
2. Tajinder Kaur @ Chinki
D/o late S. Harminder Singh
3. Master Manpreet Singh @ Kirat
S/o late S. Harminder Singh
Through his mother
Smt. Ranjit Kaur @ Babby
All 1 to 3 are r/o L71,
New Mahavir Nagar, Delhi.
4. Smt. Rawel Kaur
W/o Late S. Satpal Singh
R/o 24/53A, First Floor,
Tilak Nagar, Delhi(stated to be died on 22.02.2017)
5. S. Manjit Singh
S/o late S. Satpal Singh
R/o WZ158, First Floor
RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 1 of 19
Lajwanti Garden
Delhi46.
6. Late Gurcharan Singh
Through his legal heirs
(i) Harvinder Kaur
D/o Late Gurcharan Singh
(ii) Davinder Kaur
D/o Late Gurcharan Singh
(iii) Karamjeet Kaur
W/o Late Gurcharan Singh
Address of (i) to (iii) to be disclosed
by Respondent no.4.
7. Late Surjit Kaur D/o Smt. Rawel Kaur Through her legal heirs
(i) Bunty S/o Late Surjit Kaur
(ii) Lucky S/o Late Surjit Kaur Both R/o H.No. 139, Gali No. 11, BlockB2, New Mahavir Nagar, Delhi.
8. Smt. Neelam W/o late Raju D/o late S. Satpal Singh R/o 24/53A, First Floor Tilak Nagar, Delhi.
9. Late Ravinder Singh Through his legal heir
(i) Suman S/o Late Ravinder Singh
(ii) Anu D/o Late Ravinder Singh
(iii) Ajit Singh S/o Late Ravinder Singh RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 2 of 19 All three R/o H.No. 20/7, Ground Floor Block No.20, Tilak Nagar, New Delhi1100018.
10. Sh. A.K. Narang C/o Narang Properties A97/1, Ganesh Nagar Near Tilak Nagar, Delhi110018. ......Respondents Date of Filing Suit : 27.02.2016 Date of Reserving Judgment : 24.03.2018 Date of Judgment : 21.04.2018 J U D G M E N T
1. This is an appeal filed by the appellant against the judgment and decree dated 30.01.2016 passed by learned Civil Judge, Central District, Tis Hazari Courts, Delhi in suit bearing CS No. 131/15 titled as Smt. Ranjit Kaur @ Bobby vs. Smt. Rawal Kaur & ors whereby, the suit of the respondent no. 1 to 3 has been decreed. Appellant is the defendant no. 5 and contesting Respondent Nos. 1 to 3 are the plaintiffs in the suit.
2. Brief facts of the case are that land bearing No. 24/53A, Tilak Nagar, Delhi admeasuring 125 sq. yds was originally given on lease to late Sh. S. Satpal Singh, who died intestate leaving behind his wife/defendant no. 1 and his children including the defendant nos. 2 to 6 alongwith since two deceased sons , Late S. Ravinder Singh and Late S. Harminder Singh. Defendant RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 3 of 19 nos. 7 to 9 are legal heirs of Late S. Ravinder Singh and plaintiffs are legal heirs of Late S. Harminder Singh.
3. On 10.09.1999, Smt Rawel Kaur, the defendant no. 1 got her name substituted in the office of L & DO in place of Late S. Satpal Singh. On 22.12.2000, Smt. Rawel Kaur, respondent no.4/defendant no. 1 had sold the entire second floor of the property bearing No. 24/53A, Tilak Nagar, Delhi admeasuring 95 sq. yds without roof rights (hereinafter referred to as the "suit property") in favour of late S. Harminder Singh for consideration of Rs.20,000/ vide title documents i.e. agreement to sell, receipt, possession letter, GPA, registered Will and affidavit. The appellant / defendant no. 5 is stated to be witness in the abovesaid title documents. According to the contesting respondent nos. 1 to 3/plaintiffs, late S. Harminder Singh had died on 05.08.2007 leaving behind the respondent nos. 1 to 3/plaintiffs as classI legal heirs. It is the case of respondent nos. 1 to 3/plaintiffs that late S. Harminder Singh had been calling the respondent no. 4/defendant no. 1 to execute the sale deed of the suit property in his favour but she did not execute the same on one pretext or the other till his death on 05.08.2007. It is also the case of respondent nos. 1 to 3/plaintiffs that after the demise of late S. Harminder Singh, respondent no.1/plaintiff no.1 persuaded Smt.Rawel Kaur, RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 4 of 19 defendant no.1 to execute the sale deed of the suit property in favour of respondent no.1 to 3 but she did not execute the same and informed the respondent no.1 that she had already sold the same to the appellant/defendant no.5 herein.
4. The Respondent no. 1 further pleaded that on the demise of late S. Harminder Singh; the appellant, respondent nos. 4 & 8 had made life of the respondents no. 1 to 3 miserable due to quarrels on pity matters, as a result of which, she locked the suit property i.e. second floor which was in her possession and shifted to her parents house.
5. The respondent no.1 claimed to know on 25.10.2007 that the appellant and the respondent no. 4/defendant nos. 1; appellant/defendant no. 5 and respondent no.8/defendant no. 6 had removed the goods of the respondent no. 1/plaintiff from the suit property and put their own locks after breaking open the locks put by the respondents no. 1 to 3/plaintiffs and had retained their goods with them. Hence, the respondent nos. 1 to 3/plaintiffs filed the instant suit against the respondents interalia claiming relief of seeking specific performance of the agreement to sell dated 22.12.2010 against the respondent no. 4/defendant no.1 and mandatory injunction to cancel the sale deed dated 01.05.2007 executed by the respondent RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 5 of 19 no.4/defendant no. 1 in favour of the appellant/defendant no. 5.
6. The case of the appellant/defendant no. 5 and the respondent no. 4/defendant no. 1 in the suit is that the alleged Will / power of attorney executed in favour of the deceased husband of the respondent no.1 was got cancelled by the respondent no. 4. According to them, alleged agreement to sell, receipt, possession letter allegedly executed by respondent no. 4/defendant no. 1 in favour of S. Harminder Singh have been forged by the respondent no. 1/plaintiff. It is also pleaded that the respondent no. 4 did not receive any consideration against the alleged agreement to sell, receipt, possession letter executed on 22.12.2010 and therefore, the said documents are not enforceable in the eyes of law. It is also their case that the respondent no. 4 had cancelled the said documents during the lifetime of late Harminder Singh. It is their case that the S. Harminder Singh had been residing with the defendant no. 1 till his death. It is also their case that the said title documents were executed so that Harminder Singh could raise loan from some finance company whereas, the loan could not be arranged against the notorized documents which resulted in cancellation of the Will and GPA etc. It is their case that the respondent no. 1 somehow managed to take away the said documents. It is also their case that the respondent no. 1 was always residing RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 6 of 19 with her parents and had filed petition under Section 125 Cr.P.C. against her husband, S.Harminder Singh.
7. Vide order dated 24.02.2009, the learned trial court framed the following issues as under :
1. Whether the plaintiff is entitled to decree of specific performance as prayed for ? OPP
2. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for in para 2 of the plaint ? OPP
3. Whether the plaintiff is entitled for mandatory injunction as prayed in para 3 of the plaint ? OPP
4. Whether the plaintiff is entitled to a decree of declaration as prayed for ? OPP
5. Whether the plaintiff is entitled to a decree of possession as prayed for ? OPP
6. Whether the plaintiff is guilty of suppression of material facts as prayed for ? OPD
7. Whether the suit is not properly valued for the purpose of court fees ? OPD
8. Whether the suit of the plaintiff is time barred ? OPD
9. Relief.
8. Respondent no. 1 to 3/plaintiffs led evidence, however, defendants did not lead their evidence before the ld. Trial court RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 7 of 19 and vide order dated 19.04.2012, defendant's evidence was closed by the learned trial court. The ld. Trial court vide judgment and decree dated 19.11.2012 decreed the suit in favour of the respondent nos. 1 to 3/ plaintiffs, which was assailed by the appellant/defendant no. 5, respondent nos. 4/defendant no. 1 & respondent no. 8/defendant no. 6 before the Ld. ADJ. Vide judgment and decree dated 04.08.2015, learned Appellate Court had remanded the matter to the trial court with the permission to the appellants to file the necessary documents on record as well as lead evidence subject to cost of Rs.20,000/. It was also observed by the learned Appellate Court that if the appellants fail to avail opportunity to lead evidence before the learned trial court, the judgment passed by the learned trial court shall hold good.
9. On remand of the matter, the appellant stepped into the witness box as DW1. The appellant also examined Affak Ahmed, Record Keeper from office of Sub Registrar as DW2; Ms. Amarjeet Kaur D/o Manjit Singh as DW3 and Sh. Manjit Singh as DW4. The learned trial court vide impugned judgment and decree dated 30.01.2016 decreed the suit in favour of the respondent nos. 1 to 3/plaintiffs by granting decree of specific performance in respect of agreement to sell, Ex PW2/2 and consequential possession of the suit property alongwith RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 8 of 19 declaration of nullity of the documents in favour of the appellant/defendant no.5 concerning the suit property and thereby cancelling the document, Ex.DW1/10.
10.The appellant/defendant no. 5 assailed the impugned judgment and decree dated 30.01.2016 by way of present appeal inter alia on the grounds that the suit was barred by limitation as the period of limitation to seek specific performance of agreement to sell is three years; that the Agreement to sell, GPA, Will etc. were obtained by seducing the respondent no. 4/defendant no. 1 that these documents would be used for loan purpose; that, the said documents were cancelled by the executor just after eight months of execution; the respondent nos. 1 to 3 and husband of the respondent no. 1 remained quiet for about 8 years even after knowledge of the fact that the said documents i.e. unregistered agreement to sell, GPA, Will and other documents were cancelled; that respondent nos. 1 to 3 were not in possession of the suit property whereas appellant alongwith her handicapped husband has been in suit property from the date of its purchase and had spent her husband's life's saving in the restructuring of the suit property; that the appellant is the bona fide purchaser and has fulfilled all the conditions of the sale of immovable property as per Section 54 of Transfer of Property Act, 1882; that documents relied upon RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 9 of 19 by the respondent nos. 1 to 3 are unregistered and bar of Section 17 part III of the Indian Registration Act, 1908 apply with respect to the said title documents; that suit for declaration is barred by time as limitation for filing the said suit is 3 years.
11. On the other hand, respondent nos. 1 to 3 stated that the learned trial court has passed the reasoned judgment and decree dated 30.01.2016 and the same does not warrant any interference by this court. It is also their contention that the respondent no. 4/defendant no. 1 has not stepped into the witness box to support the case of the appellant despite the matter was remanded back for defendant's evidence by the Ld. Appellate Court.
12. Heard Ld counsels for the parties and perused the record.
13.The main contention of ld. counsel for the appellant is that the present suit for specific performance is barred by limitation.
14. Perusal of the contents of the plaint would show that S. Harminder Singh was pursuing the matter with the defendant no. 4 for execution of the sale deed and on the demise of S. Harminder Singh on 05.08.2007, respondent no.1 had approached the respondent no. 4 for execution of the sale deed.
RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 10 of 1915. As per Article 54 of the Limitation Act, 1963, period of limitation for specific performance is three years from the date fixed for the purpose of contract or, if no such date is fixed, when the plaintiff has notice that performance is refused.
16.Reliance is placed on the judgment of Hon'ble High Court of Delhi reported as 2011 (122) DRJ 334 titled as Dharam Pal vs. Shashi Kant Saini wherein the Hon'ble High Court has observed that article 54 of limitation Act, 1963 operates in two eventualities. The first eventuality is that when a specific date is fixed for performance, suit for specific performance is to be filed within three years from a date fixed for performance and second eventuality is that where there is no fixed date for performance, limitation commences when the other party refused performance of the contract. In the said case, the Hon'ble High Court observed that at no point of time, appellant/defendant gave any notice to the respondent/ plaintiff claiming forfeiture of amount or cancellation of agreement to sell or in any other manner indicating his refusal to perform his obligation under Agreement to sell and thus, held that there is no question of commencement of limitation on the ground of alleged refusal of performance of agreement.
17. Adverting to the facts of the instant case, respondent no. 1 to 3 / plaintiff's case is that they had received the possession of RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 11 of 19 the suit property from the respondent no.4/defendant no. 1 at the time of execution of the aforesaid title documents on 22.12.2000 and no date was fixed in the agreement dated 22.12.2000 for its performance. In this regard, one may refer to the agreement to sell dated 22.12.2000, Ex.PW2/2 which does not provide for any stipulated date for execution of the sale deed. Further, the very fact that the entire sale consideration of Rs.20,000/ was paid by S. Harminder Singh to the respondent no. 4/defendant no. 1 on 22.12.2000 itself and he was given possession of the suit property; there was no urgency for him to get execution of the sale deed.
18. It is further contention of ld. counsel for the appellant that registered GPA as well as registered Will was cancelled by respondent no.4 on 17.08.2001 and therefore, S. Harminder Singh had knowledge of the same. It is his further contention that the respondent no. 4 had sold the suit property vide sale deed dated 01.05.2007 which was rectified vide rectification deed dated 24.10.2007 and therefore, respondents no. 1 to 3 have no right to seek specific performance of the agreement to sell dated 22.12.2000, ExPW2/2. The appellant has relied mainly on public notice dated 20.02.2007, Ex DW1/5 whereby Smt. Rawel Kaur disowned her son, Harminder Singh and daughter in law, Respondent no.1 from her movable and immovable properties; Cancellation of GPA dated 17.08.2001, RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 12 of 19 Ex DW1/7 and Cancellation of Will dated 17.08.2001, Ex DW1/8 and notice dated 17.08.2001 regarding cancellation of Will & GPA dated 22.12.2000.
19.The cancellation of registered GPA and registered Will, both dated 22.12.2000 vide cancellation documents dated 17.08.2001 which were executed by the respondent no. 4/defendant no.1 unilaterally would not infer that Late S. Harminder Singh and/or the Respondent nos. 1 to 3/plaintiffs had knowledge of the said cancellation documents. The Appellant has not established that the said cancellation documents were brought to the knowledge of S. Harminder Singh and/or the Respondent nos. 1 to 3. Therefore, suit for specific performance of agreement to sell is not barred by limitation. Insofar as relief of declaration of cancellation of sale deed dated 01.05.2007 which was rectified vide rectification deed dated 24.10.2007 is concerned, suit is within limitation as it was instituted before the ld. trial court on 01.11.2007.
20. The next contention of the appellant is that the cancellation of the registered GPA dated 22.12.2000, Ex PW1/1 as well as registered Will dated 22.12.2000, Ex PW1/2 vide registered Cancellation of GPA dated 17.08.2001, Ex DW1/7 and Cancellation of Will dated 17.08.2001, Ex DW1/8 respectively by the respondent no. 4/defendant no. 1 and RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 13 of 19 thereafter issuance of public notice dated 20.02.2007, Ex.DW1/5 whereby, S. Harminder Singh and his wife/respondent no. 1 were debarred from movable and immovable properties of the respondent no. 4/defendant no. 1 as well as publication in the newspaper vide publication notice, Ex.DW1/6 establish that the sale deed dated 01.05.2007 is legal valid document and the same has wrongly been declared to be cancelled by the ld trial court.
21.In this regard, one may also refer to the crossexamination of the appellant who stepped into the witness box as DW1. She has admitted during her cross examination dated 06.11.2015 that the documents i.e. agreement to sell dated 22.12.2000, Ex.PW2/2 bears her signature at point A; receipt dated 22.12.2000, Ex PW2/3 bears her signatures at point B; possession letter dated 22.12.2000, Ex.PW2/4 bears her signature at point C; GPA dated 22.12.2000 Ex.PW1/1 bears her signature at point D; Will dated 22.12.2000, Ex.PW1/2 bears her signature at point E. DW1 also admitted that vide documents i.e. Ex.PW2/2, Ex.PW2/3, Ex.PW2/4, Ex.PW1/2 and Ex.PW1/1, S Harminder Singh had received his share. She further admitted that he has therefore said in para 4 of Ex DW1/1 that he will not claim any more share. She further admitted that Ex.DW1/5 bears signature of respondent no. 4 / RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 14 of 19 defendant no.1. She denied the suggestion that the defendant no. 1 has not disowned his son or that public notice, Ex.DW1/5 was executed at her instance. She further admitted the suggestion that Ex.DW1/5 and Ex DW1/6 were executed after the execution of Ex.PW2/2 to Ex.PW2/4 and Ex.PW1/1 to Ex.PW1/2. She denied the suggestion that agreement to sell, Ex.PW2/2 was not cancelled by the defendant no. 1.
22.Pertinently, DW1/appellant admitted that Ex.PW2/2 to Ex.PW2/4 as well as Ex.PW1/1 and Ex.PW1/2 bears her signature as witness and therefore, the appellant had knowledge of the execution of the said documents in favour of her brother, S. Harminder Singh. The contention of the appellant that S. Harminder Singh had not paid consideration amount of Rs.20,000/ to her mother, Smt. Rawel Kaur has not been proved on record. The receipt, Ex.PW2/3 signed by Smt. Rawel Kaur negates the contention of the appellant herein. It is not the case of the appellant that receipt dated 22.12.2000 does not bear signature of Smt. Rawel Kaur, respondent no. 4.
23.No oral evidence to contradict the terms of a written document is permissible as per section 92 of Indian Evidence Act, 1872. Therefore, the appellant cannot allege oral evidence to contradict the terms of agreement to sell and RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 15 of 19 receipt unless it comes within the purview of exceptions of Section 91 & 92 of Indian Evidence Act. Relevant portion of agreement to sell and purchase dated 22.12.2000, Ex.PW2/2 is reproduced as under : "Whereas the first party has agreed to sell the above mentioned property for his bonafide needs and requirements and the second party has agreed to purchase the same for sum of Rs.20,000/ (Rs.Twenty Thousand Only) On the following terms and condition : That in consideration of the above amount which will be received from the second party by means of separate receipt and nothing remains due out of the sale price."
24. In the considered opinion of this court, the respondent no. 4 on receipt of the entire sale consideration was left with no right to execute sale deed of the suit property in favour of her daughter i.e. appellant herein. Further, the cancellation of registered GPA and registered Will will have no consequence on the agreement to sell, Ex.PW2/2. Notwithstanding the fact that vide public notice, Ex.DW1/5, respondent no. 4 had disowned her son, S. Harminder Singh from her movable and immovable properties, the same would not alter the rights which had already been accrued in favour of S.Harmender Singh in the suit property by way of agreement to sell dated 22.12.2000, Ex.PW2/2. In other words, the public notice dated 17.08.2001 & 20.02.2007 could not be made applicable with RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 16 of 19 respect to right created in the suit property in favour of S. Harminder Singh by virtue of documents, Ex.PW2/2 to Ex.PW2/5.The cancellation of GPA and cancellation of Will on 17.08.2001 would have no bearing on the validity of agreement to sell dated 22.12.2000, Ex.PW2/2. The right which has already been devolved upon S. Harminder Singh in the suit property on the execution of agreement to sell dated 22.12.2000, ExPW2/2 on payment of full consideration amount of Rs.20,000/ to Smt. Rawel Kaur, respondent no. 4, could not be taken unilaterally by the respondent no.4,Ms.Rawel Kaur by executing cancellation of GPA; cancellation of Will on 17.08.2001 and issuance of any public notice.
25.In view of the above, there is no merit in the aforesaid contention of ld. counsel for the appellant that since the GPA and Will were cancelled on 17.08.2001 vide Ex.DW1/7 and Ex.DW1/8 respectively; S. Harminder Singh was having no right in the suit property. In this regard, the learned trial court has also rightly observed in para 7 of the impugned judgment and decree dated 30.01.2016 as : " I am of the opinion that GPA / WILL and agreement to sale are independent documents and cancellation of one cannot affect the other. There might be more than hundred reasons for cancellation of the GPA/WILL and therefore, it RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 17 of 19 cannot be treated as if the GPA/WILL were cancelled to indicate the intention for non performance of agreement. There ought to have been specific pleading in the WS showing that GPA/WILL were cancelled to indicate that the seller was refusing the performance of the agreement. The WS lack necessary pleading on that count. Bar of limitation cannot be accepted."
26.Further, the appellant has not established her contention that the said documents i.e. Ex.PW2/2 to Ex.PW2/4 and Ex.PW1/1 to Ex.PW1/2 were executed for the purpose of taking loan by S. Harminder Singh. Had it been so, Smt. Rawel Kaur would have referred about the same while issuing public notices and would have also mentioned about the same in the cancellation documents executed on 17.08.2001.
27. In so far as the contention of ld. counsel for the appellant regarding unregistered documents is concerned, suffice is to state that as per proviso to Section 49 of the Registration Act, 1908, an unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877.
28. In view of above, there is no merit in the instant appeal and the RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 18 of 19 same is hereby dismissed with no order as to costs.
29.Trial court record be sent back alongwith copy of this judgment.
30.File be consigned to Record Room.
Announced in the open court (Manjusha Wadhwa) on 21st April, 2018 Addl. District Judge04 (West) Tis Hazari Courts, Delhi Digitally signed by MANJUSHA MANJUSHA WADHWA WADHWA Date:
2018.04.24 17:03:23 -0500 RCA No. 61126/16 Smt. Jagjit Kaur vs. Smt. Ranjit Kaur @ Bobby & ors. Page 19 of 19