Delhi District Court
Ms. Kiran Kapoor vs Shri Jag Mohan Singh @ Mangal Singh on 18 November, 2017
IN THE COURT OF DR. SAURABH KULSHRESHTHA:
ADDITIONAL DISTRICT JUDGE -11, CENTRAL,
TIS HAZARI COURTS, DELHI
Civil Suit No. 11147/2016
1. Ms. Kiran Kapoor
D/o Shri R.L. Kapoor
218, New Lawyers' Chamber
Supreme Court of India
New Delhi - 110003.
2. Ms. Rita Kapoor
D/o Shri Roshan Lal Kapoor
Both resident of :
1/41, Second Floor,
Tilak Nagar,
New Delhi - 110018. ....... Plaintif
Versus
1. Shri Jag Mohan Singh @ Mangal Singh
S/o Shri Khem Singh
2. Ms. Paramjit Kaur
W/o Shri Jag Mohan Singh
Both resident of :
33/129, Mukherji Park Extension
Tilak Nagar,
New Delhi.
Also at :
5A/23,
Tilak Nagar, New Delhi.
Suit No. 11147/2016
Kiran Kapoor v. Jag Mohan Singh Page No. 1 of 49
3. Roshan Lal Kapoor
S/o Shri Nand Lal
4. Smt. Suhag Rani
W/o Shri Roshan Lal Kapoor
5. Shri Anil Kapoor
S/o Shri Roshan Lal Kapoor
6. Smt. Anuja Kapoor
D/o Shri Roshan Lal Kapoor
Defendants no. 3, 4, 5 and 6 are resident of :
U-24, Subhash Park,
Uttam Nagar,
New Delhi ......Defendants
SUIT FOR CANCELLATION OF SALE DEEDS,
POSSESSION, DECLARATION, PERMANENT
INJUNCTION AND RECOVERY OF MESNE PROFIT.
Date of institution of the Suit : 29.04.2005
Date on which judgment
was reserved : 08.11.2017
Date of decision : 18.11.2017
Decision : Suit Decreed.
JUDGMENT
1. This is a suit for declaration and cancellation of sale deeds, recovery of possession, permanent injunction and recovery of mesne profits/ damages. The plaintifs are the daughters of the defendants no. 3 and 4. The Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 2 of 49 defendants no. 5 and 6 are the real brother and sister of the plaintifs. The defendants no. 1 and 2 are the subsequent purchasers of the suit property.
2. The version of the plaintifs is that the family of the plaintifs was alloted house no. 5-A/23, Tilak Nagar, Delhi, from the Ministry of Rehabilitation, Government of India in the name of the defendant no. 3 Shri Roshan Lal Kapoor, father of the plaintifs. At the time of allotment the suit property was a single storied house consisting of two rooms. An amount of Rs. 5416/- was deposited in the year 1966 as consideration towards the suit property. The plaintifs have further pleaded that the said consideration amount was paid partly out of the money received from the savings and claims of the ancestors / forefathers of the plaintifs' family and a major portion of the consideration amount was paid by the defendant no. 4 Smt. Suhag Rani, mother of the plaintifs from her own savings and after selling her stridhan, ornaments, etc. Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 3 of 49
3. It is further the case of the plaintifs that afterwards from the joint funds of the plaintifs and the defendants nos. 3 to 6, further construction was raised in the suit property and now the suit property comprises of seven rooms, kitchen, store, bathroom, courtyard etc. The plaintifs and the defendants nos. 3 to 6 are in possession of their respective portions in the suit property and the plaintifs are in exclusive possession of two rooms.
4. It is further the case of the plaintifs that the plaintifs and the defendants no. 3 to 6 had entered into a family settlement with respect to the suit property and afterwards executed a Deed/ Memorandum of family settlement dated 14.08.1992 and as such the suit property was partitioned and all of them became the owners of their respective portions. Shri Brij Mohan, the other brother of the plaintifs was left out from the said family settlement as he had already separated from the family and had taken his share in the family property. The other sister of the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 4 of 49 plaintifs was also not a party to the above said family settlement as she is well settled in Canada.
5. It is further the case of the plaintifs that Shri Brij Mohan was acting against the interests of the family and the defendant no. 3 also started acting as per the instructions of Shri Brij Mohan. In September, 2000 the defendants no. 1 and 2 and some unknown persons visited the suit property and discussed the matter regarding sale of the suit property and they also threatened to dispossess the plaintifs from the suit property.
6. The plaintif no. 1 accordingly filed a suit for permanent injunction against the present defendants no. 3 to 6 which was regsitered as Suit no. 320/2000, wherein the Ld. Civil Judge, vide orders dated 19.09.2000 restrained the present defendants no. 3 to 6 from selling, parting with the possession or creating any third party interest in the suit property till the final disposal of the said suit. A copy of the said injunction order was supplied to the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 5 of 49 defendants therein (including the present defendant no. 3) as well as the present defendants nos. 1 and 2 (who were not the parties to the said suit) and they were also made to understand the implications thereof. The counsel for the plaintif no. 1 had issued a legal notice to the present defendants no. 1, 2 and 3 and also to Raj Properties (property dealer/broker) in this respect through registered post on 23.09.2000 and the same was duly served upon the present defendants no. 1, 2 and 3.
7. It is further the case of the plaintifs that in August, 2001 the defendant no. 3 had met all the family members including Shri Brij Mohan and proposed that he wants to renovate the suit property and he does not want to sell the suit property. The defendant no. 1 represented that he is engaged in the business of property construction and renovation also on contract basis. The defendant no. 1 suggested that for urgent renovation and construction all the family members should shift to some other place. Accordingly, the plaintifs and defendants no. 3 to 6 shifted Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 6 of 49 to other places, so that the suit property could be renovated.
8. It is further the case of the plaintifs that on 13.10.2001 the plaintifs visited the suit premises and were surprised to see that no renovation work was being done and defendants no. 1 and 2 along with their family members were residing there. The plaintifs, contacted the defendant no. 3 who told that he had simply signed on some papers. On further inquiry it was revealed that defendants no. 1 and 2 have purchased the suit property from the defendant no. 3. Accordingly, Contempt petition under Order 39 Rule 2A CPC was also filed.
9. The plaintifs have contended that the defendants no. 1, 2 and 3 have disobeyed the injunction order passed by the court of Ld. Civil Judge in the previous suit for permanent injunction (Suit no. 320/2000). The plaintifs have further contended that the details of the alleged sale deed were never supplied to the plaintifs. On Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 7 of 49 20.11.2004 the plaintifs served a notice under Order XII Rule 8 CPC upon the defendants no. 1 and 2 and pursuant to the said notice they supplied copies of two sale deeds in their favour purportedly executed by the defendant no. 3 and registered on 14.06.2001. Thereafter the present suit was filed by the plaintifs.
10. The plaintifs have further contended that the defendant no. 3 used to sufer from epileptic seizures and he was not able to understand and see anything properly therefore the alleged sale deeds dated 14.06.2001 are null and void and further the same have been obtained by the defendants no. 1 and 2 by misrepresentation. Moreover, the suit property was joint property and the defendant no. 3 had no exclusive rights to sell the same.
11. The plaintifs have claimed a decree of declaration declaring the said sale deeds dated 14.06.2001, executed by the defendant no. 3 in favour of the defendants no. 1 and 2 in respect of the suit property as null and void Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 8 of 49 and cancellation of the same. The plaintifs have further prayed for a decree of recovery of possession in respect of the suit property. The plaintifs have further claimed damages / mesne profits at the rate of Rs.15,000/- per month for the unauthorized use and occupation of the suit property by the defendants no. 1 and 2. The plaintifs have further claimed a decree for permanent injunction restraining the defendants from transferring, selling, alienating or creating any charge in respect of the suit property.
12. The defendants no. 1 and 2 filed their joint written statement and refuted the claim of the plaintif. The defendants pleaded that the present suit is barred in terms of the provisions of section 11 CPC, Order 9 Rule 9 CPC, Order 23 Rule 1 CPC and Order 2 Rule CPC. They further pleaded that the previous suit filed by the plaintifs has been dismissed in default. They further pleaded that the present suit has not been properly valued for the purpose of court fees and jurisdiction. They further pleaded that the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 9 of 49 plaintifs have deliberately not impleaded their other brother Shri Brij Mohan as a party to the present suit.
13. The defendants no. 1 and 2 further pleaded that the suit property was alloted by the Ministry of Rehabilitation, Government of India vide registered conveyance deed in the name of the defendant no. 3 only. They denied that the sale consideration for purchase of the suit property was paid out of the money received from the ancestors / forefathers of the family. They denied that the suit property was a joint family property. The defendants no. 1 and 2 further pleaded that the defendant no. 3 being the sole owner of the suit property had sold the same to the defendants no. 1 and 2 vide registered sale deeds dated 14.06.2001 and delivered the vacant possession of the suit premises to the defendants no. 1 and 2, after getting the same vacated from his family members including the plaintifs. They further pleaded that the family settlement dated 14.08.1992 was never executed and is not a legal document.
Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 10 of 49
14. They further pleaded that the previous suit was filed and the injunction order was obtained by the plaintifs without impleading the present defendants no. 1 and 2 as parties to the said suit and even the defendant no. 3 was not served properly. They however admitted the receipt of legal notice dated 23.09.2000.
15. The defendants no. 1 and 2 denied that the sale deeds dated 14.06.2001 are null and void or that the plaintifs are entitled to recover possession of the suit property or mesne profits. They prayed for dismissal of the suit.
16. The defendant no. 3 filed his separate written statement. The defendant no. 3 pleaded that the plaintifs were never the co-owners of the suit property and the suit property was his self-acquired property. He further stated that the consideration amount of Rs. 5416/- qua the suit property was paid by him alone. He denied that the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 11 of 49 plaintifs or any other family members made any contribution towards the cost of construction of the suit property. The defendant no. 3 further averred that the suit property was earlier a lease hold property which was got converted into a freehold property vide conveyance deed dated 05.02.2001
17. The defendant no. 3 further averred that thereafter he had sold the suit property to the defendants no. 1 and 2 on 14.06.2001 by means of two registered sale deeds. The possession of the suit property was also delivered to the defendants no. 1 and 2 simultaneously, after it was got vacated from the family members including the plaintifs. He denied that in August, 2001 the suit property was got vacated for construction and renovation purposes. He asserted that the plaintifs and defendants no. 4 to 6 had vacated the suit property so that the possession could be handed over to the defendants no. 1 and 2 at the time of execution of the sale deeds on 14.06.2001. He further stated that the plaintifs were paid Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 12 of 49 their shares proportionately out of the sale consideration, even though that were not lawfully entitled for the same. He further stated that the plaintifs had committed themselves to withdraw all litigation pending in the court.
18. The defendant no. 3 further pleaded that the family settlement dated 14.08.1992 is illegal and is a forged document and is inadmissible under law. He further stated that Shri Brij Mohan and Smt. Sangeeta could not be left out in the family settlement.
19. The defendant no. 3 further pleaded that he was never served with any process in the previous suit (suit no. 320/2000) for permanent injunction and he was never made aware of the passing any interim order dated 20.09.2000. He denied the receipt of the alleged legal notice issued on 23.09.2000 on behalf of the plaintif no. 1.
20. The defendant no.3 denied that the sale deeds dated 14.06.2001 are null and void or that the plaintifs are Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 13 of 49 entitled to recover possession of the suit property or mesne profits. He prayed for dismissal of the suit.
21. The defendants no. 4 to 6 filed their joint written statement and admitted most of the contentions of the plaintifs.
22. Plaintifs filed replications to the written statements of the defendants no. 1 to 3 and denied the averments made by the defendants no. 1 to 3 and simultaneously reiterated and reafirmed the contents of the plaint.
23. On the basis of the pleadings of the parties, the following issues were framed vide order dated 15.10.2005 :
(1) Whether the suit is barred by the principle of res-judicata? OPP (2) Whether the suit has not been properly valued for the purpose of jurisdiction and court fee ? OPD Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 14 of 49 (3) Whether the plaintif is entitled for decree for cancellation of sale deeds dated 14.06.2001? OPP. (4) Whether the plaintif is entitled for possession ?
OPP (5) Whether the plaintif is entitled for damage, if any, at what rate and for which period ? OPP (6) Whether the plaintif is entitled for permanent injunction as prayed for ? OPP (7) Relief.
24. In order to prove their case the plaintifs examined the plaintif no. 1 as PW 1. PW 1 deposed on the lines of the plaint. PW 1 exhibited/ marked the following documents - Site plan which is Ex PW1/1, deed/ memorandum of family settlement which is Ex. PW1/2, certified copy of order dated 19.09.2000 passed by Ld. Civil Judge which is Ex. PW1/3, a copy of notice which is Ex. PW1/4, postal receipts which are Ex. PW1/5 to Ex. PW1/8, AD cards are Ex. PW1/9 to Ex. PW1/11, certified copy of contempt petition under Order XXXIX Rule 2A CPC which Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 15 of 49 is Ex. PW 1/12, copy of notice under Order XII Rule 8 CPC which is Ex. PW1/13, photocopies of the sale deeds which are Ex. PW1/14 and Ex. PW1/15.
25. As against this the defendants no. 1 and 2 examined the defendant no. 1 Shri Jagmohan Singh as DW 1 who deposed on the lines of his written statement. He exhibited/ marked the following documents - Conveyance deed dated 05.02.2011 which is Ex. DW1/B; original sale deeds dated 14.06.2001 which are Ex. DW1/C and Ex.DW1/D; certified copy of the plaint, written statement, replication, application under Order 1 Rule 10 CPC, its reply and the complete order-sheets of another suit (between the landlord of property bearing no. 1/41, Tilak Nagar, delhi and Sh. Anil Kapoor) which are collectively exhibited as Ex. DW1/E; ordersheets, plaint, written statement by the defendant no. 4 to 6 in suit no. 320/2000, contempt application no. 70/2001 under Order 39 Rule 2A CPC and reply and order-sheets which are collectively exhibited as Ex. DW1/; Rent Deed dated 24.11.2001 Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 16 of 49 executed between Pawan Kumar and Anil Kapoor - brother of the plaintifs, plaint of suit no. 525/2004 and report dated 23.07.2004 lodged by the plaintif no.1 which are Ex. DW1/G to DW1/I. DW 1 was partly cross examined by the counsel for the plaintifs, however on 06.07.2017 since neither the witness appeared nor counsel for the plaintif was present, therefore DE was closed.
26. I have heard the Ld. Counsel for the parties and carefully perused the record. My issue-wise findings are as under:
Issue no. 1 (1) Whether the suit is barred by the principle of res-judicata? OPP
27. The defendants no. 1 and 2 had contended in their written statement that the present suit is barred by principles of res-judicata. It was further stated that the previous for permanent injunction filed by the plaintifs had Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 17 of 49 been dismissed in default. Dismissal of the previous suit for default does not operate as res judicata so as to bar the present suit. Moreover the previous suit for permanent injunction was restored and is still pending before this Court. Hence, it cannot be said that the present suit is barred by the principles of res judicata.
28. This issue is therefore decided in favour of the plaintifs and against the defendants.
Issue No. 2 (2) Whether the suit has not been properly valued for the purpose of jurisdiction and court fee ? OPD.
29. The plaintifs have claimed a declaration with respect to the sale deeds and consequential relief of their cancellation and possession in respect of the suit property. The suit has been valued at Rs. 4 Lacs which is the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 18 of 49 consideration amount shown in the sale deeds. Plaintif has also paid court fee of Rs. 6300/-. The onus to prove this issue was upon the defendants. No evidence has been led by the defendants to establish that the market value of the suit property was much more than Rs. 4 Lacs. Nothing has been shown as to how the suit has not been properly valued for the purpose of court fees and jurisdiction. Accordingly, no flaw in valuation of the suit has been established by the defendants.
30. This issue is therefore decided in favour of the plaintifs and against the defendants.
Issue No. 3 (3) Whether the plaintiff is entitled for a decree for cancellation of sale deeds dated 14.06.2001? OPP.
31. The Plaintifs have contended that though the suit property was allotted in the name of the defendant no. 3, but he was not the sole and absolute owner of the suit Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 19 of 49 property and it was the joint property of the plaintifs and the defendants no. 3 to 6. PW1 has deposed that the suit property was allotted to the defendant no. 3 by the Ministry of Rehabilitation, Government of India on payment of an amount of Rs. 5416/- which was paid partly from the money received from the savings and claims of the ancestors / forefathers and part of the consideration amount was paid by the defendant no. 4 Smt. Suhag Rani (mother of the plaintifs) from her own savings and after selling her personal articles, stridhan etc. PW1 has further relied upon a Deed/ Memorandum of Family Settlement dated 14.08.1992 which is Ex. PW1/2 to contend that the suit property was the joint property of the plaintifs and the defendants no. 3 to 6. Accordingly, the plaintifs have contended that the defendant no. 3 had no right to unilaterally sell the suit property to the defendant nos. 1 and 2.
32. The prime contention of the plaintifs, however, is that the plaintif no. 1 had filed civil suit bearing no. Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 20 of 49 320/2000 for permanent injunction against the present defendant no. 3 and others. The suit was proceeded ex- parte qua the defendant no. 3. However, vide order dated 19.09.2000 the present defendant no. 3 was restrained from selling, parting with the possession or creating any third party interest in the suit property. Copy of the order is Ex. PW 1/3.
33. PW1 has further deposed that she had also got a legal notice issued to the present defendants no. 1, 2 and 3 and also to Raj Properties (property dealer/broker). The legal notice is Ex. PW1/4 and the postal receipts are Ex. PW1/5 to Ex. PW1/8. As per the postal receipts the notice had been dispatched on 23.09.2000. The defendants no. 1 and 2 have admitted the receipt of said legal notice. The defendant no. 3 had denied the receipt of said legal notice in his written statement. However the registered post receipts are available on record and accordingly, the said notice is deemed to have been served on the defendant no. 3 in the ordinary course. There is no reason as to why the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 21 of 49 said notice would not have been served upon the defendant no. 3 when it was served upon the defendants no. 1 and 2. Moreover, the defendant no. 3 has not examined himself as a witness nor any evidence has been led by him to establish that the said legal notice was not served upon him. Further more, when the defendants no. 1 and 2 were served with the legal notice Ex. PW 1/4 it is natural that they must have intimated the defendant no. 3 also with respect to the said notice, therefore, the contention of the defendant no. 3 that the said notice was not served upon him or that he was not aware of the said notice deserves to be rejected. The result is that the plaintifs have established that the said legal notice was not served upon the defendants no. 1, 2 and 3. Even in the suit no. 320/2000, 06.11.2000 an afidavit of compliance of the provisions of Order 39 Rule 3 CPC was filed. Nothing to the contrary has been established by the defendants.
34. In the said legal notice, Ex. PW1/4, which was dispatched on 23.09.2000, the plaintif had stated that she Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 22 of 49 has obtained an interim stay order in respect of the suit property from the Ld. Civil Judge restraining the defendant no. 3 from selling, parting with the possession or creating any third party interest in the suit property and the defendants nos. 1, 2 and 3 were warned not to enter into any type of transaction with respect to the suit property as the sale of the suit property had been restrained. It was also averred that the suit property is in the joint possession and joint ownership of the plaintifs and the defendants nos. 3 to 6.
35. However, despite receipt of said legal notice Ex. PW 1/4 (dispatched on 23.09.2000) the defendant no. 3 sold the suit property to the defendants no. 1 and 2 vide sale deeds dated 14.06.2001.
36. The ld. counsel for the defendants no. 1 and 2 has contended that a copy of the said stay order had not been supplied alongwith the said legal notice Ex.PW1/4 nor the details of the interim order were mentioned therein. Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 23 of 49 However, the notice was received in September, 2000. The sale deeds were executed in June, 2001. The notice categorically mentions about the passing of the stay order and contains a caveat for the defendants. In case there was any doubt in the minds of the defendants no. 1, 2 and 3 they could have issued notice/ reply to the plaintif no. 1 demanding the details or a copy of the order. But the defendants nos. 1, 2 and 3 omitted to do so even after lapse of more than ample time and proceeded with the sale despite the fact that the contents of the notice were suficient to put the defendants on guard that there is an interim order restraining the sale of the suit property.
37. The defendant no. 3 has also stated in his written statement that the plaintifs had committed themselves to withdraw all litigation pending in the court with respect to the suit property. DW1 has stated in his cross examination that at the time of execution of the sale deeds the plaintif was present and she had stated that she would withdraw the pending litigation with her father Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 24 of 49 (though this fact has been denied by the plaintif). In their reply to the application under Order 39 Rule 2-A CPC (which is Ex.PW1/D-5) also the defendants nos. 1 and 2 have stated that the plaintif no. 1 had given an assurance that she would not follow the legal proceedings initiated. What has been stated by the defendants only goes on to show that the defendants nos. 1 to 3 were aware of the legal proceedings and the interim order passed in the said proceedings.
38. However, despite being aware of the legal proceedings and the interim stay order passed in the previous suit for permanent injunction the defendants nos. 1 to 3 chose to proceed forward with the sale of the suit property. The defendants nos. 1, 2 and 3 should have first waited for the plaintifs to withdraw the suit for permanent injunction or they could have moved an application for vacation of the interim stay order and thereafter purchased/ sold the suit property. If there was any doubt or requisite details were not available with them they could Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 25 of 49 have sought those details. However, they simply chose to ignore the interim stay order passed by the court of Ld. Civil Judge. Therefore, the defendants nos. 1 and 2 cannot be said to be bonafide purchasers.
39. In the judgment titled as Surjit Singh v. Harbans Singh, reported as (1995) 6 SCC 50, the Hon'ble Supreme Court has observed as under:-
"4. ....In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the court intends a particular state of afairs to exist while it is in seisin of a lis, that state of afairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes....."
40. In the judgment titled as Satyabrata Biswas v. Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 26 of 49 Kalyan Kumar Kisku, reported as (1994) 2 SCC 266¸the Hon'ble Supreme Court has observed as under:-
"29. ...... Hence, the grant of sub-lease is contrary to the order of status quo. Any act done on the teeth of the order of status quo is clearly illegal. All actions including the grant of sub-lease are clearly illegal..."
41. In the judgment titled as Vidur Impex & Traders Private Limited Vs. Tosh Apartments Private Limited reported as (2012) 8 SCC 384, the Hon'ble Supreme Court has observed as under:-
".........The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when respondent No.2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 27 of 49 restrained respondent No.2 from alienating the suit property or creating third party interest. To put it diferently, the agreements for sale and the sale deeds executed by respondent No.2 in favour of the appellants did not have any legal sanctity. The status of the agreement for sale executed by the appellants in favour of Bhagwati Developers was no diferent. These transactions did not confer any right upon the appellants or Bhagwati Developers...."
42. Ld. Counsel for the defendants no. 1 and 2 has relied upon the judgment titled as Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited (2013) 5 SCC 397 wherein it was observed that a transfer pendente lite is not illegal ipso jure but remains subservient to the pending litigation and further observed that though it was so held in the context of lis pendens and not in the context of transfer in breach of an order of injunction but there was no reason why the breach of any such injunction should render the transfer inefective in as Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 28 of 49 much as though the party committing breach may incur liability for consequences thereof but the sale or transfer by itself may remain valid as between the parties thereto subject only to any direction which the Court which had granted the injunction may issue against a transferor or vendor.
43. However the judgment cited by the Counsel for the defendants no. 1 and 2 is not applicable to the facts and circumstances of the present case. The facts of that case were entirely diferent. In the present case the defendants were well aware of the injunction order passed by the court of Ld. Civil Judge. They were also aware that the plaintif had claimed that she is also a co-owner of the suit property. It was also clear that the alleged conveyance deed had been executed in favour of the defendant no. 3 only after filing of the previous suit for injunction. In these facts and circumstances it is clear that the sale deeds dated 14.06.2001 were executed in favour of the defendants no. 1 and 2 by the defendant no. 3 in flagrant violation of the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 29 of 49 interim stay order dated 19.09.2000. Hence the benefit of the said judgment cannot be extended to the defendants no. 1 and 2 as such a blatant defiance of the injunction order passed by the court cannot be permitted.
44. Further in so far as the question of vacation of the suit property is concerned the explanation tendered by the plaintifs is probable. PW1 has deposed that the suit property was vacated on the pretext that the defendants no. 1 shall renovate the suit property and the defendant no. 3 had assured that he would not sell the suit property and under the belief that after renovation of the suit property the respective portions of the plaintifs and the defendants no. 3 to 6 would be handed over back to them, the plaintifs and the other family members had vacated the suit property.
45. The plaintifs have further contended that the details of the alleged sale deeds were never supplied to the plaintifs and they were not having any copy of the sale Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 30 of 49 deeds. PW 1 has further deposed that on 20.11.2004 the plaintif no. 1 served a notice under Order XII Rule 8 CPC upon the defendants no. 1 and 2 and pursuant to the said notice they supplied copies of two sale deeds in their favour purportedly executed by the defendant no. 3 and registered on 14.06.2001. Thereafter the present suit was filed by the plaintifs on 28.04.2005. It is further seen that contempt application under Order 39 Rule 2A CPC in suit no. 320/2000 was filed. Thereafter reply dated 30.04.2002 to the said application was filed by the present defendant no. 3 and reply dated 03.09.2002 was filed by the present defendants no. 1 and 2 and the reply dated. It was in the reply that the factum of execution of sale deeds was disclosed. Thus the plaintifs came to know about the sale deeds only when the reply dated 30.04.2002 was filed by the defendant no. 3 and thereafter received copies of the same only after 20.11.2004 and therefore the suit having been filed on 28.04.2005 is within 3 years from the date of knowledge of the sale deeds. Hence the suit is within limitation.
Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 31 of 49
46. The result is that the sale deeds dated 14.06.2001 which are Ex.PW1/14 and Ex.PW1/15 (Ex. DW 1/C and Ex. DW 1/D) are illegal, null and void having been executed in violation of the ad-interim injunction order dated 19.09.2000 passed by the court dealing with the suit for permanent injunction. The same are accordingly liable to be declared as illegal, null and void and are accordingly liable to be cancelled.
47. This issue is therefore decided in favour of the plaintifs and against the defendants.
Issue no. 4 and 6 :
(4) Whether the plaintiff is entitled for possession ?OPP (6) Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 32 of 49
48. PW1 has deposed that the suit property was allotted to the defendant no. 3 by the Ministry of Rehabilitation, Government of India on payment of an amount of Rs. 5416/- which was paid partly from the money received from the savings and claims of the ancestors / forefathers and part of the consideration amount was paid by the defendant no. 4 Smt. Suhag Rani (mother of the plaintifs) from her own savings and after selling her personal articles, stridhan etc. The plaintifs have claimed that the suit property is the joint property of the plaintifs and the defendants no. 3 to 6. Reliance has also been placed on the Deed/ Memorandum of Family Settlement Ex.PW1/2.
49. The defendant no. 3 had stated in his written statement that the said Family Settlement Ex. PW1/2 is forged and is not admissible under law. However, he had not categorically denied his signatures on the said memorandum of family settlement. The defendants no. 4, 5 and 6 had admitted the said Family Settlement Ex. PW1/2. Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 33 of 49 PW1 has deposed and has proved the said Family Settlement as Ex. PW1/2. Despite opportunity being given, the defendant no. 3 failed to cross examine PW1 on this count. Therefore the said Family Settlement Ex. PW1/2 stands proved.
50. In the judgment titled as Kale v. Dy. Director of Consolidation, reported as (1976) 3 SCC 119 the Hon'ble Supreme Court had observed:
"........ (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 34 of 49 fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no dificulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement......."
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51. A perusal of the said Family Settlement Ex. PW1/2 reveals that the family settlement had taken place between the parties earlier and afterwards the settlement was reduced into writing in the form of a memorandum which is Ex.PW1/2. Accordingly, it cannot be said that the said memorandum of family settlement (Ex. PW 1/2) was a compulsorily registerable document or is inadmissible in evidence.
52. In the judgment titled as Kale v. Dy. Director of Consolidation, reported as (1976) 3 SCC 119 the Hon'ble Supreme Court further observed:
".........44. In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly, the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 36 of 49 filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the court. The High Court further erred in law in not giving efect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder v. Siya Ram [AIR 1973 All 382, 389 : ILR (1972) 2 All 368 : 1973 ALJ 53] it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 37 of 49 an evidence of an antecedent title. The High Court observed as follows:
"The decision in Ram Gopal v. Tulshi Ram [AIR 1928 All 641, 649 : 26 ALJ 952] is clear that such a recital can be relied upon as a piece of evidence. *** It is clear, therefore, that the compromise can be taken into consideration as a piece of evidence.... To sum up, therefore, we are of the view that the compromise could have been relied upon as an admission of antecedent title."
53. In the judgment titled as Sahu Madho Das v. Pandit Mukand Ram, reported as AIR 1955 SC 481 the Hon'ble Supreme Court had observed:
"..........Estoppel is rule of evidence which prevents a party from alleging and proving the truth. Here the plaintif is not shut out from asserting anything. We are assuming in his favour that Pato had only a life estate and we are examining at length his assertion that he did not assent to Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 38 of 49 the family arrangement. The principle we are applying is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that and avoiding it at a later stage. Having made his election he is bound by it....."
54. It has been recorded in the said memorandum of Family Settlement Ex.PW1/2 that at the time of purchase of the suit property it was a single storied house consisting of two rooms and the same was purchased partly from ancestral funds. It has further been recorded therein that further construction was raised in the suit property with joint funds of the parties thereto. It has further been recorded that the plaintifs and defendants no. 3 to 6 were in physical possession and occupation of their respective rooms / portions and that would have full ownership rights over their respective portions and in case the suit property Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 39 of 49 is to be sold the consent of all the co-owners will be taken.
55. Thus even if it is assumed that Shri Brij Mohan and Smt. Sangeeta who were not parties to the said family settlement are not bound by the said family settlement in so far as their rights in the suit property are concerned, then also the said family settlement (Ex. PW 1/2) would operate as an estoppel qua the defendant no. 3 on the aforesaid points recorded in the said family arrangement. The plaintifs and the defendants no. 3 to 6 had invested money in the suit property on the basis of the representations of the defendant no. 3. The family settlement was acted upon also. This also implies that the defendant no. 3 had thrown the suit property into the common hotchpotch, which otherwise also had been purchased partly out of ancestral funds and further constructed with joint funds. Accordingly, the plaintifs also acquired an interest in the suit property and the suit property could not have been sold solely by the defendant no. 3. Even otherwise no evidence has been led by the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 40 of 49 defendant no. 3.
56. Even otherwise I have already held that the sale deeds dated 14.06.2001, Ex.PW1/14 and Ex.PW1/15 (Ex. DW 1/C and Ex. DW 1/D) are illegal, null and void having been executed in violation of the ad-interim injunction order dated 19.09.2000 passed by the court dealing with the suit for permanent injunction. The result is that the defendants no. 1 and 2 have no right, title or interest in the suit property, whereas the plaintifs have an interest in the suit property.
57. Moreover the defendant no. 3 has now expired and after his demise his interest in the suit property has devolved upon the plaintifs and the defendants no. 4 to 6 and his other children. Thus even if it is assumed that the plaintifs had no interest in the suit property now they are the co-owners of the suit property.
58. The plaintifs and the defendants no. 4 to 6 are, Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 41 of 49 therefore, entitled to recover the possession of the suit property from the defendants no. 1 and 2. However, the plaintifs and the defendants no. 4 to 6 shall hold the possession of the suit property on behalf of all the co- owners of the suit property including the ones who have not been impleaded as parties in the present suit.
59. The plaintifs are also therefore entitled for a decree of permanent injunction restraining the defendants from selling, alienating, parting with the possession or creating any third party interest in the suit property.
60. These issues are therefore decided in favour of the plaintifs and against the defendants. Issue no. 5 (5) Whether the plaintiff is entitled for damage, if any, at what rate and for which period ? OPP
61. I have already held that the sale deeds dated Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 42 of 49 14.06.2001, Ex.PW1/14 and Ex.PW1/15 (Ex. DW 1/C and Ex. DW 1/D) are illegal, null and void having been executed in violation of the ad-interim injunction order dated 19.09.2000 passed by the court dealing with the suit for permanent injunction. I have also held that the defendants no. 1 and 2 have no right, title or interest in the suit property, whereas the plaintifs have an interest in the suit property being the co-owners of the suit property. The plaintifs are therefore entitled to recover damages/ mesne profits from the defendants nos. 1 and 2 for the unauthorized use and occupation of the suit premises.
62. Plaintifs have claimed damages / mesne profits from the defendants no. 1 and 2 at the rate of Rs. 15,000/- per month. PW1 has deposed that the suit property can fetch market rent of Rs.15000/- per month. Neither there is any suggestion given to PW1 in this respect nor any positive evidence has been led by the defendants no. 1 and 2 on this count. The suit property is a residential house measuring 200 square yards situated at Tilak Nagar, Delhi. Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 43 of 49 Considering the facts and circumstances of the case, the area of the suit premises and on the basis of evidence on record I am of the opinion that the suit property could have fetched market rent at the rate of Rs. 15,000/- per month. Accordingly, the defendants no. 1 and 2 are liable to pay damages / mesne profit at the rate of Rs.15000/- per month from the date of institution of the suit.
63. However, the sale deeds in favour of the defendants no. 1 and 2 have been declared as null and void and cancelled therefore section 33(1) of the Specific Relief Act can be pressed into operation, which reads as under :
".....33. Power to require benefit to be restored or compensation to be made when instrument is cancelled or is successfully resisted as being void or voidable.
(1) On adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted, to restore, so far as may be any benefit which he may have received from the other party and to make any Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 44 of 49 compensation to him which justice may require.
64. A consideration amount of Rs. 4 Lacs was paid by the defendants no. 1 and 2 to the defendant no. 3 at the time of execution of the sale deeds dated 14.06.2001. Thus the estate of the defendant no. 3 had benefitted to that extent. The defendant no. 3 has expired and the share of the defendant no. 3 in the suit property has devolved upon his legal heirs including the plaintifs and the defendants no. 4 to 6. The plaintifs and the defendants no. 4 to 6 have therefore indirectly benefited from the said amount of Rs. 4 Lacs. Accordingly, the defendants no. 1 and 2 are entitled to compensation in terms of section 33(1) of the Specific Relief Act.
65. The amount invested by the defendants no. 1 and 2 was towards the purchase of a property and the defendant no. 3 had agreed to sell the entire suit property to the defendants no. 1 and 2 by virtue of the sale deeds dated 14.06.2001. Had the defendants no. 1 and 2 invested Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 45 of 49 the said amount for purchase of some other property they would not have been liable to make the payment of any damages / mesne profits.
66. Accordingly, I am of the opinion that it would be just compensation for the defendants no.1 and 2 in case the amount of damages / mesne profits payable by the defendants no. 1 and 2 from the date of institution of the suit till the date of decree are adjusted against the compensation amount payable to the defendants no. 1 and 2 in terms of section 31(1) of the Specific Relief Act.
67. It is therefore held that the defendants no. 1 and 2 are not liable to pay any pendente lite damages/ mesne profits.
68. However, the defendant no. 1 and 2 shall liable to pay future damages at the rate of Rs. 15,000/- per month from the date of decree till the date of delivery of vacant possession of the suit property by the defendants no. 1 and Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 46 of 49 2 to the plaintifs and the defendants no. 4 to 6. The said amount of Rs.15,000/- per month is payable to all the co- owners of the suit property and accordingly the other co- owners of the suit property may recover their proportionate share from the plaintifs in so far as future damages / mesne profits are concerned.
69. This issue is therefore decided in favour of the plaintifs and against the defendants in these terms. RELIEF
70. A decree of declaration is passed in favour of the plaintifs and against the defendants thereby declaring the sale deeds dated 14.06.2001 executed by defendant no. 3 in favour of the defendants no. 1 and 2 as null and void. Accordingly, the same are also ordered to be cancelled. A copy of the decree be sent to the concerned Sub-Registrar in this respect.
71. A decree of recovery of possession is also passed Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 47 of 49 in favour of the plaintifs and the defendants no. 4 to 6 and against the defendants no. 1 and 2 directing the defendants no. 1 and 2 to handover the vacant possession of the suit property i.e. 5-A/23, Tilak Nagar, Delhi to the plaintifs and the defendants no. 4 to 6. The plaintifs and the defendants no. 4 to 6 shall hold the same jointly on behalf of the other co-owners also.
72. A decree of permanent injunction is also passed in favour of the plaintifs and against the defendants restraining the defendants from selling, alienating, parting with the possession in favour of any third person or creating any third party interest in the suit property. The plaintifs and the defendants no. 4 to 6 may however sell of the suit property by mutual consent and consent of other co-owners.
73. A decree for future damages/ mesne profits is passed in favour of the plaintifs and against the defendants no. 1 and 2 at the rate of Rs. 15000/- per month from the Suit No. 11147/2016 Kiran Kapoor v. Jag Mohan Singh Page No. 48 of 49 date of decree till delivery of vacant possession of the suit property by the defendants no. 1 and 2. The said amount of Rs.15,000/- per month is payable to all the co-owners of the suit property and accordingly the other co-owners of the suit property may recover their proportionate share from the plaintifs in so far as future damages / mesne profits are concerned.
74. The suit is therefore decreed in favour of the plaintifs and against the defendants in the aforesaid terms. Parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room thereafter.
Announced in the open (Dr. Saurabh Kulshreshtha) Court on 18.11.2017 Additional District Judge-11 Central District Tis Hazari Courts, Delhi.
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