Delhi District Court
Sh. Ashok Kumar vs Sh. Rajinder Kumar on 20 July, 2010
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADMINISTRATIVE CIVIL JUDGE (EAST), KARKARDOOMA
COURTS, DELHI
Suit No.: 360/06
Case ID No.: 02402C0555172004
1. SH. ASHOK KUMAR
2. SMT. SARLA
3. SMT. PINKI
Son and daughters of
Sh. Jagdish Lal
All R/o B-2/74, Nand Nagri,
Delhi
... Plaintiffs
VERSUS
1. SH. RAJINDER KUMAR
S/o Sh. Jagdish Lal
2. SMT. SUNITA
W/o Sh. Rajinder Kumar
Both R/o 2/74, 2nd floor,
Nand Nagri, Delhi.
... Defendants
3. SH. RAVINDER KUMAR
S/o Sh. Jagdish Lal,
R/o B-2/246, Nand Nagri,
Delhi - 110093
... Proforma Defendant
DATE OF INSTITUTION : 23.12.2004
DATE OF RESERVING THE ORDER : 15.07.2010
DATE OF DECISION : 20.07.2010
SUIT FOR CANCELLATION/DECLARATION AND
PERMANENT INJUNCTION
SUIT NO.360/2006 Page 1/17
JUDGMENT
1. Vide this judgment, I shall decide a suit for cancellation/declaration and permanent injunction filed by the plaintiffs against the defendants.
2. The essential facts for the disposal of the present suit as per plaint are that the plaintiffs have become the owner of the flat/property bearing no. B-2/74, Nand Nagri, Delhi (herein after will be referred to as suit property) by virtue of will dated 14.12.99 which was executed by their mother Smt. Shanti Devi wife of Sh. Jagdish Lal. Initially, the suit property was allotted to Sh. Ram Pal son of Sh. Suraj Baksh by DDA. The allotment-cum-possession letter is in favour of Sh. Ram Pal. Defendant no. 1 had purchased the suit property measuring 25 sq. yds. comprising one room, kitchen, latrine and bathroom etc. for a valuable consideration of Rs. 18,000/- from its previous owner Sh. Ram Pal vide Agreement to Sell, GPA, receipt dated 22.08.85. As per the plaintiffs the entire sale consideration was paid by Sh. Jagdish Lal, father of the plaintiffs and defendants no. 1 and 3. Sh. Jagdish Lal had made further construction on the first and second floor of the suit property out of his own savings and started living with his family including plaintiffs and SUIT NO.360/2006 Page 2/17 defendants no. 1, 2 & 3. Defendants no. 1 & 2 occupying the second floor of the suit property. Defendant no.1 again sold the entire suit property for a valuable consideration of Rs. 18,000/- to his mother Smt. Shanti Devi wife of Sh. Jagdish Lal vide agreement to sell, GPA and receipt dated 01.08.1989. Defendants no. 1 & 2 were allowed to retain the possession of the second floor temporarily as they could not make an alternate arrangement immediately. As per the plaintiffs, the defendants no. 1 & 2 refused to hand over and vacate the second floor and started demanding money from the plaintiffs. Smt. Shanti Devi mother of the plaintiffs debarred the defendant no. 1 from inheriting the movable and immovable property by way of public notice published in Hindi newspaper 'Punjab Kesari' dated 17.09.98. Smt. Shanti Devi severed all relations with defendant no. 1 as he was involved in illegal activities. As per the plaintiffs, Smt. Shanti Devi was the owner and in possession of the suit property and she executed a will dated 14.12.99 out of her own free will and bequeathed the suit property to her four children who are plaintiffs no. 1, 2, 3 and defendant no. 3. As per the Will the first floor of the suit property came in share of plaintiff no. 1 i.e. Sh. Ashok Kumar as shown in red colour in the site plan. Ground floor of the suit property came in equal proportion to the plaintiffs no. 2 & 3 as shown in yellow colour in the site plan and second floor of the suit property came to the SUIT NO.360/2006 Page 3/17 share of defendant no. 3 as shown in green colour in the site plan. The Will was duly notarized after the same was drafted by Sh. R.D. Chauhan, Advocate. The mother of the plaintiffs and defendants no. 1 & 3 died on 17.02.2000. Therefore, the plaintiffs no. 1, 2, 3 and defendant no. 3 became owners of their respective portions. Plaintiffs no. 1, 2, 3 are already in peaceful possession of the ground floor and first floor of the suit property in terms of Will. Defendants no. 1 & 2 have refused to vacate and handover the possession of the second floor in their illegal possession. Defendant no. 3 has filed a suit for possession and mesne profits against defendants no. 1 & 2. During the pendency of the above suit, defendant no. 1 filed documents such as deed of revocation dated 02.08.89 in respect of GPA dated 01.08.89, executed by defendant no. 1 in favour of his mother, Smt. Shanti Devi and the GPA dated 08.04.2003 executed by defendant no.1 in favour defendant no. 2, Smt. Sunita in respect of one room kitchen, latrine and bathroom forming part of the suit property. As per the plaintiffs, the total accommodation available on the date of execution of documents is more than mentioned in the alleged GPA and Will dated 08.04.03 as Smt. Shanti Devi constructed additional floor that is first and second floor comprising two rooms, kitchen, latrine and bathroom in part performance of the agreement to sell on 01.08.89. The plaintiffs were shocked to know that the defendants no. 1 & 2 had SUIT NO.360/2006 Page 4/17 played fraud with other legal representatives of Smt. Shanti Devi. Defendants no. 1 & 2 never disclosed about the execution of deed of revocation dated 02.08.89 during the lifetime of Smt. Shanti Devi. The plaintiffs have right to inherit or possess the suit property owned by Smt. Shanti Devi on the basis of agreement to sell, GPA, receipt dated 01.08.89. Defendant no. 1 has no right or authority to revoke the GPA dated 01.08.89 executed in favour of Smt. Shanti Devi or to execute fresh GPA and Will dated 08.04.03 in favour of defendant no. 2. It is prayed by the plaintiffs that the deed of revocation dated 02.08.89, GPA and Will dated 08.04.03 executed by defendant no. 1 in favour of defendant no. 2 be declared as null and void and the same may be declared as cancelled. The plaintiffs also prayed for a decree of declaration declaring that the plaintiffs have legal right and authority to inherit and possess the respective portion of the suit property under their lawful possession on the basis of Will dated 14.12.99. The plaintiffs also prayed for a decree of permanent injunction in favour of plaintiffs and against the defendants restraining them from selling, transferring or creating third party interest in respect of the suit property.
3. The defendants no.1&2 filed written statement and have taken preliminary objections that the plaintiffs have not come to this court with SUIT NO.360/2006 Page 5/17 clean hands. Plaintiffs are neither the land lord nor the owners of the suit property. On merits, it is averred that Smt. Sunita, defendant no.2 is the owner of the suit property by virtue of GPA and Will dated 08.04.03 executed by defendant no. 1 in her favour. It is also averred that the defendant no. 1 purchased the suit property from Sh. Ram Pal through GPA and receipt dated 22.05.85 and the total consideration was paid to Sh. Ram Pal by the defendant no. 1. Plaintiff has wrongly mentioned the date of GPA and receipt executed in favour of the defendant no. 1 on 22.08.85. Defendant no. 1 has made construction on the first and second floor of the suit property out of his own savings and started living in the property along with two divorcee sisters, brother, mother and father. Defendant no. 2 filed a complaint u/s 498A/406 IPC at Crime against women cell (CAW Cell) against the defendant no. 1 and his mother, father, brother and sister and due to this dispute all the family members suggested to defendant no. 1 to execute GPA regarding the suit property in favour of her mother, late Smt. Shanti Devi. On 02.08.89, the defendant no. 1 revoked the GPA executed on 01.08.89 in favour of Smt. Shanti Devi. Defendant no. 1 sent a complaint to the Deputy Commissioner of Police, North-East District, Delhi against his brother, sister, father and mother dated 23.05.2000. Smt. Shanti Devi has no power to execute Will in respect of suit property on 14.12.99. The SUIT NO.360/2006 Page 6/17 plaintiffs have fabricated the Will dated 14.12.99. Defendant no. 3 has filed a civil suit for possession and mesne profits against the defendant no. 1 which was dismissed by Sh. Rakesh Kumar, Ld. Civil Judge on 18.12.04. The plaintiffs have wrongly mentioned the Will dated 17.02.2000 in Para 8 of the plaint. Defendant no. 1 filed written statement in suit no. 81/03 and deed of revocation dated 02.08.89 in respect of GPA dated 01.08.89. The defendant no. 1 also filed GPA and Will duly registered with Registrar dated 08.04.03 executed by him in favour of defendant no. 2, in respect of the suit property. Defendant no. 1 has every right to revoke or cancel the GPA executed by him in favour of his mother, Smt. Shanti Devi. Defendant no. 1 executed documents in favour of the defendant no. 2. Dismissal of the suit is prayed by the defendants no. 1 & 2.
4. Defendant no. 3 also filed written statement on the averments that defendant no. 2 is the owner of the suit property on the basis of GPA, Will dated 08.04.03 executed by the defendant no. 1 in her favour. It is also mentioned that the defendant no. 1 had purchased the suit property from Sh. Ram Pal for a sale consideration of Rs. 18,000/- on 22.05.85 and the total sale consideration was paid by the defendant no. 1. As per the defendant no. 3, defendant no. 1 has made further construction on first SUIT NO.360/2006 Page 7/17 and second floor of the suit property from his own savings. Defendant no. 3 filed written statement as per the averments of defendants no. 1 & 2. Dismissal of the suit is also prayed by defendant no. 3.
5. Plaintiff filed replication and has controverted the allegations made in the written statement and further reaffirmed the averments made in the written statement. On 04.08.06, following issues were framed by my Ld. Predecessor:-
1. Whether the plaintiff has no locus standie to file the present suit? OPD
2. Whether the plaintiff has not come before this court with clean hands and has suppressed the material facts? OPD
3. Whether the plaintiff is entitled for a decree of declaration as prayed for? OPP
4. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
5. Whether the plaintiff is entitled for the decree of cancellation of documents? OPP
6. Relief
6. In evidence, the plaintiff has examined himself as PW1. Plaintiff no. 2, Smt. Sarla wife of Sh. Vijay Kumar examined herself as SUIT NO.360/2006 Page 8/17 PW2. PW 1 & PW2 filed affidavit as per plaint. Sh. R.D. Chouhan, Advocate was examined as PW3. He stated that he has drafted the Will dated 14.12.99 and Smt. Shanti Devi affixed her right thumb impression on it in presence of witnesses Sh. Gopal and Sh. Rajiv Dutt. Sh. Surender Kumar s/o Sh. Jagdish Lal was examined as PW4 and Sh. Rajiv Dutt was examined as PW5. PW4, Sh. Surender Singh is the brother of the plaintiffs and defendants no. 1 and 3.
On the other hand defendant no. 1 examined himself as DW1 and defendant no. 2 examined herself as DW2.
7. I have heard the counsels for both the parties and perused the record. My issue wise findings are as under: -
I am deciding all the issues together as all the issues are interconnected and can be decided together. ISSUES:
"Whether the plaintiff has no locus standie to file the present suit? OPD"
"Whether the plaintiff has not come before this court with clean hands and has suppressed the material facts? OPD"
"Whether the plaintiff is entitled for a decree of declaration as prayed for? OPP"
SUIT NO.360/2006 Page 9/17
"Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP"
"Whether the plaintiff is entitled for the decree of cancellation of documents? OPP"
8. All the issues are interconnected, therefore, I am deciding all the issues together for the sake of brevity. The burden to prove issues no. 1 & 2 is on the defendant and the burden to prove issues no. 3, 4 & 5 is on the plaintiff. It is the case of the defendant that the plaintiffs have no locus standie to file the present suit and they have not come to the court with clean hands. It is the case of the plaintiffs that the defendant no. 1 has purchased the suit property from Sh. Ram Pal on 22.08.85 for sale consideration of Rs. 18,000/- but the total sale consideration was paid by Sh. Jagdish Lal, father of the plaintiffs and defendant no. 1. Defendant no. 1 again sold the suit property to his mother on 01.08.89. It is also the case of the plaintiffs that their mother had executed a Will dated 14.12.99 in favor of the plaintiffs and defendant no. 3 vide which the plaintiff no. 1 was given the first floor, plaintiffs no. 2 & 3 were given ground floor with equal shares and second floor of the suit property was given to the defendant no. 3. On the other hand, it is the stand of the defendant no.1 that he has cancelled the GPA vide deed of cancellation dated 02.08.89 SUIT NO.360/2006 Page 10/17 which is proved as Ex. PW1/7.
9. To prove issues no. 3, 4 & 5 the plaintiffs no. 1 & 2 filed affidavit in evidence as per plaint and proved the agreement to sell, GPA and receipt executed by defendant no. 1 in favour of Smt. Shanti Devi as Ex. PW1/1 to Ex. PW1/3. It is also the case that the mother of the plaintiff has disinherited the defendant no. 1 by public notice dated 17.09.98 which was proved as Ex. PW1/1. The original Will dated 14.12.99 was proved as Ex. PW1/5, certified copy of the deed of cancellation dated 02.08.89 was proved as Ex. PW1/7 and certified copy of the GPA and Will dated 08.04.03 executed by defendant no. 1 in favour of defendant no. 2 was proved as Ex. PW1/8 and Ex. PW1/9.
Plaintiffs have averred in the plaint that the sale consideration at the time of purchase of the suit property by the defendant no. 1 was paid by Sh. Jagdish Lal, father of the plaintiffs and defendants no. 1 and
3. No evidence has been produced by the plaintiffs to show that the sale consideration of Rs. 18,000/- was paid by Sh. Jagdish Lal. In the cross examination plaintiff no. 1 has clearly stated that his father has not given Rs. 18,000/- to Sh. Ram Pal in his presence and he has no knowledge in whose presence the amount was given. PW2 admitted that Sh. Ram Pal has not executed any document in favour of his father Sh. Jagdish Lal. SUIT NO.360/2006 Page 11/17 Admittedly, Sh. Ram Pal had executed documents in favour of defendant no. 1. The plaintiffs are relying on a GPA dated 01.08.89 executed by the defendant no. 1 in favour of their mother Smt. Shanti Devi. GPA, Receipt and agreement to sell were proved as Ex. PW1/1 to Ex. PW1/3. In the agreement to sell it is mentioned that the defendant no. 1 is the owner of the suit property and he has agreed to sell the suit property for a sale consideration of Rs. 18,000/-. It is also mentioned that the defendant no. 1 has delivered the possession of the suit property to Smt. Shanti Devi. This agreement is not registered with the office of sub-registrar. The defendant no. 1 also executed a receipt in respect of the suit property in favour of his mother Smt. Shanti Devi. Only this receipt is registered with the office of sub-registrar. The defendant no.1 admitted to execute the documents but the version of the defendant is that he was having litigation with his wife so on the advice of some of his relatives he had executed these documents in favour of his mother. Admittedly, the defendant no. 1 is in possession of the second floor of the suit property since the date of its purchase. Possession of the second floor of the suit property was not vacated by the defendants no. 1 & 2 and nor the vacant possession of the suit property was given to Smt. Shanti Devi. Thus, it cannot be held that the possession of the suit property was given to Smt. Shanti Devi. Admittedly, no sale deed was executed by the defendant no. SUIT NO.360/2006 Page 12/17 1 in respect of suit property in favour of his mother. Moreover, the defendant no. 1 executed a revocation of GPA dated 02.08.89. Vide this document, GPA dated 01.08.89 was revocated/cancelled by defendant no. 1 and he has averred in the GPA dated 02.08.89 that now the attorney dated 01.08.89 shall have no rights or power to appoint any advocate or pleader in any case. GPA executed by the defendant no. 1 in favour of his mother was not registered and this attorney was executed by the defendant no. 1 in presence of witnesses Smt. Anaro Devi. Thus, no sale document was executed by the defendant no. 1 in favour of his mother as per provisions of transfer of property act. As per Section 54 of Transfer of Property Act "a sale of immovable property of a value more than Rs. 100/- or in case of a reversion or other intangible thing, can be made only by a registered instrument." Admittedly, the agreement to sell, GPA executed by the defendant no. 1 in favour of his mother are not registered documents. As the documents in respect of the suit property executed in favour of mother of plaintiff are cancelled by defendant no.1, therefore, Smt. Shanti Devi has no right to execute any will in respect of the suit property in favour of plaintiffs and defendants. Thus, no right can be derived from the will executed by Smt. Shanti Devi and the plaintiffs have no locus standi to file the present suit.
SUIT NO.360/2006 Page 13/17
10. It is vehemently contended by the counsel for the plaintiffs that the defendant no. 1 has executed GPA, agreement and receipt in favour of his mother, Smt. Shanti Devi. Only the receipt is registered with the office of sub-registrar. As per Section 53 A of the Transfer of Property Act, this argument of the counsel for the plaintiff is devoid of merit as possession of the second floor was not handed over by defendant no.1 to the mother of the plaintiffs. In these documents, it is also not mentioned in what capacity the defendant no. 1 was residing in the suit property with his wife. Admittedly, the defendant no. 1 is residing at the suit property since the date of its purchase i.e. 12.08.85. Thus, it cannot be said that Smt. Shanti Devi has become the owner of the suit property on the basis of documents Ex. PW1/1 to Ex. PW1/3.
11. As the defendant no. 1 has revoked the GPA executed by him in favour of his mother on 02.08.89, it cannot be said that Smt. Shanti Devi was having any right to give the property to his other sons and daughters as she was not having any right in respect of the suit property on 14.12.99 i.e. the date of execution of Will. PW1 admitted that the suit for possession and damages was dismissed by the Ld. Civil Judge on 18.12.04. PW2 has stated that she has no knowledge that the defendant no. 1 has cancelled the documents on the next date.
SUIT NO.360/2006 Page 14/17
12. The defendant no. 1 has clearly denied that he has received any consideration at the time of execution of documents. No evidence has been put forward by the plaintiffs to prove that the consideration was paid by Smt. Shanti Devi to defendant no. 1. PW1 has categorically stated in his cross examination that no amount was paid in his presence nor the plaintiffs have examined any witness to the agreement and GPA executed by the defendant no. 1 in favour of Smt. Shanti Devi that the amount was given in their presence. Even the plaintiffs have also not examined any witness to receipt to show that the amount was paid by Smt. Shanti Devi to defendant no. 1.
13. The counsel for the plaintiff has further contended that the DW1 has admitted the signatures on Ex. DW1/PX2 at Point X, thus, the suit be decreed. The document, DW1/PX2 is to the effect that the defendant no. 1 has taken loan of Rs. 15,000/- from the Reserve Bank of India and for getting the loan he is taking the receipt of the rent and he will deposit the installments. This contention of the counsel for the plaintiff carries no force.
14. It is the version of the defendant no.1 that the defendant no. 2 SUIT NO.360/2006 Page 15/17 has lodged a case u/s 498A/406 IPC against the defendant no. 1. She registered complaint u/s 406 IPC against the defendant no. 1. None of the plaintiffs have denied that the case u/s 498A/406 IPC was not registered by the defendant no. 2 against the defendant no. 1. Thus, the version of the defendant no.1 appears to be true as none of the plaintiffs have denied that the defendant no. 2 has not registered the case against the defendant no. 1.
15. The plaintiffs in the present suit are only praying for a decree of declaration to the effect that the deed of revocation dated 02.08.89, GPA and receipt dated 08.04.03 executed by the defendant no. 1 in favour of defendant no. 2 be declared as void and the same may be cancelled. The plaintiffs also prayed for a decree of declaration that they have right and authority to inherit the respective portions of the suit property on the basis of Will dated 14.12.99 and also prayed the decree of permanent injunction restraining the defendant from creating third party interest. The plaintiffs have not prayed any decree of possession in respect of the suit property. They are merely praying decree of declaration to cancel the documents such as deed of revocation, GPA, Will executed by defendant no. 1 in favour of defendant no. 2. The plaintiffs should have also prayed for the consequential relief of possession. Thus, the plaintiffs have not SUIT NO.360/2006 Page 16/17 been able to prove issues no. 3, 4 & 5 and these issues are decided in favour of defendants no. 1 & 2 and against the plaintiffs. The defendants no. 1 & 2 are able to prove the issues no. 1 & 2 and these issues are decided in favour of the defendants and against the plaintiffs. RELIEF
16. In view of my findings on the above said issues, suit of the plaintiffs is without any merit and the same is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
ANNOUNCED IN OPEN COURT (NARESH KUMAR MALHOTRA)
ON 20.07.2010 ACJ (EAST)/KKD COURTS/DELHI
SUIT NO.360/2006 Page 17/17