Delhi District Court
Smt. Pritam Kaur vs Satish Chopra on 30 September, 2024
IN THE COURT OF MS MONIKA SAROHA:
DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
Civ DJ/608820/16
(Old Suit No.319/2004)
Date of institution :-08.07.2004
CNR No. DLWT01-000009-2004
In the matter of:-
SMT. PRITAM KAUR
W/O LATE SH. LAL SINGH
D/O SH. ISHWAR SINGH
R/O G-48, PLOT NO.13,
RISHI NAGAR,
SHAKUR BASTI,
DELHI-34 ...Original plaintiff
(passed away after filing of the suit)
substituted by her Legal Representative -
i) SH. KEWAL SINGH
S/O LATE SH. LAL SINGH & LATE SMT. PRITAM KAUR
(He also passed away after substitution and during trial)
He was substituted by his Legal Representative -
...LR of the plaintiff
(ii) SMT. RANI KAMBOJ (LR of deceased Kewal Singh)
D/O LATE KEWAL SINGH,
R/O G-48/Y-781, PLOT NO.-13,
RISHI NAGAR, SHAKUR BASTI, DELHI
... LR of the LR of the plaintiff
VS.
1. SMT. SATISH CHOPRA,
W/O SH. MANMOHAN CHOPRA,
R/O R-1/13, BUDH VIHAR PHASE-I,
DELHI
ALSO AT :
G-48, PLOT NO.13, RISHI NAGAR,
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 1/34
SHAKUR BASTI, DELHI-34.
2. SH. KULDEEP KUMAR,
OF SH. HANS RAJ GIRDHAR,
R/O G-48, PLOT NO.13, RISHI NAGAR,
SHAKUR BASTI, DELHI-34. ...DEFENDANTS
Date of institution :-08.07.2004
Order Reserved On:-28.09.2024
Date of Decision:- 30.09.2024
SUIT FOR DECLARATION, POSSESSION, PERMANENT
INJUNCTION AND RECOVERY OF MESNE PROFITS
JUDGMENT
This suit was filed by Ms. Pritam Kaur (original plaintiff but since deceased) seeking declaration, possession, permanent injunction and recovery of mesne-profits/damages.
1. CASE OF THE ORIGINAL PLAINTIFF, MS. PRITAM KAUR:
1.1 It is the case of the original plaintiff Ms. Pritam Kaur, that she is the absolute owner and in possession of ground floor of built up property bearing No. G-48, Plot No.13, measuring 75 sq. yds. out of Khasra No.370, Khewat No.44, Khatauni No.84, situated in the area of Village Saleempur Majra, Madipur and abadi known as Rishi Nagar, Shakur Basti, Delhi (hereinafter referred to as 'Suit Property'). The aforesaid suit property consists of two storeys i.e. ground and first floor.
1.2 The defendant no.1 was well known to the original plaintiff as her Pritam Kaur Vs. Satish Chopra & Ors. Page No. 2/34 brother of defendant no.1 was earlier a tenant of the original plaintiff. In that capacity, defendant no.1 met and requested Smt. Pritam Kaur, to let out the first floor of the property no. G-48 on rent to her. The plaintiff consented to this request and agreed to let out the first floor to defendant no.1. According to the original plaintiff, the defendant no.1 then insisted for the execution of a registered Rent Deed in this regard. As the plaintiff had full faith in defendant no.1, so without doubting any foul play, she agreed to execute and register a Rent Deed in favour of defendant no.1. For this purpose, the defendant no.1 and one Sh. Shyam Sunder came to the house of plaintiff and took her to the office of Sub Registrar, Pitampura, Delhi for registration and execution of a Rent Deed in respect of the first floor.
1.3 However, taking advantage of the illiteracy and old age of the plaintiff, instead of executing a rent deed, defendant no.1 got executed a sale deed of the property in her name and the defendant no.2 acted as an attesting witness to this sale deed pertaining to the suit property ( this registered sale deed is the sale deed impugned in this suit ). At the time of getting her signatures on the impugned sale deed, both the defendants assured the original plaintiff that it was a rent deed and believing the version of the defendants to be true, she signed the said document. In this way defendant no.1 after hatching a conspiracy with Sh. Shyam Sunder to cheat the plaintiff, played a fraud upon her and induced her to sign the impugned sale deed while telling her that it is a rent deed. It was the case of the original plaintiff that the sale consideration of Rs.1,50,000/- as mentioned in the impugned sale deed was never paid to her and the actual market value of the property was much more than Rs.1.5 Lakhs.Pritam Kaur Vs. Satish Chopra & Ors. Page No. 3/34
On coming to know about the fraud committed by the defendant no.1, the original plaintiff and her family members confronted the defendant no.1 upon which, she apologized for her act of fraud and agreed to execute a cancellation deed with respect to the impugned sale deed, but she never executed any such cancellation deed.
1.4 The original plaintiff then approached the local police but they refused to take any action. Therefore, the original plaintiff filed a complaint u/s 200 Cr.PC before Ld. MM.
1.5 On the basis of these averments, the original plaintiff prayed for cancellation of the impugned sale deed dated 05.04.2004 allegedly executed by her in favour of defendant no.1 and also for a decree of possession for a portion of H. No. G-48, Plot No.13, measuring 75 sq. yds. and a decree of permanent injunction restraining the defendants from creating third party interest in the suit property.
1.6 During the pendency of the suit, it was revealed to the plaintiff that the suit property had been transferred by defendant no.1 to one Sh. Kuldeep Kumar vide impugned sale deed dated 30.07.2004. The plaintiff then amended the plaint and impleaded Sh. Kuldeep Kumar also as a defendant in this suit. According to the original plaintiff, the alleged sale dated 30.07.2004 took place during the pendency of this suit instituted on 07.07.2004 and thus the sale transaction falls and is hit by Section 52 of Transfer of Property Act, therefore, no right whatsoever was conferred upon Sh. Kuldeep Kumar.
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 4/341.7 Further, according to the original plaintiff, the defendant no.1 and Sh. Kuldeep Kumar have tresspassed on the first floor of the suit property and have no right to remain in possession of the same, therefore, they are liable to pay damages/mesne profits @ Rs.5000 per month from 01.08.2004 jointly or severally to the plaintiff. The plaintiff also prayed that the subsequent purchaser, defendant Sh. Kuldeep Kumar be restrained from creating any third party interest in the suit property.
2. CASE OF THE DEFENDANTS 2.1 Defendant no.1 & 2 filed a common written statement. In their written statement, they took the defence that defendant no.1 is the registered owner of the suit property having purchased it against consideration from the original plaintiff vide a registered sale deed. It is stated that prior to the sale of the suit property to defendant no.1, the first floor was totally vacant and its vacant and physical possession was delivered to defendant no.1 by the original plaintiff. According to defendant no.1, the talks for sale of the property were initiated by Sh. Shyam Sunder/ defendant no.2 at the instance of original plaintiff who the plaintiff knew well being co-satsangis. The defendant no.2 also knew defendant no.1 being in the same business of books and stationery etc. According to defendant no.1, even a draft sale deed was given to the original plaintiff to go through before the registration of the actual sale deed and after the original plaintiff approved the draft, the impugned sale deed was ultimately registered on 05.03.2004. Pursuant to the sale, the possession was delivered to the defendant no.1.
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 5/342.2 Thus, according to defendant no.1 & 2, the original plaintiff has no right, title and interest in the property in question after its sale and therefore, she was not entitled to any declaration or damages/mesne profit or injunction as sought in the plaint. Defendant no.1 also mentioned in his written statement that while the summons of the present suit were served upon her in the month of August, 2004 only, she had already sold the property vide a registered sale deed to the Sh. Kuldeep Kumar on 30.07.2004.
2.3 According to defendant no.3, Sh. Kuldeep Kumar /subsequent purchaser, he had been in possession of the property since the day of purchase and the defendant no.1 was his licencee and was holding possession in the suit property as a licensee.
3. REPLICATION 3.1 Plaintiff filed separate replication to written statements of defendant no.1 & 2 and defendant no.3 wherein contents of plaint were reiterated and version of defendants was denied.
3.2 Defendant no.2 was dropped from the array of parties vide order dated 27.10.2017. Thus there are only two defendants to this suit i.e. defendant no.1 Sh. Satish Chopra and defendant no.2 Sh. Kuldeep Kumar.
4. ISSUES 4.1. After completion of pleadings, vide order dated 06.12.2017, the Pritam Kaur Vs. Satish Chopra & Ors. Page No. 6/34 following issue were settled by Ld. Predecessor:-
(i) Whether the suit is bad for non-joinder of necessary parties?
OPD(1 & 2)
(ii)Whether the suit has not been properly valued and no proper court fees has been paid on the plaint? OPD(2)
(iii) Whether this Court has no jurisdiction to try and entertain the present suit? OPD(1&2)
(iv) Whether plaintiff is entitled to decree of declaration against defendant no.1 thereby declaring sale deed dated 05.04.2004 in respect of suit property as null and void and be cancelled as prayed in the plaint? (OPP)
(v) Whether the plaintiff is entitled for a decree of possession in respect of first floor of the suit property as shown in the site plan? (OPP)
(vi) Whether plaintiff is entitled for a decree of Rs.1,65,000/- as damages/mesne profits for the period 1.8.2004 to 31.4.2007 against defendant no.1? (OPP)
(vii) Whether the plaintiff is entitled for grant of mesne profits/damages? If so, at what rate and for which period? (OPP)
(viii) Whether the plaintiff is entitled for relief of permanent Pritam Kaur Vs. Satish Chopra & Ors. Page No. 7/34 injunction against defendant no.3 as prayed? (OPP)
(ix) Relief
5. After settlement of issues, matter was fixed for plaintiff's evidence.
6. PLAINTIFF'S EVIDENCE 6.1 The original plaintiff, Smt. Pritam Kaur passed away and even her LR Sh. Kewal Singh passed away, before evidence could be recorded in trial. Therefore, LR of the LR, the grand daughter of the original plaintiff i.e. Smt. Rani Kamboj examined herself as PW1. She tendered her evidence by way of affidavit as Ex.PW1/A in which she reiterated the contents of plaint. She relied upon following documents:-
Exhibit Description of document
Ex PW1/A Death certificate of Smt. Pritam Kaur
ExPW1/2 Copy of sale deed dated 28.10.1964 by Smt. Bal Kaur
(OSR) in favour of Ms. Pritam Kaur.
Mark PW1/3 Copy of certified copy of Will dated 03.09.2008
executed by Smt. Pritam Kaur.
Mark PW1/4 Copy of certified copy of order dated 04.04.2013 in PC
No.71A/10 titled as Rani Kamboj Vs State & Ors.
Ex.PW1/5 Certified copy of Gift deed dated 12.12.2008 executed
by Smt. Pritam Kaur in favour of Smt. Rani Kamboj Pritam Kaur Vs. Satish Chopra & Ors. Page No. 8/34 Ex PW1/6 Site plan Mark PW1/7 Copy of sale deed dated 05.04.2004 executed by Pritam Kaur in favour of Sh. Satish Chopra (the impugned sale deed).
Ex PW1/8 Certified copy of order dated 05.06.2008 in CC no.
675/1 in case titled as Pritam Kaur Vs Satish Chopra & Ors.
Ex PW1/9 to Copy of complaints dated 02.11.2004, 20.11.2006, Ex PW1/14 20.11.2006, 30.11.2006, 24.05.2007 & 30.05.2007 sent by Smt. Pritam Kaur to SHO concerned.
Mark PW1/15 Copy of sale deed dated 30.07.2004 executed by Smt. Satish Chopra in favour of Sh. Kuldeep Kumar.
During cross-examination PW1 was confronted with the following documents:-
Ex PW1/D1 Complaint dated 30.05.2007 sent by Smt. Pritam Kaur to Governor of Delhi Ex PW1/D2 Complaint dated 30.05.2007 sent by Smt. Pritam Kaur to SHO PS Saraswati Vihar.
6.2 Plaintiff then examined Sh. Swaranjeet Singh as PW2. He did not rely upon any document in his evidence. He deposed that he was told by the original plaintiff and her husband that defendant no.1 cheated the original plaintiff by getting a sale deed signed and registered Pritam Kaur Vs. Satish Chopra & Ors. Page No. 9/34 fraudulently on the pretext of getting a rent deed signed and registered.
He was cross-examined at length by Ld. Counsel for the defendant no.1 & defendant no.2 Sh. Kuldeep Kumar.
6.3 Plaintiff then summoned witness Sh. Pankaj Kumar, Assistant, SBI, Shakur Basti, Rani Bagh Branch, Delhi-34 as PW3. He brought on record account statement of A/c no. 011900220028 of Sh. Lal Singh and Smt. Pritam Kaur as maintained in SBI, Shakur Basti Branch for the period 01.03.2004 to 31.03.2005 as Ex PW3/1.
6.4 PW4 Sh. Vikas Kumar, Data Entry Operator, Sub Registrar Office, Pitampura, VIA, Sector-16, Rohini, Delhi was a summoned witness during trial. He brought on record following documents:-
Exhibit Description of document
Ex PW4/1 The certified copy of the Will dated 03.09.2008
executed by Smt. Pritam Kaur registered on
13.09.2008.
Ex PW4/2 The certified copy of gift deed dated 12.12.2008
executed by Smt. Pritam Kaur in favour of Smt. Rani Kamboj registered on 18.12.2008.
Ex PW4/3 The certified copy of the sale deed dated 05.04.2004 executed by Smt. Pritam Kaur in favour of Smt. Satish Chopra registered on 05.03.2004 (impugned sale deed) Ex PW4/4 The certified copy of the registered sale deed dated Pritam Kaur Vs. Satish Chopra & Ors. Page No. 10/34 30.07.2004 executed by Smt. Smt. Satish Chopra in favour of Sh. Kuldeep Kumar.
Ex PW4/5 The certified copy of Sale Deed dated 19.01.2004 registered on 24.01.2004 executed by Sh. Harbans Lal Nayyer in favour of Smt. Rajwinder Kaur.
6.5 PW5 Sh. Ashish Pant, Single Window Operator, Canara Bank, Rani Bagh Branch, Delhi was also a summoned witness but he did not bring the summoned record. He was never tendered for cross- examination.
6.6 PW6 Sh. Pradeep, Judicial Assistant, Civil-IV, High Court of Delhi at New Delhi was also a summoned witness. He brought on record certified copy of order dated 04.04.2013 passed by Sh. Sunil Rana, ADJ-II, Rohini, Delhi in PC 71A/10 as Ex PW6/1.
6.7 PW7, Sh. Yogesh Sharma, Officer, Punjab National Bank, Rani Bagh Branch, Delhi was another summoned witness examined by the plaintiff. He brought on record the following documents:-
Exhibit Description of document
Ex PW7/1 Account statement of account no. 28951 in the name of
Smt. Pritam Kaur from the period 01.03.2004 to
02.07.2005 as maintained in PNB.
Ex PW7/2 Account statement of account no. 24047 in the joint
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 11/34
name of Smt. Pritam Kaur and Kewal Singh from the period 01.03.2004 to 02.07.2005 as maintained in PNB.
Ex PW7/3 Account statement of account no. 15224 in the name of Lal Singh from the period 01.07.1998 to 02.07.2005 as maintained in PNB.
Ex PW7/4 Account statement of account no. 110088 in the joint name of Lal Singh and Giran Kaur from the period 01.03.2004 to 31.03.2005 as maintained in PNB.
Ex PW7/D1 Copy of statement of account of a/c no. 28950 as maintained in PNB 6.8 PW8 Sh. Neeraj, Assistant Ahlmad from the Court of Sh. Anurag Thakur, MM, Rohini Court, Delhi was also a summoned witness. He brought on record copy of the record of the entire complaint case no. 4555/2016 as Ex PW8/1.
6.9 PW9 Sh. Shadab Farhat, Scale II Manager, Canara Bank, Rani Bagh Branch,Delhi was also a summoned witness. He brought on record copy of statement of account no. 3008 of Sh. Lal Singh, Smt. Gian Kaur and Smt. Pritam Kaur maintained in Canara Bank, Rani Bagh Branch, Delhi w.e.f 01.08.2003 to 28.05.2005 as Ex PW9/1.
6.10 After examining all the above witnesses, LR of the LR of the original plaintiff closed her evidence on 26.07.2018. Matter was then Pritam Kaur Vs. Satish Chopra & Ors. Page No. 12/34 fixed for defendant's evidence.
7. DEFENDANTS' EVIDENCE 7.1 In her defence, the defendant no.1 Smt. Satish Chopra examined herself as DW1. She tendered her evidence by way of affidavit as Ex.DW-1/A in which she reiterated the contents of written statement. She relied upon the original panchayatnama as Ex DW1/1.
7.2 DW2 Sh. Ashwani Kumar, was another witness summoned by the defendant no.1. He deposed that he recorded the settlement (Ex DW1/1) arrived at between Lal Singh and his son Kewal Singh and the same is in his handwriting recorded in the presence of the original plaintiff, her husband, her son and grand daughter and others.
7.3 DW3 Sh. Shambhu Sharma, was also a summoned witness. He deposed that he got the family dispute settled between Sh. Lal Singh and his son, Sh. Kewal Singh. He deposed that prior to this settlement 2-3 meetings were held between the family members. According to him, the panchayatnama/ settlement was reduced into writing on 24.05.2004. He saw the settlement as filed on the Court file by DW1. After seeing the document, he stated that Ex DW1/1 is the same settlement bearing his signature at Point X. He further deposed that Ex DW1/1 was written by one Dr. Ashwani Kumar and that this panchayatnama/ settlement and connected documents (Ex DW1/1, Ex DW3/1 & Ex DW3/2) were in his custody since they were executed. He had never shown or handed over these documents to anybody and the documents had never been Pritam Kaur Vs. Satish Chopra & Ors. Page No. 13/34 manipulated or tampered with. He relied upon following two documents:-
Exhibit Description of document
Ex.DW3/1 The original GPA executed by Smt. Gian Lata
@Nirmal in favour of Sh. Kewal Singh.
Ex DW3/2 The Will dated 26.05.2004 executed by Smt. Gian Lata
@ Nirmal.
7.4 DW4 Sh. Manmohand chopra tendered his evidence by way of
affidavit as Ex.DW-4/A. He identified his signatures upon the original panchayatnama Ex DW1/1 at Point A-2 and Ex DW3/1 & Ex DW3/2 at Point "A", thereby duly proving these documents.
7.5 Defendant no.3 examined Sh. Suresh Kumar, SJA, High Court of Delhi at Delhi as his witness D3W1. He exhibited following documents:-
Exhibit Description of document
Ex.D3W1/1 Certified copy of evidence by way of affidavit of Sh.
Ravinder Singh filed in PC No. 71A/2010.
Ex D3W1/2 Certified copy of the rent agreement dated 22.11.2006
executed between Sh. Kuldeep Girdhar and Kewal Singh.
Ex D3W1/3 Copy of sale deed dated 30.07.2004 executed by Smt. Pritam Kaur Vs. Satish Chopra & Ors. Page No. 14/34 Satish Chopra in favour of Sh. Kuldeep Kumar.
Ex D3W1/P1 Certified copy of cross-examination of Sh. Ravinder Singh in PC No. 71A/2010.
7.6 Defendant no.3 also examined Sh. Anil Kumar, JA, Record Room (Civil) Tis Hazari Court, Delhi as a summoned witness. He was examined as D3W3 He exhibited on record following documents:-
Exhibit Description of document Ex.D3W3/1 Certified copy of the plaint alongwith supported
affidavit in CS no. 124/2007 titled as Kuldeep Kumar Vs Pritam Kaur as filed in the Court of Senior Civil Judge, Tis Hazari Courts, Delhi.
Ex D3W3/2 Application under Order 39 Rule 1 & 2 CPC alongwith affidavit in CS no. 124/2007 titled as Kuldeep Kumar Vs Pritam Kaur in the Court of Senior Civil Judge, Tis Hazari Courts, Delhi.
Ex D3W3/3 Certified copy of legal notice dated 05.12.2006 given by Sh. Kuldeep Kumar to Pritam Kaur & Sh. Satish Chopra.
Ex D3W3/4 Postal receipt and UPC pertaining to the legal notice Mark A (colly) Copy of returned envelope pertaining to the legal notice.
Ex D3W3/5 Certified copy of order dated 23.08.2011 in CS no.
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 15/34124/2007 titled as Kuldeep Kumar Vs Pritam Kaur Ex D3W3/P-1 Certified copy of written statement in CS no. 124/2007 titled as Kuldeep Kumar Vs Pritam Kaur 7.7 No other evidence was led by either of the defendants. Defendant no.3/Sh. Kuldeep Kumar closed his evidence on 05.03.2020. Matter was then fixed for final arguments.
8. ARGUMENTS 8.1. Ld. counsel for LR of the LR of the original plaintiff and the Ld. Counsel for defendant no. 1 & 3 filed written submissions and also advanced lengthy arguments. I have heard the arguments as advanced by Ld. Counsels for the parties on 17.09.2024, 26.09.2024 & 28.09.2024 and perused the entire material on record. The issue-wise findings on the basis of the record are given as under:-
9. ISSUE NO. 1 Whether the suit is bad for non-joinder of necessary parties?(OPD1 & 2) 9.1 The onus to prove this issue was upon defendant no.1 & 2. According to the written statement of defendant no.1 & 2, the concerned Sub Registrar VI, Pitam Pura, who registered the impugned sale deed was a necessary party to the suit and on this ground they took this defence of non-joinder of necessary party as the first preliminary objection in their written statement.
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 16/349.2 This Court finds no merit in this defence regarding non-joinder of the Sub-Registrar. No relief has been sought by the plaintiff against the Sub Registrar in the plaint. It is not the grievance of the plaintiff that the Sub Registrar act maliciously or that he was in connivance with any of the defendants. In the entire plaint, no such allegation has been made against the concerned Sub Registrar. In such circumstances, the concerned Sub Registrar who merely registered the document during the course of his employment and while discharging his official duties cannot be said to be a necessary party to this suit. It cannot be said that the presence of the Sub Registrar as a defendant is necessary in this suit in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in this suit.
9.3 For this reason, this issue is decided in favour of the plaintiff and against the defendants.
10. ISSUE NO. 2 Whether the suit has not been properly valued and no proper court fees has been paid on the plaint? OPD2.
And ISSUE NO. 3 Whether this Court has no jurisdiction to try and entertain the present suit? OPD1&2.
Both these issues are connected, therefore, they are being decided together.
10.1 The relevant paragraph of the plaint pertaining to court Pritam Kaur Vs. Satish Chopra & Ors. Page No. 17/34 fees/valuation and jurisdiction is paragraph 33. The same is reproduced below:-
"...That the value of the suit for the purpose of court fees and jurisdiction is Rs.200/- each for the relief of declaration and Rs.130/- for the relief of permanent injunction and Rs.1,65,000/- for the relief of damages/mense profits and Rs.1,50,000/- for the relief of possession of the first floor of the property and appropriate court fees has been affixed on the plaint..."
10.2 A bare reading of this paragraph shows that the plaintiff has valued the suit @Rs.200/- for the relief of declaration that the impugned sale deed be declared as null and void and be consequentially canceled. Such valuation is not in accordance with the provisions of Section 7 (iv) of The Court fees Act, 1870. The plaintiff could not have valued the relief of declaration as to the nullity of the sale deed and its cancellation at the fixed court fees of Rs.200/- because she is admittedly the signatory to the impugned sale deed. For this view reliance is placed upon the law as laid down in Suhrid Singh @ Sardool Singh Vs Randhir Singh & Ors AIR 2010 (SC) 2807, the relevant paragraphs of this judgment are reproduced below:-
"...6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may Pritam Kaur Vs. Satish Chopra & Ors. Page No. 18/34 be suing to have the deed set aside or declared as non- binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds..." (emphasis supplied) 10.3 If the above law is applied to this case at hand, it is clear that the suit has not been properly valued by the plaintiff for the purposes of court fees and jurisdiction. In the present facts, it is the plaintiff's admitted position that she is the signatory to the impugned sale deed and she has approached this Court for a declaration that the impugned sale Pritam Kaur Vs. Satish Chopra & Ors. Page No. 19/34 deed be declared as null and void and further that it should be cancelled. In such facts, the valuation of the suit both for the purposes of jurisdiction and court fees as mentioned in para 33 of the plaint is certainly incorrect and indeed the plaintiff has neither correctly valued the suit nor she has paid the appropriate court fees.
10.4 As far as the valuation for the purpose of jurisdiction is concerned, it does not go to the root of the matter because, even if the valuation was done correctly, this Court would still have the pecuniary jurisdiction to try this suit because the pecuniary jurisdiction of this Court extends to matters upto Rs.3 crores and it is not the case of either of the parties that the value of the suit property (even if considered by market value/value mentioned in the sale deed) was more than Rs.3 crores. However, as far as the aspect of valuation for the purposes of court fees is concerned, the suit is insufficiently valued. The plaintiff's side ought to have valued the suit as per the value of the property in the sale deed and should have paid advalorem court fees on the same.
10.5 The plaintiff is accordingly directed to calculate and pay the deficient court fees immediately. Both these issues are accordingly decided against the plaintiff and in favour of the defendants.
11. ISSUE NO. 4Whether plaintiff is entitled to decree of declaration against defendant no.1 thereby declaring sale deed dated 05.04.2004 in respect of suit property as null and void and be cancelled as prayed in the plaint? OPP Pritam Kaur Vs. Satish Chopra & Ors. Page No. 20/34
11.1 The onus to prove that the impugned sale deed was a void one was upon the original plaintiff/her L.Rs. According to the plaintiff, the impugned sale deed should be declared null and void primarily on the following grounds:-
(i) That the defendant no.1 played a "fraud" upon the original plaintiff.
To elaborate, it is the case of the original plaintiff that the defendant took advantage of her old age and illiteracy and got the impugned sale deed registered before the Sub Registrar while keeping the original plaintiff under the impression that only a rent agreement was being executed and registered by her.
(ii) That no consideration was paid to the original plaintiff/LRs towards the sale of the property mentioned in the impugned sale deed and therefore, the impugned sale deed is not a valid one.
(iii) That the defendant no.1 exerted "undue influence " upon the original plaintiff and under such influence got the impugned sale deed executed and registered through the plaintiff.
(iv) That the defendant no.1 "misrepresented" the true nature of the impugned sale deed to the original plaintiff when it was executed/registered before the Sub Registrar.
11.2 The applicable legal provisions for the declaration as sought as relied upon by the Ld. Counsel for the plaintiff are covered by Section 16 to 18 of The Indian Contract Act. It is on the strength of these provisions that the Ld. Counsel for the plaintiff has prayed that the Pritam Kaur Vs. Satish Chopra & Ors. Page No. 21/34 impugned sale deed should be declared as null and void. Before proceedings ahead with the determination of this issue, these relevant provisions of the Indian Contract Act are reproduced below-
16. Undue influence defined.-- (1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-- (a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872). Illustrations (a) A having advanced money to his son, B, during his minority, upon Bs coming of age obtains, by misuse of parental influence, a bond from B for a greater amount than the sum due in respect of the advance. A employs undue influence.
(b) A, a man enfeebled by disease or age, is induced, by influence over him as his medical attendant, to agree to pay B an unreasonable sum for his professional services, B employs undue influence. (c) A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence. (d) A applies to a banker for a loan at a time when there is stringency in the money market. The banker declines to make the loan except at an unusually high rate of interest. A accepts the loan on these terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue influence.] 1. Subs. by Act 6 of Pritam Kaur Vs. Satish Chopra & Ors. Page No. 22/34 1899, s. 2, for the original s. 16.
17. "Fraud" defined.--"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract--
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
18. "Misrepresentation" defined.--"Misrepresentation" means and includes--
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.
11.3. Besides these provisions, during the course of the arguments, Ld. Counsel for the plaintiff also took the plea that under the provisions of Section 111 of The Indian Evidence Act, the onus to prove that the impugned sale deed was duly executed by the original plaintiff was upon the defendant no.1. Provisions of Section 111 of The Indian Evidence Act reproduced below for better appreciation of the law involved:-
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 23/34111. Proof of good faith in transactions where one party is in relation of active confidence.--Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
11.4 While all the above mentioned grounds of the impugned sale deed being obtained by fraud, mis-representation, undue influence were taken in the written statement, however, even after a long trial, the plaintiff/LRs failed to establish any of the above grounds on which the declaration as prayed for regarding the impugned sale deed has been sought.
11.5 Coming first to the allegation that the defendant no.1 played a "fraud" upon the original plaintiff and the original plaintiff signed the impugned sale deed believing that it was a rent agreement since she was illiterate and old. The onus was upon the plaintiff to establish the "fraud"
played by the defendant no.1. However, except for the bald testimony of PW1, (one of the LRs of the LR of deceased plaintiff ) no evidence was led to show how fraud was played upon the plaintiff. The impugned sale deed is a registered sale deed mentioning in detail the extent of the property, the sale consideration and all other usually necessary facts contained in such a sale deed. The executor of this deed i.e. the original plaintiff expired before her evidence could be recorded and therefore, there is no direct evidence of the person on whom allegedly the fraud was played by defendant no.1. Thus, the surrounding circumstances only have to be considered to determine whether or not any "fraud" was played upon the original plaintiff when she executed the sale deed. Now, merely because Pritam Kaur Vs. Satish Chopra & Ors. Page No. 24/34 the plaintiff was illiterate and because she was at an advance age in her life, it cannot be naturally inferred that a document was executed by her believing it document to be some other document. No such presumption /inference can be drawn.
11.6 If such inferences are drawn, then no document executed by an old or an illiterate person can ever be treated as valid and genuine. Mere old age or illiteracy of the executant, does not give rise to any presumption regarding the document having been executed under "fraud". Some concrete evidence is required if the executant of the document who admits his signatures on the document wants to wriggle out of the consequences of such a document. It is not denied by PW1, that indeed the original plaintiff voluntarily signed on the impugned sale deed, that she voluntarily visited the Sub Registrar's office with defendant no.1, that she voluntarily carried her ownership documents to the office of the Sub Registrar and voluntarily signed in the records of the Sub Registrar. It is also the admitted case of the PWs that in the month of March-April, 2004, when the impugned sale was registered the plaintiff was healthy, alert and conscious to her surroundings and it has not been alleged by anyone that she was not in a fit mental state to execute documents. Infact the filing of this suit by the plaintiff in her individual capacity, executing the necessary affidavits, vakalatnama etc for filing of this suit, much after the date of the impugned sale deed, is in itself a testament to her sound mental faculties in 2004 and even thereafter. Thus, there is no material before this Court to hold that when the original plaintiff signed the impugned sale deed she did not know Pritam Kaur Vs. Satish Chopra & Ors. Page No. 25/34 what she was signing or that a fraud was played upon her.
11.7 The husband, son and the grand children of the original plaintiff were very much alive and even living with her/in adjacent property to hers, when the impugned sale deed was executed. She therefore, had all the opportunity in the world to discuss the matter with her close family members and take their assistance and advise while executing any document pertaining to her property. Thus, if despite the availability of her near and dear ones, she chose to execute a particular document and sign in the records of the Sub Registrar, there is no reason to believe that she was not aware of the contents or consequences of the document she was signing. An old lady is as free as anyone else to sell her property and get the documents of sale registered. For this view, reliance is also placed on the law as laid down by the Hon'ble Apex Court in Raja Ram Vs Jai Prakash Singh & Ors. (2019) 8SCC 701 where the Hon'ble Apex Court has held (besides other important legal principles) that there can be no presumption regarding impaired mental faculties of a person only because of his old age. Thus, for the lack of evidence, the LRs of the plaintiff have failed to how and what "fraud", if at all any was committed upon the original plaintiff Smt. Pritam Kaur to justify declaring the impugned sale deed as null and void.
11.8 Coming now to the averment that the original plaintiff acted under the 'undue influence' of defendant no.1 while executing the impugned sale deed. This averment also inspires no confidence. The defendant no.1 was not in a "fiduciary relationship" with the plaintiff. She cannot be said to be holding a "position of confidence or trust" with respect to Pritam Kaur Vs. Satish Chopra & Ors. Page No. 26/34 the original plaintiff. The relationship between the original plaintiff and defendant no.1 cannot said to be one of "confidential nature". Defendant no.1, was only the sister of one of the previous tenants of the plaintiff and therefore, cannot even be said to be in a position of "active confidence" qua the plaintiff. She can at best at be said to be an acquaintance of the plaintiff and nothing more. It is not mentioned anywhere in the plaint that the original plaintiff treated defendant no.1 over and above her immediate family or that the two of them were emotionally close. It is not the pleading of the original plaintiff that she shared everything with the defendant no.1 or that she took her advise in all her personal matters or treated her like a family member. Therefore, the provisions of Section 111 of Indian Evidence Act are not attracted in the present facts. Thus, the law as relied upon by the plaintiff and as laid down in Krishna Mohan Kaul & anr Vs Pratima Maity & Ors. (2004) 9 SCC 468 is not at all applicable in the present facts and the onus to prove did not shift upon the defendant no.1. For the same reason the law as laid down in Daya Shankar Vs Smt. Bachi AIR 1982 All 376 is also not applicable in the present facts and the plaintiff/LRs cannot take any benefit of the legal position as laid down in these two judgments. This is so because the necessary ingredient of a fiduciary relationship/ relationship of trust is not fulfilled in the present facts, whereas in both the above mentioned judgments relied upon by the plaintiff, the relationship between the parties was one of active confidence.
11.9 It has to be considered that in this case, the plaintiff/LRs want to impeach the credibility of a registered sale deed. A heavy burden was Pritam Kaur Vs. Satish Chopra & Ors. Page No. 27/34 thus cast on the plaintiff's side because they were trying to assail the validity of a registered sale deed. The plaintiff's side failed to establish that the impugned sale deed was executed in such extra ordinary or abnormal circumstances which create a doubt on the genuineness of the sale deed. No conclusion can be drawn from the evidence led that the defendant no.1 was in a position to dominate the Will of the original plaintiff or that the impugned sale deed as executed was unconscionable. The onus would have shifted upon the defendant no.1 under Section 16 of The Contract Act r/w Section 111 of The Evidence Act only if the plaintiff's side could have established a prima facie case, which it failed to establish. For this view, reliance is made upon the law as laid down by the Hon'ble Supreme Court in the case of Anil Rishi Vs Gurbax Singh (2006) 5SCC 558. It has also been held by the Hon'ble Supreme Court in Subhash Chandra Dass Mushib Vs Ganga Prasad Dass Mushib (AIR 1967) SC 878 that no presumption of any sort of imposition can be raised merely because the executant of a document was old and weak. As discussed above, the plaintiff's side failed to establish that the physical or mental condition of the original plaintiff was such that under ordinary circumstances, she was not able to understand the import of a document which she was signing and getting registered before the Sub Registrar. For this view also reliance is placed upon the law as laid down in the Raja Ram case (supra) by the Hon'ble Supreme Court. Thus the plaintiff's side failed to establish any undue influence upon the plaintiff when she signed the impugned sale deed.
11.10 Coming now to the contention that no sale consideration was ever received by the plaintiff, to establish which, the plaintiff even placed on Pritam Kaur Vs. Satish Chopra & Ors. Page No. 28/34 record the bank account details of the plaintiff and her husband. No doubt the bank accounts as filed by the plaintiff's side do not reflect any amount being received in the said accounts of the original plaintiff and her husband. However, non receipt of money in those accounts do not establish non payment of the money completely. There was no legal bar on the original plaintiff accepting cash for executing the sale deed and she was under no legal obligation to deposit the sale consideration in any of her bank accounts. Therefore merely because no payment was reflected in the bank accounts of the plaintiff it does not mean that the sale deed was a void one.
11.11 On the basis of the above discussion, it is held that the plaintiff/her LRs failed to prove that she was entitled to a declaration that the impugned sale deed is null and void and deserves to be cancelled on account of fraud, misrepresentation or undue influence.
11.12 Another document which must be discussed before parting with the findings on this issue is document Ex DW1/1 (a panchayatnama/ family settlement). This is a hand written document and the maker of this document, DW2 (Sh. Ashwani Kumar) appeared in the witness box and deposed that indeed the document was prepared by him, in his handwriting and was executed in the presence of those mentioned in this document. Despite a lengthy cross-examination, this witness remained firm on his testimony and no relevant contradictions emerge in his testimony. Not only this, another witness DW3 (Sh. Shambhu Sharma) also identified his signatures on this document and deposed that this settlement was executed in his presence. This witness also faced cross-
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 29/34examination but remained firm on his deposition. On the other hand, when this document was shown to the plaintiff's witness PW1, she did not categorically deny this document. She gave vague replies like the signatures on this document look like her signatures but are actually not her signatures. At the same time, she admitted that a panchayatnama of the same date to which this document Ex DW1/1 pertains was executed between her grandfather Sh. Lal Singh, her father Sh. Kewal Singh and she also participated in such proceedings in which DW2 K& DW3 were also present. She also admitted that such panchayatnama remained in the custody of Sh. Shambhu Sharma only. However, she did not mention what were the contents of such a panchayatnama if not what was reflected on the document Ex DW1/1 relied upon by the defendants. PW1 tried to raise a vague averment that the first page of this panchayatnama has been altered by the Sarpanch/ Shambhu Sharma, however, she did not bring on record the allegedly correct first page of the panchayatnama. She even could not tell if the signatures of his father, grandfather, grandmother on this document are indeed their signatures or not despite being their LRs and having seen their signatures many times. Thus, it is clear that PW1 maintained a very vague stand with respect to this panchayatnama which creates doubt on her testimony with regard to this document. Thus, this panchayatnama while duly proved by the defendant's witnesses in their testimony (by the maker as well as by the witness) its existence could not be completely rejected by the plaintiff's side. Now this document clearly mentions the rights of defendant no.1 as owner in the suit property. Therefore, this document which bears the (not denied) signatures of the Pritam Kaur Vs. Satish Chopra & Ors. Page No. 30/34 father, grandfather and grandmother of PW1 further weakens the stand of the plaintiff side.
11.13 It is also important to note here the contents of the sale deed admittedly executed by defendant no.1 in favour of defendant Sh. Kuldeep Kumar (registered sale deed dated 30.07.2004). In this sale deed one of the witnesses was none else than Sh. Kewal Singh i.e. the father of PW1/ son of the original plaintiff. Thus, Sh. Kewal Singh himself acted as a witness when the suit property was being sold by defendant no.1 in favour of defendant no.3 which shows his acquiescence to such sale.
11.14 During the course of arguments, Ld. Counsel for the plaintiff's side also argued that since the sale deed dated 28.10.1964 which was in the name of the original plaintiff was used to give surety in a completely unrelated matter, once pending before the Court of Ld. Metropolitan Magistrate, therefore, the original plaintiff could not have sold the suit property at all. This Court finds no merit in this argument. If an immovable property like the suit property, has been used to give surety in a criminal proceeding, it does not mean that such a property cannot be sold till the bond is cancelled or discharged. It only means that the person who stood as surety would have to pay the required bond amount, if his bond is forfeited, which he may pay from any source. The property documents are seen and endorsed only to adjudge the solevancy of the surety to the extent of the surety amount and such endorsement is no bar to sale of the property, even though it may be a charge on the property. Therefore, the fact that the suit property was used by someone Pritam Kaur Vs. Satish Chopra & Ors. Page No. 31/34 while giving surety in the Court of Ld. Metropolitan Magistrate does not in any way come in the way of sale of the suit property.
11.15 On the basis of the above discussion, this Court is satisfied that the LRs of the plaintiff have failed to establish that the impugned sale deed is not a valid one. Thus, they are not found entitled to the declaration as prayed for. Accordingly, this issue is decided against the plaintiff and in favour of defendants.
12. ISSUE NO.5 Whether the plaintiff is entitled for a decree of possession in respect of first floor of the suit property as shown in the site plan? OPP.
12.1 In view of the findings given in issue no. 4 above, it is clear that the plaintiff has failed to establish her right to claim possession of the suit property as prayed for or any right with respect to the suit property. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
13. ISSUE NO.6Whether plaintiff is entitled for a decree of Rs.1,65,000/- as damages/mesne profits for the period 1.8.2004 to 31.4.2007 against defendant no.1? OPP.
And ISSUE NO.7Whether the plaintiff is entitled for grant of mesne profits/damages? If so, at what rate and for which period? OPP.
13.1 Both these issues are also connected so they are being decided Pritam Kaur Vs. Satish Chopra & Ors. Page No. 32/34 together. The plaintiff/her LRs have failed to show her right over the suit property. Therefore, in view of the findings given in issue no. 4 & 5 above, it is clear that the plaintiff/LRs have failed to establish her right to receive any damages/mesne profits from the defendants. Accordingly, both these issues are decided against the plaintiff and in favour of the defendants.
14. ISSUE NO.8 Whether the plaintiff is entitled for relief of permanent injunction against defendant no.3 as prayed? OPP.
14.1 The plaintiff failed to prove any right over the suit property and thus she is not entitled to any injunction with respect to the suit property. Accordingly, this issue is decided against the plaintiff and in favour of defendant no.3.
15. RELIEF 15.1 In view of the findings given in issue no.4 to 7, the plaintiff is not found entitled to any relief.
15.2 The suit of the plaintiff is accordingly, dismissed. Plaintiff to pay the deficient court fees.
15.3 No order as to cost.
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 33/3415.4 Original documents, if any, be returned to the concerned parties, as per rules. Decree sheet be prepared accordingly.
15.5 File be consigned to record room after completion of necessary formalities.
Announced in the Open Court (Monika Saroha)
on 30.09.2024 District Judge-05 (West)
Tis Hazari Courts, Delhi
Pritam Kaur Vs. Satish Chopra & Ors. Page No. 34/34