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Delhi District Court

Suit No.290/04 vs Sh. Sangam Lal on 23 August, 2008

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       IN THE COURT OF SMT. ASHA MENON:ADJ:DELHI


SUIT NO.290/04
DR.NIRMAL KUMAR AGARWAL
S/O LATE SH.HANUMAN DAS AGARWAL
R/O H.NO. N-16/46, KOLHUA,
VINAYAKA-221010
VARANASI (UP).                                            PLAINTIFF


                     VERSUS
1.SH. SANGAM LAL
S/O LATE SH.HANUMAN DAS AGARWAL
49,SHANTI VIHAR,I.P. EXTENSION-2,
KARKARDOOMA, DELHI-110092
2.SH.PREM KUMAR AGARWAL
S/O LATE SH.HANUMAN DAS AGARWAL
R/O H.NO. N-16/46, KOLHUA,
VINAYAKA-221010
VARANASI (UP).                                           .....Defendants


JUDGEMENT

This suit is one for partition, possession and permanent injunction filed by one brother against his other brothers.

The facts of the case as set out in the plaint are that the plaintiff Dr. Nirmal Kumar Aggarwal claims that he and his two brothers, the defendants Sh. Sangam Lal and Sh.Prem 2 Kumar Aggarwal were the co- owners of House No.49, measuring 180 sq. yds., Shanti Vihar, I.P. Extension -2, Karkardooma. He has stated that each had a 1/3rd share in the property in which the defendant no.1, the eldest brother, was residing in. The plaintiff and the defendant no2 were normally residing in Varanasi but, it is stated that the plaintiff used to keep visiting. The plaintiff claimed that he was undergoing treatment at the National Heart Institute at Delhi and used to stay in the suit premises during such visits.

The further case of the plaintiff is that prior to the registration of the perpetual sub- lease deed, the plaintiffs and defendants had contributed towards earnest money and development charges to the Delhi Housings Land & Development Corporation. The perpetual sub- lease deed was executed and registered on 2.4.79 in favour of the defendant no.1 Sh. Sangam Lal.

It is stated further that on 16.12.1982, the defendant no.1 executed a Gift Deed in favour of the plaintiff and defendant no, 2 whereby the donor conveyed and assigned an unspecified one-third share in the plot of land to each of the donees along with all rights, titles, interest, etc out of natural love and affection for them and without any monetary considerations. Thereafter the donees were also to be treated as co-sub-lessees of the plot. The donees as co- sub-lessees were entitled to build upon the plot according to 3 the sanctioned plan.

It is stated further that the mutation of the property was also done in the joint names of the plaintiff and both the defendants vide the letter of the D.D.A. dated 21.2.1983. The construction of the suit property was completed in 1983 with a ground floor of 990 sq. ft. and 240 sq. ft. at the first floor. The plaintiff claims to have paid Rs.55,500 for the construction of the premises while the defendant no.2 had paid Rs.1,20,450. It is stated that the plaintiff and defendants had jointly applied for the conversion of the property from lease hold to free hold vide their application dated 31.3.1993. The D.D.A. had issued the conveyance deed on 12.8.1994 in favour of all three of them. The property tax receipts have been issued in the names of all three of them.

It is stated in the plaint that on 14.9.2003 the plaintiff had come to the suit property having arrived at Delhi for treatment but found the attitude of the defendant no1 changed. The plaintiff therefore asked the defendant no.1 to partition the property and give to the defendant his portion into his possession as he was keeping two wooden cots with furnishing , dining table with chairs , cloth and Ralli Mixies etc in the suit property. However, it is alleged that the defendant no.1 refused to accede to the request of the plaintiff on one pretext or another, with the motive of grabbing the entire property.

The plaintiff then issued a legal notice seeking partition and possession and the defendant no1 sent a reply dated 8.1.2004 to the effect that the plaintiff had no right to seek the partition of the suit property. Hence this suit seeking the partition of the property along with mesne profits @ Rs.10,000 p.m. as also decrees for possession and injunction.

The defendants were duly served. The defendant no.2 has supported the case of the plaintiff and stated he had no objection to the partitioning of the suit property as prayed for. The defendant no. 1 has filed a separate written statement opposing the prayers in the suit.

In the preliminary objections taken the defendant no.1 has submitted that as the plaint had been drafted and verified at Varanasi and the court fees purchased there, the present suit has not been properly instituted and was liable to be dismissed. It is further stated that the valuation of the suit for purposes of jurisdiction is shown as Rs.45 lacs which was beyond the pecuniary jurisdiction of this Court. It is submitted that the suit has not been supported by an affidavit and the proper court fees has not been paid. It is submitted that the suit was bad for mis-joinder of necessary parties.

It is stated further that the alleged gift deed was in fact an agreement to sell and was the result of fraud, undue influence and deception. Without admitting the genuineness of the deed, the defendant no.1 has submitted that the deed 5 per se is with reference to the lease hold rights relating to the piece of land which was allegedly transferred by the defendant no.1 to the plaintiff and the defendant no.2 and therefore, this document could not confer any right upon the plaintiff to claim a share in the house which was built by the defendant no.1 on the said plot of land, and that thus the suit had been filed without any cause of action.

It is submitted further that the alleged gift deed could not be considered to be a title deed and the piece of plot or any part thereof had never been transferred by the defendant no.1 to the plaintiff or defendant no.2 and the gift deed was never complete and was not capable of being enforced as a title deed against defendant no.1. It is claimed that the suit was barred under law of limitation as the plaintiff was never in possession of any part of the suit property and as more than 12 years had elapsed from the date of the alleged gift deed dated16.12,1982 the plaintiff could not claim any rights whatsoever in respect of the suit property.

On merits it has been denied that the plaintiff and the defendants were the co owners of the said plot. It is claimed that the defendant no. 1 alone was the owner of the plot on which a house had been constructed by him where he was residing since its construction. He has further stated that he was the owner in exclusive possession of the property without any interference from anyone including the plaintiff 6 and defendant no. 2. It has been denied that the plaintiff or the defendant no. 2 had ever resided in the property or had ever been in possession of any part thereof. It is denied that the plaintiff had ever stayed in Delhi in the house of defendant no. 1 except for a few hours only and not even as a licensee . It is denied that the plaintiff and the defendant no. 2 had ever contributed even a single penny towards earnest money and development charges or on any account relating to the property.

It is further denied that the defendant no. 1 had ever executed any gift deed voluntarily or otherwise in favour of the plaintiff and defendant no. 2. It is claimed that neither any portion of the lease hold plot nor any part of the house constructed thereon could be transferred by way of sale or in any other way to any individual who was not a member of the society as per the terms and conditions contained in the perpetual lease deed executed by the President of India in favour of the said society as well as in the perpetual sub lease deed executed by the President of India and the said society in favour of the defendant no. 1. It is submitted that the paras 6a - 6d of the lease deeds contained these terms.

It is further submitted that the plaintiff and defendant no. 2 were not members of the said society and therefore no sale deed could be executed by the defendant no. 1 in their favour nor could any gift deed be executed in 7 their favour and it is alleged that the alleged gift deed was fraudulently got executed in violation of the terms and conditions of the lease deed and was thus a nullity in the eyes of law and all the subsequent transactions based thereon were also a nullity and void.

It is the case of the defendant no. 1 as set up in the written statement that the plaintiff and the defendant no. 2 being the real brothers of the defendant no. 1 had approached him and had requested him on several occasions to accommodate them in Delhi in the said house by selling portions thereof but after great pursuation the defendant no. 1 agreed to sell 1/3rd portion of the said property to the two brothers but the brothers had stated that execution of the sale deed would be very costly and the sale deed could not be executed because of the stipulations made in the perpetual lease deed and sub lease deed and it was for this reason that the agreement was made which is alleged as gift deed for consideration after receiving part payment as alleged in para no. 9 of the plaint. The defendant no. 1 claims that the contract could not be completed because the plaintiff and defendant no. 2 were never willing to pay the remaining balance of consideration which was agreed to being the market value of the house after completion of the construction.

It is further stated that it was on account of the 8 deception practiced by these two brothers upon the answering defendant that the answering defendant had agreed for some sort of agreement to be executed. It is submitted that prior to these transactions an oral agreement was also made by the parties in the presence of witnesses that the actual value of 1/3rd share will be ascertained after the construction of the house and the respective 1/3rd shares will be transferred to the two brothers by means of sale deed after getting the price of the share as per the market value. It is stated that only a token amount as earnest money was paid by them to the defendant no. 1 as stated in para no. 9 of the plaint. It is stated that neither the possession of the plot nor any portion thereof or of the house had been handed over / transferred by the defendant no. 1 to his brothers. It is further stated that in fact the alleged gift deed was an agreement to sell as per the oral agreement which was done in the presence of witnesses and even after getting the earnest money no portion had been transferred into the possession of the brothers by defendant no. 1. It is further claimed that the alleged gift deed was got executed by the two brothers by practising fraud and deception upon the defendant no. 1 and by cheating and misleading him to the effect that it was an agreement to sell and that they would pay the price of the respective 1/3rd portion of the house whenever it is constructed.

It is admitted that the DDA has mutated the property in the names of all 3 brothers but it is submitted that mutation did not confirm any proprietory rights upon the plaintiff and defendant no. 2. It is further stated that the defendant no. 1 was persuaded by means of fraud and deception by the two brothers to agree to the making of mutation in their favour as the making of the sale deed would be a very costly affair. It is further claimed that the site plan of the house was submitted to the DDA by the defendant no. 1 as owner of the plot and the same was sanctioned in his favour and the occupancy certificate dated 07.12.1983 was also issued by the DDA in the name of defendant no. 1 and the plaintiff and defendant no. 2 were strangers to the entire transaction.

It is further stated that the amounts paid by the plaintiff and the defendant no. 2 being Rs. 52,500/- and Rs. 1,20,450/- were not towards the construction of the property but was towards consideration for the execution of agreement which is alleged to be the gift deed. It is further stated that the defendant no. 1 had not applied for conversion of the leasehold to free hold alongwith the two brothers of his own free will and the application had been made because of the fraud and deception practiced upon the defendant no. 1 and that since the gift deed itself was a nullity in the eyes of law the conversion of leasehold into 10 freehold in the names of the plaintiff and defendant no. 2 was also nullity in the eyes of law and could confirm no proprietory rights on either of these two brothers. It is further stated that the conveyance deed executed by the DDA in the names of the 3 brothers contained a misstatement of fact to the effect that the plaintiff and defendant no. 2 were members of the cooperative society when they were not such members and therefore this was also a nullity in the eyes of law vis a vis the rights of these two persons.

The defendant no. 1 has disputed the averments that on 14.09.2003 the plaintiff had come to Delhi and had stayed with the defendant no. 1 or that the defendant no. 1 had changed his attitude or had interfered with the peaceful possession of the plaintiff or that the plaintiff was ever in possession of any portion of the suit property or had ever kept his belongings there.

On all these averments the defendant no. 1 has prayed that the suit be dismissed.

TO BE CONTINUED FROM LAST SENTENCE The plaintiff has filed his replication submitting that the stamp paper had been purchased at Delhi and that the plaint had been filed as per the High Court Rules and Orders. It is submitted that the value of the suit property as per the architect's valuation was correctly mentioned as Rs.15,21,585 and not Rs.45 lacs which was only a typographical error 11 which was duly corrected before the suit had been filed.

It has been submitted that the gift deed could never be described as an agreement to sale. It is submitted that after a lapse of 20 years the defendant no.1 had now come up with a plea that the Gift Deed was a result of fraud, undue influence and deception. While refuting all the contentions in the written statement of the defendant no1, the plaintiff has set out various facts and has submitted that despite admitting all the documents the defendant no.1 was trying to build up a completely baseless defence. The plaintiff has denied that there had been any agreement to sell in respect of 1/3rd portion of the suit property to the plaintiff either in writing or orally. It is submitted that when there was no agreement to sell there was no question of payment of any consideration.

It is submitted that the amounts contributed by the plaintiff and defendant no.2 was in fact towards construction and it is pointed out that the valuation for income tax purposes prepared by one Sh. Hargovind Chakral was Rs.95,300 and in this report also all three brothers were named as co-owners of the suit property. It is submitted that it was curious that since 1982 the defendant no1 was signing documents proving co-ownership and only false pleas to deny the rights of the plaintiff in the suit property. The plaintiff has reiterated his case set out in his plaint and has prayed for 12 a decree.

On the basis of the pleadings of the parties, the following issues were framed:

1.Whether the gift deed dated 16.12.1982 relied upon by the plaintiff is in fact an agreement to sell and had been obtained by way of fraud, undue influence and deception as claimed for by the defendant no.1 in Preliminary Objection No.7 of his written statement? OPD1.

2. Whether the gift deed dated 16.12.1982 was made for consideration as claimed for by defendant no.1 in his written statement? If so, its effect? OPD1

3. Whether the plaintiff is entitled to the relief of partition as prayed for by him in the present suit?OPP

4. Whether the plaintiff is entitled to recover possession as claimed for by him in the present suit?OPP

5. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for by him in the present suit? OPP

6. Relief.

The plaintiff examined himself as PW1 and tendered his affidavit Ex.PW1/A. He also brought on the record various documents being Ex.P1 to Ex.P9. The plaintiff examined Sh. B. L. Singhal , the Secretary of the Delhi Housing and Land Development Co-operative Society Limited Shanti Vihar, Delhi

92. Another witness examined by the plaintiff is PW3 Sh.

Chander Pal from the DDA. The last witness examined by the plaintiff is PW4 Sh. Arvind Aggarwal.

The Defendant no.1 examined himself as DW1 and filed his affidavit Ex.DW1/A. He did not examine any other witness.

I have considered the evidence that has come on the record. I have heard counsel for the plaintiff and the defendant no1 at length and I have also considered the written submissions filed on behalf of the defendant no.1.

The Ld. Counsel for the plaintiff has submitted that the suit has been filed for partition and injunction. He has submitted that the onus of the Issues 1 & 2 were on the defendant no.1. Ld. Counsel has pointed out that in the Gift Deed, Ex.P3 records that the document was being executed voluntarily and without consideration and out of love and affection. It is submitted that the defendant no.1 has not produced any evidence to prove that the document in question was an agreement to sell.

It is further submitted that the defendant no.1 in his written statement had raised contradictory pleas inasmuch as it is denied that the plaintiff had made any payments in Para no.4 while in Para no.9 the defendant no.1 claims that he had received "consideration". Again, while in the written statement the defendant no.1 claims that the document was not a Gift Deed but was an agreement to sell, in his affidavit 14 he does not mention any agreement and he merely states that the Gift Deed had been obtained from him under coercion.

Ld. Counsel for the plaintiff has submitted that this claim of the defendant no 1 was falsified by the contents of his reply notice Ex.P8 where he refers to the love and affection for his brothers because of which he had written to the DDA for the inclusion of their names. It is submitted that the letter written by the defendant no.1 to the Society Ex.PW2/1 also disclosed no coercion. The Society had also written to the DDA for the inclusion of the names vide Ex.PW2/3. He has also referred to the document Ex.DW1/P4 written by Sangam Lal to the DDA for the mutation of the property in the names of all the three brothers. The Ld. Counsel has submitted that the allegations were not within the parameters of "coercion" as defined in the Contract Act. The defendant no 1 had taken several actions before and after the execution of the gift deed. Therefore the plea of coercion was malafide.

It has been submitted that the plaintiff and the defendant no2 had contributed funds and the defendant no 1 had in fact admitted that he had received money from them, even though he was unwilling to admit the entire cash amount paid to him. Ld. Counsel has submitted that the plaintiff had contributed to the construction and the 15 defendant also admits that he had received money for finishing work, and not consideration. The contribution of a co-owner to the construction could never take the garb of consideration.

The Ld. Counsel has submitted that the defendant no.1 was a well qualified and highly educated man and could not be be-fooled and significantly for 25 years he had not complained about any threat nor had he asked the DDA to remove the names of his brothers from the documents till 2007. It is submitted that when the plaintiff and defendant no2 were mostly living at Varanasi it was not possible that the defendant no1 , who was their elder brother could have actually been scared of them.

Relying on the various provisions of the Delhi Co- operative Societies Act the Ld. Counsel has submitted that the Society could admit new members and in the present case the Society had passed a resolution to admit the plaintiff and the defendant no.2 as joint members. Thereafter the Society had written to the DDA to add their names in the lease deed and the DDA did do so. Thus the plaintiff was a co lessee and was also the co-owner as the property had been mutated in his name as well. It is submitted that the affidavit did not contain false facts as the plaintiff used to stay in the suit premises whenever he used to come to Delhi. The defendant no1 has admitted the visits and stay of the plaintiff 16 though he has denied that the plaintiff used to do so as a co- owner.

Thus the Ld. Counsel for the plaintiff has submitted that the plaintiff was entitled to the decree of partition and also mesne profits.

The Ld. Counsel for the defendant no1 has submitted that the crucial question was whether the Gift Deed was a valid document. According to him if the deed was valid the plaintiff would become entitled to the relief otherwise not. It is submitted that the deed to be valid had to be voluntarily executed without consideration and duly attested by witnesses. It was submitted that all the conditions were to be fulfilled simultaneously. According to the Ld. Counsel for the defendant no.1, even if one of the conditions were not fulfilled the document would be rendered invalid.

Ld. Counsel for the Defendant no1 has submitted that there was no averment in the plaint that the deed had been executed voluntarily without consideration and out of love and affection and validly attested. According to the ld.

Counsel the document had been executed for consideration, the same was not executed voluntarily, there is no valid attestation and the Conveyance deed executed by the DDA in the favour of the three brothers did not create or vest in the plaintiff any rights in the suit property.

The Ld. Counsel for the defendant no1 has 17 submitted that though the defendant no.1 was an educated person he had no legal knowledge and therefore, he has used the terms "gift deed" and "agreement to sell" as interchangeable terms as was advised by his lawyer. But since the plaintiff has denied that there was an agreement to sell, the document was to be treated as a gift deed and not as an agreement to sell. Therefore its validity had to be tested on the anvil of S.122 Transfer of Property Act.

It is the contention of the Ld. Counsel for the defendant no1 that the very fact that the plaintiff claims in his plaint to have contributed money it was established that consideration had passed. It is submitted that as per the averments in the plaint as well as from the depositions of the parties as witnesses that the payments were made by the plaintiff in 1979,1981 & 1982, the last payment being 5.4.82. The gift deed was dated 16.12.1982. Therefore the inference had to be drawn that the entire payment had been effected before the execution of the gift deed and it was only on account of the payment of the consideration that the brothers' names were included as owners. It is submitted that even the plaintiff during his cross examination did not deny that the gift was not for consideration as he has only stated that it "was not necessary" that it was so.

The further submission of the Ld. Counsel for the defendant no1was that the Defendant no1 had a meager 18 income and had been forced to seek financial assistance from his brothers and whatever money he had received from them was only a loan. As the defendant no.1 was unable to repay the loans and he fell sick, the brothers demanded a document to secure their money and repayment. The defendant no1 did not know the nature of the document that his brothers got him to sign and he executed the gift deed under coercion.

The Ld. Counsel for the defendant no1 has submitted that during cross-examination of the plaintiff, he himself had acknowledged the fact that the defendant no1. had no love for the plaintiff and the defendant no2. So, it was contended, without love and affection for his brothers, the defendant no1 could never have voluntarily executed the gift deed. Thus it was submitted that without natural love and affection in place, the gift deed had to be involuntary and thus invalid.

It was submitted by the Ld. Counsel for the defendant no1 that no attesting witness has been examined to prove the valid execution of the gift deed. It was obvious that the plaintiff had got the witnesses to sign later on. Therefore the gift deed was not legally enforceable.

Finally it has been submitted that the existence of the Conveyance Deed did not confer any rights on the plaintiff and the Defendant no. 2 as they were neither 19 residents of Delhi nor were they the members of the society in favour of which the perpetual lease had been created on behalf of the President of India. These conditions were essential as per the conditions of the perpetual as well as the sub- lease and if the Conveyance Deed had been issued in the names of all three brothers in violation of these conditions, the document was liable to be canceled. It could not create any rights.

Ld. Counsel has submitted that the plaintiff has led no evidence in this regard and so could claim no mesne profits.

In the written submissions filed on behalf of defendant no. 1 these aspects have been highlighted with quotes from the testimonies as well as documents and I have considered the same.

In rebuttal the Ld. Counsel for the plaintiff submitted that when the gift deed was admittedly executed there was no need to call witnesses to its execution. It was submitted that the onus was on the defendant no. 1 to prove that the execution of the document had been under coercion, undue influence etc. It was therefore submitted that the non examination of attesting witnesses was inconsequential. It was submitted that it has neither been pleaded nor has any proof been placed on the record that whatever amounts had been paid to defendant no. 1 was in the form of a loan.

It was also submitted that the validity of the conveyance deed executed in the names of the 3 brothers was not the subject matter of this suit and nor has the defendant no. 1 challenged the same at any point of time before the appropriate forums. The Ld. Counsel reiterated the submissions made that the gift deed had been executed voluntarily and without consideration and by virtue of the conveyance deed as co-lessee, the plaintiff was entitled to the partition of the suit property and entitled to its 1/3rd share.

On the evidence that has come on the record and in the light of the submissions made my findings on each of the issues is as follows:

The onus was on the defendant no. 1 to prove this claim that the gift deed dated 16.12.82 was infact an agreement to sell and that it had been obtained by fraud, undue influence and deception.

It is indeed interesting to note that while in the written statement the defendant no. 1 has authoritatively asserted that the agreement, the document in question dated 16.12.82 was an agreement to sell he has given up this stand during final arguments. There is therefore only one finding to be recorded in respect of this part of the issue and that is the document dated 16.12.82 is not an agreement to sell and is a gift deed.

The second part of the issue is whether the gift deed had been obtained by fraud, undue influence and deception as claimed by the defendant no. 1 in his written statement. It only needs to be mentioned that the defendant has completely failed to prove that the document in question had been obtained by way of fraud, undue influence and deception.

Let us see the terms of the gift deed which has been placed on the record as Ex. P-3. This has been executed by Sh. Sangam Lal in favour of Sh. Prem Kumar Aggarwal defendant no. 2 and Sh. Nirmal Kumar Aggarwal, plaintiff. It may be noted that the plaintiff and the defendant no. 2 have been shown as the residents of G-1380, Chitranjan Park, New Delhi-19. The document has been signed by the donees as well. The document has been witnessed by two witnesses.

The contention of the defendant no. 1 that in the absence of the examination of these witnesses the document has not been proved to have been executed is misplaced because the defendant no. 1 admits to have executed this document Ex. P-3. He is only claiming that he was under

coercion or deception when he had signed, executed this document. Therefore the contents of this document and its execution have not been challenged by the defendant no.

1. He only claims that the circumstances vitiated the execution. It is my considered view therefore that the 22 absence of the examination of the witnesses to the document has no bearing on the authenticity of the document. The authenticity has been questioned on the basis of fraud, coercion and deception and it was for the defendant no. 1 to have proved these facts of fraud, deception and coercion.

It is stated in the document that it was out of love and affection for his brothers that Sh. Sangam Lal has executed the document therefore the stray remark or answer of the plaintiff during his cross examination that his brother the defendant no. 1 had no love and affection for him cannot suffice to prove that there was deception or fraud or undue influence exerted in the execution of the gift deed.

The gift deed was executed on 16.12.82 and till 2004 when the written statement was filed the defendant no. 1 did not question the gift deed. Rather he acted on the basis of the existence of a valid gift deed. He first informed his society of his intentions in 1979 when he sent the letter dated 17-11- 1979 to the Secretary for inclusion of the names of his brothers as joint sublessees , which letter is Ex.PW2/1 . He alongwith society had applied to the DDA for the inclusion of their names as co-lessees. The letter of the society is Ex.PW2/3. The letter of the Defendant no.1 is Ex.PW3/1. The conveyance deed Ex. P-6 was executed in favour of all 3 brothers on 12.08.1994. Thereafter the defendant no. 1 applied for 23 conversion of the property form lease hold to free hold.

On the application of the defendant no. 1 and the Society, the DDA had accepted the names of all 3 brothers and vide letter Ex.PW3/2 had even mutated the plot no. 49 in their joint names on 21.2.1983 much prior to the issuance of the conveyance deed. The record shows that throughout the defendant no. 1 submitted to the authorities that his brothers were co-owners with him on the basis of the gift deed. He even annexed the copy of the gift deed with the applications including for mutation, Ex.PW3/1 dated 11/1/1983. This letter is signed only by him. He has even signed letters on behalf of his two brothers following up with the DDA in respect of the conveyance deed forms for the issuance of the title deeds vide letter Ex.PW3/4.

From December 1982 till 2004 the defendant no. 1 never raised the plea of coercion, fraud, undue influence and deception in the execution of the gift deed. In his cross examination he has claimed that he was scared of his brothers. This is indeed a spacious plea. On the one hand the defendant no. 1 claims that he was afraid of his brothers and on the other hand he claims that his brothers were not residents of Delhi while again admitting that his brother ,the plaintiff used to come to Delhi often and live with him for a few days and would even pay a visit to him for a few hours. The defendant no. 1 is a highly educated person and even 24 after retirement is involved in prestigious research projects of the Government of India. He is not a naive, helpless, illiterate person who could be tricked by his brothers. If indeed he had been under coercion or threat it is clear he would have taken action particularly in the absence of his brothers from Delhi. Interestingly the defendant no.1 has not disclosed the reason of his fear or what kind of threat had been held out to him , what kind of harm was being avoided by him by acceding to the demands of his brothers.

The deposition of the defendant also shows that the defendant no.1 has a son. It does not appear possible that the defendant no. 1 would have lived 22 years of his life in abject fear of his brothers who admittedly are not antisocial or gunda elements but are themselves highly educated persons. No event in the life of defendant no. 1 has been brought forth which would support his claim that indeed despite physical distance between them, the brothers while remaining at Varanasi was able to control the actions of defendant no. 1 as if he were a mere puppet by subjecting him to great fear. The defendant no. 1 has not stated even in his testimony on oath that during the visits of the plaintiff there were only unruly scenes where the plaintiff was interested only to pressurize defendant no. 1 into doing various acts abdicating his rights in the suit property.

It has to be seen that the Delhi Housing & Land Development Cooperative Society Ltd. had been granted the perpetual sublease on 02.04.1979. The sublease was executed in favour of the defendant no. 1 Sangamlal on 16.06.1979 vide an agreement Ex. P-2. PW-2, the Secretary of the said society has deposed that on 17.11.1979, Sh. Sangam Lal had written a letter to the society requesting that both his brothers be enrolled as joint members. The copy of this letter has been placed on the record as Ex. PW -2/1. The society vide resolution dated 05.04.81 accepted the application and a letter was also written by the society to the under Secretary Land and Building Department, Delhi Administration, copy of which is Ex. PW -2/3. These events have taken place prior to the execution of the gift deed dated 16.12.82 while claiming that the gift deed had been executed by the defendant no. 1 under coercion the defendant no. 1 has not explained why he in 1979 i.e. within a few months of the allotment of the plot vide Ex. P-2 had sought to include his brothers names in the allotment. PW-2 was asked about the use of the words ''some family consideration'' appearing in Ex. PW 2/1. Obviously PW-2 was unable to explain what were these family considerations .Obviously, the best person to explain the use of such language was the defendant no. 1 who has conveniently kept mum about it.

The defendant no. 1 has claimed that the gift 26 deed and other documents had been prepared by the plaintiff and he had signed the documents under threat and coercion. In his affidavit Ex. DW 1/A the defendant no. 1 claims that it was the plaintiff who had directed him to go to the Counsel of the plaintiff Sh. Iqbal Bahadur Mathur to collect some papers kept ready and signed by him which were given to the defendant no. 1 in a sealed envelop. In his affidavit he does not disclose what these papers were and what he had done with these papers which were given to him in a sealed envelop. Those papers cannot without any further statement in this regard be connected to the gift deed.

Be that as it may, assuming that the defendant no. 1 had gone to collect the papers from the counsel of the plaintiff on the directions of the plaintiff, it is not clear how the defendant no. 1 was coerced by the plaintiff without being actually present with the defendant no. 1 at that time. Furthermore, the statement of the defendant no. 1 does not explain how his signatures appear on the gift deed if the gift deed was the paper that was handed over to him by Sh. Iqbal Bahadur Mathur in a sealed cover. The only conclusion that can be drawn is that the defendant no. 1 had voluntarily gone to collect the papers from the counsel who could draft such deeds and had appended his signatures voluntarily and without coercion on undue influence.

That the defendant no. 1 is lying through his teeth is apparent from the manner in which he has deposed in his cross examination of 21.04.08, where in respect of every document he claims that he had been pressurized by the plaintiff and coerced into signing the documents prepared by the plaintiff. It would be interesting to see what are these documents that the defendant no. 1 as DW-1 has claimed that he had signed on being coerced and forced and pressured into signing by the plaintiff.

Ex.DW-1/4 is a letter dated 29.12.1982 which the plaintiff claims he had been coerced into signing. This letter is with reference to a letter from the DDA dated 22.07.1982 granting permission to the defendant no. 1 for the gift of unspecified 1/3rd share each in plot no. 49 in Delhi Housing & Land Development Cooperative Society Ltd. subleased in favour of Sangam Lal, in favour of his brothers Prem Kumar Aggarwal and Nirmal Kumar Aggarwal. It is a letter which enclosed a certified copy of the gift deed with a further request that mutation be also recorded. This letter would show not only the fact that the defendant no. 1 had himself sought permission for including names of his brothers vide an earlier letter but also that the gift deed of 16.12.1982 was a follow up of the permission accorded by the DDA on 22.07.82 almost 5 months prior to the execution of the gift deed. No circumstance has been disclosed and revealed by the 28 defendant no. 1 which would suggest either that there was coercion in July 1982 or in December 1982 when this letter was sent to the DDA.

Ex. DW-1/P-5 is the indemnity bond executed by Sangam Lal dated 05.04.82 disclosing his desire to add the names of his brothers as co-sub lessees. This affidavit was prior to the execution of the gift deed 16.12.1982. Again no circumstance suggestive of coercion has been revealed by the defendant no. 1.

Ex. DW-1/P-6 is a letter from the 3 brothers to Lease Administrative Officer, DDA. The defendant no. 1 as DW-1 had this to state about this document. While admitting that he had signed this letter which is dated 04.12.86 he claims that the plaintiff and the defendant no. 2 had prepared the documents and placed the documents before the defendant no. 1 covering the contents with their hands and had compelled him to sign the letter. Therefore the question as to what was the content of this letter. It is a letter in response to the DDA's letter dated 19.08.96 and informs the DDA that the ''Building on the plot no.49 has already been built by us '' and "a photostat copy of the completion certificate is attached herewith''. A request was also made that future letters be addressed at 49, Shanti Vihar, IP Extension II, Delhi-92. The letter does not contain any fact that would be against the interest of Sangam Lal. Why would 29 then the plaintiff and defendant no. 2 covered the contents of this letter to force Sangam Lal to sign a letter informing the DDA of his new address and of the fact that the building had been constructed and which information was being sent to the DDA as required by the DDA vide earlier letter. This clearly discloses the intention of the defendant no. 1 to put across a false case of coercion and undue influence as well as fraud.

The documents Ex. Dw -1/ P-7, P-8 & P-9 were put to the witnesses which are undertaking, affidavit and indemnity bond dated 28.03.93. Once again the defendant has claimed that he had been coerced by the plaintiff into signing this documents after the plaintiff had prepared them. What are the contents of these documents? The undertaking Ex. DW-1/P-7 sets out facts such as that Sh. Sangam Lal would pay to the DDA as and when demanded the arrears of ground rent etc., any additional sum towards premium , and that in case these amounts were not paid the conversion would be treated as null and void. There is also an undertaking not to use the premises for purposes other than residential or in violation of the Master Plan of Delhi. The indemnity bond Ex. DW-1/8 refers to the fact that he, Sh. Sangamlal was a sub lessee in physical possession of plot no. 49, Shanti Vihar, Karkardooma and had applied for conversion of leasehold rights into free hold rights in respect 30 of the said property and agreed to abide by the covenants in this regard. The affidavit Ex. DW-1/P-9 states once again that Sh. Sangamlal was the sub lessee in physical possession of the plot which was residential and there was no unauthorized construction and that the up to date ground rent had been paid. How are these documents against the interest of Sh. Sangam Lal has not been explained by Sangamlal. How these documents were to the benefit of the plaintiff alone is again not been explained by Sangamlal, DW-1/defendant no. 1. It is thus clear that merely for the sake of raising such a plea the defendant no. 1 has alleged that the plaintiff and the defendant no. 2 had coerced him into signing various documents.

Ex. DW-1/ P-10 which again has been claimed by the defendant no. 1 to have been signed under pressure merely records a fact of the execution of the gift deed and the mutation already done by the DDA in the joint names of all the 3 brothers. This refers to accomplished acts. The information could have been supplied by the plaintiff and the defendant no. 2 if the defendant no. 1 had not signed the statement as they relate to executed documents.

The defendant no. 1 has denied the receipt of the conveyance deed as mentioned in Ex. DW-1/P-11, even claiming that he had not received this letter. However Ex. PW

-3/4 is a letter written by the Sangam Lal in response to and 31 with reference to this letter dated 17.05.94, enclosing 3 copies of the unsigned conveyance deed forms duly stamped by the Collector of Stamps. Significantly this letter has been signed only by Sangam Lal and from the document it is clear that Sangam Lal signed this letter on 28.06.94 not only for himself but 'for' Prem Kumar Aggarwal and 'for' Nirmal Kumar Agarwal. The defendant no. 1 has no explanation how this happened.

The numerous documents that have been brought on the record from official custody date before and after the execution of the gift deed dated 16.12.82, since 1979 till issuance of the conveyance deed on 12.08.1994. The defendant no. 1 continued to act with the complete intentions of including the names of his brothers as co-owners in the suit property for such an entire length of time. It is impossible to believe that he was suffering from fear, coercion and pressure applied by his brothers on him. It cannot be overlooked that even after 1994 till the filing of the present suit in the year 2004 the defendant no. 1 did nothing to protest against the inclusion of his brothers names in the conveyance deed. The defendant no. 1 admittedly a highly educated person with other family members including an adult son chose not to complain against the plaintiff and defendant no. 2 not being regular residents of Delhi against such harassment and coercion and fraud. He took no steps 32 to revoke the gift deed. He took no steps to lodge criminal complaints. He took no steps to approach the Civil Court for declaration.

Thus it is clear that defendant no. 1 was under no coercion or undue influence at the time the gift deed was executed by him on 16.12.82. There was no deception played on the defendant no. 1 at the time of the execution of the gift deed dated 16.12.82.

This issue is therefore answered against the defendant no. 1 and in favour of the plaintiff.

The contention of the Ld. Counsel for the defendant no. 1 is that the gift deed was executed for consideration and was thus an invalid document having no legal effect. The onus was on the defendant no. 1 to prove that consideration had been paid. The Ld. Counsel has relied on certain statements made in the testimony of the plaintiff and certain words used in Ex. PW-1/D1 and D4 to submit that the deed was for consideration. It is pointed out that the plaintiff himself has used words that ''he had contributed towards the earnest money and construction of the house'' and in his cross examination has stated that he had paid the money in the year1972, 1981 and 1982 though he could not remember the dates and months. He had even stated that he could produce a list of payments made between 1972 & 1982. He 33 affirmed the suggestion that he had made payments on 14.11.79, 31.05.80 and 05.04.82. The Ld. Counsel has also referred to the statement of defendant no. 1 in cross examination that whatever payment had been received from the plaintiff and defendant no. 2 was prior to the execution of the gift deed and nothing had been received from them after the execution of the gift deed. Hence it is submitted that these effectively proved that entire payments had been made prior to the execution of the gift deed and conclusively established that the gift deed had been executed for consideration.

The Ld. Counsel has also laid emphasis on the use of the Hindi word 'Bhi' and Hindi word ' Ke Kaaran' in Ex. Pw-1/D1 to contend that it was only on account of payment that the gift deed had been executed. Reliance has also been placed on the averments of the affidavit of Smt. Kanak Aggarwal Ex. PW-1/D4 where it is recorded that the brothers had spent equal amount of rupees in the construction of the property. Sh. Sangam Lal had executed the gift deed on 16.12.82. The Ld. Counsel has further instructed that in the cross examination of defendant no. 1, the defendant no. 1 had explained what was the consideration for the execution of the gift deed and that it was the money that had been paid to him by the plaintiff and defendant no. 2 towards the expenses for the construction.

Ld. Counsel has further submitted that the defendant no. 1 in his cross examination further explained that he had executed the gift deed under duress because he was told that the document was being prepared for the purpose of security and plaintiff and defendant no. 2 had paid him some money and they thereafter got the gift deed executed from him. According to the Ld. Counsel the final blow was the admission made by the plaintiff in his cross examination that it was not necessary that the gift deed had been executed only because he and defendant no. 2 had paid the money and that this was significant because the plaintiff had not said that it was not because of money paid that the gift deed was executed. It is the interpretation of the Ld. Counsel for the defendant that the answer of the plaintiff as PW-1 suggested that it was probable and it might have been because money had been paid that the gift deed was executed.

It is my considered view that none of this material helps the defendant no. 1. It was his obligation to prove that the gift deed had been executed for consideration. Starting from the last submission: the interpretation that Ld. Counsel for the defendant has sought to place on the so called admission is that the gift deed 'might have been executed because the money was paid'. But it cannot be so interpreted as the opposite can also just as easily be implied .

In any event it is apparent that this mere comment cannot in fact suffice as conclusive evidence that it was for consideration that the gift deed was executed.

On a perusal of the written statement the stand of the defendant no. 1 appears to the that after certain discussions had taken place and an agreement to sell had been executed and that the gift deed was actually an agreement to sell and that because no consideration had been paid no interest had been transferred to the extent of undivided 1/3rd share each to the plaintiff and defendant no. 2. It then follows that the deed subsequently conceded to be a gift deed by the defendant no. 1 was not executed for consideration as it was the case of the defendant no. 1 himself that no consideration was paid.

In the statement relied upon by the Ld. Counsel for the defendant made by defendant no. 1 in cross examination on 25.03.08 once again there is nothing to conclude that the gift deed had been executed for consideration. The defendant no. 1 claims that he was under an impression that the document was for the purpose of security as the plaintiff and defendant no. 2 had paid him some money. If that is so then the understanding would have been that the money was to be repaid and the security was being obtained for the purposes of repayment of the money paid by the plaintiff and the defendant no. 2. However, the defendant no. 1 has 36 himself admitted that he has not repaid the amounts received from the defendant no. 2 and the plaintiff till the date of his deposition in 2008. Without there having been any circumstances to suggest to the defendant no. 1 that the amounts he was receiving from his brothers constituted a loan there would have been no occasion for the defendant no. 1 to assume that the document was one for security.

The fact that the defendant no. 1 as DW-1 further stated that there after the gift deed was got executed from him would not again help proving the case of the defendant no. 1 that consideration had passed. The evidence that has come on the record is to the effect that it was in 1979 that the defendant no. 1 had approached his society for the inclusion of his brothers names as members in the society. The plaintiff has claimed that he had contributed towards earnest money in the year 1979. The suggestions to the plaintiff by defendant no. 1 was whether he had paid an amount on 14.11.79. Sh. Sangam Lal had written a letter to the society dated 17.11.79 requesting that both his brothers be joined as members. Yet till date defendant no. 1 does not claim that that payment was the consideration for the application.

Rather the Defendant no.1 claims that the payment was consideration for the gift deed executed almost 3 years later in December 1982. A more acceptable explanation in the light of the documentary evidence is that the 3 brothers 37 were creating a joint property and they were all contributing to the same and the payment made on 14.11.79 by the plaintiff was his contribution towards the acquisition of the property and not as a consideration for the gift of 1/3rd share by his brother the defendant no. 1.

In this connection reference may be once again made to the use of the word ''because of some family considerations'' in Ex. PW-2/1 being a letter issued by Sh. Sangam Lal on 17.11.79 to the Secretary of the Society. The PW-2 was not obviously in any position to explain what these family considerations were. The defendant no. 1 has also not disclosed these family considerations. On the basis of common usage of such words it is extremely far fetched to believe that the "family considerations'' were considerations paid or to be paid in future by the brothers to the defendant no. 1 for the execution of the gift deed on 16.12.82.

The defendant no. 1 during his cross examination has stated that he had taken money from his brothers for ''finishing work''. Finishing work is clearly included in construction. In the affidavit of the wife of the plaintiff Ex. PW- 1/D4 it is clearly mentioned that the defendant no. 1 had conferred 1/3rd share in the suit property after which the three brothers contributed to the construction of the property and thereafter the gift deed was executed. Contribution to the construction can only be a contribution towards the creation 38 of an asset and at a time when the 1/3rd share had not been specifically earmarked for the three brothers contributions by the plaintiff and the defendant no. 2 can under no circumstance be qualified as consideration for the gift deed.

All expenses were joint and accounted for jointly as deposed to by the plaintiff in his cross examination. He has further explained that he was in possession of two pass books belonging to the defendant no. 1 as accounting was being carried out at Varanasi though it was suggested that the plaintiff had stolen these pass books from the custody of the defendant no. 1 such a suggestion on the face of it appears frivolous particularly in the light of the fact that no complaint was ever lodged in this regard. Nor were such pleas raised in the written statement.

Further vide the letter Ex. DW-1/ P-6 the defendant no. 1 alongwith his brothers had informed the DDA that '' our plot no. 49 has already been built up by us''. This letter is dated 04.12.86. This letter acknowledges that the construction was joint.

In the circumstances, the evidence proves that whatever money had been paid by the plaintiff and the defendant no. 2 was towards the acquisition of the plot and construction of a house thereupon jointly. Consideration for a gift deed connotes something vastly different. Consideration in the context of a gift deed must reflect a clear payment on 39 account of which alone the gift deed is executed. Such payments must be contemporaneous. Such payment must be connected only to the execution of the gift deed and nothing else. In the present case these qualities are absent from the payments made by the plaintiff and defendant no. 2 to the defendant no. 1.

In the circumstances, this issue has to be answered in favour of the plaintiff and against the defendant no. 1 that the gift deed dated 16.12.82 had been made for consideration.

These issues are dealt with commonly as the onus was on the plaintiff in respect of these 3 issues and related to the entitlement of the plaintiff to seek partition and possession and injunction against the defendants. It was the contention of the Ld. Counsel for defendant that the plaintiff could not seek partition because the gift deed dated 16.12.1982 was an invalid document and did not vest the plaintiff with any right. The invalidity of the gift deed was alleged on the basis that the execution of the same had been involuntary and for consideration and without attesting witnesses deposing in this regard and proving execution.

With reference to issue no. 1 & 2 it has already been concluded that the gift deed dated 16.12.82 was not 40 obtained by fraud, undue influence and deception and had not been executed for consideration. As regards the examination of the attesting witnesses there is justification in the contention of the Ld. counsel for the plaintiff that the execution of the document has not been challenged by the defendant no. 1, who has admitted his signatures thereupon. His entire case was that he had been coerced into executing it. When the defendant no.1 has failed to prove coercion his admission to the execution of the gift deed remains and there is no need to reject the document on the ground that the attesting witnesses have not been examined.

The Ld. Counsel for the defendant no. 1 had further submitted that as the plaintiff and defendant no. 2 were not the members of the Society and were not residents of Delhi therefore the conveyance deed standing in their names jointly with defendant no. 1 conferred no rights on them and therefore the plaintiff could not seek partition.

In this connection, it is relevant to note that the conveyance deed Ex. P-6 records the names of Sangam Lal, Prem Kumar Aggarwal, Nirmal Kumar Aggarwal as ''the purchaser which expression was to include not only the heirs but also permitted assignees''. The defendant no. 1 had sought the permission of the super lessor before executing the gift deed on 16.12.82 in as much as the document Ex.PW3/1 refers to the sanction of permission to include the names 41 of the brothers as co-sub lessees vide the letter of the DDA dated 22.7.1982. Thus the brothers have been included as permitted assignees. Till date the defendant no. 1 has not chosen to obtain the rectification of the conveyance deed on the ground that the affidavit furnished by his brothers wrongly stated that they were Members of the Society and residents of Delhi. In fact vide letter Ex. DW-1/ P11 Sh. Sangam Lal had been asked to high light any error in the conveyance deed before it was finalized yet the defendant no. 1 did not avail of the opportunity.

The witnesses from the DDA PW-3 stated that DDA usually verifies the residence of the applicants though he was unable to state whether in the instant case such verification had been carried out. Be that as it may, the fact of the matter is that the verification would have been obtained from the defendant no. 1 himself and he would have had ample opportunity to have set the record straight. Further, the fact remains that till date, on his own admission he has done nothing either for revoking the gift deed or to get the conveyance deed canceled.

Regarding the membership PW-2 has deposed that on the application of defendant no. 1 on 17.11.1979 a Resolution had been passed in 1981 to include the names of the brothers as Members. This was duly informed to the Delhi Administration vide Ex. PW-2/3 and it is thereafter 42 that on getting the permission of the DDA that the gift deed was executed by the defendant no. 1. There is nothing in the bylaws which would suggest that persons who were to be joined as members in the Society had to be necessarily residents of Delhi. Without a clear provisions in the bylaws prohibiting the induction of persons not permanent residents of Delhi as Joint Members there is no basis to conclude that the plaintiff and defendant no. 2 could not have been joined as Members by the Society vide their resolution Ex. PW-2/2.

The defendant no. 1 has no where denied contiguity of possession of his brothers in respect of the suit property. He has admitted in his cross examination that the plaintiff had required no permission to come to the suit premises. No challenge save for a suggestion, was made to the assertion of the plaintiff on oath that his furniture and belongings had been in the suit premises till the filing of the suit. Since thereafter he has alleged that he was prevented by the defendant no. 1 to enter the suit premises not much weightage can be given to his statement that he could not say where his belongings were in the suit premises on the date of deposition in 2007.

The plaintiff has stated that he has been frequenting the suit premises on his visits to Delhi when he used to bring his parents or come to take his parents to Varanasi, for medical treatment for his heart ailment and for purchases. There is no 43 bar to the maintaining of two residences by a free citizen of India and merely because a person shuttles between two places no inference can be drawn that his absence meant abdication of possession. It is relevant to note that the defendant no. 2 in his testimony as witness has confirmed the visits and stay of the plaintiff in the suit premises without the need for the permission of the the defendant no. 1. It is not the factum of being a brother alone that makes away with the need for permission because in a property owned by an individual a stranger to the property can remain there only with the overt or tacit permission of the owner, be he a blood relation. Here the defendant no. 1 has affirmed that there was no need for the plaintiff to seek his permission to enter and remain in the premises.

The plaintiff has led no evidence in respect of the claim for mesne profit @ Rs. 10,000/- P.M. as claimed in the suit.

On the evidence that has come on the record the plaintiff having 1/3rd share in the suit property being no. 49, Shanti Vihar, I. P. Extension no. II is entitled to claim partition of the suit property and to seek possession of 1/3rd share of the suit property and to protection against alienation, transfer etc. by the defendant no. 1 of the suit property to the detriment of the interest of the plaintiff. Relief 44 In the circumstances I hold that the plaintiff Nirmal Kumar Aggarwal the defendant no. 1, Sangam Lal. Defendant no. 2, Prem Kumar Aggarwal are co-owners of the suit property being no. 49, Shanti Vihar, I. P. Extn. II, Karkardooma and have 1/3rd undivided share in the suit property to which they are entitled to. A preliminary decree is passed to the effect partitioning the property into 3 equal portions with plaintiff and defendants having 1/3rd each share in the composite suit property. The plaintiff is also found entitled to the possession of his 1/3rd share in the suit property. Defendants are restrained from transferring or alienating or creating 3rd party interest in the suit property till the partition is effected by metes and bounds and or without the consent of the plaintiff.

Preliminary decree be drawn up accordingly. Announced in the open court on this 23rd day of August 2008. (ASHA MENON) ADDL. DISTRICT JUDGE, DELHI.