Delhi District Court
Subhash Chandra Jain Ors vs Pramod Kumar Jain Ors on 27 September, 2024
IN THE COURT OF SH. NISHAT BANGARH
CIVIL JUDGE-02: SOUTH WEST,
DWARKA COURTS:NEW DELHI.
CS No. 26544/2016
CNR No. DLSW03-000103-2012
1. SUBHASH CHANDRA JAIN S/O LATE SH. MAHABIR
PRASAD JAIN, R/O 912, GALI BAJAJAN, NAJAFGARH, NEW
DELHI-110043.
2. DEEPAK JAIN S/O SH. SUBHASH CHANDRA JAIN,
R/O- 912, GALI BAJAJAN, NAJAFGARH, NEW DELHI-110043.
.....Plaintiffs
Vs.
1. PRAMOD KUMAR JAIN S/O SH. TRILOK CHAND,
R/O- D-304, SHISH PAL VIHAR, AWHO APARTMENTS,
SOHNA ROAD, GURUGRAM, (HARYANA)
ALSO AT- H. NO. 473, GALI ARYA SAMAJ MANDIR,
NAJAFGARH, NEW DELHI-110043.
2. ASHISH JAIN S/O SH. PRAMOD KUMAR JAIN,
R/O- D-304, SHISH PAL VIHAR, AWHO APARTMENTS,
SOHNA ROAD, GURUGRAM, (HARYANA)
ALSO AT- H. NO. 473, GALI ARYA SAMAJ MANDIR,
NAJAFGARH, NEW DELHI-110043.
......Defendants
SUIT FOR PERMANENT INJUNCTION AND DECLARATION
Date of Institution : 10.12.2012
Date of reserving judgment : 13.09.2024
Date of judgment : 27.09.2024
Final Judgment : Decreed.
JUDGMENT
1. The present suit has been filed for seeking permanent and mandatory injunction. It is mentioned in the plaint that father of the Suit No. 26544/2016 Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 1/14 plaintiff No. 1 i.e. Sh. Mahavir Prasad had gifted the defendant no. 1 the property i.e. shop on the ground floor, measuring 6' x 16' built n a portion of property no. 141, part of khasra no. 52, situated at main bazar, Najafgarh, New Delhi via gift deed dated 27.04.1983. Further mentioned that the abovesaid gift was conditional and was given to the donee under various conditions. One of the major condition which agreed between donor and donee under point no. 7 of page 3 of gift deed was that the donee shall have no rights to sell and transfer or to give the same on rent to any outside person and in case, the donee wants to do so, then, he will be bound to give the same to the donor or his legal heirs. Further mentioned that in against the nature of the gift deed and unlawful in the eyes of law, the donee later on became bend to sell the abovesaid property for his selfish use instead of using it as it is mentioned in agreed gift deed. Further mentioned that the plaintiffs being rightful LRs of deceased Mahabir Prasad caught unaware by disclosure of this fact and fear of loosing their ancestral property came in their mind. Further mentioned that on 2nd day of February, 2011, the defendants unlawfully executed a sale agreement/deed between them for the sale of the abovesaid suit property for the consideration of Rs. 1,20,000/- and got registered it in the record of Sub-Registrar-IX, New Delhi via issuance of Certificate under Section 60 of Registration Act through registration no. 1294 in book no. 1, volume no. 5763 on page no. 50 to 58 on 10.02.2011. Further mentioned that in the year 2011, several advertisements were became available in public related to sale of the abovesaid property and that the plaintiffs as per condition no. 7 on page 3 enshrined in the gift deed has right as buyer or transferee or tenant of the abovesaid suit property. Further mentioned that the abovesaid sale Suit No. 26544/2016 Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 2/14 deed itself is infructuous, unlawful from ab-initio since there is clearly written in the gift deed dated 27.04.1983 registered at Sub- Registrar Office dated 27.04.1983 via registered document no. 2805, book no. 1, volume no. 4151 on page 34 to 37 that this gift is subject to all the conditions enshrined in the abovesaid gift deed which later on defendants failed to abide. Further mentioned that the plaintiffs after becoming knowledge of the sale of the suit property came before defendants and tried to pursue them to not to do so as gift Was given to the defendant No.1 Only and for his use only. Further mentioned that thereafter, recently the plaintiff sent a legal notice to the defendants to not to sell the suit property to any other person or create any third party interest in the suit property other than plaintiffs or LRs of donor i.e. late Sh. Mahabir Prasad. Hence this suit.
2. Vide the present suit, plaintiff has prayed as under:
A. Pass a decree of permanent injunction in favour of the plaintiff and against the defendant, their family members, legal heirs, nominees, attorneys, agents, associates, henchmen etc. restraining him from alienating, selling, transferring or renting the said suit property and creating any third party interest in the suit property.
B. To declare sale deed dated 02.02.2011 executed between defendant no. 1 and 2 as null and void from ab-initio.
C. Cost of the suit.
D. Relief.Suit No. 26544/2016
Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 3/14
3. On filing of the present suit, summons was directed to be issued to the defendants on 11.12.2012 and the same was received back after service as per law. The defendants entered their appearance and filed written statement, wherein it is stated that the plaintiff has not come to the court with clean hands and the present suit is a gross abuse of the process of court. The present suit has been filed with an ulterior motive and without any cause of action. Further mentioned that the plaintiffs are misinterpreting the gift deed dated 27.04.1983 to their advantage and that the plaintiffs are illegally trying to take advantage of para no. 7 of the gift deed by reading it otherwise. Further mentioned that the present suit is barred under Section 34 of the Specific Relief Act, 1963 and it is also barred by the provisions of Order II Rule 2 CPC. Further mentioned that the present suit has not been valued properly by the plaintiffs for the purpose of court fee and jurisdiction. The remaining contrary averments of the plaintiff are denied and with the prayer for dismissal of the suit has been made.
4. On the basis of the pleadings, the following issues arise for determination which are:-
i) Whether the suit of the plaintiff is barred under Order II Rule 2 of CPC? OPD.
ii) Whether the suit of the plaintiff is barred under Section 126 of Transfer of Property Act? OPD.
iii) Whether the suit of the plaintiff is barred in view of proviso of Section 34 of Specific Relief Act as consequential relief of possession is sought for by the plaintiff? OPD.
iv) Whether the suit of the plaintiff is not properly valued for the purpose of court fees and jurisdiction? OPD.
Suit No. 26544/2016Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 4/14
v) Whether the gift in condition was a conditional gift?
OPP.
vi) Whether the plaintiff is entitled to a relief of declaration, as prayed for? OPP.
vii) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
viii) Relief.
5. Thereafter, the defendant stopped appearing in the present matter at the stage of PE, so the matter was proceeded Ex-parte vide order dated 12.12.2023.
6. Further, In order to prove his case, the plaintiff has examined two witnesses (1) himself as PW-1 and Sh. Deepak Jain S/o Sh. Subhash Chander Jain as PW-2. PW-1 has tendered his evidence by way of affidavit Ex. PW1/A bearing his signatures at point A and B. He has relied on and proved the following documents:-
Sr. Nature of documents Exhibited as
No.
1. Copy of Gift deed dated 27.04.1983 Ex. PW1/1 (OSR)
2. Property photographs Ex. PW1/2 (colly)
3. MCD property tax slips, electricity and Ex. PW1/3 (colly)
other bills
4. Copy of advertisement on website De-exhibited due to
99 acres.com absence of
certificate u/s 65B
Indian Evidence
Act.
7. PW-2 has tendered his evidence by way of affidavit Ex. PW2/A bearing his signatures at point A and B. He has relied on and proved the following documents:-
Sr. Nature of documents Already Exhibited No. as 1. Copy of Gift deed dated 27.04.1983 Ex. PW1/1 (OSR) 2. Property photographs Ex. PW1/2 (colly)
3. MCD property tax slips, electricity and Ex. PW1/3 (colly) Suit No. 26544/2016 Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 5/14 other bills
4. Copy of advertisement on website Deexhibited due to 99 acres.com absence of certificate u/s 65B Indian Evidence Act.
8. As the defendant stopped appearing in the present matter at the stage of PE and the matter was proceeded Ex-parte, neither evidence is lead nor final arguments are advanced on behalf of defendant.
9. Ld. Counsel for the Plaintiff has argued his case and the court has perused the record carefully.
10. Issue no. 2 was considered as preliminary issue and same was decided in the favour of the plaintiffs and against the defendants vide order dated 09.09.2014.
Issue No.1
11. The burden of proof to prove issue no.1 is on the defendants. Before going into the merits, the court deems it fit to reiterate the wording of Order 2 Rule 2 CPC:
2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
Suit No. 26544/2016Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 6/14 (3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
12. The three essentials of Order 2 Rule 2 CPC are:
a) The previous and subsequent suits must arise from the same cause of action.
b) The reliefs claimed in the subsequent suit must have been available at the time of filing the previous suit.
c) The plaintiff must have intentionally omitted to claim the relief in the previous suit.
13. The principle behind the aforementioned rule is that if a plaintiff omits to sue for a portion of their claim in a suit, they shall not later be permitted to sue for that portion. It ensures that the entire claim arising out of a cause of action is brought in one suit to prevent multiple litigation and harassment to the defendant.
14. The defendants in their pleadings have stated that the present suit is barred as per Order 2 Rule 2 of CPC, as the suit is not filed for whole claim. The present suit is not challenged on basis of three essentials mentioned before and no substantial evidence is brought on record by the defendants to prove that the suit is fulfilling the three essentials of Order 2 Rule 2 CPC.
Suit No. 26544/2016Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 7/14
15. In light of the above discussion issue no.1 is decided in the favour of the plaintiff.
Issue No. 316. The burden of proof to prove issue no.3 is on the defendants. The defendants have alleged in the pleadings that the present suit barred under Section 34 of the Specific Relief Act, 1963. However, defendants have not brought on record any substantial evidence to prove that the present suit is barred as the said provisions nor they have advanced any arguments on the said point. However, the court deems it fit to reiterate the wording of Section 34 of
34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.
17. Section 34 states that a suit for a declaratory relief is maintainable if the plaintiff is entitled to any legal character or any right to property and the defendant denies or is interested in Suit No. 26544/2016 Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 8/14 denying that right. However, the Explanation to Section 34 bars a court from issuing a mere declaratory decree if the plaintiff, being entitled to further relief, fails to seek such relief.
18. In the present suit, the property was gifted to the defendant no.1. It is alleged that he has further sold the property to defendant no.2 in violation of the conditions of the gift deed, hence the plaintiff has filed the suit seeking declaration of sale deed between defendant no.1 and defendant no.2 to be null and void and permanent injunction against defendants to restrain them from creating any third party right in the suit property.
19. Ld. Counsel for the plaintiff has argued that plaintiff is not claiming possession as plaintiff is not seeking revocation of the gift deed, but wishes to avoid further transfer of the property in violation of the gift deed. Hence, the possession is not in issue as the defendants are father and son.
20. Defendants have not brought any substantial evidence to prove that the possession is in issue in the present matter and was consequential relief required to be sought by the plaintiff.
21. At this reliance is placed on the judgement in case titled as Vinay Krishna v. Keshav Chandra, (1993) Supp 3 SCC 129, wherein it was held that:
22. If possession is not an issue, and the relief sought is appropriate in light of the plaintiff's circumstances, the suit for declaration may not be barred.
23. Since possession is not in dispute here, and the relief sought is aimed at preventing unauthorized transfer, the suit not found to be barred under section 34 Of SRA.
24. Hence, the issue no.3 is decided in favour of plaintiff.
Issue No. 4 Suit No. 26544/2016Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 9/14
25. The burden of proving the issue no.4 is on defendants. It is alleged in the pleadings that the suit of the plaintiff is undervalued and liable to be dismissed. However, defendants have not brought on record any substantial evidence or legal arguments to prove that the plaintiff has undervalued the suit.
26. Ld. Counsel for plaintiff has argued that the present suit is filed seeking declaration and permanent injunction against defendants. Plaintiff is seeking from court to declare the sale deed between defendant no.1 and defendant no.2 to be null and void, plaintiff is not party to the said sale deed, hence he is not liable to pay the ad-valorem court fees.
27. It is a settled principle that that when someone who did not execute the deed (i.e., a third party) seeks to challenge it, they are entitled to seek a declaration of the deed's non-binding effect on them, without needing to pay an ad valorem court fee as in the case of a cancellation suit initiated by an executant.
28. In view of the above, issue no.4 is also decided in the favour of the plaintiff.
Issue No. 529. The burden of proving the issue no.5 is on the plaintiff. In the present case the following condition was mentioned in the gift deed dated 27.04.2983:
"That the Donee shall have no rights to sell and transfer or to give the same on rent to any outside person and in case the donee wants to do so, then he will be bound to give the same to the donor or his legal heirs"
30. Ld. Counsel for the plaintiff has argued that the if both donor and donee agree at the time of making the gift that it shall be Suit No. 26544/2016 Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 10/14 revoked upon the happening of a specified event, the specified event is not solely depending upon the will of the donor and if same cannot be revoked at the mere will of the donor, then the condition mentioned in the gift deed is a valid condition and gift deed can be revoked on violation of the said condition. He submits that in present case, all the said conditions are fulfilled hence, the condition imposed in the gift deed is valid.
31. It is clear from the bare perusal of the gift deed that the aforementioned condition has been imposed in the gift deed in question and the condition is agreed upon by the donor and donee, is not depending on the sole will of the donor and gift cannot be revoked at the mere will of donor. Hence, the condition is found to valid and the gift deed is termed as conditional gift deed.
32. Hence, the issue no.5 is decided in favour of plaintiff. Issue No.6
33. The burden of proof is on plaintiff to prove this issue. It is stated in the plaint that by virtue of gift deed dated 27.04.1983 Ex. PW1/1, the father of plaintiff no.1 Sh. Mahavir Prasad S/o Sh. Kishori Lal, had gifted the property i.e. Shop on the ground floor, measuring 6'*16' built in a portion of property No. 141, part of Khasra No. 52, situated at Main Bazaar, Najafgarh, New Delhi. One of the major conditions was agree between donor and done in the gift deed was:
34. "That the Donee shall have no rights to sell and transfer or to give the same on rent to any outside person and in case the donee wants to do so, then he will be bound to give the same to the donor or his legal heirs."
Suit No. 26544/2016Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 11/14 In view of the said condition, the donee had restricted right to transfer the gifted property to the donor or the legal heirs of the donor only.
35. Further, it is stated in the plaint that the defendant no.1 on 2.02.2011 has unlawfully executed the sale agreement/deed of the gifted property to his son defendant no 2 for the consideration of Rs. 1,20,000/-. Thereafter same was got registered in the record of Sub-Registrar-IX, New Delhi, via issuance of certificate under Section 60 of Registration Act, dated 10.02.2011 bearing Registration No. 1294 in Book No.1, Volume No. 5763 on Page No.50 to 58.
36. It is argued that the defendant no.1 was not having legal capacity to transfer the said property to any person other than donor or the legal heirs of the donor, hence the sale deed executed in favour of the defendant no.2 is a void sale deed.
37. Per Contra, defendants have alleged in their written statement that there are two parts of the condition clause and qua first part, it cannot be said that the property is sold to any outside person, it is sold to the son of defendant no.1 who is an outside person. Further, the plaintiff's interpretation of the second part of condition imposed in the gift deed is incorrect, as per the correct interpretation the donee cannot sell or transfer the property to any person other than the donor or the legal heirs of the donee. The property is sold to the son of done, hence there is no illegality in the sale deed executed by defendant no.1/donee in favour of defendant no.2/son of donee.
38. The court has already found the condition clause in question to be valid. Further as per the settled law, the condition clause cannot be read in parts it has to be in whole and harmoniously. Hence, the argument of defendant that the property is not sold to the Suit No. 26544/2016 Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 12/14 outside person, as the property has been sold to the son of plaintiff in view of first part of the condition is having no merits.
39. Further, the argument of defendant that as per the condition he was allowed to sell the property to the donor or the legal heirs of the donee, are found to be meritless, because it appears from the condition that the primary purpose of donor to impose such condition was to ensure that the property remains within the donor's family. Further, the word "his" refers back to the donor, not the donee. Further, in the clause "to the donor or his legal heirs", the possessive pronoun "his" refers to the donor, not the donee.
40. Considering that it is not denied that the gift was conditional, the condition impose is found to be valid and arguments on which the defendant no.1 has alleged that he was having legal capacity to transfer/sell the gifted property to defendant no.2 is meritless, the issue no. 6 is also decided in the favour of plaintiff. Issue no.7
41. The burden of proving issue no.7 is on the plaintiff. It is argued on behalf of plaintiff that the defendants are inclined to create third party rights in the gifted property in violation of the gift deed Ex. PW1/1, as the restriction qua sale/transfer of gifted property is valid the defendants must be restrained from creating any kind of third-party rights in the gifted property.
42. It has already been established that the defendant no.1 is having limited right to transfer/sell the gifted property and the sale of gifted property taken place between defendants was beyond the legal capacity of defendant no.1. In view of the same, the issue no.7 is also decided in the favour of plaintiffs to the extent that the defendant must be restrained from creating third party rights in the Suit No. 26544/2016 Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 13/14 suit property in violation of the conditions enshrined in the gift deed Ex. PW1/1.
Relief.
43. In view of the above discussion, plaintiffs are entitled to the following reliefs:
a) A decree of permanent injunction is passed in favour of plaintiffs and against the defendant No.1 thereby restraining him from alienating, selling, transferring or renting the suit property i.e. Shop on the ground floor, measuring 6'*16' built in a portion of property No. 141, part of Khasra No.52, situated at Main Bazaar, Najafgarh, New Delhi, to any third person.
b) A decree of permanent injunction is passed in favour of plaintiffs and against the defendant No.1 thereby restraining him from creating or subsisting any kind of third-party interest in the suit property i.e. Shop on the ground floor, measuring 6'*16' built in a portion of property No. 141, part of Khasra No.52, situated at Main Bazaar, Najafgarh, New Delhi.
c) A decree of declaration declaring the sale deed dated 02.02.2011 executed between defendant no.1 and defendant no.2 as null and void.
d) No order to cost.
44. Decree sheet be prepared accordingly.
45. File be consigned to Record Room, after due compliance.
Digitally signedAnnounced in the Open Court on 27.09.2024. NISHAT by NISHAT BANGARH Date: BANGARH 2024.09.27 16:48:19 +0530 (NISHAT BANGARH) Civil Judge-02, South West, Dwarka Courts, New Delhi/27.09.2024 Suit No. 26544/2016 Subhash Chandra Jain & Anr. Vs. Pramod Kumar Jain & Anr. Page no. 14/14