Delhi District Court
Kumari Kirti vs Shri Girdhari Lal (Expired on 12 July, 2012
In the Court of Sh. P.K. Matto, Additional District Judge
Karkardooma Courts, Delhi.
S:1433/09
Unique Case ID No.: 02402C0267492009
Date of Institution :9.9.2009
Date of Reserving Judgment: 5.7.2012
Date on which judgment was pronounced:12.7.2012.
In Re:
Kumari Kirti
d/o Shri Laxmi kant
r/o 482, Kumhar Basti,
Near Ravinder Ration Shop,
Gharoli Village,
Delhi110 095.
Through her guardian/maternal
grand father (NANA) Shri Rampal Gautam .....Plaintiff
Versus
1.Shri Girdhari lal (Expired,deleted) 2. Smt Laxmi Kant 3. Smt Ganga (Expired,deleted) 4. Shri Toshpal All r/o C35 Kondli, Delhi96. ...........Defendants S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 1of 17 EXPARTE JUDGMENT
1. The plaintiff has filed the suit for partition and permanent injunction against the defendants.
2. Briefly stating, the plaintiff has averred that she is the minor child of the defendant no.2 and her deceased mother. It is further averred that the marriage of the plaintiff's mother and the defendant no.2 was solemnized on 24.6.1994 and the defendant no.1 is the grand father, defendant no.3 is the step mother and defendant no.4 is the TAAU of the plaintiff. It is further averred that he was born on 6.9.1996 and her mother namely Smt Sunita died on 1.1.1998 due to ailment
3. It is further averred that since the plaintiff was minor and no female member in the family of the defendants was ready to take the responsibility of the plaintiff, so, the maternal grandmother and maternal grandfather of the plaintiff had taken the responsibility to look after the plaintiff and it was agreed that the defendant no.1 and 2 will bear the expenses of maintenance of the plaintiff, but the defendant no.1 and 2 did not pay even single penny towards the maintenance of the plaintiff.
4. It is further averred that the defendant no.1 was having a plot measuring 100 square yards, out of which the defendant no.1 had sold 50 square yards and the defendants had received the earnest money of Rs. 20,00,000/ against the remaining 50 square yards from the proposed purchaser and the S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 2of 17 defendants can execute the sale deed in favour of the proposed purchaser at any time.
5. It is further averred that the defendants are enjoying the ancestral/coparcenery property no. C35, Kondli, Delhi, and the plaintiff is th also having 1/9 share therein, as per succession act. It is further averred that the defendants had not given anything out of 50 square yards portion sold by them earlier and the defendants are trying to sell out the remaining portion of the said property without considering the share of the plaintiff.
6. Feeling aggrieved, the plaintiff being minor, has filed the present suit through her maternal grandfather and prayed for passing the decree of partition th directing the defendants to give the 1/9 share of the plaintiff in the suit property bearing no. C35 Kondli, Delhi96 and also for passing a decree of permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants from selling, transferring, alienating, parting with possession or creating any third party interest in the suit property i.e. C 35 Kondli Delhi 96.
7. The summons of the suit were issued to the defendants and all the defendants were served and defendant no.1,2 and 4 have filed their joint written statement and on dated 2.6.2010, the defendant no.1,2 and 4 had filed photocopies of unregistered GPA, unregistered agreement to sell and photocopy of receipt and the defendant no.1,2 and 4 contested the case on the grounds interalia that the present suit filed by the plaintiff is not S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 3of 17 maintainable, as the suit property is self acquired property of the defendant no.1 and plaintiff or his any other legal heir has no right to demand for partition of the suit property, during the life time of the defendant no.1 and the plaintiff has not affixed the proper court fees, on the plaint and further stated that the plaintiff has filed the present suit to harass the defendants.
8. Replying to the plaint on merit, it is not denied that the plaintiff is the child of Sunita and marriage of the mother of the plaintiff with the defendant no.2 is also not denied. It is categorically denied that there was no female members in the family of the defendants to take the responsibility of the plaintiff, after the demise of mother of the plaintiff. It is also denied that it was agreed upon between the defendant no.1 and 2 and maternal grand mother and maternal grand father of the plaintiff that the expenses of maintenance of the plaintiff shall be borne by defendant no.1 and 2 . It is further stated that after the demise of the mother of the plaintiff namely Smt Sunita, the last funeral rights were performed by defendant no.2 and his other family members and the defendant no.1 and 2 wanted to keep and to look after the plaintiff, because she was/is the family members of the defendants, but the maternal grand mother and maternal grand father of the plaintiff (NANA and NANI) of the plaintiff had pressed their desire to keep the plaintiff for few weeks and defendant no.1 and 2 permitted them to keep the plaintiff for few days, but thereafter, the maternal grandmother and maternal grandfather of the plaintiff, refused to hand over the plaintiff to the defendant no.1 and 2, despite of S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 4of 17 repeated requests made by them. They have denied that the defendant no.1 has succeeded the suit property from his father. It is averred that the defendant no.1 has purchased the property bearing no. C35, Kondli, Delhi, from his hard earned money and it is his self acquired property. They have denied that the defendants have received an earnest money against the suit property. It is further stated that the defendants are residing in the suit property, so the question of selling the suit property does not arise. It is further stated that since the suit property is self acquired property of the defendant no.1, so the present suit is not maintainable and after denying the other averments made in the plaint, these defendants have sought the dismissal of the suit.
9. Defendant no.3 was served with the summons but she has not filed the written statement. But their after defendant no.1,2 and 4 also stopped appearing , so they were proceeded exparte and the matter was fixed for the exparte evidence of the plaintiff.
10.In order to prove her case, the plaintiff has examined Shri Rampal Gautam i.e. Her maternal grandfather/guardian as PW1 who has tendered his affidavit Ex. PW1/1 in evidence and in one way or the other he has reiterated the contents of the plaint in his affidavit. He has also relied upon the documents i.e site plan of the suit property Ex.PW1/A, photocopy of marriage card of the mother of the plaintiff mark A, photocopy of birth certificate of the plaintiff Ex.PW1/B, photocopy of the school identity card of the plaintiff mark S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 5of 17 C, original fee deposit card of the plaintiff issued by Raghukul Public School Ex.PW1/C. The plaintiff has not examined any other witness. On 20.4.2012, Shri Rampal Gautam had given the statement that the defendant no.1(i.e. The grand father of the plaintiff) and defendant no.3(step mother of the plaintiff) have already been expired during the pendency of the present suit. He has further submitted that there is no other LRs of the deceased defendant no.1 which may be required to be impleaded as party in the present case. He has further stated that the defendant no.3 has left four male children behind her and since all these four male children were minors, so the plaintiff has not impleaded them as party in the present suit and also deposed that the defendant no.1 and 3 may be deleted from the array of the parties and closed his evidence. In view of the statement of Shri Rampal Gautam, recorded on dated 20.4.2012, the defendant no.1 and 3 were deleted from the array of the parties.
11.I have heard the ld.counsel for the plaintiff and perused the record.
12.Ld.counsel for the plaintiff has submitted that the PW1 who is the maternal grand father of the plaintiff has proved the case of the plaintiff from his unrebutted and uncontroverted testimony and since the property is situated in unauthorized colony, so, the plaintiff could not lead any evidence regarding the title of the suit property and the plaintiff is entitled for the decree of partition and permanent injunction, so the decree of the partition and permanent injunction may be passed in favour of the plaintiff and against the S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 6of 17 defendants.
13.I have given thoughtful consideration to the submissions made by the ld.counsel for the plaintiff and perused the record.
14.The perusal of the record shows that the plaintiff has filed the present suit for partition and permanent injunction claiming the suit property in hand of defendant no.1 is an ancestral property, whereas, the defendant no.1,2 and 4 have filed the joint written statement and claimed that the suit property is self acquired property of the defendant no.1, since the plaintiff has claimed that the suit property is an ancestral property, so it was incumbent on the part of the plaintiff to prove the documents of title of the suit property and it was also incumbent on the part of the plaintiff to prove that suit property is ancestral in nature in the hands of the defendant no.1.
15.As it is settled principle of law that a person, who asserts the fact that the property is joint Hindu family property, it is incumbent on his part to prove this fact, as no presumption of joint Hindu family property is there under the law, reliance is placed on the judgment passed by their lordship of Hon'ble Supreme Court in Mudigowda Gowdappa Sankh v/s Ram Chandra Revgowda Sankh, AIR 1969 S.C.1076.
16.The plaintiff has relied upon the site plan of the suit property Ex.PW1/A. The same has been exhibited in the statement of PW1 Shri Rampal Gautam. Admittedly he is not the maker of this document and it is settled principle of law that the maker of a document is best witness to prove a document. S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 7of 17
17.Their Lordship of hon'ble Supreme Court in case Sait Tara Ji V/s Yelemarti Satyam AIR 1971 SC 1865 was pleased to hold that ''Mere marking of an exhibit does not dispense with the proof of document''.
18.Whereas, their Lordship of hon'ble High Court of Delhi in case Sudhir Engineering Company V/s Nitco Roadways 1995 RCR 286 was pleased to hold that ''Mere admission of document in evidence does not amount to it's proof. Admission in evidence of a party's document may in specified cases exclude the right of opposite party to challenge its admissibility. The most prominent examples are when secondary evidence of a document within the meaning of sections 6365 of the Evidence act is adduced without laying foundation for its admissibility or where a document not properly stamped is admitted in evidence attracting applicability of section 36 of Stamp act.'' ''But the right of a party disputing the document to argue that the document was not proved will not be taken away merely because it had not objected to the admissibility of the document. The most instructive example is of a WILL. It is a document required by law to be attested and its execution has to be proved in the manner contemplated by section 68 of the Evidence act read with section 63 of the Succession act. The party challenging the WILL shall not be excluded from demonstrating at the final hearing that the execution of the WILL, though exhibited, was not proved as statutorily required.'' It is further held: that the marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 8of 17 only for the purpose of identification. While reading the record, the parties and the court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion, as one would be left simply guessing or wondering which was the document to which the witness was referring to while deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been merely proved because it has been marked as an exhibit.'' ''Two Division Benches of Lahore High Court Ferozchin v/s Nawab Khan AIR 1928 Lah 432 and Hari Singh V/s Firm Karam Chand AIR 1927 Lah 115 have clearly held that the admission of documents under order 13 rule 4 of CPC does not bind the parties and unproved documents cannot be regarded as proved nor do they become evidence in the case without formal proof.''
19.Thus, it is clear that the plaintiff has failed to prove on record the site plan of the suit property. Since the plaintiff has failed to prove on record even a single document of title of the suit property and she has also failed to bring forth any cogent evidence to prove that the suit property is an ancestral property in the hands of the defendant no.1 namely Girdhari lal, so in the absence of any title document the decree of partition cannot be passed. S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 9of 17
20.It is worthwhile to mention here that the defendant no.1,2 and 4 have filed the photocopies of unregistered GPA and unregistered agreement to sell and photocopy of receipt on record. Since the GPA and agreement to sell are unregistered, so these documents are inadmissible and the photocopies of receipt placed on record by the defendants is registered one, but no description of the property is mentioned therein and the description of the property mentioned in agreement to sell and GPA is not identical to the property as mentioned in the plaint and in view of nonregistration of these documents, these documents are inadmissible under the law of evidence. Nor the plaintiff has resorted to call any witness to prove the photocopies of these documents.
21.As their Lordship of hon'ble Supreme Court in case Suraj Lamp and Industries Pvt. Ltd. V/s State of Haryana and Anr. SLP (C)NO. 13917 of 2009 is pleased to hold that Section 5 of the Transfer of Property Act 1882 ('Transfer of Property Act' for short) defines 'transfer of property ' as under:
5.Transfer of Property defined: In the following sections''transfer of property'' means as act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and 'to transfer property' is to perform such act.''xxx xxx Section 54 of the Transfer of Property Act defines ' sales' thus:
S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 10of 17 ''Sale'' is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised. Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a valueless than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for saleA contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or change on such property.
Section 53A of the Transfer of Property Act defines 'part performance' thus:
Part PerformanceWhere any person contracts to transfer for consideration and immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,and the transferee has performed or is willing to perform his part of the contract, then, S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 11of 17 notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance.
Scope of an agreement to sale
11. Section 54 of Transfer of Property Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This court in Narandas Karsondas v/s S.A.Kamtam and Anr.MANU/SC/0363/ 1976:(1977) 3 SCC 247 observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad vs Ram Mohit Hazra MANU/SC/0212/1966:19671 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief act, 1963, and in section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 12of 17 In India, the word'transfer' is defined with reference to the word 'convey' The word 'conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership.. that only on execution of conveyance ownership passes from one party to another....
In Rambhau Namdeo Gajre vs Narayan Bapuji Chotgra MANU/ SC/0680/2004:2004 (8) SCC 614 this court held:
Protection provided under section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be passed in service against as third party.
It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance(sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
Any contract of sale(agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of section 54 and 55 of Transfer of Property act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of Transfer of Property act).
S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 13of 17 According to Transfer of Property act, an agreement of sale, whether with possession or without possession, is not a conveyance.
Section 54 of Transfer of Property Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge or its subject matter.
Scope of Power of Attorney A Power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the guarantor authorizes the guarantee to do th acts specified therein, on behalf of guarantor, which when executed will be binding on the guarantor as if done by him (see section 1A and section 2 of the Powers of Attorney act,1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the guarantee.
In State of Rajasthan vs Basant Nehata MANU/SC/0547/2005:2005(12)SCC 77 this court held: A grant of power of attorney is essentially governed by Chapter X of the contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 14of 17 is well known,a document of convenience.
Execution of a power of attorney in terms of the provisions of the contract act as also the powers of attorney act is valid. A power of attorney, we have noticed herein before, is executed by the donor so as to enable the done to act on his behalf. Except in case where power of attorney is coupled with interest,it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the done. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor.
''We therefor reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the transfer of Property act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue records. What is stated above will of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 15of 17 put to the pernicious practice of SA/GPA/WILLtransactions known as GPA sales.''
22.Thus in the light of the above said law laid down by their Lordship of Supreme Court, it is clear that the documents i.e. The GPA, Agreement to Sell and Receipt, placed on the record did not confer any title of the suit property to the defendant no.1.
23.It is also worthwhile to mention here that the plaintiff has claimed 1/9th share in the suit property, but she has failed to explain as to why has she not impleaded other eight cosharers as party. Thus, the plaint is vague.
24.Since it was incumbent on the part of the plaintiff to prove on record that the suit property owned by her grand father and it is an ancestral property, but the plaintiff has failed to prove on record any document of title and document showing that the suit property is an ancestral property in the hands of the grand father of the plaintiff, who was impleaded as defendant no.1 in the case in hand and subsequently deleted from the array of the parties and in the absence of any title documents of the suit property, it cannot be assumed that the suit property is owned by the defendant no.1 or it is ancestral in nature.
25.Since the plaintiff is also claiming the relief for injunction and for it, it was incumbent on her part to prove that she has any right title or interest in the suit property and since she has failed to prove on record any document of title of the suit property, so she has also failed to prove her right title or interest in the suit suit property. So, she is also not entitled for the relief of permanent S:1433/09 Kumari Kirti v/s Shri Girdhari Lal and Others 16of 17 injunction, as prayed for.
26.Cumulative effect of the above discussion is that the plaintiff has failed to implead other eight cosharers as party. She has also failed to prove on record the site plan of the suit property in accordance with it's mode of proving and she has also failed to to prove even single document of title of the suit property and she has also failed to bring forth any cogent evidence to prove that the suit property is an ancestral property in the hands of the defendant no.1 namely Girdhari lal, so, I do not find any force in the submissions made by the ld.counsel for the plaintiff, as the plaintiff has sought the relief of partition and permanent injunction, so it was incumbent on the part of the plaintiff to prove her case and for proving her case, it was also incumbent on the part of the plaintiff to prove the title of the suit property and the nature of the suit property in the hands of the defendant no.1 as ancestral in nature. But the plaintiff has failed to prove her case,even on the yardstick of the preponderance of probabilities. Thus, she has failed to discharge her burden of proving that the suit property is owned by the defendant no.1 and it is an ancestral in the hands of the defendant no.1. Accordingly, the present suit is dismissed being devoid of merit. Decree sheet be prepared accordingly. File be consigned to the record room.
Announced in the open Court on: 12.7.2012 (Pawan Kumar Matto) Additional District Judge03 (East), Karkardooma Court.
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