Delhi District Court
Padmawati vs Sanjay Garg on 19 July, 2025
IN THE COURT OF SH. DEEPANKER MOHAN: DISTRICT
JUDGE-04, SHAHDARA DISTRICT, KARKARDOOMA COURTS,
DELHI
CS No.1882/2016
IN RE:
Smt. Padmawati (Now Deceased)
W/o Late Sh. Suraj Bhan Garg
Represented through her LRs i.e.
(a) Sh. Praveen Garg
S/o Late Sh. Suraj Bhan Garg
R/o Flat No.G-1, Plot No.J-4/2, Dwarka Apartment,
West Jyoti Nagar, Delhi-110094
(b) Sh. Mukesh Garg
S/o Late Sh. Suraj Bhan Garg
R/o Flat No.301, Arihant Altura Society,
Abhay Khand-II, Indirapuram, U.P.-201014 .... Plaintiff
VERSUS
1. Sh. Sanjay Garg
S/o Late Sh. Suraj Bhan Garg
R/o J-20, 2nd floor, Naveen Shahdara,
Shahdara, Delhi-110032.
2. Sub-Registrar-IV (Deleted vide Order dated 06/05/2011)
Office of Sub-Registrar,
D.C. Office Complex, Nand Nagri,
Delhi-110093.
3. Sh. Ajay Garg
S/o Late Sh. Suraj Bhan Garg
R/o J-20, Ground Floor, Naveen Shahdara,
Shahdara, Delhi-110032.
4. Smt. Aruna Gupta
CS No.1882/2016
Padmawati Vs. Sanjay Garg Page 1 of 31
Digitally signed
by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2025.07.19
18:33:42
+0530
W/o Sh. Subhash Chand Gupta
D/o Late Sh. Suraj Bhan Garg
R/o 218/2019, Ground Floor, Pocket E-16,
Sector-8, Rohini, Delhi-110085.
5. Smt. Rekha Bansal
W/o Sh. Vinod Bansal
D/o Late Sh. Suraj Bhan Garg
R/o 64, Pocket C-7, Sector-8,
Rohini, Delhi-110085 .... Defendants
1. CS No. : 1882/2016
2. Under Section : Suit for declaration and
mandatory injunction and for
consequential relief of
permanent injunction
3. Date of institution : 19/04/2011
4. Reserved for judgment : 03/05/2025
5. Date of Judgment : 19/07/2025
JUDGMENT
1. Vide this judgment, this Court shall dispose of the suit for declaration and mandatory injunction and for consequential relief of permanent injunction.
AVERMENTS OF THE PLAINT
2. Plaintiff is the absolute owner in possession of the property bearing No.1/5542, ad-measuring 144 sq. yards, Govind Marg, Balbir Nagar Extention, Shahdara, Delhi-110032 and the same was CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 2 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:33:48 +0530 purchased on 02.02.1974 vide registered irrevocable GPA dated 08.02.1974. Plaintiff is residing with Defendant no.1 (son) and her husband in the suit property.
3. On 09.06.2009, plaintiff executed a registered Family Will Deed in respect to the suit property in favour of her sons namely Sh. Ajay Garg, Sh. Sanjay Garg, Sh. Praveen Garg and Sh. Mukesh Garg and in the said Will, Sh. Suraj Bhan Garg (husband of plaintiff) and Sh. Tarun Kumar Sharma also put their signatures as attesting witnesses.
4. On 08.06.2010, defendant no.1 along with Sh. Suraj Bhan Garg took the plaintiff at the office of Sub-Registrar and obtained her signatures on various documents in the office of sub-register on the pretext that there was some mistake in the title documents of the suit property which are required to be corrected. Defendant no.1 fraudulently got executed the Gift Deed dated 08.06.2010 from plaintiff in his favour.
5. Plaintiff came to know about the said Gift Deed through her son Sh. P.K. Garg and thereafter, Plaintiff through her son Sh. P.K. Garg had lodged complaints with SHO P.S. Shahdara, Delhi but no action has been taken by the police.
6. On 17.03.2011, plaintiff had sent a legal notice dated 14.03.2011 to defendant no.1 and 2 and Sh. Suraj Bhan Garg, CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 3 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:33:53 +0530 Commissioner of Delhi Police and SHO PS Shahdara, Delhi. Plaintiff pleads that she wanted to give the suit property to her four sons and two daughters in equal proportion. Plaintiff wants the cancellation/ annulment of the Gift Deed dated 08.06.2010 along-with injunction, thus the present suit.
SERVICE OF SUMMONS
7. Summons of the present suit was issued to defendant No.1 vide order dated 06.05.2011. Summons was duly served upon defendant on 02.07.2011 and subsequently, on 27.08.2011 written statement was filed. It is pertinent to mention here that Defendant No. 2 was deleted from the array of parties vide Order dated 06.05.2011. The Order dated 02.01.2024, vide which the right of defendant no.2 to file written statement was closed and he was proceeded ex-parte, had been passed due to oversight and also because none of the parties have disclosed that defendant no.2 has already been deleted. The defendant no.4 and 5 are the proforma defendant and they have not filed their written statement.
AVERMENTS OF THE WRITTEN STATEMENT OF DEFENDANT NO.1.
8. Defendant No. 1 has specifically denied the averments of the plaint and further pleaded that the suit property was purchased from the hard-earned money of his father namely Sh. Suraj Bhan Garg in the name of his mother i.e. plaintiff. Plaintiff on her own desire and CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 4 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:33:59 +0530 out of love and affection, had executed the Gift Deed dated 08.06.2010 in respect to the suit property in favour of defendant and after its execution, defendant became the absolute and exclusive owner of the suit property. It is further pleaded that plaintiff herself took the initiative and went to the office of the Sub-registrar for the execution and registration of the gift deed. Plaintiff also insisted her husband to be a witness to the said deed. It is further pleaded that the Gift deed dated 08.06.2010 has been executed and registered by plaintiff voluntarily on account of natural love and affection and in accordance with the statutory provisions as laid down in the Transfer of Property Act, 1882 and therefore, the same cannot be revoked.
Plaintiff has filed the complaint as well as the present suit against defendant at the instance and under the pressure of Sh. Praveen Garg.
AVERMENTS OF THE WRITTEN STATEMENT OF DEFENDANT NO.3.
9. Vide Order dated 26.08.2017, application under Order I Rule 10 CPC for impleadment filed by Sh. Ajay Garg was dismissed on merits. However, on the demise of the plaintiff, her LRs were brought on record vide Order dated 27.05.2023. Sh. Praveen Garg and Sh. Mukesh Garg was substituted as LRs of Plaintiff and other LRs of plaintiff (except defendant No.1) were brought on record as Defendant no.3 to 5, being the proforma party/defendants. Defendant No.3 has filed separate written statement supporting the averment of plaint. However, he admits the suit property was purchased from the CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 5 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:04 +0530 funds/money of his father in the name of plaintiff. He further pleaded that his father wanted to distribute the property equally among all four sons and therefore, the Family Will Deed dated 09.06.2009 was executed.
AVERMENTS OF THE REPLICATION
10. Replication to the written statement of defendant No.1 was filed on behalf of plaintiff on 13.09.2011 wherein plaintiff has specifically denied the averments of written statement. Plaintiff re-affirmed the averments of the plaint. It is further pleaded that Plaintiff has executed a registered Will in respect to the suit property in favour of Sh. Praveen Kumar Garg and Sh. Mukesh Garg.
FRAMING OF ISSUES
11. Upon completion of pleadings, following issues were framed in the present case on 07.10.2017 which are as under:-
1. Whether plaintiff is entitled for declaration declaring registered Gift Deed dated 08.06.2010 as illegal and unauthorized? OPP
2. Whether plaintiff is entitled for mandatory injunction, as she prayed for? OPP
3. Whether plaintiff is entitled for permanent injunction, as she prayed for? OPP
4. Relief.
EVIDENCE OF PLAINTIFF CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 6 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:10 +0530
12. Plaintiff Smt. Padmawati filed her evidence affidavit and tendered it as exhibited as Ex.PW1/A on 14.08.2018. PW-1 was partly cross-examined on 23.03.2019, however, she expired on 23.03.2021 and due to which her cross-examination could not be completed. Thereafter, on 27.08.2021 an application under Order XXII Rule 3 CPC for substitution of LRs of plaintiff was filed and the same was allowed vide order dated 27.05.2023.
13. LRs of plaintiff to prove their case examined only one witness i.e. (i) Sh. Praveen Kumar Garg as PW-1, who filed his evidence affidavit on the line of averments mentioned in the plaint. On 02.03.2024 and 16.04.2024, PW-1 tendered his evidence by way of affidavit as exhibited as Ex.PW1/A and relied on the documents i.e. (1) Ex.PW-1/1- Certified copy of the Irrevocable GPA, (2) Mark A- Copy of Gift Deed dated 08.06.2010, (3) Ex.P-1- Notice dated 14.03.2011, (4) Ex.PW1/3(Colly.)- 05 postal receipts in respect of notice dated 14.03.2011, (5) Ex.PW1/4- Original SPA dated 13.04.2011, (6) Ex.PW1/5- Original contempt petition, (7) Ex.PW1/6- Legal notice dated 02.09.2011 sent to Sanjay Garg and Ex.PW1/7- Postal receipt of the same, (8) Ex.PW1/8- Original complaint dated 01.09.2011 to SHO PS Shahdara & (9) Ex.PW1/9- Original complaint lodged at PS Shahdara and DCP on 24.06.2011 through her counsel, (10) Mark B- Copy of electricity bill & (11) Mark C- Copy of telephone bill. On 16.04.2024 & 30.07.2024, he was cross examined by Ld. Counsel for defendant no.1. He was not cross examined by CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 7 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:16 +0530 defendant no.2 to 5.
14. PW-1 admitted that he was working in the sale purchase of the properties and he also provide services for providing properties on rent. He deposed that he was aware of the sale and purchase of the properties in Delhi. He deposed that initially, there was one agreement between parties and after performance of the terms of the agreement, sale deed was being executed. He voluntarily deposed that property brokers had come to him in the year 2010-2011 in respect to sale and purchase of the suit property.
15. PW-1 deposed that his mother namely Smt. Padmawati was illiterate but she could sign. He deposed that his mother late Smt. Padmawati could not read or write any document. He deposed that he did not know whether his mother could have read Hindi. He deposed that he could not say as to whether his mother could read Hindi language or not. He deposed that his mother never used to read a Hindi language newspaper. He was shown a video clip. After seeing the said video, he admitted that the lady who was there in the video is his mother. Video No.2 in the pen drive along with transcription and certificate U/s 65-B of IEA was exhibited as Ex.PW1/X1(Colly.). He deposed that in the said video, his mother "dekh rahi hai newspaper".
He denied the suggestion that his mother was comfortably reading the Hindi newspaper in the video. He again deposed that meri mother thoda-thoda Hindi padh liya karti thee. He deposed that 'Unhe batana CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 8 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:21 +0530 padhta tha' to make out difference between two different documents. He voluntarily deposed that 'Vo maan bhi liya karti thi jaise unhe bataya jaye'. He further deposed that 'Jaise koi bhi beta bol diya kartha tha vo maan liya karti thi. Vo apne beto pe bharosa karti thi. Unke chaar bete hai'. He admitted that his mother did not know how to read or write English language. He deposed that he had told about the contents of SPA dated 13.04.2011 Ex.PW1/4 and case drafted by the counsel of his mother. He deposed that maine pura case mother ko bataya tha. He voluntarily deposed that his mother had authorized him to file the present case as she wanted that the suit property shall be divided equally amongst her four sons. He denied the suggestion that his mother had signed the SPA without knowing its contents as he did not tell her that he was getting a suit filed in her name against the defendants.
16. PW-1 denied that he obtained the sign of his mother without letting her know its contents. He voluntarily deposed that 'Maine apni maa ko sab khuch padvaya tha aur ye bataya tha ki iss kagzo me chaaro bhaiyo ko hissa dene ke liye likha hai aur yeh bhi bataya tha ke hum koi criminal case nahi karna chahte'. He deposed that he did not know whether his father signed the gift deed dated 08.06.2010 as a witness. He was shown the photograph of the witness at page no.23 of the Gift Deed dated 08.06.2010. After seeing the same, he admitted that the photograph appearing at point B on the said page is of his father Sh. Suraj Bhan Garg. Original gift deed was exhibited as CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 9 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:26 +0530 Ex.PW1/X2. He deposed that sometimes, Sub-Registrar informed about the nature of the document which was to be registered by the executant before signing the same and sometimes, Sub-Registrar did not apprise the executant about the nature of documents. He deposed that he did not know whether Sub-registrar informed plaintiff that she was signing a gift deed and about the nature of document, when the gift deed was presented for registration. He deposed that his mother was a housewife, however, she earned money from her brothers and committee. He admitted that when Gift Deed dated 08.06.2010 was made, his parents were residing with defendant no.1. He admitted that on 08.06.2010, he had not gone to the Sub-Registrar Office with his parents and defendant no.1 when the same was registered.
17. PW-1 deposed that in the month of June, 2010 my parents were residing with defendant no.1 at the suit property and he used to regularly visit the suit property and meet his mother. He deposed that his mother has told him after 08.06.2010 that defendant no.1 by inducement and misrepresentation, has obtained her signatures on false pretext. He deposed that he told her mother about the fact that defendant no.1 has taken her signatures on the gift deed. He again deposed that 'jab gift deed ho gayi tab iska behaviour badal gaya isme kisi ko doubt ho gaya, phir market me D-1 suit property ko sale karane chhaa vahan se hume pata chala phir hamne ghar me usko bitha ke apni maata ji ke saamne poccha. Tab hamari maata ji ne bataya ki kuch dino pehle D-1 mujhe (mother) Sub Registrar office le ke gaya CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 10 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:32 +0530 tha tab maine uske kehne pe kuch kagzo pe sign kar diye. He denied that the above said facts are not mentioned in the plaint.
18. PW-1 deposed that after filing of the suit, his mother used to stay as per her own desire with her sons. He further deposed that 'Meri maa mere paas saal me kabhi ek mahina ya use jyada raha karti thi. Kabhi meri maa mere paas kabhi mere chhote bhai ke paas raha karti thi. Mujhe pata nahi kabhi meri maa mere bhai Sanjay Garg ke paas bhi rahi hai ya nahi.'
19. On 30.07.2024, PE was closed and the matter was listed for DE.
EVIDENCE OF DEFENDANT NO.1
20. Defendant No.1 to defend his case has examined only three witnesses i.e. (i) Sh. Sanjay Garg as D1W1, (ii) Ms. Beena Kumari, Posted as Reader/ASO, SR-IVA, in the Office of District Magistrate, Shahdara, Nand Nagri, Delhi-93 as D1W2 & (iii) Ms. Kavita Garg as D1W3.
21. D1W1 Sh. Sanjay Garg filed his evidence affidavit and on 10.09.2024, the same tendered as Ex.D1W1/A. D1W1 also relied on document which was already exhibited i.e. (1) Ex.PW1/X-2 - Original Gift Deed dated 08.06.2010. On 08.10.2024, D1W1 was cross examined by Ld. Counsel for plaintiff.
22. D1W1 admitted that the suit property was in the name of his CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 11 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:38 +0530 mother, however, the said property was purchased by his father out of his own funds and savings in the name of his mother. He denied the suggestion that there was no contribution of his father in purchasing the said property in any manner. He admitted that the property in question was in the total area of about 144 sq. yards. He admitted that Smt. Padmawati was residing with them. He admitted that his mother was having full faith on him. He further admitted that his mother was having four sons and two married daughters. He admitted that his mother executed a registered Will on 09.06.2009 in respect to the property in question in favour of four sons. He deposed that his mother along with Sh. Ajay Gar and his father went to the office of Sub-Registrar on 08.06.2010, thereafter, he reached the said office on his scooter. He admitted that Smt. Padmawati cannot read and write in English. He admitted that on the very same day i.e. 08.06.2010, the registered Will deed was cancelled and on the very same day, he obtained gift deed from his mother.
23. D1W1 admitted that he had filed the proceedings in the Hon'ble High Court of Delhi in respect to FIR lodged by his mother against him. He also admitted that he had also taken bail in the said FIR, however, his elder brother Sh. Ajay Gar had given the surety. He deposed that he did not remember whether his mother gave any complaint which was recorded vide DD No.35-B dated 08.03.2011 at PS Shahdara. He voluntarily deposed that police officials came at his residence in the year 2011 and they asked his mother as to why she CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 12 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:43 +0530 was lodging a complaint against her own son, who was taking care of her. On this, his mother admitted that he used to serve her, however, she remained silent about the further action to be taken by the police officials on her complaints.
24. D1W2 Ms. Beena Kumari, Posted as Reader/ASO, SR-IVA, in the Office of District Magistrate, Shahdara, Nand Nagri, Delhi-93 brought the summon records i.e. (1) Ex.D1W2/1(OSR)- Gift deed dated 08.06.2010, (2) Ex.D1W2/2(OSR)- Family Will dated 09.06.2009 & (3) Ex.D1W2/3(OSR)- Cancellation of Will dated 08.06.2010. On the same day, she was cross examined wherein she deposed that she has no personal knowledge about the execution of the afore-said documents.
25. D1W3 Ms. Kavita Garg filed her evidence affidavit which was tendered as Ex.D1W3/A on 05.11.2024. D1W3 also relied on documents i.e. (1) Ex.D1W3/1 - the videography No.1 in the pen drive. The pen drive also contains video no.2 which was already exhibited as Ex.PW1/X1(Colly.) along with transcription and certificate U/s 65B of IEA} & (2) Ex.D1W3/2 (Running into 03 pages) - The transcript of the video. On 03.12.2024, D1W3 was cross examined by Ld. Counsel for plaintiff.
26. D1W3 deposed that the videography Ex.D1W2/1 was done in June, 2015, however, she did not remember the exact date and time. She deposed that she did not prepare the transcript of the videography.
CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 13 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2025.07.19 18:34:48 +0530
She deposed that she had not taken the videogaphy of Smt. Padmawati, however children took the same.
27. On 03.12.2024, defendants' evidence was closed and the matter was listed for final arguments.
28. On 11.03.2025, 04.04.2025 and 03.05.2025, final arguments were heard.
ARGUMENTS OF PLAINTIFF
29. Ld. Counsel for plaintiff argued that Plaintiff had four sons and two daughters including defendant no.1 and she along-with her husband was residing with defendant no.1 in the suit property. It was further argued that defendant no.1 took plaintiff in the office of Sub- registrar on the pretext that the Irrevocable General Power of Attorney dated 02/02/1974 Ex.PW-1/1 executed in favour of plaintiff by Sh. Jagdish Prashad, the erstwhile owner, in respect to suit property, is not a valid document and the same is required to be corrected. It was further argued that Plaintiff was an illiterate and old lady aged about 75 years, who was suffering from old age ailments, on the date of execution and registration of the gift deed Ex.PW1/X2. It was further argued that Plaintiff under misrepresentation had executed Gift deed Ex.PW-1/X2 in favour of defendant no.1. It was further argued that Plaintiff had already executed a registered Will in respect to suit property in favour of her four sons but the same was cancelled by CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 14 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:54 +0530 plaintiff under misrepresentation and undue influence made by defendant no.1 on the same day when Gift Deed Ex.PW-1/X2 was executed and registered. It was further argued that plaintiff wants to give and divide the suit property amongst her all sons. It was further argued that cancellation of the will and execution of Gift Deed Ex.PW-1/X2 on the same day, is itself a suspicious circumstance and the gift deed Ex.PW-1/X2 is liable to be cancelled. It was further argued that the videos and its transcripts has not been proved in accordance with law. It was further argued that Plaintiff has also filed a complaint against defendant no.1 and thereafter, defendant no.1 has also taken bail in the said case. It was further argued that notice was given to defendant no.1 prior to filing of the present suit. It was further argued that plaintiff has proved her case by leading positive evidence and therefore, the present suit is entitled to be decreed.
ARGUMENTS OF DEFENDANT NO.1
30. Ld. Counsel for defendant argued that Plaintiff has failed to prove the averments of misrepresentation and undue influence committed by defendant no.1 upon her. It was further argued that plaint does not disclose that there was an undue influence of defendant no.1 upon plaintiff. It was further argued that Plaintiff can read and understand the Hindi language and she was a wise and prudent lady. It was further argued that plaintiff along-with her husband and her sons namely Sh. Sanjay Garg (defendant no.1) and Sh. Ajay Garg had gone to the office of Sub-registrar for execution of the gift deed CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 15 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:34:59 +0530 Ex.PW1/X2. It was further argued that Plaintiff out of her own free will and accord has executed the gift deed Ex.PW1/X2 in favour of defendant no.1. It was further argued that no undue influence or misrepresentation has been caused/committed by defendant no.1 upon plaintiff from any corners. It was further argued that Plaintiff was having a cordial relation with her husband, who stood as a witness to the gift deed Ex.PW-1/X2. It was further argued that falsity of the claim of plaintiff can be established by perusing the plaint and replication. Plaintiff in plaint pleads that she wants to give the suit property to her 6 children in equal proportion but in the replication, she pleads that she has executed a Will in favour of Sh. Praveen Garg and Sh. Mukesh Garg in respect of the suit property. It was further argued that such act itself proves undue influence of Sh. Praveen Garg over plaintiff. It was further argued that plaintiff had been pressurized by Sh. Praveen Garg to file the complaint as well as the present suit against plaintiff. It was further argued that Section 63 (3) of the Registration Act provides protection to the defendant no.1 and endorse that plaintiff was aware about the nature of the document i.e. Gift Deed Ex.PW-1/X2. It was further argued that plaintiff has not pleaded about the alleged incident dated 31/03/2011 in the plaint and has also not amended the plaint. It was further argued that mere mentioning about the alleged incident dated 31/03/2011 in the replication would not be helpful for the plaintiff and the same cannot be considered as pleadings or part of pleadings. It was further argued that the evidence led by plaintiff is beyond pleadings. It was further argued that the gift CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 16 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:35:06 +0530 deed cannot be annulled because the same has been acted upon. It was further argued that plaintiff has failed to prove her case and therefore, the suit is liable to be dismissed with cost.
31. No final arguments have been addressed on behalf of Defendant No.3 to 5.
APPRECIATION OF EVIDENCE AND DETERMINATION OF THE CASE ISSUE WISE ISSUE NO.1:- Whether plaintiff is entitled for declaration declaring registered Gift Deed dated 08.06.2010 as illegal and unauthorized? OPP AND ISSUE NO.2:- Whether plaintiff is entitled for mandatory injunction, as she prayed for? OPP AND ISSUE NO.3:- Whether plaintiff is entitled for permanent injunction, as she prayed for? OPP
32. It is well settled proposition of law that plaintiff has to prove his/her entire case in accordance with law and stand on his own legs. There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
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33. It is the duty of the party to lead the best evidence in his/her possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inferences. Plaintiff is required to produce best of evidence in his/her possession and he is not entitled to get the decree on the basis of failure of defendant to prove his/her right or title. Plaintiff cannot bank upon the weaknesses of defendant in order to prove his/her case and plaintiff has to stand on his/her own legs by producing the cogent materials. Failure of a party to prove his/her defence does not amount to admission nor it can reverse or discharge the burden of proof of the plaintiff.
34. Plaintiff, being the executant of Gift Deed Ex.PW1/X2, has sought its cancellation by way of present suit on the ground of misrepresentation. Plaintiff pleads that she was misled and deceived by her son i.e. defendant no.1 about the true nature and contents of the gift deed Ex.PW1/X2, and this misrepresentation led to the execution of the gift deed dated 08/06/2010 Ex.PW1/X2. Plaintiff further pleads that she was taken to the office of Sub-registrar by defendant no.1 and her husband Sh. Suraj Bhan Garg for the registration of Gift Deed Ex.PW1/X2. Plaintiff further pleads that on 28/02/2011 plaintiff through her son Sh. P.K. Garg, who is also SPA holder of the plaintiff in the present suit, came to know that defendant no.1 have committed fraud by obtaining registered Gift Deed Ex.PW1/X2 and thereafter, on the advice of her counsel, Plaintiff through her son Sh. P.K. Garg filed CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 18 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:35:16 +0530 a complaint to SHO P.S. Shahdara, Delhi vide DD No.35B dated 08/03/2011 at 10:35 P.M. and another complaint on 11/03/2011. As per plaint and deposition of PW-1, such complaints were filed by Sh. P.K. Garg (PW-1) and not by plaintiff directly and personally.
35. Ld. Counsel for the LRs of Plaintiff put a suggestion to defendant no.1/D1W1 that plaintiff has filed a criminal complaint case at Karkardooma Courts under Section 420/406/467/468/471 IPC in which FIR was registered against him on the application under Section 156 (3) of Cr.P.C. and the said suggestion was denied by plaintiff. It is worth-while to mention here that plaintiff pleads that she does not want to initiate any criminal proceedings against defendant No.1 and her husband. PW-1 Sh. P.K. Garg during his cross-examination recorded on 30/07/2024, has voluntarily deposed that " Maine apni maa ko sab khuch padvaya tha aur ye bataya tha ki iss kagzo me chaaro bhaiya ko hissa dene ke liye likha hai aur yeh bhi bataya tha ke hum koi criminal case nahi karna chhate". The testimony of PW-1 establish that plaintiff was having no intention to initiate a criminal proceeding against defendant no.1. Plaintiff in para no.5 of the plaint also states that she doesn't want to take criminal action against defendant no.1 and her husband. It is strange that plaintiff does not want to initiate criminal proceedings or has not filed complaints directly against defendant no.1 and her husband, despite defendant no.1 has misrepresented plaintiff and fraudulently got executed the gift deed Ex.PW1/X2 depriving her other children from the suit CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 19 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:35:22 +0530 property. It is worth-while to mention here that the complaint dated 08/03/2011, complaint dated 11/03/2011 and FIR has not been placed on record to substantiate the allegations pleaded. Non-production of complaint dated 08/03/2011; complaint dated 11/03/2011; and FIR in the present case and material came on record that plaintiff was having no intention to take criminal action against defendant no.1 and her husband creates probable doubts over the stand of 'misrepresentation' and 'fraud' pleaded in the plaint.
36. Notice dated 14/03/2011 Ex.P-1 has also been sent to Sh. Suraj Bhan Garg (husband of plaintiff) along-with defendant no.1 asserting the allegation of misrepresentation against him. It is pertinent to mention here that the plaint is silent about such allegation of misrepresentation against Suraj Bhan Garg. Plaintiff pleads that she went to the office of Sub-registrar with her husband Sh. Suraj Bhan Garg and defendant no.1 but no specific allegation of misrepresentation has been made by plaintiff against her husband.
There is no explanation as to why plaint does not disclose allegations of 'misrepresentation' against Sh. Suraj Bhan Garg when the Notice Ex.P-1 mention such allegations. Evidence affidavit Ex.PW1/A also disclose allegation of 'misrepresentation' only against defendant no.1 and not against Sh. Suraj Bhan Garg. Omission of allegations of 'misrepresentation' against Sh. Suraj Bhan Garg in the plaint and evidence affidavit Ex.PW-1/A which were made in notice Ex.P-1, itself creates probable doubts and infers falsity of the version pleaded.
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37. It is pertinent to mention here that even after getting the knowledge of the execution of Gift Deed Ex.PW1/X2 by misrepresentation, plaintiff has not got separated from her husband and defendant no.1 and started residing with her other sons including Sh. Parveen Kumar Garg (her SPA Holder) or Sh. Mukesh Garg or has not asked her husband and defendant no.1 to vacate the suit property. Rather it is pleaded in the plaint that she is residing in the suit property along-with defendant no.1 and her husband. During the cross- examination of PW-1 Sh. Parveen Kumar Garg recorded on 30/07/2024, he deposed that after filing of the present suit, her mother used to stay as per her own desire with her sons. However, no such pleading is there on record. PW-1 further deposed that he is unaware whether her mother also resided with defendant no.1 after filing of the present suit. The deposition of PW-1 does not conspire confidence of this Court because firstly the same is contrary to pleading; and secondly, it is strange that Sh. Parveen Kumar Garg, being SPA/son of plaintiff, was unaware of the fact that whether plaintiff had resided with defendant no.1. Though, perusing the complaint Ex.PW1/7, PW- 1 ought to have deposed with conformity that plaintiff had not resided with defendant no.1 after filing of the suit or after 01.09.2011. It is worth-while to mention here that the averments mentioned in the complaint Ex.PW1/7 has not been pleaded by plaintiff. Plaintiff has also not taken leave of the Court before filing the complaint Ex.PW1/7. It is noteworthy to mention here that plaintiff or her LRs have not proved the contents of the complaint Ex.PW1/7 by leading CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 21 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:35:33 +0530 positive and independent evidence. The allegations mentioned in the complaint Ex.PW1/7 have not been proved in accordance with law. It is pertinent to mention here that PW-1 further deposed that he used to visit regularly around the month of June, 2010 and thereafter, at the suit property to meet her mother. The testimony of PW-1 and averments of plaint clearly establish that plaintiff was staying with her husband and defendant no.1 in the suit property despite getting the knowledge of execution of gift deed Ex.PW1/X2. It is strange that even after getting the knowledge of misrepresentation and fraud, plaintiff continued residing with defendant no.1 and her husband and she has not separated with defendant no.1 and stayed with her other sons including Sh. Parveen Kumar Garg and Sh. Mukesh Garg.
38. During the course of argument, it was revealed that Sh. Suraj Bhan Garg had expired on 30/09/2012. Plaintiff even after demise of her husband, continued residing with defendant no.1. It has come on record that plaintiff was a house wife though PW-1 during his cross-
examination has deposed that plaintiff was having income from committees and business run with her brothers. It is pertinent to mention here that no reliable evidence has been brought on record to prove that plaintiff was having an independent income from committee and business. Plaint does not disclose that plaintiff was having an independent source of income and she was not dependent upon her husband and defendant no.1. There is no evidence on record which can suggest that plaintiff was being maintained by her other CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 22 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:35:38 +0530 sons including Sh. P.K. Garg and Sh. Mukesh Garg. It was argued that plaintiff was an old lady of 75 years old and she cannot walk independently, at the time of institution of the suit. The material came on record and arguments addressed by Ld. Counsel for LRs of plaintiff, clearly infers that plaintiff was being maintained by defendant no.1 during the lifetime of Sh. Suraj Bhan Garg and even after his death.
39. Defendant no.1 was residing with plaintiff and Sh. Suraj Bhan Garg during their old age and he was taking care of them. It is pertinent to mention here that there is no such pleading or no evidence came on record which can suggest that plaintiff or her husband was being ill-treated by defendant no.1. It is pertinent to mention here that there is no evidence on record to suggest that plaintiff was not having cordial relations with defendant no.1 and her husband after getting the knowledge of execution of gift deed Ex.PW1/X2. It is probable that as defendant no.1 was taking care of plaintiff and her husband during their old age, plaintiff was having more love and affection towards defendant no.1 then compare to her other children and out of the said love and affection, she has executed the gift deed Ex.PW1/X2 in favour of defendant no.1 in presence of her husband. The presence of Sh. Suraj Bhan Garg as witness to the gift deed Ex.PW1/X2 makes the process of execution and registration more genuine, valid, certified and reliable. The presence of Sh. Suraj Bhan as witness to the deed removes the clouds of ingenuity and falsity. His presence also CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 23 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:35:43 +0530 removes the possibility of circumstance which can infer presence of misrepresentation and fraud. It is not the case of plaintiff that defendant no.1 has misrepresented plaintiff and her husband too. It is worth-while to mention here that PW-1 Sh. P.K. Garg, during his cross examination, has shown his ignorance to the fact that his father Sh. Suraj Bhan Garg witnessed the gift deed Ex.PW1/X-2. The cross examination of PW-1, reflects that Sh. P.K. Garg was giving evasive answers to the questions put by Ld. Counsel for defendant no.1 with regard to the presence of Sh. Suraj Bhan Garg as witness to the gift deed. It is pertinent to mention here that this Court has observed above that the notice Ex.P-1 had been sent by Sh. O.P. Aggarwal, Advocate to defendant no.1 as well as Sh. Suraj Bhan Garg, at the instructions of Sh. P.K. Garg. The testimony of PW-1 clearly shows that he was avoiding something material i.e. he was having the knowledge that his father has witnessed the gift deed Ex.PW1/X-2. The evasive answers given by PW-1 create probable doubts over the version pleaded.
40. As per the plaint, Sh. P.K. Garg has met Sh. O.P. Aggarwal, Advocate on 01/03/2011 and thereafter, on 17/03/2011 the notice Ex.P-1 was sent to defendant no.1 and Sh. Suraj Bhan Garg. The notice Ex.P-1 does not bear the signatures of plaintiff acknowledging that the averments of legal notice has been mentioned as per her instructions. There is no such pleading that plaintiff has met Sh. O.P. Aggarwal, Advocate directly and personally and has discussed her case prior to issuance of notice Ex.P-1 or even thereafter. Even CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 24 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:35:49 +0530 testimony of PW-1 infer that the contents of plaint were told to plaintiff. There is no material on record which can suggest that plaint was drafted as per her instructions after discussion with her directly and personally. There is no material on record which can suggest that plaintiff and her husband were not having cordial relation with each other prior to execution of Gift deed Ex.PW1/X2 or thereafter. It is not the case pleaded by plaintiff that after getting the knowledge of execution of gift deed Ex.PW1/X2, her relations with her husband and defendant no.1 have become bitter and hostile. The possibility cannot be ruled out that when plaintiff came to know about the allegations levelled against her husband in legal notice Ex.P-1, then she had objected to it and therefore, the allegation of 'misrepresentation' was not made/omitted against her husband in the plaint.
41. Plaintiff went to the office of Sub-registrar along-with her husband and defendant no.1. Plaintiff was having a cordial relation with her husband at the time of execution and registration of gift deed Ex.PW1/X2 and therefore, she can ask Sh. Suraj Bhan Garg about the nature of document. Plaintiff can also ask the other witness Sh. Anil Kumar or from the Sub-registrar about the nature of document at the time of its execution and registration. Plaintiff was having means of discovering the truth but instead of using such means, she prefers to rely upon the alleged statement of defendant no.1, to which she too can avoid. It has come on record that plaintiff can read Hindi language. She can also read the Hindi newspaper. As per the testimony CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 25 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:35:54 +0530 of PW-1, though not proved, plaintiff was having an independent source of income from committee and business. Considering the aforesaid material, it can be inferred that plaintiff was a competent and prudent person and was capable to make out difference between documents and therefore, she cannot be considered as an illiterate person. After execution of gift deed Ex.PW-1/X2, her son Sh. P.K. Garg regularly met plaintiff but then also the Notice Ex.P-1 alleging 'misrepresentation' was sent after 7-8 months from the date of its execution and registration. Plaint does not disclose how and when Sh. P.K. Garg came to know about the execution and registration of gift deed Ex.PW-1/X2. As the case pleaded by plaintiff, misrepresentation can be discovered with an ordinary due diligence but failing to act diligently, also disentitle plaintiff to claim relief from this Court.
42. Plaintiff has filed the present suit pleading that she wants annulment of the gift deed Ex.PW1/X2 because she wants to give/distribute the suit property among her six children i.e. four sons and two daughters. She also pleads that she wants to cancel her earlier Will due to the afore-said reason. It is worth-while to mention here that plaintiff, in the replication, has pleaded that she has executed a Will in respect to suit property in favour of her two sons namely Sh.
Parveen Kumar Garg and Sh. Mukesh Garg. No explanation has been pleaded in the replication by plaintiff or her SPA in respect to the execution of the Will dated 03.08.2011. The act of execution of the Will dated 03.08.2011 in favour of Sh. Parveen Kumar Garg and Sh.
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Mukesh Garg excluding other four children itself destroy the basic foundation of the plaint and create probable doubts over the intention of the SPA of plaintiff. Considering the facts and circumstances of the case, material came on record and above observations, the possibility cannot be ruled out that Sh. P.K. Garg and Sh. Mukesh Garg have created pressure upon plaintiff to file the present suit and also give them share in the suit property.
43. It is the case of plaintiff that she came to know about the execution of gift deed Ex.PW1/X2 by inducement and misrepresentation through her son Sh. P.K. Garg. However, during cross examination of PW1 recorded on 30/07/2024, he deposed that plaintiff has told him. PW-1 further deposed that "I told her. Again said, jab gift deed ho gyi tab iska behaviour badal gaya isme kisi ko doubt ho gaya, phir market me D-1 suit property ko sale karane chhaa vahan se hume pata chala phir hamne ghar me usko bitha ke apni maata ji ke samne poocha. Tab hamari maata ji ne bataya ki kuch dino pehle D-1 mujhe (mother) Sub registrar office le ke gaya tha tab maine uske kehne pe kuch kagzo pe sign kar diye ". No such incident and averments has been pleaded in the plaint. Plaint is also silent about the allegation of 'change of behaviour' of defendant no.1 towards plaintiff. Plaint also does not disclose the name of the person who got suspicion from the changed behaviour of defendant no.1 towards plaintiff. No date and month of such meeting has been disclosed in which defendant no.1 was asked about the execution of CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 27 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:36:04 +0530 gift deed Ex.PW1/X2. The name of the persons has also not been disclosed in the plaint or during evidence who attended such meeting. No date has been disclosed by SPA of plaintiff when he came to know about the execution of the gift deed. Plaint also not disclosed the name of the person from whom Sh. P.K. Garg came to know about the execution of the gift deed. The said testimony of PW-1 is afterthought and beyond pleadings.
44. PW-1 also deposed that he came to know about the execution of gift deed PW1/X2 after more than 7-8 months. It has come on record that PW-1 Sh. P.K. Garg regularly met plaintiff after execution of gift deed Ex.PW-1/X2 and under such circumstances, it is highly improbable that plaintiff and her husband have not disclosed Sh. P.K. Garg about the execution of gift deed Ex.PW1/X2 or about their visit with defendant no.1 at the office of Sub-registrar. The testimony of PW-1 is not found reliable.
45. It is deposed and admitted by PW-1 during his cross examination that sometimes, sub-register informs about the nature of the document which is to be registered by the executant before signing the same and sometime, he does not apprise the executant about the nature of document. PW-1 admitted that he was not present at the time of execution and registration of gift deed. It is not the case of plaintiff that sub-register has not informed plaintiff about the nature of the document prior to its execution and registration. It is further pertinent CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 28 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:36:10 +0530 to mention here that plaintiff has never made any complaint to the concerned sub-register alleging that the gift deed has been got executed by defendant no.1 from her by misrepresentation and fraudulently. It is further pertinent to mention here that plaintiff or her LRs have not filed any complaint on record made by plaintiff to police against defendant no.1 containing the allegations of misrepresentation and fraud to substantiate and corroborate the version pleaded in the present case. There is no cogent, probable, reliable and independent evidence on record which can establish that the gift deed Ex.PW1/X2 has been got executed by misrepresentation or fraud. It is pertinent to mention here that the best evidence to prove 'misrepresentation' or 'fraud' was to examine plaintiff, her husband and Sh. Anil Kumar but due to death of plaintiff and her husband, they were not examined. LRs of plaintiff has not examined Sh. Anil Kumar to prove 'misrepresentation' and they have also not afforded any reason for his non-examination. LRs of plaintiff have not lead any direct evidence to establish their case of misrepresentation or fraud. Even the material came on record does not suggest that misrepresentation has been caused/committed by defendant no.1 upon plaintiff at the time of execution and registration of the gift deed Ex.PW1/X-2.
46. Ld. Counsel for LRs of plaintiff had also argued that plaintiff signed the gift deed Ex.PW1/X2 under undue influence of defendant no.1. It is pertinent to mention here that plaint is silent about the allegation of undue influence. No evidence has come on record which CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 29 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:36:16 +0530 can suggest that plaintiff has signed the gift deed Ex.PW1/X2 under 'undue influence' of defendant no.1. It is not the case of plaintiff that defendant no.1 was in a dominating position over her or over her Will. There is no evidence on record to suggest that there was a direct violence or compulsion or such other influence which impel plaintiff to act although she does so unwillingly. It has come on record that plaintiff had resided with defendant no.1 and her husband in the suit property and all her other children were residing separately. There is no material came on record to suggest that prior to execution or even thereafter, plaintiff was not allowed to meet her other children. Rather, PW-1 deposed that he was regularly meeting plaintiff.
47. There is no material on record to suggest that plaintiff was not in disposing sound mind at the time of execution and registration of the gift deed Ex.PW1/X-2.
48. Considering the facts and circumstances of the case, material came on record and in view of the above observations and discussions, this Court concludes that plaintiff or LRs of plaintiffs have failed to prove her/their case of 'misrepresentation' and 'fraud' and therefore, plaintiff/LRs of plaintiff are not found entitle for the decree of declaration/cancellation of gift deed Ex.PW1/X-2, decree of mandatory injunction and decree of permanent injunction as prayed, thus, the suit of the plaintiff/LRs of plaintiff stands dismissed being meritless. Issue No.1 to 3 are accordingly decided against CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 30 of 31 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.07.19 18:36:23 +0530 plaintiff/LRs of plaintiff and in favour of defendants.
49. The suit of the plaintiff is accordingly dismissed and disposed of. Parties shall bear their respective cost. Original Will dated 09.06.2009, original cancellation of Will dated 08.06.2010 and original gift deed dated 08.06.2010 be returned to defendant no.1 upon furnishing of their certified copies.
50. Decree sheet be prepared accordingly.
51. File be consigned to record room after due compliance.
Digitally signed DEEPANKER by DEEPANKER MOHAN MOHAN Date: 2025.07.19 18:36:31 +0530 Announced in the open Court (DEEPANKER MOHAN) on this 19th day of July, 2025 DISTRICT JUDGE-04, SHAHDARA DISTRICT KKD Courts, Delhi CS No.1882/2016 Padmawati Vs. Sanjay Garg Page 31 of 31