Delhi District Court
Smt. Rani vs Sh. Mahinder S/O Sh. Prabhu on 31 March, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 13/2012 & Counter claim No. 65/2013
IN THE MATTER OF:
1. Smt. Rani
W/o Sh. Gurusharan
2. Smt. Kamla
3. Smt. Vimla
4. Smt. Durga Devi
W/o Late Sh. Gian Chand
5. Smt. Devi W/o Late Hari Chand
6. Sh. Tara Chand S/o Late Rame Prasad
All C/o 3173, Amrit Kaur Puri,
Tank Road, New Delhi
......................Plaintiffs/ Respondents in counter claim
VERSUS
1. Sh. Mahinder S/o Sh. Prabhu
2. Smt. Meena Perwa W/o Sh. Mahinder
R/o 625, Gali no.1, Tank Road
Block no.1, Dev Nagar, New Delhi
......................Defendants/ Counter claimants
Date of Institution of the suit : 06.02.2012
Date of Institution of the counter claim : 04.03.2013
Date of Reserving for Judgment: 31.03.14
Date of Judgment : 31.03.14
SUIT FOR DECLARATION OF SALE DEED AND PERMANENT
INJUNCTION &
COUNTER CLAIM FOR PERMANENT INJUNCTION
Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 1 of 23
COMMON JUDGMENT:
1. Vide this Judgment, I shall decide a suit bearing no. 13/2012 for declaration of sale deed and permanent injunction filed by the plaintiff and counter claim bearing No. 65/2013 for permanent injunction.
2. The brief facts of the case as per the plaintiff is that One Late Smt. Punea Devi, had been the owner in possession of property bearing no. 3173, Amrit Kaur Puri, Tank Road, New Delhi, which is a two storied structure. The suit property is assessed to house tax in the name of Smt. Punea Devi, besides the electricity and water connection are also installed in her name in the suit property. It is further submitted that on the ground floor of the above property there is one shop and covered verandah. The daughter in law of Smt. Punia Devi plaintiff no.1 is running a tea stall in the covered verandah marked 'A' in the site plan on the ground floor. The shop on the ground floor is shown by red colour in the site plan. The said shop is in possession of the plaintiff under her lock and key. The defendants were known to late Smt. Punia Devi as they are residing in the same locality and defendant no.2 is the wife of defendant no.1. The defendant no.1 on 25th June 2007 requested late Smt. Punia Devi that he may be permitted to keep his articles in the shop shown in red in the site plan for a few days and late Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 2 of 23 Smt. Punia Devi not suspecting any foul play agreed to the request of defendant no.1 and permitted the defendant no.1 to keep his articles for a few days in the above shop. It is further submitted that the defendant no.1 taking advantage of the generous nature of the plaintiff during this period got an electric connection installed in the said shop in collusion with the officials of service provided and late Smt. Punia Devi through her daughter Smt. Rani lodged a police report on 28.6.2007 at P.S. Prasad Nagar. Thereafter the defendant no.1 started avoiding the plaintiff and did not return the keys of the shop in question, however later the defendant no.1 in the last week of July 2007 on the intervention of respectable persons of the locality returned the keys to Late Smt. Punea Devi but after sometime he again started threatening the plaintiff that soon he will again forcibly take the possession when he had greater force at his command. However after the defendant no.1 returned the keys of the shop in question, it remained in possession of late Smt. Punia Devi. It is further submitted that on 17.08.2009 the defendant no.1 alongwith his associates came to the suit shop in possession of late Smt. Punia Devi with the intention of taking forcible possession of the shop by breaking open the lock of the plaintiff but could not succeed due to the presence of mohalla people and left the scene after abusing and Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 3 of 23 threatening the deceased Smt. Punia Devi that he will again come and will definitely dispossess her from suit shop. As there was apprehension in the mind of late Smt. Punea Devi that the defendant may dispossess her forcibly and illegally from the suit shop she filed a suit for permanent injunction bearing suit no. 585 of 2009 on 4.9.2009 in the court of Sh. Ravinder Kumar Pandey, CJ, Delhi. Inspite of being served with the summons the defendant did not appear before the Hon'ble court of Sh. Ravinder Kumar Pandey, CJ, Delhi and was proceeded exparte , however after the evidence of late Smt. Punea Devi was recorded, the defendant no.1 moved an application u/o IX rule 7 CPC dated 8.11.2010 for setting aside the order dated 26.5.2010 proceeding exparte against him. On reading the contents of the abovesaid application, Late Smt. Punea Devi was shocked to note that the defendant no.1 had alleged himself to be the owner in possession of the shop in question, while late Smt. Punea Devi never sold the shop in question to the defendant or anybody else. The defendant no.1 during the hearing of above application u/o IX rule 7 CPC also furnished the copy of sale deed dated 22.5.2007 in favour of defendant no.2 executed by one Sh. Lalit Gupta as a general attorney of Smt. Renu W/o Sh. Neeraj vide GPA Regd. No. 64, Addl. Book no.4, Volume no. 3717, on paged 94 to 1010 dated Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 4 of 23 7.1.2005 who in turn was the alleged attorney of late Smt. Punia Devi vide unregistered GPA dated 18.3.1999, which was absolutely false as no such attorney was ever executed by deceased Smt. Punia Devi. The defendant no.1 did not furnish the copy of the alleged attorney in favour of Smt. Renu. It is further submitted that clever piece of forgery and manipulation is clear from the fact that defendant no.1 first manufactured/forged an unregistered GPA allegedly executed by deceased Smt. Punia Devi on the basis of which he manipulated a registered general power of attorney, which the defendant no.1 used while deceased Smt. Punia Devi never executed any such attorney in favour of any one including Smt. Renu. She did not even know any one by name of Smt. Renu. It is further submitted that the deceased Smt. Punia Devi wanted to challenged the above mentioned sale deed but at the age of 80 years her health was not good and on 11.1.2011 she expired and on her death the suit property devolved upon the plaintiff who are legal heirs of deceased Smt. Punia Devi. It is further submitted that the sale deed dated 22.5.2007 is a void document as no consideration ever passed on to late Smt. Punia Devi nor ever she executed any GPA in favour of anyone including Smt. Renu and the sale deed dated 22.5.2007 doe not confer any right, title or interest on defendant and is liable to be cancelled and Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 5 of 23 declared null and void. The plaintiffs who are children of deceased Smt. Punia Devi apprehends that if the said document is allowed to stand, it will cause serious injury to the right of property of the plaintiffs. Under these circumstances, the plaintiffs have no option but to seek cancellation of sale deed dated 22.5.2007 from this Hon'ble Court being unauthorized and without consideration. Hence the present suit is filed by the plaintiff.
3. On the other hand the defendants in their written statement contended that plaintiff have no locus standi to file the present suit as the plaintiffs no. 2 to 5 are not the lR of the deceased Smt. Punea Devi. Plaintiff have not come to the court with clean hands and has suppressed the material facts. It is further submitted that all the plaintiffs are not residing at the address given in the plaint. The plaintiff have given wrong address of the defendants to obtain exparte decree. The mother of the plaintiff No. 1 during her life time filed a suit for permanent injunction in respect of the suit property against the defendant No. 1 by giving wrong house No. The mother of the plaintiff No. 1 and defendants are living in the same locality and were know to the mother of the plaintiff No. 1. The plaintiff No. 1 along with her sister had the personal knowledge of the same of the suit property by deceased Smt. Punea Devi to one Smt. Renu and execution of sale documents dt. Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 6 of 23 18031999. The plaintiff No. 1 along with her sister had executed an affidavit dt. 19031999 to Smt. Renu and declared that they shall have no right, title or interest in the suit shop having being sold by their mother. It is furtehr submitted that Smt. Renu had further sold the suit property to Sh. Lalit Gupta son of late Sh. R.N. Gupta vide sale document dt. 07012005, who further sold the suit property to defendant No. 2. through regd. sale deed dt. 2205 2007 and physical possession of the suit property was handed over to the defendant no. 2. The article of the defendant No. 2 is lying in the suit shop. Also, the house tax of the suit property is being paid by the defendant no. 2. Further an electricity meter is also in the name of the defendant No. 2. The plaintiff have also undervalued the suit property to avoid the payment of appropriate court fee. Also, this court has no jurisdiction to try the present suit Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. Further the defendants have filed counter claim against the plaintiff and submitted that the plaintiff/respondent are threatening to the counter claimaint/defendant No. 2 from time to time since the date of purchase of the suit property that they shall dispossess the counter claimant forcibly and illegally with the help of their Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 7 of 23 goonds and shall create third party interest in the suit property. It is further submitted that on 26012012 respondent No. 1came across the counter claimant in the locality where the suit property is situated and threatened the counter claimant either toe vacate and hand over the vacant physical possession of the suit property in a wekk or so, failing which they shall dispossess the counter claimant/defendant forcibly. It is further submitted that the counter claimant apprehends that they may implement their threat with the help of anti Social elements and dispossess the counter claimant from the suit property. Hence the counter claim is filed by the counter claimant against the respondent/ Plaintiffs.
5. The plaintiff has filed replication/ reply to counter claim / written statement filed by the defendant. In their replication the plaintiffs have reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement/Counter claim and further submitted that the suit of the plaintiff may be decreed and counter claim of the counter claimant/Defendants be dismissed.
6. Vide order dt. 10.05.2013, following issues were framed which are as under:
i) Whether the plaintiff is entitled to decree of cancellation of sale deed as prayed for? OPP Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 8 of 23
ii) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
iii) Whether the plaintiff has no locusstandi to file the present suit? OPD
iv) Whether the plaintiff has not come with clean hand and suppressed the material facts? OPD
v) Whether no cause of action has arisen in favour of the plaintiff and against the defendant? OPD
vi) Whether this court has no jurisdiction to try and entertain the present suit? OPD
vii) Whether the suit of the plaintiff is bad for nonjoinder of necessary and proper parties? OPD
viii) Whether the plaintiff has not properly valued the suit property for the purpose of court fee and jurisdiction? OPD
ix) Whether the defendant is entitled to permanent injunction as prayed in the written statement/counter claim? OPD
x) Relief.
7. To prove his case plaintiffs/respondents in counter claim have Smt. Rani as PW1 who has filed her evidence by way of affidavit Ex. PWA1. In his affidavit the PW1 has reiterated the facts mentioned in the plaint and relied upon the following documents: Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 9 of 23
i) Site plan of the suit property is Ex. PW1/1.
ii) Certified copy of suit No. 585/2009 is Ex. Pw1/3.
iii) Certified copy of order dt. 26052010 is Ex. PW1/4. The PW1 was also crossexamined by the Ld. counsel for the defendants.
8. On the other hand the defendants/Counter claimant have examined Sh. Mahinder Prewa as DW1, who has filed his evidence by way of affidavit Ex. DW1/A. In his affidavit DW1 has reiterated the facts mentioned in his WS and counter claim and relied upon the following documents:
i) Regd. GPA, Regd. SPA, Regd. Will, receipt, Agreement to sell, affidavit and possession letter all dt. 18031999 are Ex. DW1/1 to DW1/7.
ii) The affidavit of the plaintiff and her sister are Ex. PW1/8.
iii) Regd. GPA, Agreement to sell, receipt , affidavit and Will all dt. 07012005 are Ex. DW1/9 to DW1/13.
iv) Regd. sale deed dt. 22052007 is Ex. DW1/14.
v) Six house tax receipts are Ex. DW1/15 to DW1/20.
vi) election I Card of the defendant No. 1 is Ex. PW1/D1.
9. Further the defendant has examined Sh. R.P. Meena, LDC, office of Subregistrar, Kashmiri gate, Delhi as DW2 who has brought the summoned original record i.e. GPA regd. no. 2660 dt. 18031999, Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 10 of 23 SPA regd. no. 2661 dt. 18031999 & regd. Will No. 1925 dt. 18 031999. Further the defendant has also examined Sh. Manoj Sagar, LDC , Sub registrar office, Asaf Ali Road, Delhi as DW5 , who brought the summoned record i.e. GPA regd. No. 64 dt. 07 012005, Sale deed regd. No. 3013 dt. 22052007 , the copies of which are Ex. DW5/A & B.
10. Further the defendants have examined Smt. Renu. Sh. Manoj Kumar as DW3 & DW4 , who have filed their evidence by way of affidavit Ex. DW3/A, DW4/A. All the defendant witnesses were also crossexamined by the Ld. counsel for the plaintiff.
11. I have heard the counsel for both the parties and have gone through the record carefully.
12. My issue wise finding is as under:
13. Issue No. 1 Whether the plaintiff is entitled to decree of cancellation of sale deed as prayed for? OPP Issue no. 2. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP Issue no. 3. Whether the plaintiff has no locusstandi to file the present suit? OPD Issue no. 4. Whether the plaintiff has not come with clean hand and suppressed the material facts? OPD Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 11 of 23 Issue no. 5. Whether no cause of action has arisen in favour of the plaintiff and against the defendant? OPD Issue no. 9 Whether the defendant is entitled to permanent injunction as prayed in the written statement/counter claim?
OPD Issue nos. 1, 2, 3, 4, 5 & 9 being interrelated are being taken up & decided together.
The plaintiff no. 1 deposed as PW1 and stated in her cross examination that Smt. Punia Devi did not sell of the suit property to Renu and that she is in possession of the suit property.
14.Dw1 Sh. Mahender Parewa supported his own case in his cross examination. He denied that Ex. Dw1/1 to Ex. DW1/21 are forged & fabricated documents.
15.Dw2 Sh. R. P. Meena proved Ex. DW1/1 to Ex. Dw1/3.
16.Dw3 Smt. Renu deposed in her crossexamination that the thumb impressions on the documents are of Smt. Puniya Devi. She stated that defendant no. 1 is in possession of the suit property. She stated that she sold of the suit property to Sh Lalit Gupta on 7/1/2005 and handed over the physical possession to him.
17.Dw4 Sh. Manoj Kumar stated that Ex. Dw1/1 to DW1/3 were signed in his presence by Smt. Puniya devi in favour of Smt. Renu, who was the tenant of the DW4. He stated that he is nephew of Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 12 of 23 defendant no. 1.
18.DW5 Sh. Manoj Sagar proved Ex. DW5/A i.e. GPA dated 7/1/2005 executed by Smt. Renu in favour of Sh. Lalit Gupta and Ex. DW5/B i.e. registered Sale deed dated 22/5/2007 executed by Sh. Lalit Kmar in favour of Smt. Meena Parewa, defendant no. 2.
19.It is no more res integra that if a party does not come to the court with clean hands then it is not entitled to equitable relief of injunction. Thus, the maxim of clean hands must not be taken too widely. Equity does not demand that its suitors shall have led blameless lives. The maxim withholds assistance of Court where the wrongdoer is trying to enjoy the fruits of his own wrong. It is a selfimposed ordinance that closes the door of a Court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.
20. A party who seeks equity must bring on record the entire facts of his case supported by documentary proof. In the instant case, the plaintiffs submit that Smt Punia was the owner of the suit property and after her death plaintiffs being her legal heir are the owners of the suit property and the plaintiffs are in possession of the suit premises but no document has been placed on record to show that Smt. Punia was the owner of the suit premises or that the plaintiffs are in the possession of the suit premises. Further, the plaintiff has Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 13 of 23 not filed the complaint dated 28/6/2007 made to the police. Also, the plaintiff has not sought cancellation of agreement to sell/GPA/will etc dated 18/3/1999 and 7/1/2005 which are the parent document and by virtue of which Sale deed dated 22/5/2007 was executed. Also, in the para no. 5 of the plaint filed by Smt. Puniya devi against defendant no. 1 herein in the case filed by her Ex. PW1/3 she has stated as under:
5.That the defendant at that time also represented to the plaintiff that he can arrange some bank loan for plaintiff and on the said pretext took her thumb impression on some papers but never got any loan.
............
However, this fact has not been mentioned by the plaintiff in the pleadings of this case, thus clearly, the plaintiffs have not come to the court with clean hands.
21.Furthermore, the defendant witnesses have been put a suggestion in their crossexamination that the documents Ex. DW1/1 to Ex. DW1/7 all dated 18/3/1999 do not bear thumb impression of Smt. Punia Devi but this case of the plaintiff is falsified from the fact that in her previous case in para no. 5 of her plaint, as mentioned above, Smt. Punia Devi has categorically stated that the defendant no. 1 herein got her thumb impression on some papers. Nothing has been placed on record to prove that the thumb impression on these documents are not of Smt. Punia Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 14 of 23 Devi. Merely by putting suggestion in this respect to the defendant witness is not sufficient to prove that the said documents dated 18/3/1999 do not bear the thumb impression of Smt. Punia.
22.The plaintiffs have neither brought any documentary evidence to prove their possession over the suit property nor produced any independent witness in this respect. Thus, have failed to prove their possession as alleged.
23.The case of the counterclaimant is that Late Smt. Punia sold the suit property to Smt. Renu vide registered GPA/SPA/will and unregistered agreement to sell, affidavit, possession letter and receipt dated 18/3/1999 and Smt. Renu sold the suit property to Sh. Lalit Gupta vide unregistered agreement to sell, affidavit and will and registered GPA dated 7/1/2005 and Sh. Lalit Gupta sold the suit property to Smt. Meena Parewa, defendant/counter claimant no. 2, vide registered Sale deed dated 22/5/2007. All the aforesaid documents have been placed on record and duly proved by the defendant and their witnesses. Further an affidavit dated 19/3/1999 executed by plaintiff no. 1 and Nirmala acknowledging the sale of the suit property by Smt. Punia to Smt. Renu is also filed. As per payment of house tax receipt Ex. PW1/15 to Ex. PW1/20 the suit property is assessed in the name of Smt. Meena Parewa. Thus, it is crystal clear that the counterclaimant are in Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 15 of 23 possession of the suit property and Smt. Meena Parewa, defendant/counter claimant no. 2, is the owner of the suit shop vide registered Sale deed dated 22/5/2007. As discussed above, the plaintiffs have failed to prove that Punia Devi did not sell of the suit property to Smt. Renu.
24.The contention of the plaintiffs that the documents Ex DW1/1 to Ex. DW1/7 are manipulated since blank spaces have been filled later on is a new defence, beyond pleadings and not even put to the defendant witnesses. Further, it is well known fact that the documents of sale and purchase in set performa are lying with the deed writers having certain blanks for filling various details at the time of execution. Nothing has been brought on record by the plaintiffs to show that the blanks were not filled at the time of its execution. Thus, this contention is of no assistance to the plaintiffs.
25.The contention of the plaintiffs since Dw1 Mohinder Parewa and DW2 Renu stated in their crossexamination that they do not remember the denomination of the notes and exact bundles for consideration of the transaction dated 18/3/1999 does not mean the entire transaction was a sham. The documents were executed on 18/3/1999 whereas the DW1 & DW2 deposed as a witnesses in the year 2013 i.e. after a gap of almost 14 years and obviously the minute details of transaction will not be rembered by her as the Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 16 of 23 memory fades with passage of time. Thus, this contention also is of no assistance to the plaintiffs.
26.The contention that non examination of Sh. Deen Dayal as a witness amounts to witholding of best evidence is without any merits as the party has to lead quality evidence and not quantity evidence.
27.The contention that it is strange that a property is purchased by a person but not used is without any merits as it is well settled that property can be purchased by a person as an investment and may not be used for living or carrying on any work.
28.The submission that the documents executed on the same day between same parties but witnessed by different witnesses raise adverse inference is of no merits unless any circumstance in support thereof corroborates the same.
29.It is well settled that Section 202 of the Contract Act, 1872 Section 202 of the Contract Act, 1872 provides that the Power of Attorney coupled with interest is irrevocable and cannot be revoked/terminated even upon the death of the principal.
30.At this juncture it would be relevant to discuss the decision in Hardip Kaur vs Kailash decided by the Hon'ble Delhi High Court on 18/5/2012 in RFA No.648/2006, the relevant para is reproduced as under:
Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 17 of 23
(i) In Harbans Singh v. Shanti Devi, 1977 RLR 487, the seller had executed an agreement to sell in favour of the purchaser and the General Power of Attorney in favour of her husband.
The General Power of Attorney was stated to be irrevocable and it authorized the attorney to further sell the subject property. The seller later cancelled the agreement to sell and all other documents including the General Power of Attorney. The Trial Court held the General Power of Attorney to be irrevocable which was challenged in appeal before this Court. The Division Bench of this Court held that the General Power of Attorney was executed for a valuable consideration and the agent had an interest in the property and, therefore, the General Power of Attorney was irrevocable. This Court negatived the sellers contention that a contract of sale „of itself does not create any interest in or charge on immovable property under Section 54 of the Transfer of Property Act, 1988 and, therefore, the purchaser cannot be said to have an interest within the meaning of Section 202 of the Contract Act. It was held that the purchaser had an interest in the immovable property for the purposes of Section 202 of the Contract Act, if not for the purposes of Transfer of Property Act and Registration Act. The findings of the Division Bench of this Court are as under: "10. For the purposes of the Law of Contract, therefore, it would not be useful to restrict the meaning of the word "interest" by the narrow compass in which this world is used at times in relation to immovable property. For instance, the last sentence of section 54 of the Transfer of Property Act states that a contract for sale of itself does not create any interest in or charge on RFA No.648/2006 Page 14 of 63 immovable property. Similarly, section 17(1)(b) of the Registration Act makes only those documents compulsorily registerable which create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. Since an agreement for sale does not create such a right, title or interest, it may not be compulsorily registerable. But in the context of the Contract Act, it cannot be said that a person who is the beneficiary of an agreement of sale has no right or interest in the subjectmatter Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 18 of 23 of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be sold under the provisions of the Specific Relief Act. In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter IV of the Contract Act deals with the performance of contracts which includes the performance of contracts relating to immovable property also. In fact, Section 4 of the Transfer of Property Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, the respondent in whose favour the appellant had executed an agreement for the sale of an immovable property had an interest in the subjectmatter of the contract, namely, the shop, for the purposes of section 202 of the Contract Act if not for the purposes of the Transfer of Property and the Registration Acts."
"13. All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from the respondent. It was given for the purpose of effectuating security or protecting or securing the interest of the agent. For, the only purpose of the agency was to ensure and secure the performance of the contract by the appellant in favour of the respondent for whom Shri Gulati was acting as the husband and the nominee and, therefore, a RFA No.648/2006 Page 15 of 63 representative or agent. Where the performance of the agency is not to secure the interest or the benefit of the agent then the agency is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in or lieu for advances upon the subjectmatter of it."
"15. The matter may be looked at from another point of view. Legally protected interest or a benefit of one party casts a corresponding obligation on the other party to the contract. If the contract of agency confers an interest or a benefit on the agent, it casts an obligation on the principal. In the present case, the appellant, as a principal was under an obligation to perform the contract of sale by the execution of a conveyance. In the words of Bowstead, "authority is normally only irrevocable when it is Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 19 of 23 the security or other proprietary interest, or part of the security, or where its conferring constitutes the performance of the obligation". Such a power is referred to as a "power coupled with an interest" and should be regarded as a property disposition rather than as the conferring of authority. The Restatement (the American Restatement of the Law on Agency, Section 138) uses the phrase "power given as security" defined as "a power to affect the legal relations of another, created in the form of an agency authority, but held for the benefit of the power holder or a third person, and given to secure the performance of a duty or to protect a title, either legal or equitable, such power being given when the duty or title is created or given for consideration." (Optic, page 424). Since the power of agency has been conferred not for the benefit of the principal but for the benefit of the agent representing a third party and not as representing the principal, the power becomes irrevocable."
(Emphasis supplied)
31.From the aforesaid it is clear that since Punia Devi executed registered GPA/SPA/will and unregistered agreement to sell, affidavit, possession letter and receipt dated 18/3/1999 in favour of Renu, thus, she had sold of the suit property to Smt. Renu vide the said documents since consideration amount was also received by Smt Punia Devi for the same and thus, Smt Punia Devi has no interest left in the suit property after excution of the said documents dated 18/3/1999 .
From the foregoing discussion, the plaintiffs in Cs no. 13/2012 have failed to prove their case and thus are not entitled to the relief of cancellation as well as permanent injunction as prayed Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 20 of 23 for.
32.On the other hand, the defendants/counter claimants have proved their case in Cs 65/2013. In the counterclaim the defendants have prayed that a decree of permanent injunction be passed in favour of the counter claimant and against the plaintiffs restraining the plaintiffs from interfering in the peaceful use & enjoyment of the counter claimant of the shop bearing no. 3173, ward no. XVI, Amrit Kaur Puri, Tank Road, Karol Bagh, Delhi measuring 27' x 8 1/2'. However, the expression 'peaceful use & enjoyment ' are of very wide connotation and the counter claimants have not explained how the plaintiffs/respondents are peaceful use & enjoyment of the counter claimant of the suit property. Thus, the counter claimant are not entitled to this relief.
33.The counter claimants have proved that defendant no. 2 is the owner of the suit property and the defendants / counter claimants are in possession of the suit property, thus, they are entitled to the decree of permanent injunction in favour of the counter claimant and against the plaintiffs restraining the plaintiffs from creating third party interest in the shop bearing no. 3173, ward no. XVI, Amrit Kaur Puri, Tank Road, Karol Bagh, Delhi measuring 27' x 8 1/2'.
These issues are decided accordingly.
Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 21 of 23
34. Issue No. 6 Whether this court has no jurisdiction to try and entertain the present suit? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
35.Issue No. 7 Whether the suit of the plaintiff is bad for non joinder of necessary and proper parties? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
36.Issue No. 8 Whether the plaintiff has not properly valued the suit property for the purpose of court fee and jurisdiction? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants. 37. Relief in CS 13/2012 In view of the foregoing discussion, the plaintiff has failed to prove his case and thus the suit is hereby dismissed. There are no Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 22 of 23 orders as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
38. Relief in Counter claim no. 65/2013.
A decree of permanent injunction is passed in favour of the counter claimant and against the respondents restraining the respondents from creating third party interest in the shop bearing no. 3173, ward no. XVI, Amrit Kaur Puri, Tank Road, Karol Bagh, Delhi measuring 27' x 8 1/2'. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 31032014. Civil Judge/Central05 Delhi Suit No. 13/2012 & Counter claim No. 65/2013 Page No. 23 of 23