Delhi District Court
S. Navtej Singh Khurana & Anr. vs . Pratap Rai Kalra on 23 December, 2016
CS No.63/14 (15635/16)
S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra
IN THE COURT OF SH. VIRENDER BHAT,
ADDITIONAL DISTRICT JUDGE-04, SOUTH WEST,
DWARKA COURTS, NEW DELHI
CS No.63/2014 (15635/16)
In the matter of:-
1. S. Navtej Singh Khurana,
s/o late S. Harbhajan Singh Khurana,
R/o J-12/21, Second Floor,
Rajouri Garden, New Delhi.
2. Smt. Varinder Kaur
W/o S. Navtej Singh Khurana
R/o J-12/21, Second Floor,
Rajouri Garden, New Delhi. .....Plaintiffs
Versus
Sh. Pratap Rai Kalra,
s/o Sh. Jiwan Das Kalra
R/o F-84, 2nd floor, Naraina Vihar,
New Delhi- 110 028. .....Defendant
Date of filing of the suit:30.08.2011.
Date of reserving judgment/Order 19.12.2016.
Date of pronouncement :23.12.2016.
SUIT FOR DECLARATION
JUDGMENT
1. The facts of the case, which appear to be undisputed, are that the defendant has executed an agreement to sell dated 4.7.2005 in favour of the plaintiffs jointly with regards to the property bearing No.B-221, Naraina Industrial Area, Phase-I, New Delhi (hereinafter referred to as the suit Page 1 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra property). The agreement to sell was duly registered in the Office of the Sub Registrar, Kapashera. The defendant also executed a registered GPA and a registered Will, both dated 4.7.2005 in favour of the plaintiffs to complete the sale transaction. A special power of attorney dated 4.7.2005 was also executed by the defendant in favour of the plaintiffs.
2. It appears that the defendant, later on in the year 2010 cancelled the aforesaid registered GPA and Will by way of two separate registered deeds of cancellation dated 20.09.2010, thereby anulling the sale transaction of the suit property in favour of plaintiffs.
3. In the instant suit, the plaintiffs have sought a declaration to declare these deeds of cancellation of GPA and Will as null and void.
4. It is the case of the plaintiffs that the defendant had sold the suit property to them vide registered agreement to sell, registered GPA and registered Will dated 4.7.2005 for a total sale consideration of Rs. 8 lakhs which had been duly paid to him and he also had handed over the vacant physical possession of the suit property to them. It is stated that thereafter, a family dispute arose between the defendant and his uncle Dayal Dass Kalra and consequently litigation cropped up between them. Sh. Dayal Dass Kalra was demanding a part of the sale consideration of the suit property from the defendant. As a result of this dispute, the defendant started demanding more money from the plaintiffs in order to settle the dispute with his uncle. Upon Page 2 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra refusal of the plaintiffs to pay any further money to the defendant, he started issuing threats to them. The plaintiffs also received a legal notice dated 09.02.2010 from the defendant for the specific performance of the agreement to sell dated 29.04.2005. It was mentioned in the notice that the total sale consideration for the suit property agreed between the parties was Rs. 1,47,00,000/- (One crore and forty seven lakhs rupees) out of which plaintiffs have paid only Rs. 55 Lakhs and were to pay further sum of Rs. 92 lakhs accordingly.
5. It is further stated by the plaintiffs that they made attempts to prevail upon the defendant by having several meetings with him but in vain. The defendant got sent two further legal notices dated 3.4.2010 and 9.4.2010 to the plaintiffs informing them that he has revoked the registered GPA and Will which he had earlier executed in their favour. The plaintiffs duly replied these notices vide reply dated 11.04.2010 thereby refuting all the contentions of the defendant. It is in these circumstances that the present suit came to be filed by the plaintiffs.
6. The defendant in his written statement has not denied the execution of registered agreement to sell dated 4.7.2005, registered GPA dated 4.7.2005, registered Will dated 4.7.2005 and Special Power of Attorney dated 4.7.2005 in favour of plaintiffs jointly with regards to the suit property. He has, however, denied that he had agreed to sell the suit property to the plaintiffs for a total sale consideration of Rs. 8 lakhs. It is his contention that the plaintiffs approached him on 30.01.2005 for Page 3 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra the purchase/transfer of lease hold rights alongwith the ownership of the firm M/s. S.N. Ahuja Metal Industries, in whose name the title/lease hold rights of the suit property were granted, for a total sale consideration of Rs. 1,47,00,000/- and handed over to him two cheques in the sum of Rs. 3 lacs each towards the earnest money with the promise to reduce into writing the terms of agreement in future. It is stated that the agreement to sell was accordingly reduced to writing on a non- judicial stamp paper of Rs. 100/- on 29.04.2005. At that time, plaintiffs paid a total sum of Rs. 55 lakhs to the defendant as earnest money. The defendant further states that he made clear to the plaintiffs that upon payment of balance sale consideration to him, final agreement to sell shall be executed by him in the name of the firm M/s. S.N. Ajuja Metal Industries, in whose name the lease hold rights of the suit property have been granted. According to him, he was pressurised to sign the agreement dated 04.07.2005 contrary to the terms of the agreement to sell dated 29.4.2005.
7. In the replication, plaintiff has denied the contents of the written statement and have reiterated the averments made in the plaint.
8. Following issues were framed on 13.02.2012:-
1. Whether the plaintiffs are entitled to a decree of declaration as prayed ? OPP
2. Whether the suit is bad for misjoinder or non-joinder of necessary parties ? OPP
3. Whether the suit is properly valued for the purpose of court fees and Page 4 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra jurisdiction? OPD
4. Relief.
9. The plaintiff No.1 Navtej Singh Khurana has entered the witness box himself as PW1 to prove his case. The plaintiffs did not examine any other witness.
10. The defendant examined himself as DW1. He also produced LDC from the Office of the Sub Registrar-IX, Kapashera as DW2 and one Sh. S.N. Sharma as DW3. Sh. Sandeep Kumar LDC has again been examined as DW4 when he produced the record regarding registration of five sale deeds. The defendant also examined ASO from the Land Sales Branch, DDA as DW-5 to prove the allotment of the suit property in the name of M/s. S.N. Ahuja Metal Industries.
11. I have heard ld. Counsel for the plaintiffs, ld. Counsel for the defendant and have perused the entire record. I have also gone through the written submissions filed on behalf of defendant.
12. It was submitted by the ld. Counsel for the plaintiffs that there is no infirmity in the valuation of the suit for the purposes of court fee and jurisdiction. He argued that since the plaintiff has sought only a declaration that the deeds of cancellation executed by the defendant thereby cancelling the registered GPA and registered Will dated 4.7.2005 executed by him earlier in favour of plaintiffs, to be declared null and void without seeking any consequential relief, he was required to pay Page 5 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra fixed court fee under Article 17 (iii) of Schedule II of the Court Fee Act and not advalorem court fee as per Section 7 (iv) (c) of the Act.
13. He further argued that there was no cause or occasion for the defendant to cancel the GPA as well as Will dated 04.07.2005 for the reason that these were executed by him alongwith the registered agreement to sell and all these documents completed the sale transaction by him in favour of plaintiffs. His submission is that the GPA, Will and the Agreement to Sell were executed by the defendant in favour of plaintiffs contemporaneously and these constituted one transaction and have to be read as well as interpreted together as if these are one document. He argued that the GPA dated 4.7.2005 executed by the defendant in favour of plaintiff was not a regular or a routine Power of Attorney but having an element of commercial transaction and therefore, could not have been cancelled. He would further submit that there is no explanation from the side of defendant as to why did he sign the agreement to sell, GPA, Will and SPA dated 4.7.2005, which are duly registered documents, if he had not received any balance sale consideration from the plaintiff. Ld. Counsel also argued that no seller would hand over possession of the property in question to a buyer, in case the buyer has not paid the entire sale consideration to him. It is contended that the defendant has cancelled the GPA and Will dated 4.7.2005 only with an ulterior motive to put pressure on the plaintiff in order to extract more money from him.
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14. Ld. Counsel cited the two judgments of the High Court delivered in the cases titled Babita vs. Ravinder Verma and Anr. RFA no.86/2012 decided on 14.02.2012 and Hardeep Kaur vs. Kailash and Anr. RFA No.648/2006 decided on 18.05.2012 in support of his submissions.
15. Ld. Counsel for the defendant submitted that the case set up by the plaintiff cannot be believed for the reason that he has nowhere denied the existence of agreement to sell dated 29.04.2005 in his evidence or in his pleadings and has made conflicting stands about how he came into the possession of the suit property. He pointed out that at one place, the plaintiff states that possession of a portion of the suit property was handed over to him by defendant in Court whereas at another place, he states that the possession was handed over to him by the Court and he is not aware whether defendant was present in court or not at that time. The ld. Counsel also pointed out that the plaintiff has admitted in his cross examination that there had been talks of settlement between himself and the defendant prior to filing of this suit which clearly indicates that there was dispute between them regarding the payment of balance sale consideration by plaintiff or otherwise there was no point for talks between them.
16. He further argued that DW3 is a witness to the agreement to sell dated 29.04.2005 and has clearly deposed about the execution of said agreement between the parties, which deposition has not been controverted on behalf of the plaintiff. According to the ld. Counsel, the another witness to the Page 7 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra agreement to sell dated 29.04.2005 is Mr. Charanbir, the brother of plaintiff No.1 but he could not be examined on account of his death. The ld. Counsel argued that the conversion rates of DDA from leasehold to freehold in the year 2006 were approximately Rs. 18,000/- per sq. mtr which would show that the conversion rate for the suit property (measuring approximately 600 sq. yds.) would cross the amount of Rs. 8 lakhs, allegedly paid by the plaintiff as sale consideration for the suit property which clearly indicates that the value of the suit property could not have been as miniscule as Rs. 8 lakhs. Referring to the sale deeds Ex. DW4/A, Ex. DW4/B, Ex. DW4/C, Ex. DW4/D and Ex/ DW4/E, the ld. Counsel argued that approximate market value of the suit property in the year 2005 would have been not less than Rs. 1.5 crores.
17. According to the ld. Counsel, since the plaintiff did not pay the balance sale consideration of Rs. 92 lakhs to the defendant, the defendant was entitled to cancel the GPA as well as the Will dated 04.07.2005 executed by him in favour of the plaintiff. The ld. Counsel cited the judgment of Orrisa High Court reported as AIR 1989, Orrisa 154, Lachman Nepak Vs. Badam Kayalu Syama and the judgments of the Supreme Court reported as (2004) 8 SCC 614 Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra (dead) through LRs. and (2012) 1 SCC 656 Suraj Lamp & Industries (P) Ltd. vs. State of Haryana to buttress his submissions that even if the purchaser has paid the consideration and has taken possession on the basis of Agreement to Sell, he cannot get ownership unless a sale deed is duly executed in his favour and that the Page 8 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra agreement to Sell in itself does not create any right, title or interest in favour of the buyer in the property under sale.
18. On the issue of Court Fee, ld. Counsel submitted that the plaintiff was required to affix court fee on the plaint on advalorem basis u/s 7 (iv)(c) of the Court Fee Act and that having not been done, the plaint, being on deficient court fee, is liable to be rejected.
19. My issues-wise findings are as under:-
20. I propose to decide issue Nos. 2 & 3 at first for the reason that these are legal issues and do not require any detailed scrutiny of pleadings of the parties and the evidence led by them.
21. Issue No.2:-Whether the suit is bad for misjoinder or non-
joinder of necessary parties ? OPP
22. The onus of proving this issue was upon the defendant. This issue appears to have been framed on the basis of preliminary objection No.4 raised by the defendant in his written statement. However, the defendant has neither mentioned in the written statement nor in his evidence as to how the suit is bad for non-joinder/misjoinder of the parties. It has nowhere been explained as to who, other than the defendant, was a necessary or proper party to the suit. Even no submissions were made by the ld. Counsel for the defendant on this issue. I too am unable to discern the wisdom of the Page 9 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra defendant in raising this kind of preliminary objection in the written statement.
23. Hence, this issue is decided against the defendant and in favour of plaintiffs as there does not appear to be any lacunae or infirmity in the frame of the suit in this regard.
24. Issue No.3 Whether the suit is properly valued for the purpose of court fees and jurisdiction? OPD
25. The onus of proving this issue also was upon the defendant. It was argued by ld. Counsel for the defendant that the plaintiff was required to value the suit as per the value of the agreement to sell executed between the parties and pay advalorem court fee on the same as per Sec. 7 (iv) (c) of the Court Fees Act. I feel unable to agree to the submissions of the ld. Counsel. The plaintiff, in this suit has not claimed any relief regarding the agreement to sell executed between the parties. He has only sought a declaration to the effect that deeds dated 20.09.2010 of cancellation of GPA and Will dated 04.07.2005 executed by the defendant in favour of plaintiff be declared null and void. The plaintiffs have not sought any consequential relief alongwith the prayer for declaration. It is admitted case of both the parties that the plaintiffs are in possession of the entire suit property. Therefore, no defect can be found in the suit for simplicitor declaration filed by the plaintiffs and hence they were required to pay only fixed court fee on the plaint in terms of Article 17 (iii) of Schedule II of the Court Fee Act.
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26. This issue also is decided in favour of the plaintiffs and against the defendant.
27. Now the issue No.1:-Whether the plaintiffs are entitled to a decree of declaration as prayed ? OPP
28. The onus of proving this issue has been placed upon the plaintiffs.
29. The case of the plaintiffs is that the defendant has sold the suit property to them vide registered Agreement to Sell, registered GPA, registered Will and Special Power of Attorney all dated 4.7.2005 for a total sale consideration of Rs. 8 lakhs which stands paid to him. According to them, no other agreement to sell or any other document was executed between the parties.
30. The defendant's contention is that he had agreed to sell the suit property to the plaintiffs vide agreement to sell dated 29.4.2005 for a total sale consideration of Rs. 1,47,00,000/- (Rs. One Crore Forty Seven lakhs only) out of which the plaintiffs have paid to him only Rs. 55 Lakhs as earnest money at the time of the execution of the said Agreement to Sell and the balance sale consideration of Rs. 92 Lakhs has still not been paid by them. His further case is that he was pressurised by the plaintiffs to sign the Agreement to Sell dated 4.7.2005.
31. The plaintiff No.1, appearing as PW1 has reiterated the contents of the plaint in his affidavit in the nature of Page 11 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra examination in chief Ex. P1. He also proved the registered Agreement to Sell dated 4.7.2005 as Ex. PW1/1, registered General Power of Attorney dated 4.7.2005 as Ex. PW1/2 and registered Will dated 4.7.2005 as Ex. PW1/3. Be it noted here at the cost of repetition that the defendant admits execution of these documents in favour of the plaintiffs. His only stand is that he had been pressurised by the plaintiffs to sign the same.
32. In the cross examination of PW1, he was shown a copy of Agreement to Sell dated 29.04.2005 put forward by the defendant but he denied his signatures and that of his wife upon the same. He also denied that he had paid Rs. 55 Lakhs to the defendant as earnest money for the suit property or that he had agreed to purchase the suit property for a total sum of Rs. 1,47,00,000/- (Rs. One Crore Forty Seven lakhs only).
33. The defendant, appearing as DW1 has reiterated the contents of his written statement in his affidavit in the nature of examination in chief Ex. DW1/A. He proved the copy of the Agreement of Sell dated 29.4.2005 as Ex. DW1/1, Copy of the Deed of Cancellation of GPA as Ex. DW1/2, copy of the Deed of Cancellation of the Will Ex. DW1/3 and copy of the legal notice dated 9.2.2010 got sent by him to the plaintiffs as Ex. DW1/4. It would be apposite to reproduce here the following portion of his cross examination :-
"It is correct that I had executed an agreement to sell regarding the suit property in favour of plaintiffs in the year 2005. I have seen the agreement to sell Ex.PW1/1 Page 12 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra and General Power of Attorney Ex.PW1/2 from the court record. It is correct that I had executed these two documents in favour of plaintiffs and the same bears my signatures as well as my photograph. It is correct that my wife Smt Neelam Kalra has stood witness to these two documents. It is correct that the plaintiffs have paid me Rs.8 lacs pursuant to aforesaid agreement to sell. It is correct that the amount of sale consideration mentioned in the aforesaid agreement to sell is Rs.8 lacs. (volunteered. In fact the total sale consideration was Rs.1.47 crores and it is at the request of the plaintiffs that the sale consideration was mentioned only as Rs.8 lacs in the agreement to sell)."
34. He further deposed that the plaintiffs had requested him orally to mention the sale consideration of Rs. 8 lacs only in the agreement to sell Ex. PW1/1 and he believed them as he had family relations with them. He admitted that the agreement Ex. PW1/1 was executed after the mutual understanding between him and the plaintiffs. He has not lodged any complaint with the police against the plaintiffs. He also stated that he has not filed any suit against the plaintiffs claiming the balance sale consideration of Rs. 92 Lakhs.
35. Upon scrutiny of the evidence on record led by the parties, it is very difficult to believe that the agreement to sell dated 29.4.2005 Ex. DW1/1 had been executed between the parties. This is firstly for the reason that it is only a copy of the agreement, though it bears various signatures upon it in original.
Page 13 of 20CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra The original agreement has not been produced by the defendant. He has deposed in his cross examination and its original is with the plaintiffs. However, he neither served any notice upon the plaintiffs during the proceedings of this suit u/o 12 rule 8 CPC calling upon them to produce the original of the said agreement nor did he file any application in this regard before this court. Since the procedure prescribed under law for tendering the secondary copy of a document in evidence has not been followed by the defendant, the document Ex. DW1/1 cannot be read in evidence. Secondly, this document is neither typed on a stamp paper on requisite value nor is registered. This fact also makes it inadmissible in evidence.
36. Further there is no cogent and reliable evidence on record to suggest that it bears the signatures of the two plaintiffs as buyers. PW1 has denied in his cross examination that this document bears his signatures or that of his wife (plaintiff No.2). DW3 has identified only his signatures on the said documents as he claims to have signed the same as a witness. He has not identified the signatures of either of the plaintiffs on the same. He also could not say as to at how many places did the plaintiffs sign the same. According to defendant himself, it bears the signatures of plaintiff No.1 Navtej Singh only on its last page at point A, though it bears his (defendant's) signatures on each page. There is no explanation from the side of the defendant as to why the signatures of plaintiff No.1 was no taken on each page of the said document. The fact remains that it cannot be said with certainty from the evidence of defendant that the said agreement Ex. DW1/1 bears the Page 14 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra signatures of the plaintiffs or that any such agreement was executed between the parties. The defendant claims to have received a sum of Rs. 55 lakhs from the plaintiffs as earnest money at the time of agreement to sell Ex. DW1/1 but has nowhere given the details of this payment as to whether it was by way of cheques or by cash and in whose presence was this payment made by the plaintiffs to him. Even DW3 has deposed that no money was paid by plaintiffs to defendant in his presence. The sum of Rs. 55 lakhs, is not a small amount of money. Had the defendant received this sum from the plaintiffs, he would have come forward with all its details and also the details of what he did to this huge amount of money.
37. Even if it is assumed for the sake of argument that the parties had entered into this kind of an agreement dated 29.4.2005 (Ex. DW1/1), still it came to an end by the execution of a fresh agreement to sell between the parties dated 4.7.2005 Ex. PW1/1. It cannot be gainsaid that the parties to a property deal are free to execute any number of agreements between themselves and it is always the latest one which become final and binds the parties. Therefore, in the instant case, the agreement to sell dated 29.4.2005 Ex. DW1/1 got replaced by a fresh agreement to sell dated 4.7.2005 Ex. PW1/1. The possession of the suit property (actual as well as symbolic) was handed over by the defendant to the plaintiffs vide this agreement to sell Ex. PW1/1 as this fact is mentioned in clause 2 of the same. It was vehemently argued on behalf of the defendant that the agreement to sell, GPA and Will dated 4.7.2005 were got signed from him by exerting pressure upon Page 15 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra him. However, it does not appear to be so. As already noted herein above, the defendant has admitted in his cross examination that the agreement Ex. PW1/1 was executed between him and the plaintiffs after mutual understanding between them. In deed of cancellation of GPA Ex. DW1/2 also, the defendant does not mention any specific reason for the cancellation of the GPA dated 4.7.2005, (Ex. PW1/2). He has simply mentioned therein that he is no more interested to keep the plaintiffs as his general attorneys. Similarly, no specific reason for cancellation of Will (Ex. PW1/3) has been mentioned by the defendant in the deed of cancellation of Will Ex. DW1/3. Further the defendant has nowhere explained as to what kind of pressure was exerted upon him by the plaintiffs in getting the documents Ex. PW1/1, Ex. PW1/2 and Ex. PW1/3 signed from him, in what form such pressure was exerted and exactly by whom. These details are conspicuously absent in the written statement as well as in the deposition of the defendant. It may also be noted here that defendant's wife Mrs. Neelam Kalra has signed these three documents as witness No.2. It has nowhere been mentioned by the defendant either in his pleadings or in his deposition that any pressure was exerted upon his wife also in getting these documents signed by her as a witness.
38. The conclusion which can be drawn from the pleadings of the parties and evidence led by them, as discussed herein above, is that the defendant had voluntarily and without any force, pressure or fraud, executed the agreement to sell dated 4.7.2005 Ex. PW1/1, General Power of Attorney dated 4.7.2005 Ex. PW1/2 and the Will dated 4.7.2005 Ex. PW1/3 in Page 16 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra favour of plaintiffs, thereby selling the suit property to them for a total sale consideration of Rs. 8 lakhs. It is pertinent to note here that all these documents are duly registered in the Office of concerned Sub-Registrar. The defendant appears to have not told the concerned Sub-Registrar also that he had signed these documents under pressure.
39. It has also come in the cross examination of defendant that he did not file any criminal complaint against the plaintiffs in this regard. He has executed the deeds of cancellation of GPA and Will Ex. DW1/2 and Ex. DW1/3 on 20.09.2010 i.e. after lapse of more than five years of the execution of the documents Ex. PW1/1, Ex. PW1/2 and Ex. PW1/3. The eerie and stoic silence maintained by the defendant for more than five years speaks volumes about his conduct. In case he had not signed the documents Ex. PW1/1, Ex. PW1/2 and Ex. PW1/3 voluntarily, he would not have remained at peace for more than five years without filing any criminal complaint or any civil suit against the plaintiffs.
40. Once the sale of the suit property in favour of plaintiffs was completed upon execution of the agreement to sell Ex. PW1/1, GPA Ex. PW1/2 and Will Ex. PW1/3, the defendant left with no right, title or interest in the suit property.
41. It is mentioned in Clause (II) of the agreement to sell Ex. PW1/1 that the defendant has delivered the symbolic possession of the portion of the suit property which was occupied by the tenants and the actual physical possession of Page 17 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra the remaining portion to the plaintiffs vide the said agreement. Clause (VI) of the same mentions that the defendant has not been left with any right, title or interest in the suit property and the plaintiff had become the sole and absolute owner of the same. It is mentioned in clause 18 of the said agreement to sell Ex. PW1/1 as well as in the General Power of Attorney Ex. PW1/2 that this GPA is irrevocable as the same had been executed in lieu of valuable consideration received by the defendant from the plaintiffs. The defendant has also undertaken not to cancel or revoke the same.
42. Hence the defendant had no right or authority to cancel the GPA Ex. PW1/2 and Will Ex. PW1/3 vide documents Ex. DW1/2 and Ex. DW1/3 in the year 2010.
43. The argument of the dl. Counsel for the defendant that the plaintiffs had not become the owner of the suit property merely on the basis of the agreement to sell Ex. PW1/1 even if they have paid the entire sale consideration has been noted only to be rejected. It is for the reason that even though the agreement to sell, in itself, does not create any interest in the property mentioned therein yet when it is accompanied by an irrevocable GPA, payment of entire sale consideration, handing over of possession of the property in question to the buyer, Will etc. an 'interest' in the suit property in favour of the buyer within the meaning of Sec. 202 of the Contract Act is created. All these documents have to be read and interpreted together as if they are one documents.
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44. Hence in the instant case also, the true nature of the transaction between the parties was to transfer the suit property in favour of plaintiffs. There is no clause in any of the documents Ex. PW1/1, Ex, PW1/2 and Ex. PW1/3 which authorised the defendant to cancel these documents. Rather the defendant had undertaken not to cancel or revoke the GPA Ex. PW1/2. It is evident that defendant had executed the GPA Ex. PW1/2 in favour of plaintiffs for valuable consideration and therefore, he had no right to terminate the same. The law laid down by the High Court in Hardeep Kaur's case Supra is fully applicable to this case.
45. It was also argued by the ld. Counsel for the defendant that the sale document i.e. agreement to sell Ex. PW1/1 appears to be a sham document for the reason that the suit property which was worth not less than Rs. 1.5 crores could not have been sold to the plaintiffs for a meager sum of Rs. 8 lakhs. No doubt it does appear that the sale consideration of Rs. 8 lakhs is too low for the suit property having regards to its nature, extent and location. However, inadequacy of sale consideration is no ground to anul the sale transaction. Once the parties to a deal have agreed upon a particular amount as the sale consideration of the property in question and finalize the sale by executing the necessary documents, the seller cannot turn around later on and say that the sale is void on account of the fact that the sale consideration agreed between them was too low. It is a general practice to show the sale consideration in the sale documents very low in order to evade payment of higher stamp duty. The actual sale consideration is seldom Page 19 of 20 CS No.63/14 (15635/16) S. Navtej Singh Khurana & anr. vs. Pratap Rai Kalra shown in the Agreements to Sell or the Sale Deed, which later on creates problems for the parties. The High Court also has, in Babita's case (Supra), lamented:-
"Unfortunately, transactions in this country have an undisclosed element in the same and many of the problems arise because of this undisclosed element."
46. The defendant, therefore, had no right to cancel the GPA Ex. PW1/2 and Will Ex. PW1/3 vide the deeds of cancellation Ex. DW1/2 and Ex. DW1/3. These two deeds of cancellation cannot be allowed to stand and therefore, these are liable to be declared null and void. This issue is thus decided in favour of plaintiffs and against the defendant.
47. Issue No.4 Relief:-
In view of the discussion on issue Nos. 1, 2 and 3herein above, a decree of declaration is hereby passed in favour of plaintiffs thereby declaring the deeds of cancellation of GPA dated 20.09.2010 (Ex. DW1/2) and deed of cancellation of Will dated 20.09.2010 (Ex. DW1/3) as null and void.
48. Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in open Court (VIRENDER BHAT) on 23rd of Dec.2016. ADDL. DISTRICT JUDGE-04 DWARKA COURTS: NEW DELHI.
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