Delhi District Court
Smt. Shehnaz Sharma vs Dr. Pritam Dhir on 28 January, 2011
IN THE COURT OF MS. NEHA PALIWAL, DELHI CENTRAL-06
TIS HAZARI COURTS, DELHI
SUIT NO. 43/10/84
In the matter of:
1. Smt. Shehnaz Sharma,
w/o Sh. Manmohan Sharma,
R/o 10731, Fundy Drive,
Richmond (BC), Vancouver,
Canada
presently residing at
Flat no. 8, Pocket 'B',
SFS, Sheikh Sarai (Phase I),
New Delhi- 110017.
2. Sh. Sunil Rai,
s/o Smt. Mohini Rai and Air Cmdr Kulwant Rai,
Flat no. 8, Pocket 'B',
SFS, Sheikh Sarai (Phase I),
New Delhi- 110017. ........ Plaintiffs
Versus
1. Dr. Pritam Dhir
s/o Late Sh. R.D. Dhir
R/o 15-Broad Walk,
South Woodford, London E-18
UK
2. Smt. Sulochna Malhotra
w/o Late Sh. Ram Kumar Malhotra
R/o 749A, Sector 7-B,
Chandigarh-160019. .........Defendants
Date of institution of the suit : 29.05.1984
Suit no. 43/10/1984
Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 1 of 24
Date of reserving judgment/ order : 22.01.2011
Date of pronouncement : 28.01.2011
JUDGMENT
This is a suit for declaration and injunction filed by the plaintiffs against the defendants.
Briefly the case of the plaintiff is as under:-
Late Sh. R.D. Dhir was the father of defendant no. 1, defendant no. 2 and Smt. Mohini Rai (who was the mother of the plaintiffs). Sh. R.D. Dhir expired on 24.06.1983 without leaving behind any will so far as the property in the plaint is concerned. The property bearing no. 507, Bajaj House, 97, Nehru Place, New Delhi - 110019 hereinafter known as the suit property was purchased by Late Sh. R.D. Dhir from M/s Bajaj Industrial Finance Ltd., Bajaj House, 97, Nehru Place, New Delhi-110019 and the entire payment of the flat was made by Late Sh. R.D. Dhir out of his own funds and on the date of filing of the plaint the flat was in the name of Late Sh. R.D. Dhir. It is further the case that Late Sh. R.D. Dhir deposited all the rental incomes which accrued from the suit property in account no. 5839 in Punjab National Bank, South Extension, Part-I, New Delhi-110049 and the account was operated exclusively by him and he controlled and enjoyed the said suit property as an exclusive owner in his life time. After his death as there was no will with respect to the suit property the flat is to be inherited in equal shares by operation of law by his three children who are his only legal heirs, as wife of Late Sh. R.D. Dhir had already predeceased him.
Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 2 of 24 Therefore, it is the case of the plaintiff that after the death of Sh. R.D. Dhir both the defendants and Smt. Mohini Rai (mother of the plaintiffs) jointly became the owners of the said property and therefore, also became entitled to receive the rent of the said flat from the tenant in equal shares.
It is further submitted by the plaintiff that Smt. Mohini Rai (mother of the plaintiffs) also expired on 14.04.1984 leaving behind her two children viz. Smt. Shehnaz Sharma and Sh. Sunil Rai as her legal heirs and therefore, the plaintiffs are jointly entitled to inherit the one third share of their mother in the above said suit property as the ancestral property, which stands in the name of their grand father Late Sh. R.D. Dhir and therefore, the plaintiffs are also entitled to jointly receive their mother's one third Share in the rental income accruing out of the suit property. It is submitted by the plaintiffs that on the date of death of Late Sh. R.D. Dhir an amount of Rs. 44,355/- approximately was at the credit of Late Sh. R.D. Dhir in account no. 5839 of Punjab National Bank, South Extension Part 1, New Delhi - 110049 and this was an accumulated rental income of the above said flat. Thereafter this amount was withdrawn by defendant no. 2 and she has not given the one third share of Smt. Mohini Rai and defendant no. 1 to them respectively.
It is submitted by the plaintiffs that after the death of Late Sh. R.D. Dhir, defendant no. 1 executed an agreement deed dated 11.07.1983 with Smt. Mohini Rai whereby she agreed to share the ownership of the said flat with defendant no. 2 and Smt. Mohini Rai in equal share and also to share with them the accumulated rent Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 3 of 24 amounting to Rs. 44,355/- held in credit of Late Sh. R.D. Dhir in the above said account and also to share the monthly rent amounting to Rs. 4,660/- being received by her from the tenant M/s Hindustan Computers Ltd., 508, Siddhartha, 96, Nehru Place, New Delhi-110019. It is further their case that the defendant no. 2 also executed an affidavit on 30.08.1983 wherein, besides other things, she has stated that all of them will inherit in equal shares the subject flat. Subsequently, she has refused to comply with the agreement deed and her affidavit and is also receiving rent from the tenants at the rate of Rs. 4,660/- per month ever since the death of Late Sh. R.D. Dhir, without sharing the same.
However, after the death of Smt. Mohini Rai, Defendant no. 2 also executed an agreement with the plaintiffs on 17.04.1984 assuring the plaintiffs that one third share of their mother in the suit property will be passed to them as ancestral property and defendant no. 2 also gave a solemn undertaking to give to the plaintiffs their one third share out of the accumulated amount of Rs. 44,355/- which was withdrawn by her as well as the monthly rent of Rs. 4,660/- being received by her from the tenants.
It is the case of the plaintiff that the defendant no. 2 has started claiming herself to be the exclusive owner of the suit property and has refused to accede to the title of the plaintiffs and defendant no. 1 who are having one third share in the said suit property and therefore, they have filed this present suit.
It is further submitted that defendant no. 2 has also threatened the plaintiffs that she will dispose off / transfer the property in favour of the intending purchasers and Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 4 of 24 thus has threatened to execute the sale deed and other documents creating a charge on the said suit property. However, as she has no right to sell, transfer, mortgage or create any charge over the property as the property is jointly owned, the plaintiffs have also filed this suit to restrain defendant no. 2 from creating any charge on the suit property.
Thus the present suit for declaration and permanent injunction is filed by the plaintiffs. Defendant no. 1 is made a party as he is also the legal heir of Late Sh. R.D. Dhir and thus is a necessary party.
Thus the plaintiffs have filed this present suit seeking the relief of declaration against the defendants to the effect that plaintiffs are jointly the owners of one third share of the said suit property, having one third share therein being the grand daughter and grand son and the legal heirs of Late Sh. R.D. Dhir and therefore, have further prayed that decree of permanent injunction be also passed in their favour restraining the defendants from selling, alienating or otherwise transferring or creating any charge on the suit property to anybody else without the consent and written permission of the plaintiffs.
Defendant no. 1 was proceeded ex-parte vide order dated 09.04.1985. Written Statement was filed by defendant no. 2 on 03.09.1984 wherein defendant no. 2 has taken the preliminary objections that the suit is not valued properly for the purpose of court fees and jurisdiction and further this court has no pecuniary jurisdiction to entertain it. It was further submitted that the suit is barred under section 34 of the Specific Relief Act. On merits it was submitted by defendant no. 2 that the suit Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 5 of 24 property was purchased by her from money received from her father Late Sh. R.D. Dhir partly in the form of gift and partly in the form of loan and the defendant categorically denied that Late Sh. R.D. Dhir was the owner of the suit property or that he purchased the suit property. It was further denied that the property stands or ever stood in the name of Late Sh. R.D. Dhir. It was submitted that defendant no. 2 is the sole, absolute and exclusive owner of the suit property however, it is submitted that the suit property was purchased by the defendant through her father and her father also managed and looked after the property during his lifetime as she has authorized her father to do so, because she being a resident of Chandigarh was not in a position to personally supervise the property.
Defendant no. 2 has further denied that Account no 5839 was opened only for the purpose of depositing rental income of the suit property and that the same was operated and controlled exclusively by Late Sh. R.D. Dhir. In fact she has submitted that she alongwith her father opened joint bank account bearing no. 5839 in the Punjab National Bank, South Extension, Delhi for her convenience and to facilitate the management of the suit property. Further more it is submitted that since her father Late Sh. R.D. Dhir has no right, title or interest of any kind in the suit property he could not have left behind any will w.r.t. the suit property. Further as a duly registered will dated 12.10.1982 bequeathing all his movable and immovable property was left behind by late Sh. R.D. Dhir which contained a detailed description of all his properties and as to how he acquired them and the manner in which he has bequeathed them and as that will Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 6 of 24 contained no description of the suit property, it can be said that Late Sh. R.D. Dhir had no right, title, or interest in the suit property. And as her father had no right in the property and as the answering defendant is a sole and exclusive owner of the property, therefore, plaintiffs and defendant no. 1 are not entitled to any share in the suit property and are not its joint owners and further as they are not the joint owners they are also not entitled to receive any share of the rent w.r.t. the suit premises. Thus it is submitted that as defendant no. 2 is a sole and exclusive owner she is the only person entitled to receive rent from the property. Further, the amount lying in the bank account no. 5839 was not at the credit of her father but was virtually to her credit as the same pertained to the rental income from the suit property which fact is also admitted by the plaintiffs in their plaint. As the account was in the joint name and as the amount pertained to the suit property she was well entitled to draw that amount from the bank and plaintiffs or defendant no.1 has no right whatsoever therein. It is further denied by the defendant that she ever executed any agreement dated 11.07.1983 or any other agreement or affidavit dated 30.08.1983 and any such agreement or affidavit shown by the plaintiffs is false and fabricated. She has further stated that if all of them were joint owners there was no question of her entering into any agreement with the plaintiffs or their mother or of her giving any affidavit and therefore, it shows that the agreement, if any, or the affidavit is false and fabricated. It is specifically alleged that plaintiffs in collusion with their father Sh. Kulwant Rai have procured her signatures on several blank sheets which were obtained on the pretext mentioned in his letter dated 11.08.1983 and those signed blank Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 7 of 24 sheets are misused by fabricating and forging the agreement and the affidavit alongwith the other documents. It is further submitted that one of the blank sheet was misused by fraudulently addressing letter dated 26.08.1983 to her tenants, who when vide their letter dated 05.09.1983 sought confirmation from the answering defendant, only then it first came to her notice that Sh. Kulwant Rai, along with the plaintiffs, is misusing the said signed papers and thereafter she instructed her tenants not to act upon the said letter and also served upon Sh. Kulwant Rai legal notice dated 27.04.1984 calling upon him to returned the blank sheets duly signed by her which were in his possession and further not to misuse them. She also got published general notice in newspaper Tribune dated 02.05.1984 for the information of the public at large. Thus she has emphatically denied that any share or portion of the suit property is ancestral property of the plaintiffs and has submitted that she is the sole and exclusive owner thereof. Thus she has denied the title of Late Sh. Mohini Rai, mother of the plaintiffs in the suit property and has denied that any share or portion of the suit property is ancestral property of the plaintiffs and has also specifically denied that plaintiffs are entitled to receive any share in the monthly rental income of the suit property and has submitted that she is sole and absolute owner of the suit property as she has purchased the same from loan amount and the amount received by her by way of gift. She has also denied that she has threatened the plaintiff or any body else to dispose off or transfer the suit property in favour of any intended purchaser. She has however submitted that she is the sole and absolute owner of the suit property and no embargo can be placed by the plaintiff upon Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 8 of 24 her rights to deal with the property in any manner therefore she has prayed that the suit of the plaintiff be dismissed with cost along with special compensatory cost under the provision of Section 35A as the suit is based on fabricated, manipulated and forged documents prepared on fraudulently procured blank sheets.
Replication was filed on behalf of the plaintiff to the written statement of the defendant no. 2 whereby they have denied the averments of the defendant and has said that the suit is not under valued. Plaintiffs have denied all the averments made by the defendant no. 2 in written statement and reiterated the facts of the plaint and have submitted that defendant no. 2 has suppressed the facts about the purchase of the property as the installments were paid by Sh. R.D. Dhir by his own funds . Later on the suit property was transferred in the name of Sh. R.D. Dhir because he was the owner of the property and the money was paid by him. They have even submitted that defendant no. 2 has made statement before M/s Bajaj Industrial Finance Limited and therefore the suit property in existence is in the name of Sh. R.D. Dhir. The plaintiff has further denied the registered will dated 12.10.1982 left by Late Sh. R.D. Dhir and have stated that the said will is forged and fabricated document and have also stated that the documents i.e. the agreement deed, affidavits etc are all genuine documents and have submitted that there were never any signatures of defendant no. 2 obtained on any blank sheets whatsoever and therefore they have prayed that the suit of the plaintiff be dismissed.
Issues were framed in this matter on 18.07.1989 which read as under:-
1. Whether the suit is properly valued for the purposes of the court fees and Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 9 of 24 jurisdiction?
2. Whether this court has no pecuniary jurisdiction to try the suit?
3. Whether the suit is barred under the provisions of section 34 of Specific Relief Act?
4. Whether the plaintiff has no locus standi to file the present suit?
5. Whether the plaintiff is entitled to the relief of injunction and declaration?
6. Relief.
Plaintiff in support of his case has examined the following witnesses:-
1. PW-1 Sh. R.C. Sharma, who was the witness to agreement dated 11.07.1983.
2. PW-2 Sh. R.K. Gupta, who was the witness to the agreement dated 17.04.1984.
3. PW-3 Air Commander Kulwant Rai, who is the special power of attorney holder of both the plaintiffs.
4. PW-4 Sh. Sunil Rai, one of the plaintiffs in person.
Defendant in support of this case has examined:-
1. Sh. Ishwant Singh, Sr. Draftsmen from the office of Daily Tribune as DW-1.
2. Sh. Chanan Lal, Zonal Inspector from the office of MCD, Special Assessment Unit as DW-2.
3. Sh. Vinay Gupta, Advocate as DW-3.
4. Sh. G.S. Mehdiratta, Government approved valuer as DW-4.
5. Sh. D.K. Singh, Executive Legal Officer of HCL as DW-5.
Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 10 of 24
6. Smt. Sulochna Malhotra, Defendant no. 2 as DW-6.
7. Sh. Shiv Om from the Income Tax Office as DW-7.
Issue wise findings in this case are as under:-
Issue no. 1: Whether the suit is properly valued for the purpose of the court fees and jurisdiction?
The onus to prove this issue was placed on the plaintiff. The plaintiff has not produced any particular witness in support of his claim however during the course of arguments as relied upon the judgment of the Hon'ble High Court of Delhi in Prem Nath vs Inder Raj Wadhawan 1993 RLR (Note) 50 wherein it was held as under:-
"It was held that in a simple suit for declaration in which plaintiff claims himself to be in possession of the property and the same is not disputed and plaintiff claims no further consequential relief, the plaintiff is at liberty to value his suit at any value and in such a case he is required to pay only the Fixed Court Fees".
Besides this in his plaint and replication also it is averred by the plaintiff that they are claiming the relief of declaration and injunction for which a fixed court fees is paid by them.
Defendant to controvert the claim of the plaintiff has relied upon the fact that the property is not in possession of the plaintiff herein and is in the possession of the tenant which is the tenant of the defendant and therefore by no stretch of imagination it can be held that the plaintiff is in the possession of the suit property. It is submitted by the defendant that a simplicitor suit of declaration does not lie as the property is in the Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 11 of 24 possession of the defendant and the plaintiff has to claim possession in respect of 1/3rd share as well.
I have heard the parties. From the perusal of the plaint it is clear that the plaintiff has sought only two reliefs from this court i.e. the relief of declaration and relief of injunction and has paid fixed court fees w.r.t. these two issues. Thus it can be said that as far as the reliefs which are claimed in the plaint, court fees has been paid by the plaintiff.
It is a well settled law that court cannot compel the plaintiff to claim a relief or deem a relief to have been claimed, and demand ad-valoreum court fees. It is for the plaintiff to decide whether he would claim any further relief or face the possibility of the suit being dismissed under the provisions of section 34. Every litigant is entitled to frame his pleadings so as to pay minimum of fees if that is legally possible and law courts are not tax collectors.
In view of this law it is held that it was open to the plaintiff to claim any relief as the plaintiff desires however, if the plaintiff has chosen to claim only a part of relief and section 34 applies still it cannot be said that the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction.
In the present case only two reliefs are claimed by the plaintiff and the plaintiff has paid court fees with respect to those two reliefs and therefore it can be said that the suit is properly valued for the purpose of the court fees and jurisdiction.
This issue is therefore decided in favour of the plaintiff and against the defendant.
Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 12 of 24 Issue no. 2: Whether this court has no pecuniary jurisdiction to try the suit?
The onus to prove this issue is on the defendant as it is alleged by the defendant that this court has no pecuniary jurisdiction to try this suit. The defendant has examined as DW-4 Sh. G.S. Mehindiratta as the government approved valuer in the present case. DW-4 in his report which is Ex. DW-4/1 has valued the suit property as Rs. 3,42,000/- in the year 1983 and has stated that he has assessed the value on the basis of Income Capitalization method. In his cross examination nothing has came out to assail the credibility of the witness and it is submitted by the witness that he has assessed the value of the property as per its rental value and has visited the premises and thereafter has valued the said property. Going by the deposition of the witness though it can be held that the valuation of the suit property at the time of the institution of this suit was above Rs. 3,00,000/- however as the only relief which is sought by the plaintiff in their plaint is the relief of declaration and injunction for which only a fixed court fees has to be paid and not an ad-valorium court fees, therefore it cannot be held that this court had no pecuniary jurisdiction to entertain the present suit.
In view of the observations made this issue is decided in favour of the plaintiff and against the defendant.
Issue no. 3:- Whether the suit is barred under the provisions of section 34 of Specific Relief Act?
The onus to prove this issue would be on the defendant as it was alleged by the defendant that the suit is barred under the provisions of section 34 of Specific Relief Act.
Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 13 of 24 Section 34 of the Specific Relief Act reads as under:
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief".
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
It is argued by the defendant that the plaintiff is not in possession of the suit property and therefore they cannot claim the relief of declaration simplicitor and have to also seek a relief of possession.
In order to show the factum of possession the defendant has examined Sh. D.K. Singh, Executive Legal Officer of HCL as DW-5, who has stated in his examination in chief that the documents required by the defendant are not available in the office as a fire broke out in the office of the defendant however he admitted that his company has been paying rent to the defendant no. 2 and is not paying any rent to any other person. He has also admitted that the company has paid rent to defendant no. 2 uptill July-1996. In his cross examination it is submitted by him that he became the employee of the company after the fire broke out and only the lease deed was preserved as the lease deed was not with the other documents but was kept in the current file as the lease deed was an important document.
It is admitted by the plaintiff in his plaint and replication that HCL was the tenant of Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 14 of 24 the suit premises and thus the possession of the HCL in this suit premises at the time of the institution of the suit is not disputed and it is admitted by HCL themselves that they were paying rent exclusively to defendant no. 2.
DW-6 in her examination in chief has exhibited the lease agreement between the parties as DW-6/18. The said lease agreement contains the signatures of the special power of attorney holder of the plaintiff as the witness and this fact was admitted by Sh. Kulwant Rai, Power of Attorney holder who examined himself as PW-3 in the present matter. In his cross examination PW-3 has also admitted that the suit property is in possession of HCL and HCL is a tenant in the suit property. He has also admitted that this document was executed by defendant no. 2 and by another officer of HCL in his presence. In view of these admissions and the deposition PW-3 who is special power of attorney holder of the plaintiff it can be said that there is an admission on part of the plaintiff that the property was in possession of HCL and HCL was a lessee in respect of the property whose landlord ship was with defendant no. 2. Thus it can be said that the possession of the suit property was constructively held by defendant no. 2 and not by the plaintiffs.
Ld. Counsel for the defendant has placed reliance upon the following judgments of Hon'ble Supreme Court of India : (1993) 2 SCC 199 (213) and AIR 1975 Supreme Court 1810 wherein it was held that the relief of declaration is a discretionary relief and plaintiff cannot claim the relief as of right and it was also held that a complete stranger whose interest is not affected by another's legal character or who has no interest in Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 15 of 24 another's property could not get a declaration under section 34.
The Ld. Counsel by placing reliance on these judgments have stated that the plaintiff is a complete stranger to the suit property and therefore cannot claim a relief of declaration w.r.t. the property in question.
It is argued by the Ld. Counsel of the plaintiff in return that the property was owned by the father of the defendant no. 2 and plaintiffs being the legal heirs of the father of the defendant no. 2 are entitled to claim declaration w.r.t. the suit property.
In view of the relationship admitted by the parties between themselves it can be held that the plaintiffs are not complete strangers in respect of the suit property and therefore they could have brought the suit for declaration however, whether the suit of declaration alongwith injunction is simplicitor maintainable is a question to be decided upon.
In the present case in hand it has been proved by the documents produced by the defendant and by the admission of PW-3 who is the attorney holder of the plaintiff that tenants were in possession of the suit property and the tenants were inducted as tenants vide lease deed which was executed by defendant no. 2. Thus it is proved that at the time of institution of this suit as the tenants were paying rent exclusively to defendant no. 2 the property in dispute was in the possession of defendant no. 2.
In the present case in hand the proviso to section 34 applies which states that the declaration shall not be granted where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so. As it is proved in this case that the plaintiffs Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 16 of 24 were not in possession of the suit property besides seeking a relief of declaration they must have sought the relief of possession as well.
It is a well settled law that the relief which necessarily flows from the relief of declaration and is appropriate to and necessarily consequent to the right or claim asserted should be sought by the plaintiff. The proviso to Section 34 was enacted to avoid multiplicity of proceedings and is based on the principle that the plaintiff must seek the relief where it is such as he can ask for and he need ask for. The proviso is also stated to aim at protecting the revenue from having the suit brought without paying ad- voloreum court fees.
In the present case the plaintiff has sought a relief of declaration along with the relief of injunction which would if granted would result in getting declared a legal title in the property disputed and would injunct the defendants from dealing with the same, however reading the plaint along with the documents makes it categorically clear that the plaintiffs wanted to get the property transfered in their name and therefore they have brought this suit. As the property is in possession of defendant no. 2 the plaintiffs must have sought the consequential relief of possession as it was a relief appropriate to and necessary consequent of the rights sought to be ascertained. The expression "further relief" as contained in the proviso to section 34 means that relief which would complete the claim of the plaintiff and would not lead to multiplicity of suits and it is a relief which the plaintiff will have to seek by means of some subsequent suit in order to make the declaratory suit fruitful.
Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 17 of 24 In the present case merely seeking declaration would not in any manner help the plaintiff if the plaintiff would not also seek a relief of possession.
As the relief of possession is not claimed by the plaintiffs and it is a consequential relief it can be said that the suit of the plaintiff is hit by proviso to section 34.
In view of the above observations it is held that the suit of the plaintiff is barred under the provisions of section 34 of Specific Relief Act. Thus this issue is decided in favour of the defendant and against the plaintiff.
Issue no. 5: Whether the plaintiff is entitled to the relief of injunction and declaration?
The onus to prove this issue was on the plaintiff.
Plaintiff in support of his case has relied upon the agreement dated 11.07.1983 Ex. PW1/1, a family agreement dated 27.06.1983 Ex. PW3/4 and agreement dated 17.04.1984 Ex. PW-3/6. These agreements relied upon by the plaintiff are notorised agreements and are not registered and they tend to create an interest in the immovable property. As per Section 49 of the Indian Registration Act if a document is required to be registered under section 17 and it is not registered than such document cannot be received as evidence of any transaction affecting such property or the document would also not affect any immovable property comprised therein. As per section 17 of the Indian Registeration Act as these agreements tend to create or declare interest in immovable property they are required to be registered.
Even if one constitutes these agreements as family arrangements yet agreement Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 18 of 24 exhibited PW-3/4 dated 27.06.1983 cannot be said to be proved as it is signed by Smt. Sulochna Malhotra and Smt. Mohini Rai. Smt. Sulochna Malhtora has denied the contents of the agreement and Smt. Mohini Rai has expired. None of the parties executing the said documents have proved the document.
Agreement dated 17.04.1984 Ex. PW3/6 is though proved by the witness Sh. R.K. Gupta who is PW-2 in the present matter yet the executant Smt. Sulochna Malhotra, though has admitted her signatures yet has denied the contents as she has submitted that her signatures were taken on blank papers by the Special Power of Attorney holder of the plaintiffs.
Plaintiff no. 2 has examined himself as PW-4 and has submitted that the agreement exhibited as PW-3/4 was written by Ms. Anita Malhotra who was the daughter of defendant no. 2, in his presence however in his cross examination he has admitted that Ex. PW3/4 does not bears his signatures or signatures of Ms. Anita Malhotra. Therefore it cannot be said that he has been able to prove the agreement PW3/4.
The plaintiff has relied upon DW-6/P1 i.e. an affidavit by Smt. Sulochna Malhotra dated 30.08.1983 however Smt. Sulochna Malhotra has denied the contents and has stated that her signatures were obtained fraudulently.
Defendant in turn has relied upon exhibit PW3/D1 i.e. the document written by PW-3 via which PW-3 has asked for blank papers from defendant no. 2. PW-3 in his cross examination has admitted his signatures on the said hand written document and Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 19 of 24 has also admitted that by this document he has asked for blank sheets from defendant no. 2. Though he has submitted that he has not used the documents fraudulently as the said documents were never given as defendant no. 2 volunteered to come to Delhi herself. However, Ex. PW-3/D1 is an admitted document by Power of Attorney holder of the plaintiff and thus as the document is categorically asking defendant no. 2 to send 6 blank sheets and to send it through Sh. Babloo who is PW-4 as PW-4 in his cross examination has admitted that he is known by the name of Babloo, therefore it can be inferred that through Sh. Sunil Rai PW-4, Sh. Kulwant Rai, PW-3 has asked defendant no. 2 to send blank sheets.
It is submitted by defendant no. 2 that blank sheets were procured from her and were utilized fraudulently by PW-3 and PW-4 so as to create fabricated agreements dated 11.07.1983, 17.04.1984 and affidavit and other letters sent by PW-3 to HCL i.e. tenants of defendant no. 2.
The defendant has also examined Sh. Ishwant Singh as DW-1, Senior Draftsman from the Office of Delhi Tribune who has exhibited the newspaper Delhi Tribune dated 02.05.1984. Photocopy of the same Ex. DW1/1 OSR and by this it is affirmed that the public notice was published by defendant no. 2 on 02.05.1984.
Thus it can be held that a chain of circumstantial evidence is shown by the defendant so as to assail the credibility of the agreements and the affidavit relied upon by the plaintiff.
Defendant no. 2 has examined herself as DW-6 and has submitted that she had Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 20 of 24 been paying house tax with respect to the said property. She in support of her case has examined as DW-2 Sh. Chaman Lal, Zonal Inspector from MCD who has submitted that the house tax of the suit property has been assessed in the name of Smt. Sulochna Malhotra from the year 1982 and has exhibited letters Ex. DW2/1 and DW2/2 which were issued by MCD in the name of Smt. Sulochna Malhotra. House Tax receipts in the name of Smt. Sulochna Malhotra are exhibited as DW2/3 to DW2/10. Defendant has examined herself as DW-6 and has exhibited in her examination in chief the receipts issued by M/s Bajaj Industrial Finance Ltd. in her favour as exhibit DW-6/1 to Ex. DW6/14. These receipts are in the name of Smt. Sulochna Malhotra wherein the builder is acknowledging payment of installments from Smt. Sulochna Malhotra. DW-6 has also exhibited as DW6/15 letter of authorization dated 15.11.1973 in favour of her father Late Sh. R.D. Dhir wherein she has identified her signatures and the signatures of her father and has submitted that as per this authorization only her father was maintaining and supervising the suit property. Her testimony has remained unflinched in cross examination. DW-6 has also exhibited as DW-6/17 which is a letter executed by the builder of the suit property in the name of the tenant and wherein it was specified that she has instructed the builders not to act on any document bearing her single signature.
Looking at these chain of documents and the testimony produced by the plaintiff and defendants it can be said that the defendant have been able to prove that the property was prima facie in her name and the house tax receipts were in her name and that the installments were also paid by her and that she has authorized her father to look Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 21 of 24 after the suit property.
Ex. PW3/D1 is also admitted by PW-3 whereby they have asked for blank papers from Defendant no. 2. Though the plaintiff has produced the attesting witnesses to the relied agreements however the said agreements cannot be said to inspire confidence in view of the documents shown by the defendant in her favour.
PW-4 i.e. the Plaintiff no. 2 has admitted in his cross examination that a will was left by his grand father and has admitted that complete details of the property owned by his grand father and also the fact as to how he has acquired the properties was mentioned in the will.
Going by the documents produced and deposition made it can be said that the case of the plaintiff does not inspires confidence as the plaintiff has failed to prove that property was in the name of Late Sh. R.D. Dhir. The plaintiff has not shown any ownership documents in the name of Sh. R.D. Dhir nor had they shown that the bank account was in the name of Sh. R.D. Dhir individually.
The defendant however are able to show the chain of documents showing that house tax receipts are in their favour and property is registered in the MCD in their name and the tenants were paying rent exclusively to them.
The lease deed was entered with the tenants by defendant no. 2 and PW-3 was one of the attesting witness to the said lease deed. They have prima facie succeeded to show that some blank documents were procured by the plaintiffs from the defendant and they have issued the public notice stating that the blank papers should not be misused.
Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 22 of 24 They have also exhibited correspondence between them and their tenants as exhibit DW-6/19 and DW-6/20 wherein defendant no. 2 has categorically made it clear that any document containing her single signature should not be entertained.
Thus the defendant is able to show that installments of the property were paid by her and the property is registered in MCD in her name and that she was the land lord with respect to the property and nothing to controvert the same has been produced by the plaintiff.
The plaintiffs have to stand on their own legs and as the plaintiffs had failed to prove their case even to the extent of preponderance of probabilities and that the property in question is an ancestral property, this issue is decided in the favour of the defendant and against the plaintiff and the plaintiff is not entitled to the relief of declaration.
As no declaration is granted to the plaintiff the relief of injunction being a equitable relief cannot also be granted to the plaintiffs.
Issue no. 4:- Whether the plaintiff has no locus standi to file the present suit?
Going by the findings of issue no. 5 it can be said that the plaintiffs have not been able to show any local standi to file the present suit as they have not been able to prove that the property was ancestral property.
Thus this issue is also decided in favour of the defendant and against the plaintiff.
Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 23 of 24 Issue no. 6:- Relief In view of the findings arrived in the above issues the plaintiff is not entitled to the relief of injunction and declaration and further the suit of the plaintiff is also not maintainable under section 34 of the Specific Relief Act.
Thus the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open court on this 28th day of January, 2011.
(Neha Paliwal) Civil Judge-6 Delhi/28.01.2011 Certified that this judgment contains 24 (twenty four) pages and each page bears my signature.
(Neha Paliwal) Civil Judge-6 Delhi/28.01.2011 Suit no. 43/10/1984 Smt. Shehnaz Sharma & Ors vs. Dr. Pritam Dhir & Ors Page 24 of 24