Delhi District Court
Mst. Razia Ansar vs Mst. Bakhtiawar Jahan on 12 April, 2018
In The Court of Charu Aggarwal
Additional District Judge03 (West)
Tis Hazari Courts, Delhi.
Suit No. 610520/2016
In the matter of :
Mst. Razia Ansar
W/o Dr. S. M. Ansar Ahmed
R/o H. No. 2251/3,
Guru Nanak Nagar,
New Ranjeet Nagar,
New Delhi110 008. ....... Plaintiff
Versus
1. Mst. Bakhtiawar Jahan
W/o Late Mr. Kamaluddin
R/o 6324, Bara Hindu Rao,
Delhi 110 006.
2. Ms. Qamar Jahan Qureshi
W/o Sh. Zameer Ahmad Qureshi
R/o 113A/B, Complex Kalu Sarai,
III Gate, Hauz Khas, New Delhi.
3. Dr. S. M. Ansar Ahmad
S/o Late Sh. Abdullah
R/o 2251/3, New Ranjeet Nagar,
New Delhi. ....... Defendants
Date of institution : 01.12.2007
Date of decision : 12.04.2018
JUDGMENT
1. The plaintiff has filed the present suit against the defendants for specific performance qua the property bearing no. XVII/2251/3 forming part of Khasra no. 289, Village Kham Pur, abadi Guru Nanak Nagar, Shadi Khampur, (Old) and (New) No. 2251/3, Guru Nagar, New Ranjeet Nagar, New Delhi 110 008, Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 1 of 17 measuring 100 Sq. Yards (hereinafter referred as to the "Suit Property").
2. Defendant no. 3 is husband of plaintiff and is a performa defendant, hence, no relief has been claimed by the plaintiff against him.
Initially, the defendants no. 1 & 2, both were contesting the suit, however, during the pendency of the case, settlement was arrived between the plaintiff and the defendant no. 2 and on 01.06.2011, plaintiff through her counsel withdrew the suit against the defendant no. 2, hence, on the same date the suit was dismissed as withdrawn qua defendant no. 2. Thereafter, the matter was contested only by defendant no. 1.
3. Briefly stated the case of the plaintiff is that all the defendants (including defendant no. 3, husband of plaintiff) jointly purchased the suit property through registered GPA, agreement to sell, affidavit, Will all dated 30.03.2000. The defendants no. 1 & 2 had 25% share each and defendant no. 3 had share of 50% in the suit property. After the purchase of the suit property, all the defendants started a nursing home in the name and style of "M/s Park Nursing Home" from the suit property under a partnership deed dated 26.09.2000. The said partnership was dissolved by execution dissolution deed dated 17.12.2004. Prior to dissolution of the partnership, the defendants no. 1 & 2 orally agreed to transfer/sell their respective shares i.e. 25% each in the suit property for total sale consideration amount of Rs. 17 lacs in favour of the plaintiff. Thereafter, a mutual agreement dated 07.12.2004, for extension of time was executed between the plaintiff and defendants no. 1 & 2 in which it was stipulated that defendants no. 1 & 2 would sell their respective shares in the suit property for total sum of Rs. 17 lacs to the plaintiff. Out of the total sale consideration amount of Rs. 17 lacs, part payment of Rs.2 lacs in cash was made by the plaintiff to defendants no. 1 & 2 jointly. As per the mutual agreement dated 07.12.2004, the sale transaction had to be completed till 25.12.2004. On 07.12.2004, the defendants no. 1 & 2 handed over the possession of their respective shares in the suit property to plaintiff in part performance of the agreement. As well as, the original title documents were also Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 2 of 17 handed over to the plaintiff. Subsequently, the plaintiff also paid sum of Rs. 10 lacs i.e. 5 lacs each to the defendants no.1 and 2 towards part performance of total sale consideration amount, for which the defendants no.1 and 2 executed a separate receipt in favour of plaintiff. On 16.12.2004, again the plaintiff gave two cheques bearing no. 472751 and 304534, both dated 16.12.2004 for Rs. 2 lacs each, both drawn on Punjab & Sind Bank, Ranjeet Nagar Branch, New Delhi, for part performance of mutual agreement dated 07.12.2006. It was agreed that the balance payment would be made at the time of execution of sale deed. It was decided between the parties that sale deed would be executed only for sum of Rs. 6,50,000/ and balance amount would be in cash in order to avoid capital gain tax by the defendants.
4. It is stated that the plaintiff purchased the stamp papers for sum of Rs.39,000/ for the execution of the sale deed. The stamp papers are bearing nos. 03 CC 462238 and 02 BB 68287238. On 23.12.2004, plaintiff went to the office of Sub Registrar for execution of the sale deed, but defendants no.1 and 2 did not turn up there and seeing the conduct and intention of the defendants on 23.12.2004, the plaintiff got "stopped" the payment of cheque bearing no. 304534 dated 16.12.2004 of Rs.2 lac.
5. It is averred that plaintiff was always ready and willing to perform her part of obligation. She had paid substantial amount of Rs.14 lacs to the defendants no.1 and 2 in part performance of the agreement and was always ready and still ready with the balance payment of Rs.3 lacs with her to pay the same to the defendants but the defendants failed to perform their part of performance in the agreement. Hence, the present suit, praying that defendants be directed to execute a sale deed of the suit property in favour of plaintiff.
6. In response to the summons of the suit, defendants no.1 and 2 filed their joint written statement admitting therein that suit property was jointly purchased by the defendants. However, they have disputed the area of the property. As per defendants the suit property is measuring about 142 square yards.
Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 3 of 17The defendants have admitted the ratio as stated by the plaintiff in which the suit property was purchased. The defendants have also admitted the partnership deed dated 26.09.2000, for running a nursing home from the suit property.
7. The defendant no.1 and 2 have stated that the alleged mutual agreement dated 07.12.2004, is false and fabricated and does not bear their signatures. It is stated that the cheque bearing no. 472751, dated 16.12.2004, issued by defendant no.3 in favour of defendant no.2 was towards the part payment of income of the partnership firm which also was stopped by defendant no.3 on 20.12.2004. Defendants have also stated that the dissolution deed dated 17.12.2004, is also a forged and fabricated document purchased by defendant no. 3 on 07.10.2004.
8. The defendants have stated that on 06.12.2004, husband of defendant no.1, visited the suit property where defendant no.3 misbehaved with him due to which, husband of defendant no.1 received a shock and suffered a major attack on body and was admitted in Hindu Rao Hospital for treatment and ultimately, lost his life on 08.12.2004. On 03.01.2005, defendant no.1 had filed a complaint against defendant no.3 regarding the same. It is stated that during the period the defendant no.1 being a Muslim widow was in Iddat period, that time plaintiff approached her and got her signatures on certain blank papers including some stamp papers on the pretext of giving share of defendants no.1 and 2 from the proceeds collected from the business of partnership firm. However, no such money was given by the plaintiff or defendant no.3 to the other defendants.
9. It is stated that since the beginning of partnership business, the defendant no. 3 used to keep the entire suit property in his control.
Defendant no.1 filed a civil suit for permanent injunction against the defendant no.3 restraining him from selling, transferring or alienating the suit property. Defendant no.1 also filed another civil suit for partition, money decree against the defendant no.3,which is also pending.
10. Defendant no. 3 has also filed his separate written statement Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 4 of 17 admitting the entire suit of the plaintiff.
11. Replications to the written statement of defendants no.1 and 2 filed by the plaintiff reiterating and reaffirming the same facts as stated by her in the plaint.
12. After completion of pleadings, vide order dated 09.05.2008, the following issues were framed:
(i) Whether the plaintiff is entitled to a decree of specific performance, as prayed for? OPP.
(ii) Relief.
13. The plaintiff has examined as many as 6 witnesses in her evidence. PW1 is plaintiff herself, who has filed her affidavit in evidence in which she has reiterated and reaffirmed the same facts as stated in the plaint and has relied upon the following documents:
(i) Mark "A" (in affidavit it was Ex. PW1/A) -
Photocopies of - GPA, Agreement to sell, Will,
Affidavit etc., all dated 30.03.2000;
(ii) Ex. PW1/B - Site plan of the suit property;
(iii) Mark "B" (in affidavit it was Ex. PW1/C) -
Photocopy of Partnership deed;
(iv) Ex. PW1/D - Dissolution deed;
(v) Ex. PW1/E Mutual agreement;
(vi) Ex. PW1/F - Receipt dated 07.12.2004;
(vii) Mark "C" (in affidavit Ex. PW1/G) - photocopies
of - Draft and cheque;
(viii) Ex. PW1/H - Challan form;
(ix) Ex. PW1/1 - Receipt and stamp paper of Rs. 10/;
(x) Mark "D" Photocopy of stamp paper of Rs.
39,000/;
Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 5 of 17
(xi) Ex. PW1/J - Copy of complaint dated 07.01.2005.
14. PW2 is Qamar Zama, PW3 is Vikram Singh, PW4 is Mohd. Akbar (brother of plaintiff), they all have stated themselves to be witness on the mutual agreement dated 07.12.2004. They have filed their affidavits in evidence supporting the case of the plaintiff.
15. PW5 is Sh. Balwan Rai from Syndicate Bank, Sadar Bazar. He has brought the summoned record i.e. statement of account of defendant no. 1 for the period w.e.f. 17.12.2004 to 02.07.2015. The same is Ex. PW5/A.
16. PW6 is Sh. Mintu Singh from Punjab & Sind Bank, Ranjit Nagar, Delhi. He had brought the summoned record i.e. statement of account of plaintiff, Ex. PW6/A. He had stated that at point A on Ex. PW6/A, amount of Rs. 2 lacs was debited from the account of the plaintiff for purchase of pay order bearing no. 492751, dated 16.12.2004 in favour of defendant no. 1, which is Ex. PW6/B. PW 6/B was cleared from Syndicate Bank, Sadar Bazar, Delhi.
DEFENDANTS' EVIDENCE:
17. The defendant no. 1 has examined as many as 4 witnesses in her evidence. DW1 is defendant no. 1 herself, who has filed her affidavit in evidence and has relied upon the following documents:
(i) Ex. D1W1/1 - Attendance pass dated 06.12.2004 of Hindu Rao Hospital;
(ii) Ex. D1W1/2 - Copy of investigation slip;
(iii) Ex. D1W1/3 - Death certificate of her husband;
(vi) Ex. D1W1/4 - Copy of criminal complaint;
(v) Ex. D1W1/5 Legal notice dated 31.12.2004 sent
to the plaintiff by defendant no. 1;
(vi) Ex. D1W1/6 - Police complaint filed by defendant
no. 1 against the plaintiff and defendant no. 3;
(viii) Mark "D" (in affidavit Ex. D1W1/7) - Copy of
Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 6 of 17
partition suit filed by defendant no. 1 against other
defendants;
(ix) Ex. D1W1/8 - Report of verification of her
signatures;
(x) Mark "C" (in affidavit Ex. D1W1/9) - Copy of suit
of permanent injunction filed by defendant no. 1
against defendant no. 3;
(xi) Ex. D1W1/10 to Ex. D1W1/13 - Copies of title
documents of the suit property;
(xii) Ex. D1W1/14 - Attested signatures of defendant
no. 1 (already exhibited as Ex. D1W1/8);
(xiii) Mark "B" Legal notice
18. DW2 is Sh. B. N. Srivastava, Hand writing expert, who has compared the signatures of defendant no. 1 from her admitted signatures with the disputed signatures. He has deposed in his affidavit that with the permission of Ld. Predecessor of this court, he took the photographs of the disputed Urdu signatures of defendant no. 1 from the document i.e. dissolution deed dated 17.12.2004, mutual agreement dated 07.12.2004 and receipt dated 07.12.2004 marked as "Q 1" to "Q9" and compared her signatures on the documents i.e. list of witnesses, affidavit, vakalatnama, written statement, signatures verified by the Bank. He prepared his report as Ex. DW2/1 and prepared the CD Ex. DW2/2.
This witness has stated that the signatures of defendant no. 1 on the disputed documents i.e. Q1 to Q9 are forged.
19. DW3 is Sh. Vijay, Ahlmad from the court of Ld. MM07, Central, Tis Hazari Court, Delhi. He has proved the criminal complaint bearing no. 536865/16, filed by defendant no. 1 against the plaintiff as Ex. DW3/A.
20. DW4 is Sh. Vivek Yadav from Office of SubRegistrar, Basai Darapur, Delhi, who has proved the title documents of the suit property as Ex. DW4/A and Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 7 of 17 Ex. DW4/B. He has stated that as per the documents the suit property is measuring 142 sq. yards.
Witnesses of both the parties were cross examined by each others' counsels.
21. I have heard counsels for the parties and perused the record and the written submissions filed by both the parties.
22 The admitted facts on record are that the plaintiff's husband (defendant no.3) and defendant no. 1 & 2 are the coowners of the suit property, which they purchased by virtue of GPA, agreement to sell, affidavit and Will all dated 30.03.2000. The plaintiff's husband (defendant no.3) has 50% share in the suit property and defendants no. 1 & 2 have 25% (each) share in the suit property.
23. It is also admitted position that all three defendants entered into partnership in the year 2000 for running a nursing home in the name of "Park Hospital" from the suit property.
24. Now, what is in dispute is that plaintiff has alleged that defendants no.1 & 2 orally agreed to sell their respective shares in the suit property to plaintiff for total sale consideration of Rs. 17 lacs. Subsequent to the said oral agreement, a mutual agreement (Ex.PW1/E) dated 07.12.2004 was entered into between the plaintiff and defendants no.1 & 2, in which it was agreed that the sale transaction would be completed by 25.12.2004. At the time of execution of the mutual agreement, the plaintiff paid sum of Rs. 12 lacs in cash to the defendants no.1 & 2 jointly. The defendants no.1 & 2 executed a receipt (Ex.PW1/F) in favour of plaintiff regarding receiving of the said payment. The plaintiff has stated that on 17.12.2004, partnership was also dissolved amongst the defendants by executing a dissolution deed (Ex. PW1/D).
25. As already mentioned, during the pendency of the suit, defendant no.2 had sold his share to plaintiff. Thereafter, the matter was contested by only defendant no.1. The defendant no.1 has vehemently denied to have entered into any oral agreement between the parties. She has also denied execution of any Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 8 of 17 mutual agreement dated 07.12.2004 and receipt of the even date. She has denied her signature on the documents relied upon by the plaintiff i.e. mutual agreement and receipt both dated 07.12.2004 and dissolution deed dated 17.12.2004. The defendant no.1 has come up with the defence that on 05.12.2004, her husband went to the suit property to meet plaintiff's (defendant no. 3) and there, defendant no.3 misbehaved with him due to which he suffered heart attack and got admitted in Hindu Rao hospital and ultimately died on 08.12.2004. Defendant no.1 has stated that since 5.12.2004 till 08.12.2004, was the period when her husband was admitted in the hospital and she remained there with her husband to take care of him, therefore, the question of execution of documents during the said period by defendant no.1 does not arise.
26. From the material on record, it is evident that the entire case of the plaintiff is studded with trail of falsehoods from her own admissions in her pleadings and evidence.
27. The plaintiff in the plaint has stated that oral agreement to sell was executed between her and defendants no. 1 & 2 qua the suit property. Thereafter, the mutual agreement (Ex. PW1/E) was executed between the parties in which date of completion of sale was extended till 25.12.2004. The plaintiff neither in her pleadings nor in her evidence has whispered as to what was the date fixed for the completion of the sale of the suit property as per alleged oral agreement to sell which was subsequently extended by way of purported mutual agreement (Ex.PW 1/E). Now assuming, the plaintiff to be correct that the date fixed for completion of sale was till 25.12.2004, then the plaintiff herself has averred that she reached at the office of Sub Registrar on 23.12.2004, for completion of the sale, but the defendants did not turn up there to perform their part of obligation for completing the sale transaction. Admittedly, the plaintiff did not issue any notice or any communication to the defendants calling upon them to reach to the Office of Sub Registrar on 23.12.2004 itself for completion of sale transaction. This court find it surprise that when as per own case of the plaintiff the date fixed for completion of Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 9 of 17 sale was 25.12.2004, then for what reasons she visited the Office of SubRegistrar for completion of sale 2 days prior to alleged date fixed that too without issuing any notice to the defendants. In para no. 14 of the affidavit in evidence, plaintiff (PW1) has deposed that she was continuously in touch with the defendants for registration of the sale deed and came to know about their intention so she stopped the payment of the cheque bearing no. 304534 on 20.12.2004. This deposition of the plaintiff is beyond the pleadings as she nowhere either in her plaint or in replication has stated that she was in continuous touch with the defendants regarding the registration of the sale deed and even if it is assumed that plaintiff was in continuous touch of the defendants regarding completion of the sale transaction then also her this averment does not come to her rescue since she has nowhere stated that she ever asked the defendants to reach the Office of Sub Registrar on 23.12.2004. Hence, the visit of the plaintiff, if any, at the Office of SubRegistrar on 23.12.2004 was at her own whims and wishes without any obligation on the part of the defendants.
28. The further case of the plaintiff is that the total sale consideration amount to purchase the suit property was agreed to be Rs. 17 lacs. The plaintiff has taken the contradictory stand regarding the part payment made by her to the defendants as in para no. 11 of her affidavit, she has stated that she made the part payment of Rs. 16 lacs to the defendants but in the subsequent para no. 17 of the same affidavit, she said that she had made the part payment of Rs. 14 lacs to the defendants. The same cannot be the typographical error in the affidavit since this contradictory averment regarding part payment was also made by the plaintiff in the plaint as in para no. 10 of the plaint, she said that she made the part payment of Rs. 16 lacs but in para no. 17, she said that she made the part payment of Rs. 14 lacs. From the above contradictions on the part of the plaintiff, it seems that she herself is confused about the part payment made by her to the defendants.
Though, the plaintiff has averred that she has made the part payment of Rs. 16 lacs to the defendants but on record she could only explain but not Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 10 of 17 proved, the payment of Rs. 14 lacs made by her to the defendants. As per plaintiff, the payment of Rs. 14 lacs was made by her by way of two modes i.e. Rs. 12 lacs were given in cash on 07.12.2004 and Rs. 2 lacs were given by way of cheque bearing no. 472751, dated 16.12.2004. The plaintiff in her plaint as well as in the affidavit in evidence has stated that the payment of Rs. 12 lacs in cash was made by her to the defendants on 07.12.2004 but in her cross examination, she said that the part payment of Rs. 2 lacs in cash, out of Rs. 12 lacs, was made by her to the defendants in October2004. Even the receipt (Ex. PW1/F) is vague as perusal of the same shows that in first para it reflects that plaintiff handed over Rs. 10 lacs to the defendants but as per its subsequent para, the defendants have shown to have received only Rs. 5 lacs from the plaintiff. Moreover, as mentioned hereinabove, that as per own case of the plaintiff, she gave Rs. 12 lacs in cash to the defendants on 07.12.2004 but surprisingly the receipt (Ex. PW1/F) was executed by the defendants only for Rs. 10 lacs, also brings the case of the plaintiff in clouds.
29. In plaint, the plaintiff has stated that on 16.12.2004, she issued two cheques bearing no. 472751 and 304534 both dated 16.12.2004 for Rs. 2 lacs each in favour of defendants but the payment of one of the said cheque bearing no. 304534 was got "stopped" by her on 20.012.2004 since the defendants did not turn up to the Office of SubRegistrar on 23.12.2004 for registration of the sale deed in her favour. Though, the plaintiff has remained silent in her affidavit in evidence on the fact of stopping of payment of cheque bearing no. 304534 on 20.12.2004, of course for the obvious reasons that she might have been better advised that her this statement would trap her in her own words as it is impossible even to think muchless to believe, that when plaintiff came to know about the ill intention of the defendants on 23.12.2004 that they did not intend to get registered the sale deed in her favour then how can she even plead that she got the payment of the cheque "stopped" on 20.12.2004 prior to acquiring of knowledge of ill intention of the defendants. Again for the sake of repetition, it would be pertinent to mention that in para no. 14 of the affidavit, the plaintiff has stated that she was continuously in Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 11 of 17 touch with the defendants for registration of the sale deed and came to know about their illintention, therefore, she stopped the payment of cheque bearing no. 304534 on 20.12.2004 itself. As already observed that this part of the deposition of the plaintiff is beyond pleadings and afterthought since plaintiff in the plaint has nowhere stated that she was in continuous touch with the defendants and coming to know about their illintention during the said period, she got stopped the payment of the aforesaid cheque. Rather, she has categorically stated in her plaint that the cheque bearing no. 304534 was got stopped by her after her visit to the Office of SubRegistrar on 23.12.2004.
30. Furthermore, in the mutual agreement it is mentioned that both the parties will remain bound with all the clauses mentioned in the agreement to sell executed on 07.10.2004. The plaintiff has not placed on record any agreement to sell dated 07.10.2004 stipulating any terms and conditions between the parties for the sale and purchase of the suit property. It is not the case of the plaintiff that the alleged oral agreement was entered between the parties on the said date i.e. 07.10.2004 or any terns and conditions were agreed between the parties in the said oral agreement to sell. Instead, in para no. 6 of her affidavit, she has deposed that defendants agreed to sell their share in the suit property in the first week of December2004. Hence, as per own showing of the plaintiff, the alleged oral agreement was entered between the parties in first week of December2004 but not on 07.10.2010 as mentioned in the mutual agreement (Ex. PW1/E).
31. Now, further perusal of the evidence of the plaintiff shows that she could not withstand the test of cross examination and tried to repeatedly mislead the court on various counts by giving contradictory and false statements. The entire case of the plaintiff is based on the mutual agreement dated 07.12.2004 but surprisingly during her cross examination, she denied her own signatures on the mutual agreement (Ex. PW1/E). The plaintiff has stated in her chief examination as well as in cross examination that the amount of Rs. 10 lacs was given by her from taking the same from her brother Mohd. Akbar (PW4). PW4 during his cross Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 12 of 17 examination has stated that he has not given any amount to the plaintiff to purchase the suit property or to make any payment to the defendants. PW1 has admitted in her cross that mutual agreement and receipt were got drafted by her and her husband and at that time no one else was present there. In the plaint, the plaintiff had stated that the suit property is measuring about 100 sq. yards which was controverted by the defendants by saying that the suit property is measuring about 142 sq. yards. The area of 142 sq. yards of the suit property is admitted by the plaintiff in her cross examination. As per plaintiff, in her pleadings she has stated that the partnership was dissolved on 17.12.2004 but during her cross examination, she stated that partnership business was dissolved in October2004. All these contradictory statements by the plaintiff also falsifies her own case and creates doubt on her credibility.
32. The plaintiff has also examined PW2 Qamar Zama, PW3 Vikram Singh and PW4 Mohd. Akbar (her brother) in her evidence. They all have stated that they were present and are witnesses to the mutual agreement and receipt. These witnesses are not reliable as they all are giving the contradictory statements during cross examination and are not of any help to the plaintiff. All these witnesses have admitted that they are known to the plaintiff since long time. PW2 has stated that plaintiff's husband was known to him from last 25 years. PW3 Vikram Singh is employee of the plaintiff's husband and PW4 is real brother of the plaintiff. Hence, it is clear that all these witnesses are interested witnesses in favour of plaintiff. It would be relevant to note here that even as per plaintiff no independent witness or any person from the side of defendant has witnessed the mutual agreement and receipt.
33. PW2 in his affidavit in chief has deposed that the plaintiff handed over cash of Rs. 2 lacs on the date of execution of the mutual agreement i.e. 07.12.2004 but during cross examination he stated that no transaction of Rs. 2 lacs took place on 07.12.2004 and he voluntarily said that it took place 23 days prior to 07.12.2004. He even has deposed in the cross examination that on 07.12.2004, Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 13 of 17 no written work was done between the parties. Similarly, PW3 has also stated in his affidavit in chief that he was the witness to the mutual agreement and Rs. 2 lacs were given by the plaintiff to the defendants on 07.12.2004. He also during cross examination stated that no transaction of Rs. 2 lacs took place on the said date and it took place 23 days prior to 07.12.2004. He has stated that transaction of Rs. 10 lacs had taken place on 07.12.2004 which he has not stated in his chief examination. PW2 and PW3, who have stated themselves to be the witnesses on the mutual agreement and receipt, have stated that at the time of execution of these documents, husband of defendant no. 1 was also present. This ipso facto is a false statement by them as there is no dispute on the fact that husbands of defendant no. 1 was admitted in hospital since 05.12.2004 till 08.12.2004, when he expired.
34. The defendant no. 1 has disputed her signatures on the mutual agreement (Ex. PW1/E) and receipt (Ex. PW1/F) as she has stated that she never signed both the documents and her signatures on these documents are forged and fabricated. The defendant no. 1 in order to show that these documents do not bear her signatures has examined DW2, an hand writing expert, who has given his categorical report (Ex. DW2/1) to the effect that purported mutual agreement and receipt does not bear the signatures of defendant no. 1 and have been forged. DW 2 was subject to lengthy cross examination by plaintiff's counsel but nothing has come in the cross examination of this DW which may cast doubt on his testimony. This court has no reason to discard the testimony of DW2 who has given his categorical report regarding signatures of defendant no. 1 on the mutual agreement and receipt both dated 07.12.2004. It is evident from the evidence of DW2 that the mutual agreement (Ex. PW1/E) and receipt (Ex. PW1/F) does not bear the signatures of defendant no. 1 and same are forged and fabricated. At this juncture, it would be relevant to mention that this court is unable to exercise its power u/s 73 of Indian Evidence Act to compare the signatures of the defendant no. 1 since her signatures on the mutual agreement and receipt are in Urdu and this court is Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 14 of 17 not acquainted with the Urdu language.
35. From the evidence led by the plaintiff, she has miserably failed to prove that the mutual agreement and receipt were executed by the defendants for selling the suit property to her. She has also failed to prove that she made the cash payment of Rs. 12 lacs in cash to the defendants on 07.12.2004 or otherwise.
36. This court find force in the plea of defendant no. 1 that the payment of Rs. 2 lacs by way of cheque bearing no. 472751, dated 16.12.2004 for Rs. 2 lacs by plaintiff to her was on account of partnership business of the parties which was also admitted by the plaintiff's own witness/brother (PW4) in his cross examination. PW4 in his cross examination has also stated that on the date of execution of the mutual agreement, he was told that the said agreement is regarding the payment made by the plaintiff to the defendants. From his this statement, it is cleared that even PW4 was not told that the purported mutual agreement was regarding sale of any property.
37. The plaintiff has stated that at the time of execution of mutual agreement, the possession of the suit property was handed over by the defendants to the plaintiff. The plaintiff has failed to prove the execution of any mutual agreement between her and the defendants. She has also failed to prove that possession of the share of the defendant no. 1 in the suit property was given by defendant no. 1 to her. It would be relevant to mention here that as per own case of the plaintiff her husband was in the possession of entire suit property as the business in the name of "Park Hospital" is being done by her husband since the inception of the partnership, hence, it is clear that the plaintiff and her husband are in possession of the entire suit property in pursuance of the said partnership deed but not in pursuance of the alleged mutual agreement.
38. During arguments, it was submitted by the plaintiff's counsel that even defendant no. 2 has sold her share in the suit property in favour of plaintiff in pursuance of mutual agreement. Nothing has come on record to support this contention of the plaintiff that defendant no. 2 sold her share in favour of plaintiff Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 15 of 17 in pursuance of the alleged mutual agreement. Hence, the plaintiff cannot take advantage of the fact that defendant no. 2 sold her share in favour of plaintiff during the pendency of the matter in pursuance of the mutual agreement.
39. There is no dispute to the fact that husband of defendant no. 1 was admitted in hospital since 05.12.2004 till the time he lost his life i.e. on 08.12.2004. It is difficult to presume that a lady would enter into a transaction of immovable property during the period when her husband was fighting between life and death in the hospital.
40. From the pleadings of the parties, it was borne out that defendant no. 1 had lodged some civil and criminal cases against the plaintiff and her husband (defendant no. 3). Therefore, vide order dated 04.04.2018, this court directed the defendant no. 1 to furnish the status of those cases in writing. In pursuance of the same, the defendant no. 1 filed the clarifications giving the details of the cases as follows:
(i) Complaint case no. 536865/16, U/s 156 (3) Cr.PC, titled as "Smt. Bakhtiawar Jahan Vs. Smt. Razia Ansar". In the said case, the plaintiff has been summoned u/s 471 IPC vide order dated 18.05.2017 of Sh. Babru Bhan, Ld. MM.
(ii) Civil Suit bearing no. 46/05, filed by defendant no.
1 & 2 for permanent injunction against the plaintiff's husband. This matter was disposed off on 22.04.2016 on the statement of defendant no. 3 that he will not create third party interest in the suit property.
(iii) Civil suit no. 275/07 filed by defendant no. 1 against the plaintiff, defendants no. 2 & 3 for partition and declaration, praying that defendant no. 1 is the owner of the 1/4th share in the suit Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 16 of 17 property and for the decree of partition. The said suit is stated to be returned due to lack of pecuniary jurisdiction of Ld. Civil Judge.
41. From the material on record, it is evident that the plaintiff has miserably failed to prove any oral agreement to sell or the mutual agreement (Ex. PW1/E) entered between the parties qua the suit property, hence, plaintiff is not entitled for the decree of specific performance as prayed for. RELIEF: In view of aforesaid discussion, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date:
2018.04.13
21:29:17 +0530
Announced in the open court (CHARU AGGARWAL)
12th April, 2018 ADJ03/WEST/THC/DELHI
Razia Ansar Vs. Bakhtiwar Jahan & Ors. Page 17 of 17