Delhi District Court
Ram Karan vs Bhagwan Dass S/O Sh.Kishan Lal on 17 December, 2012
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IN THE COURT OF DIG VINAY SINGH,
ADDL. DISTRICT JUDGE-04: CENTRAL: DELHI
Date of institution : 05.10.1988
Announced on : 17.12.2012
In re:
Suit no. 322/08
1. Ram Karan
2. Jai Bhagwan
3. Prem Singh
All Sons of Sh. Bhagwan Dass
R/o House no. WZ-78, Village Tatarpur,
New Delhi-110027. ... Plaintiffs
Versus
1. Bhagwan Dass S/o Sh.Kishan Lal
R/o House no. WZ-78, Village Tatarpur,
New Delhi-110027.
2. S.P.Budhiraja S/o Sh.C.L.Budhiraja
R/o House no. A-2/106, Janakpuri,
New Delhi.
3. Kishan Pal S/o Sh.Bhagwan Dass
R/o House no. WZ-78, Village Tatarpur,
New Delhi-110027. ... Defendants
JUDGMENT
1. This is a suit for declaration, mandatory injunction and, partition. The three plaintiffs are sons of defendant no.1 Bhagwan Dass. Defendant no. 3 Kishan Pal is also son of Bhagwan Dass. The defendant no.2 S. P. Budhiraja claims Suit no. 322/08 Pg... 1 of 42 -2- to have purchased the disputed property. The property in dispute is A-2/106, Janak Puri, New Delhi, measuring about 351 Sq. Meters (hereinafter referred to as the 'Suit Property'). Practically the dispute in this suit is between the defendant no.2 on the one hand and all other parties, i.e. Bhagwan Dass and his four sons, on the other hand. The suit was filed on 9.9.1988.
2. The version of the three plaintiffs is that they along with their father (defendant no. 1) and brother (defendant no.3) jointly owned one half share in certain agricultural land in Village Tatarpur, Delhi. The said agricultural land was acquired in 1960 & 1965 under award no. 1005 & 1844. Bhagwan Dass had inherited that agricultural land from his father Kishan Lal and thus, it was an ancestral property. At the relevant time, Bhagwan Dass was Karta of Hindu Undivided Family (HUF for short), which comprised of himself and his four sons. Compensation against acquisition of land was received by Bhagwan Dass on behalf of HUF up to the year 1982-83. In lieu of acquisition of said agricultural land, the suit property was allotted (as a vacant plot) to Bhagwan Dass as Karta of HUF by Delhi Development Authority (DDA) in 1975. Purchase amount was paid by Bhagwan Dass out of the compensation received against acquisition of land. In the year 1980-81, construction was raised on the plot out of the compensation amount which was received in May 1980. Though, the lease deed was executed by DDA in the individual name of Bhagwan Dass, the land actually was allotted to him in his capacity of Karta of HUF and it was allotted for and on behalf of HUF. It is further claimed by the plaintiffs that after completion of construction, Bhagwan Dass obtained loan of Rs. 2,51,000/- from the defendant no.2 and executed a receipt in favour of defendant no. 2, on Suit no. 322/08 Pg... 2 of 42 -3- 6.8.1981. Possession of the suit property was also handed over to the defendant no. 2, as security. It was agreed between the defendant no.1 & 2 that at the time of vacating the property, the loan shall be repaid. No interest was payable on the loan amount as possession of the suit property was handed over to the defendant no.2. Plaintiffs claim that despite passing of seven years, Bhagwan Dass did not repay the loan amount to the defendant no.2 and misappropriated and utilised the loan amount for his personal gains. At or about the time of filing of the suit, the plaintiffs learnt that Bhagwan Dass had also entered into an Agreement to sell with the defendant no.2, qua the suit property at the time of taking of loan. Since Bhagwan Dass refused to repay the loan and was contemplating sale of the suit property to the defendant no.2, a notice dated 1.10.1987 was sent to Bhagwan Dass and the defendant no. 2. It is also claimed that Bhagwan Dass refused to acknowledge that the property was an HUF property and claimed sole ownership.
2.1 Thus, the plaintiffs seek, A decree of declaration to the effect that the suit property is a joint family property of Bhagwan Dass and his four sons;
A decree of mandatory injunction directing Bhagwan Dass to repay the loan to defendant no.2 and obtain possession of the suit property;
Under the prayer of mandatory injunction, a decree of permanent injunction is also sought that the suit property be not alienated; and A decree of partition by meets & bounds holding that Bhagwan Dass and his four sons are entitled to one fifth share each in the suit property.
3. Bhagwan Dass, filed his written statement supporting the plaintiffs. He Suit no. 322/08 Pg... 3 of 42 -4- avers that though the name of his four sons was not recorded in agricultural land, by implication it was joint family property. He admits that that the agricultural land was an ancestral property. He also admits that HUF existed and that he was its Karta. Qua the transaction with the defendant no.2, he claims that the defendant no.2 was in need of a residential accommodation and was also ready to give loan without interest, therefore, he took loan of Rs.2,51,000/- from the defendant no.2, after he was introduced by one Narender Sharma. The defendant no.2 played fraud upon him and got executed certain documents of sale of property, Instead of executing loan documents, because he did not know English Language. He made efforts to repay the loan to the defendant no.2, but the defendant no.2 did not accept it and instead misbehaved. He was also not allowed entry in the suit property. In Para 9 of the written statement, he denies having entered into any Agreement to sell the suit property with the defendants no.2. He claims that in fact the defendant no.2 got several documents signed from him claiming to be loan documents, but since he was illiterate and did not know English, therefore, he could not understand implication of execution of those documents. He claims that he was ready and willing to repay the loan amount. In his written statement, he admits that he signed the documents in Urdu.
4. The defendant no.3 also supported the case of the plaintiffs, in Toto. He claimed ignorance as to the factum of loan in his written statement. He also claims that if any loan was taken, it was not for legal necessity.
5. The defendant no.2 S. P. Budhiraja contested the suit stating that he entered into an agreement to purchase the suit property with Bhagwan Suit no. 322/08 Pg... 4 of 42 -5- Dass on 4.8.1981 for a total consideration of Rs.2,51,000/-, which was paid in entirety through a bank draft. He claims that Bhagwan Dass simultaneously handed over exclusive possession of the suit property to him and thereafter he had been paying electricity and water bills, and taxes. He also claimed that he has performed his part of contract and the present suit is nothing but a collusive suit by the father and his four sons. He also claims that earlier also a notice dated 30.9.1985 was got served by Bhagwan Dass upon the defendant no.2 on false and frivolous grounds. The said notice was duly replied by the defendant no.2 on 1.11.1985, upon which the claim was abandoned by Bhagwan Dass. Defendant no.2 also claims that the present suit is barred by time; it is bad for non-joinder of parties; it has been undervalued and also that it is barred Under Section 2 of the Benami Transaction Act (no.2 of 1988). The defendant no.2 denies that the agricultural land or the suit property was ancestral properties or that any HUF existed. He also denies that the suit property was allotted against the land acquired or that it was acquired or constructed by Bhagwan Dass from the compensation amount. He claims that the suit property was acquired by Bhagwan Dass in his personal capacity and lease was granted in his favour in the year 1975. He denies having given any loan to Bhagwan Dass.
6. In replication to the written statement of defendant no.2, the plaintiffs claim that the suit has been properly valued. It is also claimed that at the time when the agricultural land was acquired, it stood in the joint name of Bhagwan Dass and his brother Yad Ram, it was not partitioned, and thus it was ancestral property.
Suit no. 322/08 Pg... 5 of 42 -6-
7. From the pleading of parties, following eleven issues were framed on 24.11.1995:-
"1. Is it proved that the plaintiffs, defendant no.1 and defendant no. 3 collectively had 1/2 share in the land bearing Khasra No. 7/6, 15, 16/1, 16/2, 25/1 & 8/22 and 17/16/2, 24/7, 8/2, 13/1, 14/1, 17/1 and 10/3/2 of Village Tatarpur, Delhi as the joint family properties?
2. Whether the plaintiffs proves that the land measuring 351 Sq. Yards bearing Plot no. A-2/106, Janakpuri has been given in lieu of the aforesaid lands acquired by Award Nos. 1005 and 1844 in the year 1960 and 1965 respectively?
3. Whether the plaintiffs prove that the suit lands are the joint family undivided properties in the hands of defendant NO.1?
4. Whether the defendants prove that the suit as framed is not maintainable?
5. Whether the suit is barred by limitation?
6. Whether the suit is properly valued for the purpose of Court Fees and jurisdiction?
7. Whether defendant no.2 proves that the suit is barred in view of Section 2 of the Benami Transaction (Prohibition) Act?
8. Whether the plaintiffs prove that defendant No. 1 took a loan of Rs.2,51,000/- against the suit lands? If yes, what is the effect?
9. Whether defendant no. 2 proves that the suit suffers from misjoinder of parties? If yes, what is the effect?
10. To what relief, if any, the plaintiffs are entitled to?
11. What order and decree?"
Suit no. 322/08 Pg... 6 of 42 -7-
8. In support of its case, the plaintiffs examined the plaintiff no.1 Ram Karan as PW1. Besides reiterating the averments of the plaint, PW1 proved the two awards as Ex.PW1/1 & Ex.PW1/2; certified copies of judgments passed regarding acquisition of agricultural lands as Ex.PW1/3 & Ex.PW1/4; the site plan of the suit property as Ex.PW1/5; the notice dated 1.10.1987 given by the plaintiffs to their father Bhagwan Dass and the defendant no.2 as Ex.PW1/6 along with postal receipts Ex.PW1/7 & Ex.PW1/8; AD Cards of defendant no.1 & 2, respectively, as Ex.PW1/9 & Ex.PW1/10 and; the UPC Certificate as Ex.PW1/11. In the cross examination, this witness admits that the plot was allotted in the name of Bhagwan Dass.
8.1 The second witness examined by the plaintiffs was an official from DDA qua allotment of the suit property. PW2 Lalit Mohan, proved the records pertaining to the suit property including the communications between Bhagwan Dass and DDA as Ex.PW2/1, collectively. In cross examination, this witness admitted that the allotment of the suit property was in favour of Bhagwan Dass and the occupancy certificate of the property was issued on 23.2.1981.
9. The defendant no.1 Bhagwan Dass also examined himself as DW1. He deposed that he along with his four sons were owners in possession of the agricultural land which was inherited from forefathers and thus it was ancestral; that he was Karta of the HUF; the suit property was allotted in lieu of acquisition of ancestral land and; that it was acquired and constructed out of the compensation amount. He deposed that he needed money to start independent business and therefore he took a Suit no. 322/08 Pg... 7 of 42 -8- loan amount of Rs.2,51,000/- from the defendant no.2 who got some documents in English signed from him and actually he never agreed to sell the suit property. He proved the notice dated 30.9.1985 Ex. DW1/1 along with its postal receipts and AD card as Ex.DW1/2 & 3. He also deposed that the Will dated 4.8.1981, executed by him in favour of the defendant no.2, which was registered on 6.8.1981, was cancelled vide Cancellation Instrument dated 14.2.1985, which was also registered. The cancellation instrument is proved as Ex.DW1/4.
9.1 In the cross examination by the plaintiffs, this witness danced to the tune of plaintiffs, and admitted that he signs in Urdu only and can sign only three letters i.e. 'BDV', in English and that too only in the Bank. He claimed that he cannot read or write English language and that he never went to Notary Public for execution of Will, Agreement to sell, GPA or Receipt. He also claimed that he did not go through the documents before signing the same and that nobody told him the contents of those documents. He even claimed that he did not sign those documents and he did not send any letter to DDA.
9.2 When he was subjected to cross examination on behalf of defendant no. 2, he admitted his signatures on certain letters forming part of Ex.PW2/1 which are communications with DDA viz. letter dated 22.3.1983 at page no. 166; letter dated 16.11.1973 at page no. 174, letter dated. 9.5.1974 at page no. 188; letter dated 11.3.1975 at page no. 211, letter dated 8.4.XX at page no. 212; letter dated 18.9.79 at page no. 255; letter dated 28.4.1982 at page no. 258 and letter dated 31.8.1982 at page no. 262.
Suit no. 322/08 Pg... 8 of 42 -9- 9.3 All these letters, except the letter dated 11.3.1975 at page no. 211, are in English Language. These letters bear his signatures in Urdu. This fact reflects that Bhagwan Dass indeed was communicating with DDA in English. These letters were written between the period 1973 to 1983. It would be relevant to mention here that this witness DW1 himself proved the notice dated 30.9.1995 given by him to the defendant no.2 through his lawyer. The notice was proved as Ex.DW1/1. Perusal of this Ex.DW1/1 would reveal that Bhagwan Dass admits having executed the Will dated 4.8.1981 as well as the GPA, Agreement to sell and the Receipt. It is specifically mentioned in this notice Ex.DW1/1 that the originals of these documents were kept by the defendant no.2 with him but Bhagwan Dass had copies of those documents. At the cost of repetition, it may be mentioned here that this notice was given on behalf of Bhagwan Dass and in this notice, it is admitted that copies of the Will, GPA, Agreement to sell and the Receipt were retained by him.
9.4 In his cross examination, DW1 Bhagwan Dass also admitted that no statement of account has been filed by him to show that the compensation money was used in acquiring or in constructing the suit property. He also admitted that there is no document to show existence of any HUF. He also admitted that at the time when the documents in question were executed in favour of the defendant no.2, his son defendant no.3 was also with him. Thus, the Agreement to sell, Will, GPA and the Receipt were all executed in presence of the defendant no.3. On being questioned, as to whether he asked anybody to go through the documents before signing, he admitted that it was not done. Very interestingly, Bhagwan Dass in his cross examination claimed that in fact Suit no. 322/08 Pg... 9 of 42
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the suit property was given on rent to the defendant no.2 and it was not sold. This stand of Bhagwan Dass is in absolute contradiction to his stand in his written statement as also the stand of his four sons. He claims that his sons were not aware of the sale of property. Even this statement is not correct, as admittedly one of his son i.e. defendant no.3 was not only present at the time of execution of these documents but admittedly, he witnessed one of the documents i.e. Will. Bhagwan Dass also deposed that he did not receive any reply to his notice Ex.DW1/1 and still no suit was filed against the defendant no.2 and no other legal recourse was taken. He also admits that after having received the allotment of the suit property, he never wrote to the DDA that the suit property was an HUF property and not his individual property.
10. The defendant no.2 examined himself as DW-2 and deposed that Bhagwan Dass represented himself to be the true and absolute owner of the property and had also shown perpetual lease dated 4.4.1977 to him. Bhagwan Dass thereafter sold the property to him for a total consideration of Rs.2.51 Lakhs on 4.8.1981. Entire consideration amount was paid through a bank draft. Thereafter, Bhagwan Dass signed and executed Agreement to sell dated 4.8.1981, Power of Attorney in favour of the wife of defendant no.1 i.e. Smt. Mona Budhiraja dated 4.8.1981 and, Will of even date. He also executed a Receipt dated 6.8.1981. All these documents were collectively proved as Ex.DW2/1 by this witness. This witness deposed that the Agreement to sell bears signatures of Bhagwan Dass at point B. Similarly, Bhagwan Dass signed GPA at point C and he also signed the Will at point A. Will is also witnessed by his son Kishan Pal, the defendant no.3, at point C. The witness specifically Suit no. 322/08 Pg... 10 of 42
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deposed that Bhagwan Dass and his son Kishan Pal both signed the Will in presence of Sub-Registrar which is also witnessed by others. He also deposed that at that time, the original documents of the suit property were handed over to him including the perpetual lease and other electricity, water bills, house tax etc. The witness also deposed that to the notice dated 30.9.1985 Ex.DW1/1 sent by Bhagwan Dass, a reply was sent on 1.11.1985 Ex.DW2/2 and thereafter, no legal proceedings were resorted to by Bhagwan Dass. Subsequently, second notice dated 1.10.1987 was sent by the plaintiffs which was also duly replied on 24.11.1987.
10.1 The defendant no.2 also examined another witness namely Praveen Bajaj who was inadvertently again numbered as DW2. This witness simply proved application for electricity connection dated 17.2.1981 and approval of connection dated 24.2.1981 vide Ex.DW2/1, demand letters Ex.DW2/2A & 2B and the NOC Ex.DW2/3.
10.2 Next witness examined by the defendant no.2 is DW3 Rajkumar from Sub-Registrar Office who proved registration of Will executed by Bhagwan Dass in favour of defendant no.2 S. P. Budhiraja as Ex.DW2/1 and also the registered receipt dated 6.8.1981 which also forms part of Ex.DW2/1. In the cross examination of this witness by the plaintiffs, or Bhagwan Dass, no suggestion was put to him that the signatures on these documents were not of Bhagwan Dass or that the signatures were forged.
11. I have heard Ld. Counsels for the plaintiffs and the defendant no. 2. The Suit no. 322/08 Pg... 11 of 42
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counsel for defendant no.1 & 3 did not advance arguments despite opportunity.
Issue wise findings are as follows :-
12. Issue no. 7 was whether the suit is barred by Section 2 of The Benami Transaction (Prohibition) Act, 1988. Onus to prove this issue was on the defendant no.2. According to this Act, a Benami Transaction is a transaction where property is taken in the name of one whereas its consideration is paid by another. Section 2(a) of the Act provides that 'Benami Transaction' means any transaction in which property is transferred to one person for a consideration paid or provided by another person. The suit property of this case does not fall within the definition of Benami Transaction as it is nobody's case that it was purchased in the name of Bhagwan Dass and consideration thereof was paid by somebody else. Rather it is the case of defendant no2 that it was a self-
acquired property of Bhagwan Dass. No evidence has been led to prove that the suit property falls within the definition of 'Benami transaction'. Therefore, this issue is decided against the defendant no.2 and in favour of the plaintiffs, the defendant no.1 & the defendant no. 3.
13. Issues no.1, 2 and 3 can be taken up simultaneously being interconnected. These issues were; whether the agricultural land acquired was joint family property of Bhagwan Dass and his four sons; whether the plot in question allotted to Bhagwan Dass was given in lieu of the said acquired land and; whether the plot in question was also a joint family property in the hands of Bhagwan Dass? Onus to prove Suit no. 322/08 Pg... 12 of 42
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these three issues was on the plaintiffs and the defendant no.1 & 3.
13.1 The plaintiffs proved the two awards Ex.PW1/1 & 1/2 and, the judgments pertaining to compensation qua acquisition of lands as Ex.PW1/3 & 1/4. Besides these documents, the plaintiffs did not prove any other document to show that the agricultural land was an ancestral property. It is however, deposed that the agricultural land was in the joint names of Bhagwan Dass and his brother Yad Ram till the time the agricultural land was acquired. It is also deposed that the said agricultural land was inherited from forefathers and therefore it ought to be ancestral joint family property.
13.2 In the year 1954, The Delhi Land Reforms Act came to be passed. With the coming into force of this Act, the proprietorship and ownership of agricultural land stood abolished. The Act recognised only two categories of land holders. The effect of Section 4 of this Act, which provides the classes of tenure and sub-tenure namely Bhumidhar and Asami, is that a person can either be a Bhumidhar of an agricultural land or he could be an Asami. There could be no other kind of right in the agricultural land after coming into force of this Act. It is implicit in the provisions of Act of 1954 that there is abolition of the ownership rights in the agricultural land and this Act recognised new rights for the purposes of the Act. Thus, with the coming into force of this Act, the ownership rights stood extinguished. The right of Transfer of interest by a Bhumidhar of its Bhumidhari right in the agricultural land was controlled only by the provisions of this Act. The provisions of customary law relating to restrictions on transfers do not apply to the transfer of Suit no. 322/08 Pg... 13 of 42
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bhumidhari rights. The interest in land conferred upon a Bhumidhar is not a proprietary right, which has been abolished and a new right declared under the Act. They are thus special rights created under the Act. Any incidence attached to the rights before the commencement of this Act could not be added to the new rights conferred under the Act. (Reliance in this regard is placed upon the case of Nathu Vs. Hukam Singh & Ors. Decided by a Division Bench of Hon'ble High Court of Delhi and reported in AIR 1983 Delhi 216). It was also held in that case that the right of transfer of interest by a Bhumidhar of its bhumidhari rights in the agricultural land is controlled only by the provisions of the Act and the provisions of the customary law do not apply.
13.3 Before the Full Bench of Hon'ble Allahabad High Court in the case of Ram Awlamb & Ors. Vs. Jatashankar & Ors. reported in AIR 1969 Allahabad page 526, under the provisions of U.P. Zamindari Abolition & Land Reforms Act, which Act is similar to the Delhi Land Reforms Act of 1954, a question arose as to what is the status of a co-bhumidhar and whether upon a bhumidhari property, personal law (Hindu Law Governing Joint Family Property) would apply and whether the entire joint family could be deemed to be one single Bhumidhar and no transfer could be made unless it was for legal necessity or for the benefit of estate. The Question, Whether other members of the family also becomes co-bhumidhars along with the recorded intermediaries or tenants was considered by the full bench of the court along with the question, whether notions of joint Hindu family could be invoked to determine that status. It was held as follows;
"18 ...........The interest in land conferred upon the bhumidhars was a Suit no. 322/08 Pg... 14 of 42
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new right and therefore, the question whether or not prior to the conferment of such rights the intermediary or tenant had heritable or transferable rights in the land is hardly material............"
"24. There is nothing in the provisions of the Act to indicate that the framers of the Act ever intended that a joint Hindu family should be considered to be one single unit as Bhumidhar. Had they envisaged any such contingency they were bound to indicate how succession was to be governed in the case of a joint Hindu family. On the other hand the only inference which can be drawn from Section 175 of the Act is that a group of persons holding bhumidhari interest were to hold the same as tenants in common.
25. It is significant to note that the Act does not make any provision based on any particular personal law either in respect of
(a) the status of each Bhumidhar, or
(b) his right of transfer, or
(c) the devolution of his interest after his death.
26. It can also be safely inferred from the provisions of the Act that the intention of the framers of the Act was to recognise only the tillers of the soil (be they males or females) actually in occupation of the holding for conferring bhumidhari rights on them.
27. The joint family as such is never recorded as tenant in the Record of Rights prepared under Section 33 of the Land Revenue Act, and it is evident that under Section 18 of the Act the bhumidhari rights which were to be conferred on tenants could not have been conferred on any joint family as such. It could only be conferred on individuals who were or could be deemed to be the Suit no. 322/08 Pg... 15 of 42
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actual tillers of the soil and held it as tenants, and who, after conferment of a new right, became tenants in common (vide Section 175 of the Act)."
"29. .........(a) The scheme of the Act seems to be to make one law for persons of all castes and creeds and for that reason there is no mention of Hindu joint family anywhere in the Act except ................
(b) The notions of Hindu law, or for that matter any personal law, could not be applied to bhumidhari rights, because:
(i) these are new rights conferred under the Act, and
(ii) the special provisions of the Act relating to status of a Bhumidhar, transfer by him of his interests in bhumidhari land, and devolution of his interests after his death are governed by the provisions of this special Act.
(c) ..............
(d) The notions of Hindu law will not apply to bhumidhari land because both the main incidents of a joint family property, viz (i) devolution by survivorship, and (ii) male issue of a coparcener acquiring an interest by birth (vide Mulla's Hindu Law 13th Ed. Para
221) are negatived by the provisions of the Act."
"41. ............ In our view having regard to the provisions of the Act it cannot be successfully argued that the co-bhumidhars hold the bhumidhari land as joint tenants."
"44. Our conclusions can, therefore, be briefly summarised as follows :-
Suit no. 322/08 Pg... 16 of 42
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(1) Where members of a joint Hindu family hold bhumidhari rights in any holding, they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot be invoked to determine that status.
(2) ..................... Thereafter the interest of each Bhumidhar, being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself, must be deemed to be a separate unit. (3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member.
(4) The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by Section 152 of the Act and by no other restriction. The provisions of Hindu law relating to restriction on transfer of coparcenary land, e. g., existence of legal necessity, do not apply."
13.4 In the case of Rama Shanker Vs. Mukhtiare, 2006 (135) DLT 577, again it was observed that consequent upon the enforcement of DLR Act on 20.07.1954, the ownership of agricultural land by proprietors was abolished. The proprietors became Bhumidhar under Section 11 and 13 of the Act, in respect of lands which were in their Khud Kasht and Sir, whereas the tenants would become bhumi Dhar in respect of their holdings.
13.5 In the present case admittedly the land acquired was in the name of Suit no. 322/08 Pg... 17 of 42
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Bhagwan Dass and his brother Yad Ram, at the time of its acquisition. Name of sons of Bhagwan Dass was admittedly not recorder as Bhumidhars. Though, Bhagwan Dass and his sons claim that all of them were jointly owners and in possession of the agricultural land but admittedly, at the time when the lands were acquired, it was in the name of Bhagwan Dass and his brother Yad Ram only as co-bhumidhars. There was no other recorded Bhumidhar in the revenue records. No revenue record has been proved in the court to show that the four sons of Bhagwan Dass were recorded co-bhumidhars in these agricultural lands. When it is pleaded by the four sons of Bhagwan Dass that they were owners in possession of the property, they ought to have proved it. Thus, it does not lie in the mouth of Bhagwan Dass and his four sons that they constituted a joint Hindu family in holding the agricultural land or that the agricultural land was joint family property. When the agricultural land was itself not a joint family property, there is no question of the allotted alternative plot to fall in the category of joint family property.
13.6 Plaintiffs argue that the defendant no. 2 did not rebut the oral testimony of the plaintiff's witness and the testimony of the defendant no 1 to the effect that the property was allotted in lieu of acquisition of land, therefore, this fact must be deemed to be admitted. Even if it is assumed that the suit property was allotted to Bhagwan Dass in lieu of agricultural land acquired, still it will not be a joint family property. It may be mentioned here that the plaintiffs failed to prove any document on record that the alternative plot was allotted in lieu of acquisition of land. No document was filed on record to show that the plot was acquired or Suit no. 322/08 Pg... 18 of 42
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constructed out of the compensation money received by Bhagwan Dass. It was for the plaintiffs to have proved these facts since it were the plaintiffs who claimed that the suit plot was allotted in lieu of acquisition of land. Admittedly, the plot in question was allotted in the individual name of Bhagwan Dass. Bhagwan Dass or any of his four sons never wrote to the allotting authorities including DDA that the plot ought to have been allotted in the name of HUF and not in the individual name of Bhagwan Dass. It was not done for many years between 1975 till the date of filing of suit. It was not done even thereafter.
13.7 In the case of Sri Chand Vs. LAC & Anr. 2005 (118) DLT 320, before a division bench of Hon'ble Delhi High Court, the facts were that one BS was recorded Bhumidhar of land acquired. His son challenged the grant of compensation exclusively to BS on the ground that he was born prior to the enforcement of Delhi Land Reforms Act 1954, and as such the mere fact that his father BS was recorded Bhumidhar could not be a ground for disbursing the entire amount of compensation to the father as he had acquired a right in the property being a co-parcener. He claimed that it was contrary to law of succession applicable to a co-parcener. Relying upon a judgment of another Division Bench, in RFA No. 369/2002, Randhir Singh and Anr. Vs. Union of India and Anr, the contention of the son was negatived. It was held that DLR Act is a special statue and would be applicable in regard to compensation to a person who holds the land in terms of the provisions of that Act. It was also observed that the view taken in the case of Randhir Singh was challenged in Hon'ble Supreme Court, but without success, therefore it attained finality.
Suit no. 322/08 Pg... 19 of 42
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13.8 In the case of Gulshan Vs. Govt of NCT of Delhi, LPA No.1347/2007, decided on 11.01.2008, by Hon'ble Division Bench of Hon'ble Delhi High Court, it was held that since the concept of proprietorship stood abolished after the enforcement of DLR Act. The claim, of appellant of that case, for compensation of the land acquired, though Gaon Sabha was the recorded owner of land and appellant was merely in actual, physical and cultivatory possession, was negated by Hon'ble Delhi High Court, stating that he was not a recorded Bhumidhar in the revenue records on the date when notification to acquire land under Section 4 of Land Acquisition Act was issued.
13.9 Ld. counsel for the plaintiffs argued that the deposition of PW1 and DW1, claiming the fact that the agricultural property was an ancestral property as also a joint family property, has remained unrebutted as the defendant no.2 in the cross examination did not dispute those facts. He also argues that the fact of allotment of the suit property as an alternative plot in lieu of acquisition of land is similarly not rebutted. He also argues that similarly the fact of the suit property as a joint family property is not disputed by the defendant no.2.
13.10 The argument of Ld. Counsel for plaintiffs is without any force since, it is mentioned above, that after coming into force of DLR Act of 1954 Act, the concept of ownership stood abolished. Not only that, when the agricultural land was acquired and compensation was released in favour of the recorded bhumidhar, as it could have been released in favour of recorded Bhumidhar only, the question of allotted land being joint property does not remain.
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13.11 By the mere fact of residing together and having a common mess, it cannot be presumed that the suit plot was a joint family property. In order to prove that certain properties are joint family properties, it has to be proved that the nucleus of the family constituting joint family owned it. In the present case, the plaintiffs failed to prove that the nucleus owned the plot jointly and therefore, it does not lie in the mouth of the plaintiffs that the plot was joint family property.
13.12 In Srinivas Krishnarao Kango vs. Narayan Devji Kango AIR 1954 SUPREME COURT 379, it was held that, proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact.
13.13 In Reoti Devi v. Bhagwan Dayal AIR 1954 ALLAHABAD 801, it was held that, the mere fact that some members of a joint family lived together and messed together would not be enough to raise the presumption that the property acquired by them was their joint family property.
13.14 In Mangal Singh v. Harkesh AIR 1958 ALLAHABAD 42 (VOL. 45, C. 18), it was held that , in the case of a joint family the mere existence of a nucleus is not enough to raise a presumption that all the properties possessed by its various members are joint. The presumption arises only if the nucleus is substantial and is such that its yield could provide in whole or at any rate in considerable Suit no. 322/08 Pg... 21 of 42
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part the money necessary for acquiring the property in question. Where, therefore the only facts established are that the family was joint and that it had some nucleus of joint ancestral property, and it is not established that the yield of the nucleus was sufficient for acquiring the two items of properties in question, the plalntiffs cannot be held to have discharged the initial burden that lay upon them to prove that the properties were joint and the onus therefore never shifted to the shoulders of the defendant to prove affirmatively that the properties were the self-acquired properties.
13.15 In the present case also it has not been proved by Bhagwan Dass and his sons that the suit plot was acquired from joint family funds and thus they failed to discharge the initial onus. Though, Bhagwan Dass and his four sons took a stand that the amount paid to DDA against allotment of this plot was out of the compensation amount received by Bhagwan Dass, not even a single document was proved to show that the payment was made out of the compensation amount. No statement of bank account or any other certificate or document has been shown to prove that after the compensation amount was received in bank, the money out of compensation amount was spent towards acquiring this property. Similarly, though it is claimed that in the construction of this property, amount out of compensation received was spent, but no proof has been led to show it.
13.16 Similarly, it has not been proved that the suit property was allotted as an alternative plot to the defendant no.1 Bhagwan Dass. It may be mentioned here that there was no indefeasible right in favour of Suit no. 322/08 Pg... 22 of 42
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Bhagwan Dass to have claimed an alternative plot in lieu of acquisition of land. Allotment of alternative plots is generally a welfare measure of the concerned government department and nobody can claim an absolute right to be allotted an alternative plot in lieu of acquisition of land, particularly when against the land acquired, compensation is granted.
13.17 In AIR 1994 DELHI 29 "Ramanand v. Union of India FULL BENCH of Delhi High court observed that against an acquisition of land for development of Delhi, and owner is only eligible to be considered for allotment of residential plot and he has no absolute right for allotment.
13.18 Similarly in AIR 1968 DELHI 146 (Vol. 55, C. 34) Sheila Kapur v. Chief Commr. Delhi, a Division Bench , held there is no law that the Government must allot alternative plots of land to the owner whose land has been acquired. Of course, there is nothing to prevent the Government to allot alternative land, as a matter of concession, to the owner. But in that case, the owner will not have any legal right to get alternative plot of land.
13.19 Thus, when Bhagwan Dass himself had no indefeasible right to get an alternative plot, there is no question of indefeasible right of the four sons in the said alternative plot. When the defendant specifically disputed in the written statement that the plot was allotted in lieu of the acquired land, the plaintiffs ought to have proved the said fact through cogent evidence. Merely because the defendant did not cross examine the witness on this point cannot go to prove the fact that the plot was allotted Suit no. 322/08 Pg... 23 of 42
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in lieu of acquired land, particularly when monetary compensation was awarded in favour of and received by Bhagwan Dass, admittedly. It is not a case where in lieu of land acquired the plot was given without any monetary compensation.
13.20 Bhagwan Dass, who has signed the Agreement to sell, dated 4.8.1981, mentioned in the document that he was an absolute owner of the suit property and that he was competent to execute the documents of sale. In the notice given by the plaintiffs to their father Bhagwan Dass and the defendant no.2, dated 1.10.1987 Ex.PW1/6, they also mentioned that it was Bhagwan Dass who along with his father Kishan Pal were recorded owners in possession of the agricultural land. They nowhere mentioned that they were also recorded owners in possession of the agricultural land. It is admitted in the said notice that compensation of acquired land was received by Bhagwan Dass only and that the plot was allotted to Bhagwan Dass only. It is also admitted in the said notice that the lease deed was in the name of Bhagwan Dass. It is nowhere claimed by the plaintiffs that they ever approached the DDA, requesting DDA to change the name of recorded owner of the suit plot in the joint names of Bhagwan Dass and his four sons. After the plot was allotted in 1975, the plaintiffs and their fourth brother were aware of the allotment of plot in the individual name of Bhagwan Dass, yet no steps were taken to correct the recording of the name of owner, if it was a mistake. All these facts go show that the suit property was not a joint family property. 13.21 It may also be mentioned that the plaintiff no. 1, the only witness examined from amongst themselves by the plaintiffs, as PW 1 tendered his evidence by way of affidavit on 4th August 2012, but stated that he Suit no. 322/08 Pg... 24 of 42
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does not remember the contents of his affidavit. In such circumstances no reliance can be placed on the testimony of PW1 and in the eventuality of illness of PW1, as claimed by him, the plaintiffs ought to have examined anyone from the remaining brothers.
13.22 In view of all the above facts, neither the acquired agricultural land can be termed as joint family property nor the suit property allotted can be so termed. It is also not proved that the suit property was allotted in lieu of acquisition of land. The issue no. 1, 2 & 3 are accordingly decided against the plaintiffs, the defendant no.1 and the defendant no.3. These issues are decided in favour of the defendant no.2.
14. Issue no. 4 is whether the suit as framed is not maintainable? The plaintiffs ought to have sought cancellation of the documents qua sale of property, i.e. the Agreement to sell, GPA, receipt. It has not been sought. The defendant no. 1 did not seek cancellation of these documents either.
14.1 The Hon'ble Supreme Court in the case of Prem Singh & Ors. vs. Birbal & Ors., 2006 (5) SCC 353, has dealt with the provisions of Section 31 of the Specific Relief Act, 1963 and Article 59 of the Limitation Act, 1963. Section 31 of the Specific Relief Act, 1963 provides the entitlement to seek cancellation of the documents. The Supreme Court has held that there are two types of documents; one is a void document and the second is a voidable document. So far as the void documents are concerned, for such documents there need not be filed any suit for cancellation under Section 31 of the Specific Relief Act, 1963, however so far as the voidable documents are concerned such documents have Suit no. 322/08 Pg... 25 of 42
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to be got cancelled as per Section 31 of the Specific Relief Act, 1963.
14.2 Since the plea of the defendant No.1 is that the documents in question, to which he is a party, were got signed on misrepresentation, the documents are therefore only voidable and not void. The defendant no.1 was therefore bound to seek cancellation of such documents. So were the plaintiffs.
14.3 Also the plaintiffs ought to have sought recovery of possession of the suit property, which again is not prayed. Admittedly, the defendant no.2 is in possession of the suit property. Possession is not sought to be recovered from the defendant no.2 by the plaintiffs. The suit ought to have been a suit for possession as well, which has not been done. In effect, the plaintiffs have neither prayed for cancellation of the sale documents, nor the recovery of possession of the suit property is prayed, despite the fact that possession of the suit property is with the defendant no.2 continuously since 4.8.1981, which the defendant no. 2 claims on the basis of purchase of suit property.
14.4 Rather the present suit as framed has been drafted very astutely in order to not only escape payment of court fee but also to escape the rigors of The Limitation Act, 1963. Without seeking relief of cancellation of documents and possession, the other relief of partition cannot be claimed by the plaintiffs. It would be worth mentioning here that Bhagwan Dass never instituted any suit either for cancellation of the documents or for possession of property. Instead, the possession of the defendant no. 2 is protected Under Section 53A of the Transfer of Property Act. It is an Suit no. 322/08 Pg... 26 of 42
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admitted case of the parties that possession of the plot was handed over to the defendant no.2 upon receipt of a sum of Rs.2.51 Lakhs on 4.8.1981. In the decision of issue no. 8 it held that this amount of Rs. 2.51 Lakhs was a sale consideration and not loan as claimed by Bhagwan Dass and sons. Thus, the defendant no.2 was put in possession of the property in part performance of the contract of sale & purchase. Without seeking possession of the property, the possession of the defendant no.2 cannot be disturbed by the plaintiffs who are none other than representatives of seller Bhagwan Dass. As per Section 202 of the Contract Act, 1872, the power of attorney given for consideration is irrevocable. It is relevant to note that these documents were executed before the provision of Section 53A of the Transfer of Property Act, 1882 was amended in the year 2001, and where after rights under Section 53A of the Transfer of Property Act, 1882 can only be claimed if the document is duly stamped and registered. Thus, the defendant no.2 was put in possession of the property in part performance of the contract of sale & purchase. Without seeking possession of the property, the possession of the defendant no.2 cannot be disturbed by the plaintiffs who are none other than representatives of seller Bhagwan Dass.
14.5 Even if it is assumed, for the sake of arguments, that the sum of Rs. 2.51 Lakhs was paid to Bhagwan Dass as a loan or that the suit property was given to him as a security, as claimed by Bhagwan Dass and sons, in that eventuality, the appropriate suit would have been a suit for redemption of mortgage.
14.6 In view of above discussion, the suit as framed by the plaintiffs seeking Suit no. 322/08 Pg... 27 of 42
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a simplicitor decree of declaration to the effect that the suit property is an HUF property; a decree of mandatory injunction asking Bhagwan Dass to repay the loan and take the possession and; a decree of partition is not maintainable. This issue no.4 is accordingly decided against the plaintiffs, the defendant no.1 and, the defendant no. 3 It is decided in favour of defendant no.2.
15. Issue no.6 is whether the suit is properly valued for the purposes of court fee and jurisdiction. The plaintiffs, the defendant no.1 & 3 being not in possession of the suit property, were required to value the suit for the purposes of court fee and jurisdiction as per market value of the property and court fee ought to have been paid ad valorem. The plaintiffs have valued the suit for the purposes of court fee and jurisdiction as Rs.10 Lakh. On the other hand, the defendant no.2 claimed that the suit property was not less than Rs.15 Lakh. None of the sides led any evidence to show which of the two market value was correct at the time when the suit was instituted. In such circumstances, it cannot be said that the valuation of Rs.10 Lakh by the plaintiffs was not correct. Thus the valuation cannot be said to be not correct. It is worth mentioning here that the since the plaintiffs and the defendant no 1 & 3 were not in possession of the suit property, which was exclusively with the defendant no.2, not only the suit ought to have been one for possession but also ad valorem court fee on that amount ought to have been paid. Anyhow, a suit cannot be dismissed and a plaint cannot be rejected on the ground that entire court fee has not been paid, without giving an opportunity to the plaintiffs to pay the court fees. The valuation of the suit property is correct but the court fee has not been paid in entirety. It may also be Suit no. 322/08 Pg... 28 of 42
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mentioned here that though, partition of the property was also sought and the plaintiffs were not in possession, still, court fee on their share was not affixed. Accordingly, this issue is decided against the three plaintiffs and in favour of defendant no.2.
16. Turning to the Issue no. 5 & 8, both these issues are interconnected and therefore taken up together.
16.1 Under the issue no. 8, onus was on the plaintiffs, to prove that Rs.2.51 Lakhs was taken by Bhagwan Dass as a loan against the suit property as its security. Not only the plaintiffs, but their father Bhagwan Dass and the fourth brother all claimed that the sum of Rs.2.51 Lakhs paid by the defendant no.2 was in fact a loan and not towards consideration of sale of property. Bhagwan Dass admittedly signed Agreement to sell, GPA, Receipt and Will. What is claimed is that taking advantage of illiteracy of Bhagwan Dass, these documents were got signed whereas he intended to sign loan documents only.
16.2 The legal notice Ex.DW1/1, dated 30.9.1985, issued by Bhagwan Dass to the defendant no.2 would reveal that in this notice, he specifically admits that he executed Power of attorney, Will, Agreement to sell, Receipt and certain other documents in favour of the defendant no.2. Though it is claimed in this notice Ex.DW1/1 that these documents were issued to the satisfaction of defendant no.2, as security, but it is also mentioned therein that copies thereof were retained by Bhagwan Dass. It is necessary to note that this document is of September 1985. It is the first written communication available after the transaction of August Suit no. 322/08 Pg... 29 of 42
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1981. It nowhere says that signatures of Bhagwan Dass were obtained under mis-representation. Instead, he himself claims to have signed these documents in favour of defendant no.2, as security. The defence put forth by Bhagwan Dass that his signatures were obtained under misrepresentation falls apart in view of the contents of this notice issued by none other than himself.
16.3 Similarly, the Cancellation of Will by Bhagwan Dass, vide Ex.DW1/4, which is an admitted document of Bhagwan Dass, would reveal that all that he mentioned in this document was that whereas he had executed a registered Will in favour of defendant no.2, he cancels and revokes the same and that defendant no.2 will not be entitled to any right in the property. Does he mention any fact of misrepresentation in this document? The answer is emphatic 'No'. Besides this, there are a large number of communications done by and on behalf of Bhagwan Dass with DDA qua the suit property, as is mentioned in Ex.PW2/1 (which is a collective exhibition of the documents summoned from DDA, and which forms part of DDA file qua allotment of the suit property). In his various communications with DDA, he has communicated in English Language. Thus, the claim of Bhagwan Dass that he being an illiterate signed the documents qua sale of property under misrepresentation does not hold water. More particularly when in his earlier notice he admits that he had copies of all those documents with him. Thereby meaning, that from the year 1981 till the present suit was filed, Bhagwan Dass had copies of these documents available with him. He and his sons had all the time available under The Sun to notice and take appropriate recourse if there was any misrepresentation in obtaining the signatures. Nobody Suit no. 322/08 Pg... 30 of 42
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prevented them to have got read over or explained these documents. Also, his own son the defendant no.3 is a signatory of the Will dated 4-8-81, executed in favour of defendant no.2. Thus, the defence that Bhagwan Dass signed the documents under mistaken belief of loan documents is nothing but absolute falsehood and an attempt by Bhagwan Dass and sons to wriggle out of the sale transaction.
16.4 Had the story of obtaining loan been true, there was no occasion for Bhagwan Dass to have signed and executed a registered Will in favour of the defendant no.2. The Will in favour of defendant no.2 is a registered document. Though, Ld. Counsel for the plaintiffs claimed that this Will cannot be looked into since it does not bear photograph of Bhagwan Dass and is therefore hit by Section 32A of the Registration Act 1908, but this contention is without force as that provision has been inserted in the year 2005 and it was not there in the statue book earlier. The fact of execution of the Will goes to show that there was no loan transaction. Otherwise also, why would a person execute Will of a property which will have the capacity to take effect qua the property after death of executor. This Will is witnessed by one of the sons of Bhagwan Dass. It is a registered document. We need to attach some sanctity to a registered document.
16.5 In Shanti Budhiya Vesta Patel v. Nirmala Jayprakash Tiwari and Ors. AIR 2010 SC 2132, it is observed, that a registered document has a lot of sanctity attached to it and this sanctity cannot be allowed to be lost without following the proper procedure.
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16.6 The plaintiffs and Bhagwan Dass did not examine another witness of the Will to prove the fact that it was signed under misrepresentation. Even the notary who has attested the documents has not been examined to prove the alleged fact in favour of Bhagwan Dass.
16.7 The Agreement to sell Ex.PW2/1 also specifically states that this amount of Rs.2.51 Lakh was received towards sale consideration. There is no document to show that this amount was taken as a loan or that the documents of Agreement to sell, GPA, Will and Receipt were executed as security only. Nothing prevented Bhagwan Dass to have prepared and get executed a document showing that the property was kept as a security against loan transaction.
16.8 In the Agreement to sell, it is mentioned that Bhagwan Dass being an absolute owner of the suit property, purchased from DDA, agrees to sell it and has received total consideration after handing over the possession of the property. He also undertook to execute necessary sale documents. It is specifically mentioned in the Agreement to sell that after this agreement, the lease amount, taxes, electricity and water bills etc. shall be paid by the defendant No.2 and not by Bhagwan Dass. In Para No.12 of the Agreement to sell, it is specifically mentioned that in case Bhagwan Dass, fails to effect transfer of property in favour of defendant No.2, the defendant No.2, can get the transfer effected through Court of Law. All these facts indicate that it was not a loan transaction. Thus, there is no doubt that the amount of Rs.2,51,000/- was not given as loan, but was given in consideration of sale of property.
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16.9 Under Section 91 and 92 of the Evidence Act, when a contract has been reduced to writing, it is the contract in writing which can be proved and no oral evidence against it is permitted in order to contradict, vary or to alter the terms of the contract. Section 91 of the Evidence Act provides that when the terms of a contract, grant or of any other disposition of property, has been reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or disposition of the property except the document itself. Similarly, Section 92 of the Indian Evidence Act provides that when the terms of any such contract, grant or disposition of property has been proved by the production of the document itself, no evidence of any oral agreement or statement shall be admitted as between parties to such instrument or their representatives in interest for the purposes of contradicting, varying, adding to or subtracting from its terms. In the present case, the Agreement to sell is a contract in writing along with Will and GPA. The GPA was executed against consideration. Thus bar of section 91 and 92 of the Evidence Act also operates against Bhagwan Dass and sons.
16.10 The issue no. 8 has to be decided against Bhagwan Dass and sons. It is so decided against them. It is decided in favour of the defendant no. 2
17. Turning to the issue of limitation under the Issue No.5, admittedly these documents qua sale of property pertain to the year 1981. The documents were executed on 4th and 6th August 1981. Bhagwan Dass was admittedly aware of these dates right from the very beginning. One of his son i.e. defendant No.3 was also well aware of this sale Suit no. 322/08 Pg... 33 of 42
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transaction since 4th August, 1981, as he is a witness of the Will. It is own case of the plaintiffs that they were residing together as a joint family and they had a common mess. Thus, it does not lie in their mouth to claim ignorance of execution of these documents. Rather, it is a case where Bhagwan Dass and his all four sons were aware of this transaction right from 4th August, 1981. Notice dated 30.09.1985 was issued by Bhagwan Dass, but subsequently another notice was issued on behalf of the plaintiffs knowing that the suit cannot be based on the notice given by Bhagwan Dass, as it would be time barred. Bhagwan Dass, the executor of documents and his witness son were, therefore, deliberately impleaded as defendants in this suit.
17.1 It is held in this judgment of mine that since the plea of Bhagwan Dass and sons is that the documents in question were got signed on misrepresentation, the documents are therefore only voidable and not void. Bhagwan Dass and sons were therefore bound to seek cancellation of such documents within three years as per Article 59 of the Limitation Act, 1963 so that no rights could flow from these documents. Having not so done the Agreement to sell, dated 04-08-1981, executed along with other documents GPA, receipt and handing over of possession of property, achieve finality.
17.2 The suit has been astutely drafted to escape the rigors of Law of Limitation, by making it a suit for decree of declaration and mandatory injunction. As mentioned above, it was necessary to have sought cancellation of documents and to seek possession of the property. Deliberately cancellation of documents and possession has not been Suit no. 322/08 Pg... 34 of 42
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sought in the present case, without which the relief sought in the case cannot be granted. Under law of limitation documents can be sought to be cancelled within three years of the date of knowledge of documents sought to be cancelled. Thus, the suit to cancel the documents in this case, could have been filed maximum by 6th of August, 1984. It was time barred even on the date when the first notice was issued by Bhagwan Dass on 30.09.1985, therefore, the suit has been given a colour of suit for declaration of joint family property, whereas, it should have been a suit for cancellation of these documents as well as for possession of the suit property.
17.3 Even otherwise, Bhagwan Dass and his four sons were aware of this transaction right from very beginning and therefore, even the suit for declaration of this property as a joint family property ought to have been filed within three years prescribed for seeking declaration. Thus, the suit is also barred by limitation.
17.4 The issue no. 5 has to be decided against the plaintiffs. It is so decided against them. It is decided in favour of the defendant no. 2
18. Issue no. 9 - Admittedly, Bhagwan Dass had one more alive daughter and she being a Class-I heir ought to have been joined. Thus, it is in fact a case of non-joinder of necessary party and not a case of misjoinder. In the written statement of the defendant no.2, non-joinder was claimed but it appears that inadvertently word misjoinder is typed instead of non- joinder, in the issue as framed.
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18.1 Under Order 1 of CPC a suit cannot be dismissed for misjoinder of parties but of course it can be dismissed for non-joinder of necessary parties. Bhagwan Dass and his four sons claimed the suit property to be a joint family property and their shares in the suit property. Daughter being Class-I heir was equally entitled to her share. Thus, in the present suit seeking a declaration that the suit property is an HUF property and the suit claiming partition, joinder of daughter of Bhagwan Dass was necessary. A necessary party is a party without whom, no effective decree can be passed. In case, the suit of the plaintiffs was entitled to be decreed, the daughter had equal share in partition and thus the said prayer could not have been granted in her absence. Thus the suit also suffers from non-joinder of necessary party. This issue no. 9 is accordingly decided against the plaintiffs and in favour of the defendant no.2.
19. Issue No. 10 & 11.
19.1 Ld. counsel for the plaintiffs argued that the Agreement to sell, GPA, th th Will and Receipt dated 04 and 6 of August, 1981, cannot be relied upon, since these documents does not have the effect of transferring the property. Admittedly in this case sale deed was never executed. He claims that in the case of Suraj Lamp and Industries vs. State of Haryana 2012 (1) SCC 656, it has been specifically held that an immovable property can be transferred only through valid Registered documents. Admittedly in the case of Suraj Lamps, it was observed in Para 19 that that the observations in that case are not intended to in any way affect the validity of sale agreements and Power of Attorney Suit no. 322/08 Pg... 36 of 42
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executed in genuine transactions.
19.2 In the case of Vikas Jain Vs. Naresh Kumar, RFA No. 492/2001 decided on 08.02.2012, Hon'ble Delhi High Court, observed as follows;
"5. The documents which were executed by Mr. Prem Chand Jain in favour of respondent/plaintiff dated 7.8.2000 were proved and exhibited before the trial Court as Ex.PW1/E (Agreement to sell), general power of attorney (Ex.PW1/B) and affidavit with respect to handing over of possession (Ex.PW1/C) etc. I may state that the rights which are claimed on the basis of these documents arise under Section 53 A of the Transfer of Property Act, 1882 which gives rights in an immovable property pursuant to the doctrine of part performance. Rights are also created in the suit property in favour of the respondent/plaintiff as per Section 202 of the Contract Act, 1872, by which the power of attorney given for consideration is irrevocable. It is relevant to note that these documents were executed before the provision of Section 53A of the Transfer of Property Act, 1882 was amended in the year 2001, and where after rights under Section 53A of the Transfer of Property Act, 1882 can only be claimed if the document is duly stamped and registered. It is relevant to note that the Supreme Court has preserved rights arising from the doctrine of part performance and an irrevocable power of attorney in the decision of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1(SC) as per paras 12, 13 and 16 of the judgment."
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19.3 In the case of Ramesh Chand Vs. Suresh Chand and Anr., RFA NO. 358/2000 decided on 09.04.2012, by Hon'ble Delhi High Court observed as follows, in Para 3, " A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882 , Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will."
19.4 In the case of Raj Kumari Garg Vs. S.M. Ezaz and Ors., RFA (OS) No. 38/12 and FAO (OS) No.204/2012, decided on 13.08.2012, Delhi High Court observed, "34. Another aspect taken note of in the impugned order and which was canvassed before us arises from the judgment of the Supreme Court in Suraj Lamp & Industries Private Limited (2) Through Director Vs. State of Haryana & Anr. (2012) 1 SCC 656. The execution of Agreement to sell & purchase coupled with collateral documents like Suit no. 322/08 Pg... 38 of 42
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GPA, SPA, Will, etc. has been a common practice in Delhi. The validity of such a practice has been examined in the said judgment and it has been held that the bunch of such documents cannot be recognized as deeds of title, "except to the limited extent of Section 53A of the TP Act". In fact, it has been observed in paras 26 & 27 that the observations of the Supreme Court are not intended in any way to affect the validity and powers of attorney executed in genuine transactions and the bunch of documents can continue to be treated as existing agreements of sale which would not prevent the affected parties from getting the registered deeds of conveyance to complete their title. The said bunch of documents can also be used to obtain specific performance or to defend possession under Section 53A of the TP Act. ......."
19.5 In the present case, the documents are of year 1981. Admittedly, along with the execution of these documents, possession of the property was handed over to the defendant No.2. Entire sale consideration of Rs. 2,51,000/- stood received by Bhagwan Dass and thereafter, possession was transferred. Nothing remained to be done by the defendant No.2. He had performed his part of the contract in Toto. Subsequently, even the suit property was got transferred in the records of DDA and it was got free hold in favour of the defendant No.2. Merely because the sale deed was not finally executed, does not belie the transaction of sale between Bhagwan and the defendant No.2.
19.6 Ld. counsel for the plaintiffs argued that the photocopy of General Power of Attorney, filed by the defendant No.2, does not bear any stamp Suit no. 322/08 Pg... 39 of 42
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or signature of any notary, while the same Power of Attorney existing in the file of DDA are attested documents and therefore, it cannot be relied. Similarly it is argued that the copy of Agreement to sell filed by the defendant No.2 is unattested whereas the attested document is filed in the file of DDA.
19.7 No weight can be attached to this argument, since admittedly these documents bear signatures of Bhagwan Dass. Bhagwan Dass and his sons did not examine notary public to disprove these documents. In what circumstances, these documents came to be attested subsequently and whether the parties appeared before the notary public for attestation on subsequent date or not, were facts which ought to have been proved by Bhagwan Dass and his four sons, who were challenging these voidable documents in this trial. But they failed to examine the notary public or any other witness to these documents to disprove those documents.
19.8 It is also argued by plaintiffs that Agreement to sell must also have been registered. The said argument is fallacious, as in law an Agreement to sell need not be registered. Under the Power of Attorney Act, 1882, a power of attorney need not be attested or registered, unless it gives authority to present a document for registration under Section 32 of the Registration Act. The GPA and Agreement to sell, the copies of which were collectively proved as Ex.DW-2/1 are attested documents by notary and there is a presumption in law under Section 85 of the Evidence Act in favour of genuineness of GPA.
19.9 Neither the notary public nor the witnesses of documents have been Suit no. 322/08 Pg... 40 of 42
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examined to disprove the execution of these documents. If we see the collective effect of the execution of Agreement to sell along with the execution of Will, Receipt and, GPA, coupled with the fact of payment of entire sale transaction and possession delivered to the defendant no.2, no doubt remains that the property was sold by Bhagwan Dass to the defendant No.2. The fact of non-existence of revenue stamps in the copy of receipt produced by the official from Sub-Registrar also does not materially affect the decision of this case.
19.10 Counsel for plaintiffs argued that when other family members of Bhagwan Dass were admittedly present at the time of execution of these documents, defendant No.2 ought to have examined them. But then, Bhagwan Dass and his sons also did not examine any of them to prove their stand and they also did not examine witnesses to the GPA namely Gurbachan Singh, to the Will namely Lal Singh, to Receipt namely Gurbachan Singh Khanna and D.N. Kaul, Gurbachan Singh Khanna to the Agreement to sell.
19.11 The contention of plaintiffs that without permission of DDA, the property could not have been sold is also without force. In the case of Shamsher Singh Vs. Anshu Mangla, 182 (2011) DLT 137, it was held that the clause in perpetual lease qua transfer of property without permission of the lesser, does not make the transaction in question as void. All that the clause provided was that before transfer of the property permission is required for transfer and the permission may be a conditional permission subject to certain payment. It was held that in agreements to sell where the seller has to take prior permission from an Suit no. 322/08 Pg... 41 of 42
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appropriate authority, then the agreement does not become invalid for that the reason, but the seller must take the appropriate permission.
19.12 In the present case, the perpetual lease does not debar selling of the property. All that it says is that the lessee shall not sell or otherwise part with the possession except with the previous consent in the writing of the lessor i.e. DDA and the lessor reserves its absolute discretion. Thus, it is not a case where the sale was absolutely barred and it is a case where DDA had reserved its right to permit sale of property. Non-obtaining of permission does not make the sale transaction void, in view of the above mentioned judgment.
20. Thus the plaintiffs are not entitled to any relief and the suit is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to the record room.
Announced in the open Court Dig Vinay Singh
on 17th day of December, 2012. ADJ-04 (Central)
Delhi
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