Tulsi Bai And Ors. vs Kewal Malhotra @ Kitty And Ors.
1996 Latest Caselaw 32 Del

JUDGMENT

K. Ramamoorthy, J.

(1) The following pedigree will show the relationship between the plaintiff and the third defenant: Kalicharan Ram Richpal Wife Smt. Tuisi Bai wife Smt.Bishani Devi Smt. Laxmi Rani Smt. Rachna Verma (Plaintiff No. 2) (Plaintiff No. 3)

(2) KALICHARAN'S widow Smt. Tuisi Bai is the first plaintiff, her two daughters namely Smt. Laxmi Rani Verma and Smt. Rachna are the second and third plaintiffs' respectively. Kalicharan who the younger brother of Sh. Ram Phal Smt Bishni Devi is the wife of Shri Ram Phal third defendant.

(3) Defendants I and 2 are third parties who are supporting the third defendant.

(4) Plaintiffs I to 3 and third defendant each became entitled to one fourth share in the plot which was the subject-matter of decree in Suit No. 6/73. That was a decree passed on the basis of compromise basis on 07.11.1973. The plot owned by the parties was the subject-matter of land acquisition proceedings and also the Urban Land and Ceiling Regulation Act, 1976.

(5) On 10.04.1983 the plaintiffs and the third defendant entered into an agreement for the purpose of selling the land after getting it released from acquisition and also from the Land Ceiling Act. They agreed that plaintiffs 2 and 3 who were educated and earning money would take up the litigation. If they succeed in getting the land released they would develop land and sell the same. If permission is not granted for redevelopment the parties agreed to sell the land except 1400 sq. yds. which will be divided between the plaintiffs and the third defendant in the following manner:

(6) About 200 sq. yds to defendant No.3,500 sq. yds to plaintiffs 2 and 3 each. The second and third plaintiffs in addition to the above shall pay Rs. 2,00,000.00 each to the first plaintiff and the third defendant out of the sale proceeds. Plaintiffs 2 and 3 filed Cw No. 250/85 challenging the acquisition proceedings and this Court allowed the writ petition on 14.04.1989. Plaintiffs 2 and 3 were also able to manage to get the land declared as not excess under the Urban Land (Ceiling and Regulation) Act, 1976. Cambridge Foundation Society filed a Civil Writ bearing No. 4082/91 for directions to the Government to acquire the land owned by the parties and for the allotment of the same to the Cambridge Foundation Society. Plaintiffs 2 and 3 at there own expenses fought that litigation and got the writ petition filed by Cambridge Foundation Society dismissed. Thus the plot became saleable as per the terms of the agreement dated 10.04.1983. Then as per the arrangement the entire land including the built up area was divided leaving upon 1400 sq. yds for allotment. The first plaintiff and third defendant were paid Rs. 2,00,000.00 each and 200 sq. yds area built up portion put up in the possession of the third defendant. On 30.04.1992, the plaintiff as well as third defendant executed relinquishment deed (registered) recognising the rights of the other parties to the shares allotted to her. After this transaction there was no scope for disputes between the parties.

(7) The third defendant filed a suit bearing No, 2445/94 stating that the property was still owned by all. The third defendant did not deny the relinquishment deed. The third defendant also filed a Suit No. 2651/94 claiming a sum of Rs. 6,00,000.00 from the plaintiffs. The suit was withdrawn by the third defendant on 14th of September, 1995 and the same was dismissed as withdrawn.

(8) The third defendant with the help of defendants 1 and 2 attempted to interfere the possession of their property and, therefore, the plaintiffs have come forward with this suit on the basis of the allegations in the plaint injunction prayed for pending the suit. A Local Commissioner was' appointed by this Court and the Local Commissioner's Report shows that the contention of the plaintiffs, prima fade, to be true. '

(9) The third defendant has filed application Ia No. 9202/95 for vacating the injunction granted stating that she has filed the suit bearing No. 2445/94 for partition of the property subject-matter of that suit. It is admitted that the plaintiffs 1 to 3 herein are defendants in that suit. In para 5 of the petition she has stated that the documents relied upon by the plaintiffs are forged documents and have been fabricated. She also states that she had lodged a police complaint on 6.9.1995. In the plaint in S. No. 2445/94 the third defendant Smt. Bishni Devi admits the execution of the power of attorney in December, 1991 but does not refer to the relinquishment deed dated 30.04.1992. In that suit she claimed only one fourth share in the property. In para 7 of the plaint therein she admits the receipt of Rs. 2,00,000.00 but would state that the the defendants therein (plaintiffs herein) had promised some more money would be paid in instalments subsequently. Learned Counsel for the third defendant contends that in Suit No. 2445/94 there is an interim order directing the parties to maintain status-quo. It is also stated in plaint in Suit No. 2445/94 that the third defendant had cancelled the document and the third defendant contends that the orders passed in Suit No. 2445/94 would be binding on the plaintiff and she can deal with the property in any manner she deems fit. Learned Counsel for the third defendant contended that the plaintiffs has suppressed the fact of filing of the suit by the third defendant. The contention on behalf of the plaintiffs is that defendants 1 and 2 are not parties to Suit No. 2445/94 and when third defendant is attempting to endanger the right of the plaintiffs through them to safeguard their rights they have to file this suit. On a consideration of the facts adverted to the above, I am clearly of the opinion that the plaintiffs have shown a prima facie strong case for the grant of injunction. The reliquinshment deed dated 30.04.1992 has not been dealt with by the third defendant except stating it to be a forgery. The validity of the documents has to be considered at the time of trial of the case and it cannot now be assumed that the contention of the third defendant is correct. The third defendant cannot seek to get over registered documents in the way in which she seeks to do it. If ultimately it transpires that she has executed the documents she cannot challenge the documents because, as on date, her right to challenge the document has become extinguished by the law of limitation. The registered document is voidable and within a three years from the date of the document she must have taken proceedings to get die document set aside. Sections 19 and 19(A) of the Contract Act, 1872 are relevant. Sections 19 and 19(A) of the Contract Act, 1872 reads as follows:

SECTION 19 Voidability of agreements -without free consent-When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was to caused.

Aparty to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed and that he shall be put in the position in which he would have been if the representation made had been true.

SECTION 19-A Power to set aside contract induced by undue influence-when consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just".

Even as a defendant she cannot challenge the document beyond the period of three years. The Supreme Court in the case of Smt Thak amma Mathew v.M Azaraithulla Khan and Ors., 1993 Sc 1120 has laid down the principle. And in view of this also prima facie I feel that the plaintiffs are entitled to injunction. Regarding the balance of convenience, it is certainly in favour of the plaintiffs because if defendants I and 2 are permitted to middle with die property the plaintiffs will put to irreparable loss and irremediable damage. Whatever I have stated above, is only a prima facie view and the rights of the parties have to be adjudicated at the time of trial of the case.

(10) Therefore, Ia No. 9028/95 for injunction is allowed. There shall be an injunction restraining the defendants, their servants, agents and any other person claiming under them, from interfering with the plaintiff's peaceful possession of the property bearing Nos Wz 106/121,122,123,124,142,143andl44inVillageTatapur (Rajouri Garden Extension), New Delhi as shown in the site plan and also restraining the defendants from raising any construction on the plot of land of extent ofl50sq.ydsinplotNo.WZ-106/143, 144 shown in the red colour in the site plan pending disposal of the suit Ia No. 9303/95 for vacating injunction is dismissed. There shall be no order as to costs. Post the matter for admission/denial of documents on 20.05.1996. Parties are at liberty to file their respective original documents within ten weeks copies thereof be exchanged between them and the suit be posted for framing of issues on 03.07.1996.