Kasturi Lal Jain vs Inder Prakash Jain
1997 Latest Caselaw 800 Del

JUDGMENT

K.S.Gupta, J.

(1) Kasturi Lal Jain-plaintiff filed this suit alleging that plot No. A-82, measuring 412.50 sq. yards situated in the area of Village Malikpur Chhaoni, Zone C-18, in the layout plan of Part-I of Gujran wala Cooperative House Building Society Ltd., Delhi is on lease with him and the defendants under the sub-lease of the Society registered at serial No. 890 in Additional Book No. 1 Volume No. 2948 on pages 94110 dated March 2, 1973, with the Sub-Registrar, Delhi. Plaintiff and the defendants were having disputes in regard to rendition of accounts of a number of partnership firm including M/s. Rolex Metal Industries (India). Under threat, criminal intimidation and pressure exerted by the defendants, plaintiff executed general power of attorney dated September 21, 1981 in favour of defendant No. 1, release deed dated September 19, 1981 and affidavit dated September 21, 1981 so that the partition of immovable properties and disputes in regard to rendition of accounts etc. could be decided simultaneously. It is alleged that plaintiff never intended to forgo title in aforesaid plot No. A-82, Gujranwala Town. Aforesaid general power of attorney, affidavit and the release deed thus being void or voidable are liable to be cancelled. It is further alleged that the aforesaid release deed amounts to transferring of the aforementioned plot and as envisaged by the terms and conditions of the perpetual sub-lease deed it could not have been executed by the plaintiff without the permission of the Lt. Governor, lessor. It was prayed that the aforesaid release deed dated September 19, 1981, power of attorney dated September 21, 1981 and the affidavit dated September 21, 1981, be cancelled and delivered back to the plaintiff under Section 31 of the Specific Relief Act.

(2) Defendants 2 to 4 have contested the suit by filing a joint written statement while defendant No. 1 has filed separate written statement.

(3) In his written statement defendant No. 1 by way of preliminary objection as pleaded that the suit is essentially a suit for cancellation of documents pertaining to immovable property and as such court fee is payable on the market value of the plot, suit has, therefore, not been correctly valued for the purpose of payment of Court fee. On merits, it is alleged that by a registered lease deed executed on February 4, 1970, the President of India demised to Gujranwala House Building Society Ltd., Delhi, residential plots falling in the layout plan of the Society. Out of those plots a sub-lease regarding plot No. A-82 was executed in the name of defendant No. 1 and registered in the office of the Sub-Registrar, New Delhi, on June 27, 1970. Later on defendant No. 1 of his free Will and without receiving any consideration got the sub-lease changed in the name of his brothers i.e. plaintiff and defendants 2 to 5. On this change another perpetual sub-lease was executed between the President, Gujran wala House Building Society Ltd. and plaintiff and defendants 2 to 5 as sub-lessees on February 12, 1973 which was duly registered in the office of the Sub-Registrar. It is admitted that family disputes did exist between the plaintiff and defendants 2 to 5 but not with defendant No. 1. However, these family disputes were settled and accounts were cleared. Suit filed by the plaintiff regarding M/s. Rolex Metal Industries, Bombay, has since been withdrawn by him. It is alleged that the release deed dated September 19, 1981, power of attorney dated September 21, 1981 and the affidavit dated September 21, 1981 were executed and singed by the plaintiff of his own free will with a view to settle the family disputes. It is emphatically denied that any fraud was played or pressure exerted on the plaintiff in regard to the execution of the aforesaid documents or that they are void or voidable, as alleged. It is emphatically denied that any permission from the Lt. Governor was needed for execution of the release deed dated September 19, 1981.

(4) Likewise is the written statement filed by defendants 2 to 4

Following issues were framed on December 18, 1986: 1. Whether the impugned documents, namely, release-deed dated September 19, 1981, Power of Attorney dated September 21, 1981 and the affidavit said to be executed by the plaintiff on September 21, 1981 are void or voidable for the reasons stated in paras 6 & 7 of the plaint? 2. Whether the suit is not properly valued for the purpose of Court fee? 3. Relief

(5) Issue No. 1 : In support of this issue, plaintiff examined himself as Public Witness 1. He deposed that he, members of his family, defendants and their family members were running business in the names of M/s. Rolex Metal Industries at Bombay. M/s. Jainson Hosiery Industries & M/s. J.H.I. Hosiery Industries at Ludhiana and M/s. Tilak Chand & Sons at Delhi. In January, 1981, when his son demanded the accounts of M/s. Rolex Metal Industries he was assaulted by the defendants. He himself, his wife and the son informed the Banks not to allow operation of the accounts of aforesaid M/s. Rolex Metal Industries, M/s. Jainson Hosiery Industries & M/s. J.H.I. Hosiery Industries. Therefore defendants 1, 3 & 4 approached and told him to permit the operation of the Bank accounts. They assured to refer the disputes to Ram Lal Jain, Bir Chand Jain and Amrit Lal Jain, Arbitrators and to show all the accounts to them. Arbitrators gave the award and tole the defendants to pay Rs. 10,10,000.00 to him within a month. This decision of the Arbitrators was acceptable to him. Out of that amount defendants paid Rs. 1, 50,000.00 on July 25, 1980 (?) against the receipt. Defendants lingered on the payment of the remaining amount on one pretext or the other. He further deposed that defendants 1, 3 and N.K. Jain told him to sign documents to enable them to sell the properties in order to pay the amount to him of the sale proceeds thereof. He signed the dissolution deeds of the aforesaid three firms and also executed power of attorneys for sale of the lands. He did not issue any notice to the defendants to cancel the release deed in question. After the defendants obtained the said documents from him they paid Rs. 4,00,00.00 leaving a balance on Rs. 6,10,000.00 In cross examination he stated that the release deeds, power of attorneys and the affidavits signed by him pertained not only to the suit plot but also to the other properties. He executed relinquishment deed, power of attorney and affidavit separately in respect of the business of the aforesaid four firms. All the documents were signed by him on the same date. It is further in his cross-examination that he filed suits to challenge the documents in respect of those businesses. Suit filed by him in Ludhiana Court was dismissed. In the suit filed at Bombay a consent decree was passed (Volunteered-consent decree was obtained under threat). M/s. Tilak Chand & Sons at Delhi was given to him. This firm was having a plot in Rajasthan cooperative Housing Society which came to him share at it was in his name. He denied the suggestion that the plot admeasuring 200 sq. yards in the above said Society was in the name of M/s. Tilak Chand & Sons. He admitted that the release deed in question was written on stamp paper and he produced the same before the Sub Registrar for the purpose of registration.

(6) Needless to say, that the plaintiff has sought the cancellation of the release deed dated September 19, 1981 on the ground of their having been obtained by playing fraud, exerting pressure and making misrepresentation by the defendants. From the admissions referred to above made in cross-examination by the plaintiff, it is manifest that he had also executed relinquishment deed, power of attorney and affidavit separately in respect of the businesses of M/s. Rolex Metal Industries, Bombay, M/s. Jainson Hosiery Industries & M/s. J.H.I. Hosiery Industries Ludhiana and M/s. Tilak Chand & Sons, Delhi, to enable the defendants to seel the properties of the firms and make payment of the amounts out of the sale proceeds thereof. A sum of Rs. 4 lacs was also actually paid to him thereafter. Admissions made by the plaintiff further indicate that the suit filed for cancellation of the aforesaid documents in respect of M/s. Jainson Hoisery Industries, Ludhiana, was dismissed while the suit in respect of M/s. Rolex Metal Industries, Bombay, ended in a consent decree. These admissions taken together clearly go to show that the release deed dated September 19, 1981, power of attorney and the affidavit both dated September 21, 1981, in question along with other documents were executed by the plaintiff towards as overall settlement of the disputes between him and the defendants and no fraud was played or pressure exerted on him in obtaining them by the defendants, as alleged.

(7) This brings me to yet another ground of challenge taken in para 7 of the plaint that the plaintiff could not have legally relinquished his share in aforesaid plot No. A-82 in favour of the defendants under the release deed dated September 19, 1981, without the prior permission of the Lt. Governor, the paramount lessor of the plot. In support of the ground my attention was drawn by Mr. Sunil Aggarwal appearing for the plaintiff to Clause 6(b) of the perpetual sub-lease deed dated February 12, 1973, relating to the aforesaid plot which provides as under:

"6(A)The sub-lessee shall not sell, transfer, assign or other wise part with the possession of the whole or any part of the residential plot in any form or manner, benami or otherwise, to a person who is not a member of the lessee. (b) The sub-lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot to any other member of the lessee except with the previous consent in writing of the lessor which he shall be entitled to refuse in his absolute discretion".

(8) Clause Iii of the perpetual sub-lease, which too is material, runs as under :

III."If the sum of sums payable towards the premium or the yearly rent hereby be made hereinafter by the lessee on any item of development to be carried out in terms of Clause Iii of the agreement or the instructions issued by the Lt. Governor or the directions given by the local bodies in this behalf. Or any part thereof shall at any time be in arrear and unpaid for one calendar month next after any of the days where on the same shall have become due, whether the same shall have been demanded or not, or if it is discovered that this sub-lease has been obtained by suppression of any fact or by any mis-statement, mis-representation or fraud or if there shall have been, in the opinion of the lessee or the lessor, and the decision of the lessor shall be final, any breach by the sub-lessee or by any person claiming through or under him of any of the covenants or conditions contained herein and in the lease and on his part to be observed or performed, then and in any such case, it shall be lawful for the Lessor or the lessee with the prior consent in writing of the lessor, notwithstanding the waiver of any previous cause or right of re-entry upon the residential plot hereby sub-leased and the buildings thereon, to re-enter upon and take possession of the residential plot and the buildings and fixtures thereon, and thereupon this sub-lease and everything therein contained shall cause and determine in respect of the residential plot so re-entered upon, and the sub-lessee shall not be entitled to any compensation whatsoever not to the return of any premium paid by him.

(9) A combined reading of the aforesaid clauses of the perpetual sub-lease goes to show that while Clause 6(b) places restriction on a sub-lessee not to sell, transfer, assign or otherwise part with possession of the leased plot except with the previous consent in writing of the paramount lessor, Clause Iii gives to paramount lessor the right of re-entry upon the leased plot if the sale, transfer or assignment thereof is made in violation of Clause 6(b). Obviously, aforesaid Clause 6(b) does not furnish a ground for seeking cancellation of document(s) executed by a sub-lessee in contravention of the stipulations contained therein. That be so, release deed dated September 19, 1981, cannot be held to be either void or voidable on the ground of its having been executed by the plaintiff in violation of aforementioned clause of the perpetual sub-lease dated February 12, 1973. Issue is answered against the plaintiff. Issue No. 2

(10) Section 7(iv)(a) of the Court Fees Act, 1870, provides that the amount of fee payable under the Act in a suit for movable property where the subject-matter has no market value as for instance in the case of a document relating to title, shall be computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. Evidently, the reliefs of cancellation and delivery of the relinquishment deed dated September 19, 1981, power of attorney and affidavit dated September 21, 1981, as claimed in the plaint fall within the ambit of the aforesaid section for the purpose of computation of Court fee. In para 10 of the plaint it is alleged that for the relief under Section 31 of the Specific Relief Act in respect of the three documents in question the value is fixed at Rs. 200.00 in respect of each of the documents and the requisite Court fee on the total value of Rs. 600.00 is being paid. Court fee paid was, thus, according to said Section 7(iv)(a). Issue is answered against the defendants. Relief

(11) In view of finding on Issue No. 1, the suit deserves to be dismissed.

(12) Suit is , therefore, dismissed. No order as to costs.