Smt. Suman Mahajan vs Kusum Sandhu And Anr.
1999 Latest Caselaw 340 Del

JUDGMENT

Madan B Lokur, J.

1. Admit RFA No. 449/98 and 450/98.

2. With the consent of learned counsel for the parties, these appeals were taken up for final disposal and heard on 21st April, 1999.

3. RFA No. 449/98 and R.F.A. No. 450/98 are regular first appeals instituted under the provisions of Section 96 of the Code of Civil Procedure. They arise out of the judgment and decree dated 9th July 1998 passed by the learned Additional District Judge, Delhi, in Suit No. 862/90. The Appellant in FRA No. 449/98 is Smt. Suman Mahajan who was defendant No. 1 in the aforesaid suit and the Appellant in RFA No. 450/98 is Ved Prakash Narang who was defendant No. 2 in the said suit. Smt. Kusum Sandhu is respondent No. 1 in both the appeals. She was the plaintiff in the aforesaid suit.

4. The case set up by the plaintiff was that one Smt. Gobind Kaur was the owner of a building known as Rai Bahadur Basakha Singh Building, situated at Plot No. 5 and Plot No. 8 (comprising of Khasra Nos. 200/31 and 588/500), Block-F, Khajoor Road, off Joshi Road, Karol Bagh, New Delhi-110 005 (hereinafter referred to as the said property).

5. Smt. Gobind Kaur was said to have executed a duly registered Will dated 14th February, 1984. In terms of the Will, she bequeathed the said property to the plaintiff, Smt. Kusum Sandhu, who is her daughter-in-law.

6. Smt. Gobind Kaur died on 29th September, 1986 and consequently the plaintiff became the absolute owner of the said property.

7. It is stated in the plaint that the plaintiff had gone put of India sometime in June 1988 and returned about a month thereafter. When she visited the said property she found that defendant No. 2, Ved Prakash Narang, who is a tenant in

another portion of the said property had, in collusion with defendant No. 1, unauthorisedly demolished two rooms of Municipal No. 831 and had, without sanction or permission from the Municipal Corporation of Delhi, started raising construction thereon. This was objected to by the plaintiff but to no avail, with the result that the plaintiff filed Suit No. 852/90 in the Court of the learned Additional District Judge, Delhi.

8. In her plaint, the plaintiff sought the following reliefs :

(a) That a decree for vacant possession of the portion of the premises bearing No. 831 of Rai Bahadur Basakha Singh Building, Khajoor Road off Joshi Road, Karol Bagh, New Delhi, more specifically described in red in the site plan attached herewith;

(a)(i) The defendants be directed to demolish the illegal and unauthorised construction/superstructure raised by them upon the suit property after demolishing the superstructure already existed thereupon;

(b) A decree of damages at Rs. 15,000/- (Rs. Fifteen Thousand) being the damages for the demolition of rooms;

(b)(i) A decree of damages/manse profits may also be passed at the rate of Rs. 500/- per month w.e.f. 28-7-1988 till the date of restoration by handing over physical possession of the suit property by the defendants to the plaintiff;

(c) A decree of prohibitory injunction, restraining the defendants from carrying the defendants from carrying out any construction, addition, or alternations in the portion of the Rai Bahadur Basakha Singh Buildings, situated at Plot No. 200/31 and bearing Municipal No. 831, Khajoor Road off Joshi Road, Karol Bagh, New Delhi-5, shown in red in the site plan attached.

(d) Costs of the suit may also be awarded.

9. The defendants contested the suit by filing a joint written statement. Preliminary Objection No. 1 that was raised by the defendants reads as follows :

That the defendant No. 2 is in actual physical possession of 1/5th undivided share in the property, known as Rai Bahadur Basakara Singh Building, situated at Plot No. 5 and 8, comprised of Khasra No. 200/31 and 588/600, Block F, Khajoor Road, off Joshi Road, Karol Bagh, New Delhi 110 005, which was agreed to be sold to

defendant No. 2 i.e. Shri Ved Prakash Narang by Late Smt. Gobind Kaur, through her constituted attorney Shri Pritam Singh vide registered General Power of Attorney dated 1-10-1975, for consideration vide written agreement of sale dated 4th of August, 1986, mat too after taking no objection certificate from D.D.A. vide letter 5/2/ (15) 86-OS dated 31-3-1986. The defendant No. 2 in part performance of the contract, being already in possession of some portion of the premises as tenant, continues in possession of the sale to Smt. Gobind Kaur, the erstwhile owner of the property in suit and defendant No. 2 was always ready and willing and have been ready and willing to perform his part of the contract, if any, therefore, the present suit in respect of the said portion of the property is not maintainable:

10. On merits, a similar defense was set up by the defendants, namely, that Smt. Gobind Kaur had sold her 1/5th share in the said property to Narang. The sale was alleged to have been effected through her son and attorney Pritam Singh for a consideration which was fully paid and a written agreement of sale was entered into between them on 4th August, 1986. It was stated that in part performance of this judgment, Narang had been put in possession of a part of the suit property as a tenant. Subsequently, Narang was alleged to have sold the property bearing Municipal No. 831 to Smt. Suman Mahajan, defendant No. 2, in August 1987.

11. The plaintiff filed her replication and thereafter, on the basis of the pleadings of the parties, the learned Additional District Judge framed the following issues on 7th November, 1989 :

1. Whether late Gobind Kaur executed the registered Will in favour of the plaintiff as alleged? OPP

2. Whether the suit is not maintainable as alleged in para No. 1 of the preliminary objection of WS? OPD

3. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? OPD

4. Whether the plaintiff has no locus standi to file the suit? OPP

5. Whether the defendant committed trespass and are in illegal and unauthorised occupation of the suit premises as alleged in para No. 4 of the

plaint? If, so, its effect? OPP

6. Whether plaintiff is entitled to claim damages? If so at what rate? OPD

7. Whether the plaintiff is entitled to possession of the premises in suit.

8. Relief.

12. It appears from the record that an interim order was passed by the learned Trial Judge on Ist August 1988 and it was alleged that the Defendants had violated the terms of this order and had accordingly committed contempt of Court. On an application for proceeding under the provisions of the Contempt of Courts Act, 1971 the learned Trial Judge framed the following issue :

Whether the defendant has committed the contempt of order dated 1-8-1988? OPP.

13. However, this additional issue was not adverted to between the parties during the course of oral submissions and does not appear to be of much significance on the merits of the case. Similarly, during the course of oral submissions no dispute was raised with regard to the findings arrived at by the learned Additional District Judge in respect of Issue Nos. 1, 3, 4 and 6. Essentially, it is only the findings arrived at in respect of Issue No. 5 which were strenuously debated by the learned counsel for the parties. Issue Nos. 2 and 7, being connected, were also debated upon.

14. The bone of contention between the parties is with regard to the existence and validity of the agreement dated 4th August 1986 alleged to have been entered into between Smt. Gobind Kaur, through her son and attorney Pritam Singh, and Narang.

15. At the outset, learned counsel for the Appellants submitted that the entire approach of the learned Additional District Judge was wrong. The learned Additional District Judge had returned a finding that since the Will dated 14th February 1984 revoked all testamentary documents executed by Smt. Gobind Kaur before that date, consequently the power of attorney granted by her in favour of her son Pritam Singh and the subsequent agreement dated 4th August 1986 entered into between Smt. Gobind Kaur (through her attorney) and Narang had no effect. The learned counsel for Smt. Kusum Sandhu, naturally, did not support this finding of the learned Additional District Judge and at once conceded the incorrectness of the proposition propounded by the learned Additional District Judge. We agree with the learned counsel for the Appellants that this finding of the learned Additional District Judge was wrong. However, we are of the view that this incorrect finding does not suggest an erroneous approach which either runs through the entire judgment or is of such vital significance and import that it vitiates the entire judgment and decree.

16. Learned counsel for the Appellants sought to substantiate their case with regard to the existence and validity of the agreement dated 4th August 1986 by submitting that Pritam Singh, as the son and attorney of Smt. Gobind Kaur was authorised to execute the said agreement on her behalf and the learned Additional District Judge had erroneously returned a finding to the contrary. It was further submitted that the Appellants were handicapped by the fact that both Smt. Gobind Kaur and Pritam Singh (who died during the pendency of the suit) could not enter the witness box to establish the genuineness of the agreement dated 4th August 1986. However, Narang had entered the witness box and verified the signatures of the parties executing the agreement dated 4th August 1986 which, it was submitted, was sufficient. On the other hand, learned counsel for Smt. Kusum Sandhu submitted that even assuming the authority of Pritam Singh to execute the agreement dated 4th August 1986, the Appellants had not been able to establish its existence and validity. In this context, it was submitted that significantly none of the attesting witnesses to the agreement were produced by the Appellants.

17. In view of the stand taken by the learned counsel for Smt. Kusum Sandhu, we need not go into the controversy regarding the genuineness of the authority given by Smt. Gobind Kaur to her attorney Pritam Singh.

18. As regards the first attesting witness to the agreement, namely Tek Chand Maddan, learned counsel for the Appellants were unable to show any efforts having been made to summon him for giving evidence.

19. In so far the second attesting witness, namely, Jasbir Singh is concerned, it was submitted by the learned counsel for the Appellants that he was the accountant of Smt. Gobind Kaur and

was authorised to receive rent on her behalf. It was submitted that even though summons to appear were issued to Jasbir Singh, he did not respond. Since he was an employee of Smt. Gobind Kaur, it was not otherwise possible for Narang to produce him for making a statement. Consequently, it was submitted that an adverse inference ought to be drawn against Smt. Kusum Sandhu. In reply to this, the learned counsel for Smt. Kusum Sandhu contended that the alleged agreement dated 4th August 1986 was relied upon by Narang and it was for him to prove the existence of this document. It was submitted that Smt. Kusum Sandhu was not a party to the alleged agreement and had no knowledge of it. Even otherwise, she vehemently denied its existence. It was further submitted that Narang could have taken coercive to ensure the attendance of Jasbir Singh and Smt. Kusum Sandhu was under no obligation to ensure the presence of Jasbir Singh in the witness box.

20. We are in agreement with the learned counsel for Smt. Kusum Sandhu that it was for Narang to prove the existence and validity of the agreement dated 4th August 1986, which was a document on which the entire case of Narang rested. While it is true that for reasons beyond his control, neither Smt. Gobind Kaur nor Pritam Singh could enter into the witness box, but Narang could have certainly procured the attendance of Tek Chand Madden if not Jasbir Singh. His failure to do so, must necessarily cast a doubt on the existence and validity of the alleged agreement dated 4th August 1986. The fact that Jasbir Singh did not respond to the summons issued to him can hardly be a ground for drawing an adverse inference against Smt. Kusum Sandhu who is not even a party to the alleged agreement dated 4th August 1986.

21. Proceeding on the basis that the agreement dated 4th August 1986 is valid and subsisting, learned counsel for the Appellants submitted that the agreement itself confirmed the payment of Rs. 2,00,000/- as consideration for the sale of 1/5th share of the said property. Reliance was placed on one of the recitals to the agreement which reads as under :

"Whereas, two of the tenants including the Purchaser have approached the Vendor to join her in owing apart of 1/5th part of the undivided share of the above Composite Property that share

of the property consists of 4 rooms at the front, one ground floor and rooms above on the first floor, as co-owner and the Vendor has agreed to the said proposal. The negotiations were going on from sometime finally they have agreed to the said proposal today by final payment."

The agreement, however, proceeds as follows :

"Now this document witnessed as under : (1) It is agreed by and between the parties that upon the Purchaser making the balance final totalling payment of sum of Rs. 2,00.000/- (Rupees two lakhs), to the Vendor through her constituted attorney, or otherwise, Vendee shall become co-owner with the Vendor in the undivided 1/5th share of the said composite property and on becoming such Co-owner he shall be liable and responsible for complying with all terms and conditions of the lease deed dated January 1925 and further supplementary release dated 9th August 1973 in respect of the plot entailing the said composite property. He will also be responsible for getting his name mutated at his own cost and responsibility as the Co-owner in the part of undivided l/5th share of the above Composite Property".

22. A reading of the aforesaid two paragraphs of the alleged agreement would indicate that there is some ambiguity with regard to the payment of the consideration. It is possible to read the last sentence of the recital clause, as suggested by the learned counsel for the Appellants, to mean that the consideration was paid on the day of the execution of the agreement. On the other hand, Clause 1 of the agreement indicates, as suggested by the learned counsel for Smt. Kusum Sandhu that there is a balance amount of Rs. 2,00,000/- which is required to be paid to the Vendor, that is, Smt. Gobind Kaur. In view of this, it is contended by the learned counsel for Smt. Kusum Sandhu that the alleged agreement dated 4th August 1986 does not clearly indicate when (if at all) the consideration of Rs. 2,00,000/- was paid.

23. There is no evidence on record and, indeed, it is not the case of either of the parties that the balance consideration was paid subsequent to the execution of the alleged agreement dated 4th August 1986.

24. The contention of the learned counsel for the Appellants that the consideration was paid at the time of signing of the alleged agreement does not stand scrutiny. In the normal course of human conduct, if such a payment had been made simultaneously or contemporaneously, the alleged agreement would have specifically recorded the payment and its receipt. But, as pointed out above, the alleged agreement is quite ambiguous in this regard.

25. Narang has stated in his evidence that the sale consideration of Rs. 2,00,000/- was given by him to Jasbir Singh on the date of the execution of the alleged agreement, namely, dated 4th August 1986. However, three receipts signed by Jasbir Singh for a total amount of Rs. 2,00,000/-were produced. These receipts, strangely enough, were not signed on the date of the alleged agreement but are dated 2-4-1986, 4-5-1986 and 9-6-1986. The last sentence of each of these receipts reads as follows :

"This is a temporary receipt which will be adjusted in the final agreement and consolidated receipt issued."

26. It is a little odd that there is no reference of these three receipts in the alleged agreement dated 4th August 1986 nor has any "consolidated receipt" been produced. Moreover, we find it a little unlikely that, a purchaser of immovable property would, in the normal course, give such a huge amount of money to an employee of the seller, especially when the seller and her son and attorney are on hand to receive the sale consideration; in the normal course one would have expected either Smt. Gobind Kaur herself to receive this money or her son and attorney Pritam Singh.

27. In view of this, we find substance in the submission of the learned counsel for Smt. Kusum Sandhu that the evidence, or rather the lack of it, leaves no room for doubt that there was no payment of Rs. 2,00,000/- by Narang to Smt. Gobind Kaur as a consideration for the alleged agreement dated 4th August 1986.

28. It was contended by learned counsel for the Appellants that the learned Additional District Judge failed to take note of the fact that Smt. Gobind Kaur had herself applied to the Delhi Development Authority (for short DDA), vide letter dated 8th July 1986 for permission to sell 175th portion of the said property. In response, by a letter dated 31 st July 1986, the DDA gave its "no objection" to the proposed transfer.

29. While this may be so, the learned counsel for Smt. Kusum Sandhu contended that Narang was, at best, entitled to an unspecified 175th share of the said property, in terms of the letter dated 31st July 1986. Consequently it was contended that Narang was not capable of selling a specified portion of the said property to Smt. Suman Mahajan. It was pointed out that admittedly there has been no partition of the said property to specify the share of Narang nor has the 175th share of Narang been mutated in his favour. These submissions have not been controverted by the learned counsel for the Appellants, and the facts on which they are based leave no room for doubt in our minds that the defense set up by the Appellants is not credible.

30. For all these reasons, we have no option but to hold that the Appellants have not been able to prove the existence and validity of the agreement dated 4th August 1986. Accordingly, we confirm the findings of the learned Additional District Judge with regard to Issue Nos. 2, 5 and 7. These issues are decided in favour of the Plaintiff/Respondent No. I and against the De-fendants7Appellants.

31. Consequently, these appeals aredismissed. There will be no order as to costs.