Mrs. Dimple Chopra vs Shri Vishal Swara And Ors.
2003 Latest Caselaw 266 Del

JUDGMENT

S. Mukerjee, J.

1. This order will dispose of two applications being IA No. 635/2003 filed by defendant No. 3 and IA No. 1125/03 filed by defendant No. 2.

2. Both these applications have been filed under Order 39 Rule 4 CPC.

3. The case of defendant No. 3 is that the said defendant is a bona fide purchaser for consideration of the property in question being B-53, Sushant Lok-I, Gurgaon, Haryana measuring 400 sq. yds. in terms of a registered sale deed dated 9.4.2002.

4. Prior to the registration of the sale deed, the entire payment of Rs. 10 lakhs, was made by defendant No. 3, by pay order, which amount stands credited to the account of the deceased mother of the parties.

5. This sale deed was executed on behalf of the deceased mother by defendant No. 1 acting under a registered general power of attorney, which was witnessed by the plaintiff.

6. Initially the plaintiff denied being a witness but later on as per the latest stand contained in an application for amendment of the plaint filed by the plaintiff (being IA No. 2166/03) it has been stated in paras 5 and 6 by plaintiff herself, as under :-

"5. In these circumstances, the plaintiff omitted to mention the factum of her having appended signatures and thumb impression to a document put forth by the Defendant No. 1 before her casually on the 1st of April, 2002. The plaintiff's marks were obtained on the document on the plea that the document requires to be witnesses and to complete the innocuous formality the plaintiff's marks are required. Unsuspectingly and as a concession to the first Defendant, the plaintiff signed as and where required by the first Defendant, not even caring to read the document.

6. It is most humbly submitted that a bona fide and inadvertent error has led to omission of the plaintiff to mention the aforesaid fact in the plaint. In fact, the plaintiff believed that she had mentioned all the aforesaid facts. However, on going through the plaint on 19.02.2003 the plaintiff realised that this fact has been omitted to be mentioned."

7. Though a prayer has been made for cancellation of the document, in general terms in the plaint, but apart from creating an impression of suspicion as to whether the mother did visit the Registrar's office or not, for the registration of the GPA in favor of defendant No. 1, the only other aspect seriously contended, is that the 400 sq.yd. plot has been sold at Rs.10 lakhs, which is also the sale price for another plot which is about 300 sq.yds. Or so.

8. It is well known that private parties while dealing with each other, have various considerations in mind, some of which are reflected on the record and others not so reflected. There are also so many aspects regarding the proper and fair evaluation of the property, that these cannot be reconsidered and re-examined now in the manner as is proposed by the learned counsel for the plaintiff. Suffice it to say that stand of defendant No. 3 is that advance was paid, and then permission obtained for the sale and thereafter sale deed registered, all of which were processes involving weeks of time, and further more a substantial amount in the region of Rs.10 lakhs has been paid into the account of the mother.

9. These are all aspects which prima facie show the bonafide nature of the transaction. This is not a case where over-night, on power of attorney basis, or on deferred payment basis somebody is alleged to have become an owner.

10. In any case, the defendant No. 1 is standing by the transaction and the share of the plaintiff is only half of the total value. An amount of Rs. 10 lakhs admittedly reached the mother's account. Even assuming that the value was Rs.30 lakhs or so, the plaintiff's share can only be 15 lakhs, out of which Rs. 10 lakhs is available.

11. Moreover the total number of properties are very large. So long as defendant No. 1 owes the transaction then in case, even it be held subsequently that these sale deeds are to be cancelled, then the deficiency of amount (viz. amount beyond Rs.10 lakhs) in relation to this property to the extent of 50% share of the plaintiff, can be adjusted/appropriated by reducing the physical or monetary share of the plaintiff, in relation to any one or more out of the large number of other properties, which are admittedly there to be divided.

12. Learned counsel for defendant No. 1 submits that if defendant No. 1, is to be held to bear the consequences of having owned up to this transaction, then the plaintiff who is causing undue complications by declining her own signatures, in relation to the signing of those very documents, should be similarly subjected to a condition that in case the plaintiff fails to prove her contentions regarding the signatures then all consequences should fall upon her.

13. This aspect would be considered appropriately at the time of passing further orders in this matter. As far as the application of defendant No. 3 is concerned, the same has to be allowed, by vacating/modifying the interim order dated 10th December, 2002, but only in relation to property B-53, Sushant Lok-I, Gugaon, Haryana measuring approximately 400 sq. Yds, by directing that there will be no stay or interim order in operation in relation to the said property.

14. As regards the application of defendant No. 2, after the matter was heard for quite some time, learned counsel for defendant No. 2 submitted that unfortunately the mother passed away before the sale deed could be executed, and therefore as on date the defendant No. 2 does not have a marketable title in the form of a registered sale deed in his favor. As such defendant No. 2 would be taking appropriate proceedings in accordance with law for securing the sale deed in respect of the property purchased by the said defendant No. 2, being C-1024, Sushant Lok-I, Gurgaon, Haryana measuring 299 sq.yds. This property was in the joint name of defendant No. 1 and the deceased mother, and as such the deceased mother could have at the maximum only 50% share in the said property.

15. It would follow that the plaintiff would have only 25% share (half of the mother's share). The same could be also obviously and easily adjusted from the other properties considering that Rs.10 lakhs was paid by defendant No. 2 towards purchase of this property.

16. Learned counsel for defendant No. 2 has shown photographs in the Court which indicates enormous construction work and construction time which has been consumed by the defendant No. 2 in erecting a building. Defendant No. 2 had made payments by way of cheques and pay orders and a registered Will was also executed in favor of defendant No. 2. Therefore ordinarily defendant No. 2 ought to have entitled to the same orders as in relation to defendant No. 3. However, since learned counsel for defendant No. 2 himself submitted that some steps have to be taken for perfecting the documents of title in favor of defendant No. 2, as such I do not grant any relief of vacation/modification to the defendant No. 2 on this application. However, at the time of hearing the application of the plaintiff under Order 39 Rule 1 and 2 CPC (being IA No. 11521/2002) this aspect will be considered in the light of the material that has been placed on the record by the said defendant No. 2.

17. In any case, since defendant No. 2 submits that the interim order passed by this Court, is standing in the way of defendant No. 2 to take the steps required for perfecting the documents in his favor, it is clarified that nothing stated in the interim order dated 10th December, 2002, as continued till date or hereafter, shall operate to prevent the defendant No. 2 from taking any and all steps, in accordance with law, towards securing documents of title by way of registered instrument or otherwise in favor of the said defendant No. 2 in relation to the property C-1024, Sushant Lok-I, Gurgaon, Haryana.

18. The application of the defendant No. 3 being IA No. 635/2002 is allowed and the injunction orders in relation to property B-53, Sushant Lok-I, Gurgaon Haryana are vacated. As regards IA No. 1125/2003, for the present, the order is only modified to the extent that it would be open to defendant No. 2 to take any and all steps, in accordance with law, towards securing documents of title by way of registered instrument or otherwise in favor of the said defendant No. 2 in relation to the property C-1024, Sushant Lok-I, Gurgaon, Haryana. This application is disposed of on this basis with liberty to the defendant No. 2 to reiterate all these submissions at the time of arguments on the plaintiff's injunction application being IA No. 11521/02.

     19. Both these applications stand disposed of. Defendant     No. 3 will be entitled to the costs of this application. Counsel fee Rs.5,500/-