Glitter Buildcon Pvt. Ltd. vs Mr. Sanjay Grover And Ors.
2003 Latest Caselaw 626 Del

JUDGMENT

Vikramajit Sen, J.

1. This Order shall dispose of IA No. 6147/2002, filed by Defendant Nos.3 and 4 for supply of the complete paper book; IA No. 8460/2002 also filed by the same Defendants under Order XXXIX Rule 4; and IA No. 2528/2002 under Order XXXIX Rule 1 and 2 which accompanied the plaint. The Plaintiff had also filed IA No. 377/2003 under Order VI Rule 17 for amendment of the plaint. Mr. Harish Salve, learned Senior counsel has contended that this application is calculated only to delay the proceedings and since it seeks to assail the Gift Deed in favor of Defendant Nos.3 and 4, in order that the hearings on the ad interim injunction be not delayed, the Court may presume that this relief has been incorporated into the plaint. IA No. 377/2003 stands allowed and as a consequence, IA No. 376/2003 also stands disposed of.

2. On 15.3.2002 Hon'ble Mr. Justice J.D. Kapoor, had restrained the Defendants from selling or transferring property bearing No. 3, Panchsheel Marg, New Delhi (hereinafter referred to as the suit property).

3. The suit is for the Specific Performance of an alleged Agreement to Sell dated 10.4.1999 whereby the suit property was allegedly agreed to be sold to the Plaintiff by Late Sita Singh, the paternal Grandmother of Defendant Nos. 2 to 4. This document has been signed by Defendant No. 1 who is the husband of Defendant No. 2 as the duly constituted General Attorney. It purportedly contains the signature of Late Sita Singh as Witness No. 1, a feature which is extremely unusual, therefore, suspicious. It recites that the suit property has been leased to Dr. Fouad Khoury in his capacity as Charge-D-Affairs of Lebanon in India on a monthly rent of Rs. 48,000/- which rent has not been paid with effect from February, 1993. The sale consideration is mentioned to be Rs. 47.5 lakhs on "as is where is basis" to the tenancy and litigation pertaining to House-tax. Clause-6 fixes the responsibility of converting the said property from leasehold to freehold, the charges whereof would be paid by the Plaintiff. Clause-10 speaks of the execution and registration of the Power of Attorney in favor of Defendant No. 1. Clause-60 mentions the execution and registration of a Will in favor of Defendant No. 1.

4. It is also alleged that a Memorandum of Understanding dated 4.12.1999 had previously been signed between Late Sita Singh and the Plaintiff on terms similar to the aforementioned Agreement to Sell, with the difference that this document has purportedly been signed by Late Sita Singh herself as well as by her son Shri B.D. Singh. Counsel for the Plaintiff has heavily relied on the alleged signatures of Late Sita Singh on each page as well as contiguous to the cuttings/insertions in the Deed. The stand of Defendant Nos. 1 and 2 is that the contract could not be performed due to the Plaintiff, and that they did not refuse to do so. In these circumstances these Defendants are supporting the Plaintiff, and this inference has not been strenuously challenged or controverter by them. It would therefore be relevant to mention here itself that these Defendants have filed a General Power of Attorney dated 9.10.1998 allegedly executed by late Sita Singh in favor of Defendant No. 1. These Defendants have also filed a Will dated 22.2.1999 in which late Sita Singh had bequeathed the suit property to Defendant No. 1 exclusively.

5. Deed of Trust dated 20.3.1999 has been filed by which a sum of Rs. 10,000/- was settled as the corpus thereof, the benefits of which were to be shared in the ratio of 75 per cent to Defendant No. 2 and 25 per cent to her son Master Tushar. Subsequent thereto, in terms of another Deed of Gift dated 5th April, 1999, Late Sita Singh of the one part and the Trustees including Defendants No. 3 and 4 have in a manner similar to the Gift Deed dated 4.5.1999 settled C-7, West End (Diplomatic Enclave Extension) in the said Sita Singh Trust of which the beneficiaries are Defendant No. 2 and her son Master Tushar. Stamp Duty has been paid on this Gift Deed of the value of Rs. 3,20,000/- on Stamp Paper bearing Nos. 102810 to 102824.

6. Learned counsel for Defendants No. 3 and 4 has relied on a Will of Late Sita Singh dated 31.1.1995 which inter alia bequeathed the suit property, namely, 3, Panchsheel Marg, New Delhi jointly and in equal shares to Defendants No. 3 and 4. Property bearing No. C-7, West End, New Delhi was bequeathed to vest in a Trust for the benefit of Defendant No. 2 for her life-time and thereafter absolutely to the children of Defendant No. 2. Reliance has also been placed on another Will dated 6.7.1998 which is also a registered document. It revokes the previous Will dated 31.1.1995. It has been witnessed by Defendant No. 2 as well as by Shri B.D. Singh who is the son of Late Sita Singh and the father of Defendants No. 2 to 4. This Will mentions that the Testator Late Sita Singh "may have signed some blank papers/documents during the past few few years and I declare that all such signed blank papers/documents (except the ones already executed in respect of farm land in Rajokri) unless endorsed or witnessed by my three grand-daughters, namely, Nasib Kapoor, Radil Tuli, and Seema Grover and my Chartered Accountant, Mr. Ajay Wadhwa, s/o Shri S R Wadhwa, be considered as obtained without my free will and consent and declare that in respect of all my estate this Will shall be final and remain binding upon the parties."

 7.  The Court record contains photocopies of a Deed of Gift dated 4th May, 1999 which is in respect of the suit property; and the original has been seen by me and returned to learned counsel for Defendants No. 3 and 4.    This Gift Deed, registered on the following day,    has been typed on Stamp Paper of value of Rs. 34,00,000/-, which contains the  following opening pages   
  


   "  DEED OF GIFT
 

                         Between
 

Mrs.  Sita Singh, wd/o Shri B.T. Singh, r/o C-7, West End, Rao Tula Ram Marg, New Delhi, hereinafter referred to as "the  Donor", of the one part  
 

   AND 
 

 i) Mrs Nasib Kapoor, w/o Mr. Sanjay Kapoor, r/o 8/1 Shanti Niketan, New Delhi, 
 

 ii) Mrs Radli Tuli, w/o Mr Vikram Tuli, r/o 42 Cousins Road, Stamford, CT.- 06903, USA, and at present residing at C-7 West End, New Delhi; and
hereinafter called the Donees, of the Other Part, in respect of Property situated at No. 23, Block No. 48 in the Diplomatic Enclave, New Delhi, (now known as 3 Panchsheel Marg, Chanakyapuri, New Delhi-110021)".    
 

The entire Deed is thereafter typed on a plain paper.   It mentions the market value of the property as Rs. 420 lacs; that Income-Tax Clearance dated 16.4.1999 has been obtained; and that the Donor, namely, Late Sita Singh has full and absolute authority to gift the said property to Defendants No. 3 and 4.   The details have been mentioned because the Plaintiff has vehemently argued that the entire Deed should have been typed only on the   Stamp Paper itself.   However, even the Gift Deed dated 5.4.1999 has been similarly typed out.     A photocopy of the Conveyance Deed dated 2/8/2000 in favor of Defendants No.  3 and 4 in respect of the suit property has also been filed.   A photocopy of yet another Will dated 1.2.1995 has also been filed by the Defendants in which, inter alia, the suit property has been bequeathed to Defendants No. 3 and 4.   These documents depict a continuous chain whereby the suit property was consistently conveyed to Defendant Nos. 3 and 4; and the other property, C-7 West End, New Delhi was settled in Trust for Defendant No. 2 and her son Tushar.      On the other hand, the alleged General Power of Attorney in favor of Defendant No. 1 is dated 9.10.1998, and registered on 22.2.1999 along with a Will of the latter date, bequeathing the suit property to Defendant No. 1. 
 

 8. The present applications have to be decided primarily against the backdrop of these documents.   The prayer for interdicting the Defendants from collecting the rents has not been pressed before me.   It was also not granted at any earlier stage.   This prayer is declined.     At the present stage of the proceedings I have to decide as to whether a prima facie case has been disclosed by the Plaintiff for the issuance of an ad interim injunction restraining the Defendants from selling, transferring and/or creating any third party interest in the suit property.     If a prima case has been disclosed, then the balance of convenience has to be considered as also whether irreparable loss and injury is likely to be caused to the Plaintiff.   The doctrine of lis pendens applies regardless of whether any interim orders are passed, but Courts normally consider such reliefs in order to avoid multiplicity of proceedings and the creation of third party interests.    Mr. Chandhiok, learned senior counsel for the Plaintiff has relied on Tek Chand and Others vs. Deep Chand and Others, (2001) 4 SCC 488 in which the Hon'ble Supreme Court had highlighted that at the stage of granting ad interim relief the Plaintiff is not expected to conclusively prove the assertions in the plaint and or the application. 
 

 9.  Late Sita Singh passed away on 17.8.2001.  Her son  Late B.D. Singh, father of Defendants No. 2 to 4, had pre-deceased her on 7.9.1999. 
 

 10. Defendant No. 3 has filed an affidavit dated 6.3.2003 annexing thereto a copy of the Lease Agreement dated 1.1.1997 between Late Smt. Sita Singh and the Embassy of Lebanon as well as a copy of the Lease Agreement dated 1.1.2001 between Defendant No. 4 and the Embassy of Lebanon.    By Orders dated 13.3.2003, on the submission of Mr. Vinay Bhasin, I had requested the Embassy to produce the originals by Order dated 13.3.2003, but this has failed to evoke any response from the Embassy.    A copy of the Lease Deed dated 1.1.1997 had also previously been filed by Defendants No.  3 and 4 on 20.1.2003.   This Lease Deed mentions the "total lease amount as Rs. 7,8000,000 per annum calculated at the rent of Rs. 6,50,000/- per month for the first three years and Rs.  8,280,000/- for the fourth year".  The Lease Deed dated 1.1.2001 is for a period of two years, the yearly lease remaining at  Rs. 82,80,000/- calculated at the rent of Rs. 6,90,000/- per month for two years.  
 

 11. The MoU dated 4.2.1999 filed by the Plaintiff does not inspire confidence for the reason, inter alia, that the sale consideration mentioned therein is Rs. 47,50,000/-, and  because no payment was made with it.   A paltry sum of Rs. 2,00,000/- was  subsequently paid on the execution of the Agreement to Sell.  Mr. Chandhiok has emphasised the fact that the documents contain the signatures of Late Sita Singh not only on every page but also in addition thereto on various cuttings, as also the signatures of her son, Late Shri B.D. Singh.   It is also argued that the response of Defendants No. 3 and 4 is that this document has been pre-dated, and hence the signatures of Late Sita Singh stand admitted.   However, I am unable to accept these arguments as Defendants No. 3 and 4 have vehemently challenged the genuineness of the documents filed on 11.3.2002.   By this time Late B.D. Singh had already expired.    The presence of his signatures as a witness is indeed significant and for this reason I compared them with those available on the registered Will dated 6.7.1998, which also appears to contain the signatures of Defendant No. 2.   The signatures on the MoU  are not similar to those on the Will, thereby casting further doubt on the genuineness of this document.    They are also dissimilar to those appearing on the Agreement to Sell dated 22.5.1999, which document has been filed by the Plaintiff. 
 

 12. It has been contended that inadequacy of consideration is not a reason for declining the relief of specific performance.     I cannot accede to this argument.   What Section 20 of the Specific Relief Act enunciates is that when the equitable relief of the specific performance of an Agreement to Sell is asked for, this prayer is not to be declined merely because the Court is of the opinion that the market price was more than what was agreed upon by the parties.  This is in a   situation where the Agreement to Sell stands admitted.   But this does not preclude the Court from keeping the sale consideration in its perspective when it has to determine the genuineness of an agreement or a document.   There is appreciably a vast difference between the two situations.   Where one party disputes the genuineness of an Agreement to sell relied upon by the Plaintiff, the fact that the sale consideration mentioned therein is absurdly low may indicate that the document itself is fabricated.   The Court, therefore, may decline to take the agreement into consideration not because the consideration is inadequate, but because the document/Deed relied upon does not inspire confidence and acceptance by the Court.    By no stretch of imagination can the sale consideration relied upon by the Plaintiff reflect any proximity with the market price, even after giving due weightage to the payment of conversion charges by the Plaintiff.    Ironically, the Plaintiff has filed a photocopy of the  aforementioned  Agreement for Sale dated 22.5.1999 accompanying an Affidavit of Shri Ashutosh Parashar, a Director of the Plaintiff Company.    This document dated 22.5.1999 mentions the sale consideration as Rs. 3,75,00,000/-.  It also contains signatures purported to be that of Shri B.D. Singh and a comparison with the signatures on the MoU relied upon by the Plaintiff,  prima facie,  discloses vast differences.   This document also shows similarity in the signatures of Defendant No. 2 with those on the Will dated 31.1.1995.    The fact that the annual rental of the said property is almost twice that of the sale consideration  in the MoU and the Agreement to Sell makes the sale consideration not just  "inadequate", but absurd.   This is sufficient reason for coming to the prima facie conclusion that the MoU and the Agreement to Sell etc. cannot be given credence to.    The fact that the MoU contains the signatures of Late Sita Singh on cuttings/insertions is not of unsurmountable significance. 
 

 13. So far as the Agreement for Sale dated 10.4.1999 filed by the Plaintiff is concerned, I find it wholly unacceptable that Late Sita Singh, the undisputed owner of the suit property, should sign as a witness and not as the first party.    Barely two months had elapsed between the execution of the MoU and this document and I, therefore, cannot accept the Plaintiff's version that she signed as a witness, whilst Defendant No. 1 signed on her behalf, in order to avoid the need for her to make several signatures.   The argument of learned counsel for the Plaintiff in respect of the MoU renders the argument in respect of the Agreement to Sell as mutually contradictory.   It lends acceptability to the argument that blank papers containing signatures of Late Sita Singh may have been misused by the Plaintiff and Defendant Nos. 1 and 2 in conspiracy with each other.    It also appears to me to be a convenient coincidence that the purported signatures of Shri B.D. Singh are on the MoU since he is now not available to elucidate.    Reliance has also been placed on the Receipts signed by Late Sita Singh.   Keeping in view the suspicious characteristics of the documents mentioned above, I am not persuaded that these are genuine documents.   Subsequent three receipts have been signed by Defendant No. 1 and the encashment of cheques takes place after the demise of Late Sita Singh in a bank account opened by Defendants No. 1 and 2.    As in the case of conversion charges, it has also been contended on behalf of the Plaintiff that there was a large property tax demand.   Nothing is forthcoming on the record in support of these submissions.   It also defies logic that if the rent was not being paid by the Embassy of Lebanon since February 1993, no legal action would have been initiated by Late Sita Singh.   It also defies logic as to why a Lease Agreement would be entered into in 1997 and 2001.    Although learned counsel for the Plaintiff had attacked the veracity of these documents accompanied by an affidavit of Defendant No. 4, I find no reason to doubt their genuineness at this  stage.    The Income-Tax returns of Late Sita Singh also, prima facie, bear out the amount of rental being received by her. 
 

 14. So far as documents of Defendants are concerned,  there is a consistency in the bequests made by Late Sita Singh in her Wills dated 31.1.1995 and 6.7.1998 in respect of the suit property, which has been left to Defendants No. 3 and 4.    I cannot ignore the existence of the registered Gift Deed on which stamp duty of Rs. 35,00,000/-  has been paid.    There may be some technical irregularities in the fact that the Deed of Gift has not been typed on the stamp paper itself, which are over 100 sheets in number, but this would not convince me not to give effect to it.    It would mean that but a few words would have to be typed on each page.   Keeping the astronomical increase in prices of property in perspective, larger denomination papers should be made available in the Treasury.    The Deed of Gift whereby the other   property in West End was settled in Trust for Defendant No. 2 and her son are similarly typed.    At this stage, I cannot also ignore the fact that the Gift Deed gives effect to the bequests made by Late Sita Singh in respect of the suit property.    I can not also ignore the fact that the property has been transferred to the names of Defendants No. 3 and 4. 
 

 15. The bequest of Late Sita Singh in favor of Defendant No. 2 is also significant inasmuch as it is palpably evident that she has attempted to protect against the vulnerability of this granddaughter of hers, by the establishment of a Trust in respect of C-7, West End, New Delhi.   She has also executed a Gift Deed in favor of the Trust in order to implement and effectuate the creation of a security in favor of Defendant No. 2.    This is also in consonance with the Wills   filed   and relied upon by Defendant Nos. 3 and 4.   At the time of hearing I was informed that an FIR has been lodged against Defendants No. 1 and 2 in respect of these very transactions and that they have been incarcirated.   True copies of an application filed by the I.O.   as well as a Reply filed by the I.O.   before the Additional Sessions Judge, Delhi has been placed on record but so far as the contents of these documents are concerned, I have ignored them because of late filing.     However, I cannot overlook the statement of Late Sita Singh that her signatures on blank sheets had been obtained.   I cannot also ignore that the Plaintiff and Defendants No. 1 and 2 would have the Court give effect to documents giving extraordinary powers to Defendant No. 1, in the face of the creation of a Trust to safeguard the future of Defendant No. 2 and her son. 
 

 So far as Late Sita Singh is   concerned,  it is  manifestly clear from the   documents proferred by Defendant Nos. 3 and 4, that she had endeavored to  distribute her estate in favor of her three  granddaughters. 
 

 16. The following Public Notices were published in the Times of India, Sunday Edition and Hindustan Times on 11.7.1999, which are as  follows: 
  

  "PUBLIC  NOTICE  
 

 This is  for information of all concerned  that property bearing No. 23, Block No. 48, Diplomatic Enclave (now known as  3. Panchsheel Marg, Chankyapuri),  New Delhi, is owned  absolutely and exclusively by my clients, Mrs. Nasib Kapoor, W/o Mr. Sanjay Kapoor and Mrs. Radil Tuli, by virtue of Deed executed by Smt. Sita  Singh, Wd/o B.T. Singh, in favor of my clients. 
 

 None other than my clients have any right  to deal with  said  property.   Any person dealing with any third person regarding above property in any manner shall do so at his own risk and cost. 
 

 ANIL K.  KHER  Advocates for Mrs. Nasib Kapoor & Mrs. Radil Tuli." 
 


  "PUBLIC  NOTICE  
 

 This for information of all concerned that I, Sita Singh, wd/o B.T. Singh, have not issued any power of attorney in favor of any person to deal with  my estate or any portion thereof.  Any person acting as my attorney shall be doing so by forging my signatures or making use of any blank papers got signed from me by misrepresentation.  All such documents are fabricated and void. 
 

 Public are hereby advised that anyone dealing with any third  party in respect of my estate or any part thereof shall be doing so at his own risk and cost. 
 

  SITA SINGH                      
  Wd/o Mr. B.T. Singh C-7  West End, New Delhi."  
 

In response thereto a letter dated 17.7.1999 was also issued to the S.H.O. in which it was mentioned that Defendant Nos. 1 and 2 had obtained the signature of Late Sita Singh on blank papers on the pretext of getting her name excluded from the ration card and that its misuse was apprehended. Police protection was also prayed for. The response that this evinced from these Defendants was the legal notice dated 30.7.1999 alleging a conspiracy against Defendant No. 2 by Defendants 3 and 4 which reads as follows:

" .... 1. It has been brought to our client's attention vide the public notice dated July 11, 1999 published in the Hindustan Times by you that property numbered 23, Block No. 48, Diplomatic Enclave, now known as 3, Panchsheel Marg, Chankyapuri, New Delhi is allegedly owned by your clients Mrs. Nasib Kapoor and Mrs. Radil Tuli, by virtue to Deed executed by Smt. Sita Singh, widow of Mr. B.T. Singh.

2. That our client was absolutely distressed and dismayed to find out that conspiracy had been fabricated against her by your client which has completely taken her by surprise. It is a matter of utmost concern to our client that she as on of the legal heirs, has been completely left out of her rightful portion of the property which legally belongs to her Grand mother.

3. That our client, hereby calls upon your clients to give her the rightful share in all the properties, which has been usurped by your clients and to settle this matter amicably. Alternatively, our client shall be constrained to initiate the appropriate legal proceedings in the Court of Law against your clients at their risk entirely of the costs and consequences."

17. In response to the Public Notice it would have been expected of Defendants No. 1 and 2 to mention the existence of the MoU, the Agreement to Sell and the Wills which, if the Plaintiff's case is to be believed, were already in existence. Where immensely valuable property is at stake, it is also inexplicable that the Plaintiff did not respond to the Public Notice and instead waited for two years to file the present suit.

18. The purpose of insisting upon the execution of a Will where the execution of a Sale Deed is not immediately possible is that in the event of the death of the Testator/Titular owner of the property already conveyed because of the exchange of the sale consideration, the rights of the purchaser are protected. It should be borne in mind that a General Power of Attorney loses legal efficacy on the death of the executant. It is inconceivable and incongruent that Late Sita Singh would have bequeathed her property to Defendant No. 1, who had not paid any/all of the sale price. It is also illogical since she had created a Trust for his wife. It is even more inexplicable that Defendant No. 1 would not have initiated probate proceedings in connection with the Will dated 22.2.1999. The position is strikingly similar to the factual matrix in Pamela Manmohan Singh vs. State, where I had occasion to hold that the period of limitation for initiating probate proceedings is three years. I had also observed thus:-

"Various objections have been raised by the Petitioner but in my opinion these do not call to be dealt with in specific and separate detail. Admittedly the alleged Will dated 1.10.1987 has not seen the light of day heretofore. Considering the fact that there was no blood relationship between late Dr. (Mrs.) Raseel Kohli and the Applicant and also because the Applicant is not in possession of property bearing No. 6-B, Jangpura Extension, Mathura Road, New Delhi, probate proceedings, for giving judicial imprimatur to the Will dated 1.10.1987 ought to have been initiated much earlier. It would be reasonable to assume that any prudent person would immediately initiate probate proceeding of the alleged Will dated 1.10.1987. It would also be further reasonable to presume against the genuineness of this Will since no proceedings have heithertofore been started by the present applicant. I am fully mindful of the fact that it is not mandatory that a probate be obtained in respect of Wills executed in and dealing with properties in Delhi, but this cannot be stretched to the extremity that even where there is a overwhelming probability of the Will being disputed there is still no obligation for initiating these legal steps."

These observations can be  extrapolated into the   present case.   So far as defendant Nos. 3 and 4 are concerned, since their sister Defendant No.2 had   received   a    substantial   bequest in terms of the West End property, there was no   compelling reason for   filing for Probate. 
 

 19. In these circumstances I am of the considered opinion that the Plaintiff has failed to disclose the existence of a prima facie case in their favor.   The documents relied upon by them are of suspicious nature.   The documents filed on behalf of Defendants No. 3 and 4 are contemporaneously registered documents and show a continuity and consistency which is compelling.   It is not that Late   Sita Singh had disinherited Defendant No. 2.    Instead, she has created a security/trust to provide for her future.    It also appears, prima facie, that Late  Sita Singh harboured suspicion against Defendant No. 2 and her husband, Defendant No. 1 and   it is   unacceptable that  she  would have executed a  General Power of Attorney  in favor of Defendant No. 1.    All these facts cannot be ignored.    I do not expect the Plaintiff to conclusively prove its   case at this stage of the proceedings, as   laid down   in Tek Chand's  case  (supra).    However the  preponderant case has,  in my thinking,  prima   facie been established by Defendant Nos. 3 and 4, and  not  by the Plaintiff. 
 

20. Apart from the absence of a prima facie case, the balance of convenience is also not in favor of the Plaintiff. The possibility of creation of third party rights, which would obviously be subservient to those of the Plaintiff in the event of its succeeding in the present suit, are not so significant as to annihilate and override the rights of the owners of the suit property, i.e., Defendants No. 3 and 4.

21. In this analysis, IA No. 2528/2002 is dismissed; IA No. 8460/2002 is allowed. The ex-parte ad interim injunction passed on 15.3.2002 is recalled.

IA No. 6147/2002

22. Allowed, subject to all just exceptions.

Suit No. 565/2002 and IA No. 5539/2003

23. Written Statement to the Amended Plaint may be filed before the next date.

24. Renotify for hearing on 15.7.2003.

24. dusty.