Shri S.M. Wahi And Ors. vs Ms. Reeta Wahi And Ors.
2005 Latest Caselaw 921 Del

JUDGMENT

Mukul Mudgal, J.

1. In this application for interim relief under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the `CPC'), the plaintiffs have prayed that the defendants be restrained from leasing out or creating third party interest and rights and also in respect of the suit property and also be restrained from dispossessing the plaintiffs from the suit property situated at 13, Kautilya Marg, Diplomatic Enclave, New Delhi(hereinafter referred to the as the `suit property').

2. The contention of the plaintiffs is that the suit property is situated at 13, Kautilya Marg, Diplomatic Enclave, New Delhi. The defendant No.1, Ms. Reeta Wahi is the niece of the plaintiff No.1, S.M. Wahi and the entire case is based on the plea of the plaintiff No.1 that the defendant No.1 was a nominee of the plaintiff No.1 and the sale deeds were got executed in favor of the defendant No.1 only as a nominee and the properties were held by the defendant as a nominee. The consideration for the purchase of the suit property was said to be made out from the accounts of the company owned and controlled by the plaintiffs and it is not disputed that the entire consideration and its payment towards the acquisition of the suit property has been made by the plaintiffs. The plaint seeks adjudication of plaintiffs' ownership and other ancillary reliefs against the defendants such as injunction against dispossession and restraint against the Punjab National Bank, defendant No.3 for allowing the redemption of property by defendant No.1 and restoration of part possession from defendant No.1 and cancellation of sale deeds dated 16th May, 1997, 19th May, 1997 and 30th June, 1997. The defendant No.1 had taken advantage of the sale deeds in her name and entered into a Collaboration Agreement with defendant No.2, S. Bakshi who in turn sought to dispossess the plaintiffs from the suit premises. An ad-interim order dated 16th July, 2004 was passed by this Court and it is the confirmation or the vacation of the said ex parte interim order sought by the 1st and 2nd defendant which is the issue involved in this case.

4. The facts of the case which according to the plaintiffs have not been disputed by the defendants in their written statements are as under:

(a) that the suit property at 13, Kautilya Marg was originally owned by Shri R.S. Bedi, Smt. Shakuntala Bammi, Shri Ravinder Bedi, Shri Narinder Bedi and Deepak Bammi.

(b) that in 1954 the plaintiff No.1 came into possession as tenant and the first floor was constructed by the plaintiffs after coming into possession.

(c) that on 8th June, 1978 two Agreements to Sell were executed in respect of 3/5th portion of the suit property by Shri R.S. Bedi, Smt. Shakuntala Bammi and Mr. Deepak Bammi in favor of the plaintiff No.1 alone.

(d) that on 10th October, 1978 the plaintiff No.1 nominated the defendant No.1 as his nominee for the purpose of Sale Deed which has been admitted by the defendant No.1 in her written statement at Para 14, Page 5.

(e) that as R.S. Bedi and others failed to honour the said Agreements to Sell, the Civil Suit No.204/83 and 2014/87 for the specific performance of the Agreements to Sell were filed by the plaintiff No.1 and defendant No.1 in which suit the defendant No.1 admitted being a nominee of the plaintiff No.1 which suit eventually resulted into a compromise decree in an application filed by the parties under Order XXIII Rule 3 CPC.

(f) that the plaintiffs have relied upon para (ii) of the application under Order XXIII Rule 3 CPC, i.e., IA.No.622/84 wherein it was stated as follows:-

"That on 10.10.78, Shri S.M. Wahi (Plaintiff No.1) nominated Ms. Reeta Wahi, his niece in whose favor the sale deed is to be executed and registered as transferee owner of 2/5th share of the said property. Possession of the property i.e. 2/5th share of property No.13, Kautilya Marg, New Delhi was given to the said nominee on 20th October, 1978."

(g) that subsequent to the compromise decrees, the sale deeds were executed in the name of the defendant No.1 as a nominee of the plaintiff No.1 in the following manner:-

1. Sale Deed dated 16th May, 1997 by Smt. Shakuntala Bammi in respect of her 1/5th share in the suit property.

2. Sale Deed dated 30th June, 1997 by Sh. Deepak Bammi in respect of his 1/5th share and Sale Deed dated 7th July, 1997 by Shri R.S. Bedi in respect of his 1/5th share.

(h) that the above sale deeds recited that the defendant No.1 was a nominee of the plaintiff No.1.

(i) that the balance amount towards the total sale consideration of Rs.2,70,000/- was made by the companies owned and controlled by the plaintiffs and accordingly an amount of CHF 450000/- by way of a gift was sent by the plaintiff No.2. The gift deed dated 30th November, 1999 stipulated that the defendant No.1 will allow the plaintiffs to enjoy the property during their lifetime and shall not deal with the suit property in any manner without concurrence of the plaintiffs.

(j) that in so far as the remaining 2/5th share of the property was concerned, the relevant sale deed was executed by Sh. N.S. Bedi and on 20th June, 1997 and by Sh. Ravinder Bedi on 7th July, 1997. The entire sale consideration of such share was paid by the company owned by the plaintiffs, a fact not disputed by the defendant No.1.

(k) that the plaintiffs have also been bearing all the expenses for the maintenance of the said property.

(l) that the defendant No.1 does not have any source of funds of her own and it is not the case of the defendants that the maintenance/taxes for the suit property was paid by the plaintiffs and the only case set up by the defendant No.1 was that the consideration for the property were paid by way of the gift deed dated 28th November, 1998 and not by the conditional gift deed dated 30th November, 1999.

5. The plaintiffs have summed up the case of the defendants as follows:-

"1) gift amount was not conditional as claimed by the plaintiffs.

2) gift deed is not dated 30th November, 1999 as alleged by the plaintiffs but is in fact dated 28th November, 1988 which defendant No.1 has produced.

3) defendant No.1 is the absolute owner of the property and enjoys all rights to deal with it."

6. In support of the application, the plaintiffs have contended as under:-

(i) that they have a prima facie case in their favor as defendant No.1 admittedly is a nominee of the plaintiffs and held the property in the fiduciary capacity.

(ii) that the balance of convenience is in favor of the plaintiffs as they have continued in possession of the suit property till date and interim protection if not granted would result in serious injury to the plaintiffs.

(iii) that an irreparable loss and injury will be caused to the plaintiffs as the defendant No.1 pursuant to the execution of the sale deeds in violation of the condition imposed on her in the gift document had entered into a collaboration agreement with defendant No.2 and if the possession is handed over by her to the defendant No.2 who is a builder, the nature of the property will be changed and it will be impossible to restore the suit property to the plaintiffs in the event of their succeeding in the suit.

7. The case set up by the defendant No. 1 is that the suit property stood conveyed in the name of defendant No. 1 by conveyance deed dated 11th January, 2001 along with the ownership rights. The defendant No. 1 has been living in the suit property for more than 25 years pursuant to the nomination in her favor on 10th October, 1978 and delivery of possession in terms thereof in 1978 in respect of 3/5th share and thereafter on 29th December, 1998 in respect of 2/5th share of the suit property.

8. The defendant No. 1 stated as under:-

(a) Though the plaintiff No. 1 and defendant No. 1 were uncle and niece but in fact they enjoyed the relationship of man and woman. That on the death of her father Shri Ram Mohan, defendant No. 1 who then was 19 years of age fell into the clutches of her uncle S.M. Wahi and an illicit relation between them commenced.

(b) The suit titled for declaration, permanent and mandatory injunction and cancellation of sale deeds and possession amounts to an abuse of the judicial procedure and has been filed for the sole purpose of preventing defendant No. 1 from freeing herself and leading an independent life. The prayers in the plaint are as follows:-

"(a) declare plaintiff No. 1 to be the owner;

(b) restrain defendants from transferring possession or dispossessing the plaintiffs;

(c) restrain defendant N. 1 Reeta(and another) from entering the property;

(d) restrain Punjab National Bank from allowing redemption of the property by defendant No. 1;

(e) possession (of part) against defendant No. 2;

(f) 'cancellation' of sale deed dated 16.5.1997, 19.5.1997 and 30.6.1997."

(c) There is no prayer for cancellation of sale deeds dated 20th June, 1997 and 7th July, 1997 which were in terms of 1988 agreement nor has cancellation of the conveyance deed dated 11th January, 2001 been sought.

(d) The real legal effect of the plaint claims a declaration and the recovery of the possession in respect of 13, Kautilya Marg in favor of plaintiff No. 1 who sought declaration as a real owner and the defendant No. 1 to be only a benamidar.

(e) Benami Act, 1985 bars the present suit and even if there is no benami Act the plaintiff was not even a prima facie owner of the property.

(f) On 10th October, 1978 rights under the purchase agreement in respect of 3/5th share of the suit property was transferred by the plaintiff No. 1 in favor of defendant No. 1 and she assumed possession of 3/5th share on 20th October, 1978.

(g) In suit No. 204/1983, the plaintiff No. 1 and defendant No. 1 were the plaintiffs and the compromise deed therein acknowledged the possession of 2/5th share of the property to the defendant No. 1 on 20th October, 1978. Another suit No. 2140/87 for specific performance was filed in this Court in which plaintiff No. 1 and defendant No. 1 were the plaintiffs and Deepak Bammi was the defendant. Another compromise deed was filed where the nomination of 10th October, 1978 in favor of defendant No. 1 was acknowledged and the fact that the possession of 1/5th share was given to her on 20th October, 1978 was also acknowledged. A decree in terms of the compromise was passed on 15th December, 1987.

(h) On 29th February, 1988, defendant No. 1 entered into an agreement with Mr. Ravinder Bedi for his 1/5th share of the suit property and paid him consideration. On 29th February, 1988, defendant No. 1 also entered into an agreement with Mr. Narinder Bedi for 1/5th share in the suit property and paid money to him. Thus from 1978 to 1997, defendant No. 1 came to hold all rights in the entire property and continued as owner in possession. In June-July, 1997, sale deeds by Shakuntala Bhami, R.S. Bedi, Narinder Bedi, Deepak Bammi and Revinder Bedi in favor of defendant No. 1 in respect of suit properties were registered and for all the sale deed the amount was not paid by Shri S.M. Wahi or any of his companies and cheques were drawn from defendant No. 1 is own bank account under her own signature. There were also bank drafts purchased by defendant No. 1 from her account and not from the plaintiff's account or any of his companies' accounts. The loans were taken and paid out of the money which was received by defendant No. 1 as gifts.

(i) On 31st March, 1998, Rs. 86,65,065/- were paid to the LandDO as unearned increase by defendant No. 1 herself by means of demand draft which was debited to her individual account NO. 17624 with Canara Bank. On 27th July, 1998, the plaintiff NO. 1 filed a written statement in Suit No. 333/98 titled Virender Kumar Bedi v. S.M. Wahi and Reeta Wahi where he submitted as follows in paragraph 11(k):-

"(k) That Miss Wahi, defendant is the full and sole owner and in possession of the entire property."

(j) On 17th August, 1998, the property was mutated by NDMC in favor of the defendant No. 1. On 28th November, 1998, a gift deed was executed by plaintiff No. 1 in favor of defendant No. 1. The gift was of money to repay the loan which was already paid by defendant No. 1. The gift was given not prior but after the purchase of the property. On 24th August, 1999, the defendant No. 1 applied for conversion of the property to free hold after payment of Rs.14,28,281/-. On 11th January, 2001, conveyance deed converting the property into free hold was executed by the President of India in favor of defendant No. 1. Consequently the said conveyance deed was registered on 15th March, 2001. From 1997 to 2002, the original title deeds were with defendant No. 1 and in 2002 when defendant No. 1 was wanting to free herself from the control of plaintiff No. 1, the plaintiff No. 1 Maneuvered to have the property mortgaged to the Bank.

(k) The suit was filed on false premises and a non-existent document which is a cut and and paste photocopy job and a forged document. Even though the fiduciary word is used by the plaintiff, the entire suit is based on the plea of benami transaction said to be in favor of the defendant No. 1. After 1978 there is not a single document in favor of the plaintiffs No. 1 and 2. Benami Transaction Act prohibits the suit. There is no fiduciary relationship between the plaintiff No. 1 and the defendant.

(l) The compromise deed and decrees of this Court dated 8th February, 1984 and 15th December, 1987 record clearly that (a) nomination of delivery of possession to defendant No. 1 in 1978; (b) no decree or sale deed in favor of plaintiff and -ª sale deed only in favor of defendant No. 1. There is no question of fiduciary relationship as there is vast difference in ages and the relationship between the plaintiff No. 1 and defendant. The decrees and the sale deeds had discharged the original agreement dated 10.10.1978 and in any case there is no nomination for 2/5th share. Nominee is not a fiduciary and the nominee does not hold property in the capacity of fiduciary.

(m) A gift deed once made cannot be recalled and more so after years and at best it is the money which could be recalled and not the property which may have been owned from prior to the gift.

(n) The suit of the plaintiff is based on a forged document i.e. Letter dated 30th November, 1999 and an interim order passed and the original of the said letter was not filed in Court. When this court directed the plaintiff on 5th August, 2004 to file the original, the plaintiff took a stand that the original is not with them and in any event the said letter does not confer any right or title in favor of the plaintiff nor does it make the unconditional gift to conditional one.

(o) The letter dated 10th June, 1004 is clearly a forged one and mentioned phone numbers, telex etc. which are at least more than 6 year old as phone numbers are of 6 digits and not prefixed by 2. The letter head is of Vaishali International Pvt. Limited whereas on the said date name of the company was Vaishali International Management and Resources Ltd.

(p) The plaintiffs are not in possession of the property as they reside in Switzerland. The first plaintiff comes to India on business and stays in the property only as a licensee. The second plaintiff is a Swiss lady and has not come to India for more than 4 years and is not ever likely to come to India. A person who is the owner, if living there, is presumed to be in possession. The defendant No. 1 had not created any tenancy in favor of the plaintiff or received any rent from them hence there cannot be any possession of the plaintiff. A bare licensee has no interest in the property having no interest in the property could not maintain any action for restraint against dispossession.

(q) The plaintiffs are admittedly not recorded owners of the property in question and the right, title and interest in the property only vests in defendant No. 1 who is the recorded owner.

(r) The plaintiffs have come to this Court with unclean hands and have concealed material facts misleading this Court and disentitling them for any relief. In suit NO. 333/98, the plaintiff No. 1 in his written statement had taken a plea that defendant No. 1 is the full and sole owner and in possession of the entire property and is estopped from taking a stand to the contrary. Consequently, the interim injunction in favor of the plaintiff is liable to be vacated.

9. The stand of defendant No.3, Punjab National Bank, only relates to the description of overdraft facility of Rs.250 lacs applied for by M/s Vaishali International Management and Resources Ltd., through Ms. Rita Wahi on 22nd July, 2003 where she declared herself to be the absolute owner of property No.13, Katualya Marg, New Delhi and stood guarantor in her personal capacity and also created an equitable mortgage to secure the overdraft facility and thus delivered the title deeds of the property to the bank. This overdraft was thereafter increased to Rs.525 lacs on 30th June, 2004 It is stated by defendant No.3 that it has wrongly been imp leaded in the suit and will take appropriate proceedings to recover its dues under the Securitization Act, 2002.

The bank has reiterated huge outstanding amounts payable to it. The rights of the defendant No.2 Mr. S. Bakshi are derived from the defendant No.1's rights and he cannot have any rights independent of or larger than those of the 1st defendant.

10. This case cannot be judged without taking into account the averments made by the defendants about the relationship between the defendant No.1 and the plaintiff No.1. In para 8 of the defendant No.1's written statement, while expressing her readiness for a DNA test, it has been specifically averred that the plaintiff No.1's son Otto is the natural born biological child of the defendant No.1 and the plaintiff No.1. There is no specific denial of this averment in the replication. This is an extremely significant pleading which lends some prima facie substance to the plea of the defendant No.1 that there was a relationship between plaintiff No.1 and defendant No.1. In the light of this the holding of the property by the defendant No.1 in her name is not unnatural. It is not in dispute that the properties are in the name of the defendant No.1. Curiously the sheet-anchor of the plaintiff's letter dated 30th November, 1999 is said to be based upon the acknowledgment of the defendant No.1 and in site of a direction by this Court on 5th August, 2004 to the plaintiff to file the original, this was not done by the plaintiff No.1 by taking a stand that the original is not with him. The plaintiffs are not recorded as the owners of the property and it is the defendant No.1 who is acknowledged in the records to be the owner of the property. Significantly in the judicial proceedings in the Suit No.333/98 the plaintiff No.1/defendant therein took a plea on oath in his written statement that the defendant No.1 was the full and sole owner and is in possession of the entire property. Having taken such a stand that though in a pleading in another suit, it does not lie in the mouth of the plaintiff No.1 to contend to the contrary.

11. I also cannot lose sight of the fact that the compromise decrees and the decrees of this Court dated 4th August, 1994 and dated 15th December, 1997 noticed the delivery of possession to the defendant No.1 in execution of a sale deed only in favor of the defendant No.1 herein.

12. The claim of the plaintiff No.1 that he is in actual possession of the property, cannot be accepted in view of the aforesaid circumstances. Whether or not the property was purchased with the funds provided by the plaintiffs and/or being owned and controlled by the plaintiffs, the documents were nevertheless executed in favor of the defendant No.1 by the plaintiffs and merely by the plaintiffs' averring that the defendant No.1 is his nominee cannot give any rights enforceable at this stage to the plaintiffs.

13. The plaintiffs have harped on and highlighted the fact that the defendant No.1 was a nominee of the plaintiffs and what according to them was the legal effect of such a nomination. They have also highlighted that the expenses and taxes for the property were borne by them. Mere mention of the word `nominee' in a sale deed in my view cannot in any way detract from the full rights of the defendant No.1 enjoyed by her. Once the defendant No.1 is held to have full rights over the property, then whether not the plaintiffs funded the purchase, the holding of the property by the defendant No.1 in her own name, must be given full effect to. In a judicial proceeding in a pleading, it has been clearly stated by the plaintiffs that the defendant No.1 herein is the full and sole owner and in possession of the entire property and possess all documents of title. Such an averment on oath cannot be lost sight of and no further documents need to be looked into at the interlocutory stage. In my view such pleading itself is sufficient to disentitle the plaintiffs from claiming any interim relief.

14. In light of this fact whether or not the defendant No.1 transfers any rights to defendant No.2, cannot be interceded or injuncted by an interim order of this Court. The plea of the plaintiff No.1 will also be barred by the provisions of the Benami Transactions (Prohibition) Act, 1988 and they now cannot contend to the contrary that the property in question though held in the name of the defendant No.1 is in fact in their name. In the facts of the present case no claim of the defendant No.1's holding of the property in favor of the plaintiff No.1 in a fiduciary capacity can be countenanced.

15. The plaintiffs are also not residents of India but of Switzerland and it has been averred by the defendants that the second plaintiff has not come to India for more than 4 years. The plaintiffs have not specifically denied the above plea of the defendants. This also belies the plea of the plaintiff No.1 of holding possession of the suit premises.

16. On 31st March, 1998 defendant No.1 paid Rs.86,65,065/- to LandDO as unearned increase by means of a demand draft which was debited to her individual account no.17624 with Canara Bank. The NDMC mutated the property in favor of defendant No.1 on 17th September, 1998. It was the defendant No.1 who applied for freehold conversion of the said property on 24th September, 1999 by paying a sum of Rs.14,28,281/- as conversion fee debited to her account No.SB17624 with Canara Bank. On 11th January, 2001 conveyance deed was executed in favor of defendant No.1 by the President of India The same was registered in her favor on 15th March, 2001. The original title deeds of the property are in possession of the defendant No.1 in capacity of owner in possession.

17. Furthermore the plaintiffs at the highest can be fully compensated by monetary relief and an interlocutory order against the defendant No.1 is thus not called for.These are also factors which disentitle the plaintiffs to the continuance of any interim relief in their favor.

18. Accordingly the plaintiffs' application for interim injunction is dismissed with effect from 6th July, 2005. All the interim orders passed earlier in favor of the plaintiffs stand vacated with effect from 6th July, 2005. Application stands dismissed and disposed of accordingly.

List the matter before the appropriate Court in accordance with the roster on 13th July, 2005, subject to the orders of the Hon'ble the Chief Justice and thereafter Judge-in-Charge(Original Side).