Bhim Sain Gupta vs Sunil Gupta And Ors.
2008 Latest Caselaw 484 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This suit has been filed by the plaintiff for specific performance of an agreement to sell dated 15th May 2007 in respect of a land measuring 12 bighas and 10 biswas, Village Sultanpur, Mehrauli and for cancellation of a gift deed dated 28th March 2007 executed by defendant No. 1 in favor of defendants No. 2 and 3 in respect of the same land.

2. Plaintiff is the father of defendant No. 1 and defendant No. 2 and 3 are the wife and son of defendant No. 1. As per the facts stated in the plaint, the plaintiff and defendant No. 1 were member of HUF comprising of plaintiff, his wife and three sons. An oral partition of the HUF property had taken place on 10th April, 2002 and a memo of oral partition was prepared and got registered on 9th May 2002. It is stated by the plaintiff that defendant No. 1 became the absolute owner of agricultural land measuring 12 Bighas and 10 Biswas as described in the plaint after this partition and defendant No. 1 separated from the joint residential property so as to maintain peace in the family. Defendant No. 1 was allowed to stay in the residential house till he constructed new house. It is further stated that the agricultural land of coparceners was contiguous and the family members were apprehensive that a peace of land, out of the total family land may not reach into the hands of an outsider and therefore a Memo of Understanding dated 25th February 2004 was signed between plaintiff and defendant No. 1 and it was agreed that if defendant No. 1 desired to sell his share of land or create any third party interest, he would offer the same to the plaintiff on the same price as was kept in mind at the time of partition of the property. It is submitted that the MoU dated 25th May 2004 thus, created a peremptory right in favor of plaintiff for purchase of the suit property for a sum of Rs. 31 lac. This MoU was within the knowledge of defendant No. 2 and other family members of defendant No. 1 In May, 2007 it was represented by defendant No. 1 to the plaintiff that he needs to sell the property along with super- structure. He therefore entered into an agreement to sell dated 15th May 2007 with the plaintiff. Plaintiff gave a cheque of Rs. 31 lac dated 17th May 2007 to defendant No. 1 as total sale consideration of the suit property with the structure constructed thereof. The defendant No. 1, however, took no steps to vacate the suit property and therefore plaintiff wrote a letter to defendant No. 1 on 20th September 2007 reminding him to vacate the suit property on or before 31st December 2007, the last day for execution of sale deed. The letter written by the plaintiff was not responded to. On 1st October 2007, while checking revenue records of Tehsil Mehrauli, plaintiff learnt that defendant No. 1 had executed a gift deed dated 23rd March 2007 in favor of his wife and his minor son. So, plaintiff applied to Sub Registrar and obtained a copy of gift deed dated 23rd March 2007. While executing the agreement to sell dated 15th May 2007, defendant No. 1 did not disclose about the gift deed executed by him and, therefore no title, right got conferred pursuant to the gift deed in favor of defendant No. 2 and 3. It is submitted that no transfer of the suit property could take place without notice to the plaintiff. The gift deed, therefore, was invalid. A prayer is made that this Court should cancel the gift deed since the gift deed was a result of fraud as the property fallen to the share of defendant No. 1 by partition of HUF, could not have been transferred in any manner by defendant No. 1 without offering it first to the plaintiff and the Court should declare the gift deed to be null and void and directed specific performance of the agreement to sell.

3. A perusal of the documents filed by the plaintiff would show that the partition of the HUF took place on 9th May 2002 and at the time of partition, wife of the plaintiff was given share equal to sons. The relevant covenants of of partition read as under:

3. That both the parties hereby declare and confirm that by virtue of oral partition of the said property each party has become the absolute and exclusive owner of his/her/their share in the said property, as detailed above, and the each of Party of the Second Part are fully entitled to enjoy the same in any manner and are also legally competent and empowered to sell, mortgage, gift, let out and part with their respective share in the said property and shall be the absolute and exclusive owner in respect of the same.

4. That if any of the parties raise any objection regarding the declaration of partition, the same shall be deemed to be null and void in any Court of Law or before any Arbitrator/Authority etc.

4. It is apparent from the memo of partition deed executed between parties that after the partition not only defendant No. 1 but each of the co-parcener had become absolute and exclusive owner of his share and was fully entitled to enjoy the same in the manner he liked and was also legally competent to and empowered to sell/mortgage, gift, let out and part with his respective share in the property as absolute owner of the same. No fatters can be put on him about the enjoyment of property after the partition. In the partition executed between parties, defendant No. 1 became absolute owner of the property and no fatters could be put on him also. He had a right to gift the property and right to alienate or sell his share of the property.

5. In the partition deed, no value of the property is mentioned. The plea taken by the plaintiff that there was some value in the minds of parties is a baseless plea. A perusal of MoU dated 25th May 2004 relied by the plaintiff records that it was desire of both parties that the property shall always remain within the family unless there were compelling circumstances and, therefore, parties bound themselves and all their respective legal heirs that in the event of lease/sale/transfer of any right and interest in the property at any given point of time, during life time and also after demise, the property of defendant No. 1 shall remain within the family fold. Surprisingly, the similar condition has not been made in respect of plaintiff and similar preemptory right is not created in favor of defendant No. 1 more surprisingly it is recorded that the market value of the defendant's property shall remain fixed at Rs. 31 lac for all times to come if property is to be purchased by plaintiff. It is further recorded that in case the second party i.e. Defendant No. 1 ever decides to alienate this property, it shall first make an offer for sale of the property to the plaintiff at a price of Rs. 31 lac. The agreement further records that the defendant No. 1 shall not crate any third party interest in favor of any stranger and if any agreement or transfer is made by defendant No. 1 in violation of MoU such transaction shall be treated as null and void.

6. On the basis of this MoU, it is argued by counsel for the plaintiff that the defendant No. 1 could not have created any gift deed in favor of his wife and sons. This argument must fail. Wife and son of the defendant No. 1 are his family and defendant No. 1 has every right to gift the property or his share in the property to his wife and son, he being the absolute owner in terms of the partition deed and also as per the plaintiff's contention. Making a gift deed in favor of his wife and son does not amount to transfer in favor of strangers. Wife and son are not the strangers to the defendant No. 1 or plaintiff.

7. Even otherwise, plaintiff has no right to get the gift deed cancelled. The gift deed was made by defendant No. 1 in favor of his wife and son. It is a registered gift deed and acceptance of the gifted property was simultaneous along with the execution of the gift deed. The gift has become absolute and it cannot be revoked once it is accepted by the donee. The Court cannot even consider the cancellation of gift deed since what has been gifted was the property of defendant No. 1 and not anyone else's property. Plaintiff has no right to get the gift deed cancelled on the basis of MoU or on the basis of partition deed because neither the MoU nor the partition deed can put any restriction on the defendant No. 1 in dealing with his own property. The restriction put by the MoU are contrary to law and without any consideration and seems to have been agreed under the undue influence of the plaintiff. It is unheard of that market value of the property would remain static for all times to come if the purchase is to be made by one party. The market value of the property in question as submitted by the defendants' counsel was more than Rs. 5 crore. As far as agreement to sell dated 15th May 2007 is concerned, this agreement to sell is a void agreement since defendant No. 1, who executed this agreement, admittedly was not the owner of the property as he had already gifted the property to defendants No. 2 and 3. A person who has already gifted the property cannot enter into an agreement to sell in respect of the same property. The gift deed itself was registered and the gift had became absolute.

8. In view of my foregoing discussion, I consider that the suit filed by the plaintiff is not maintainable being devoid of any merit and without any cause of action. The suit is hereby dismissed. No orders as to costs.