Shri Jai Pal Singh Shishodia vs Smt Poonam Rathore & Another
2008 Latest Caselaw 1630 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  CS(OS)1254/1997


%                              Date of decision : 12.09.2008


SHRI JAI PAL SINGH SHISHODIA                       .......        Plaintiff
                               Through:   Mr R.M. Sinha, Advocate



                                 Versus


SMT POONAM RATHORE &                                ....... Defendants
ANOTHER
                               Through : Mr Rajesh Tyagi and Dr Aparna
                               Bhadrwaj, Advocates for Defendant No.1.

                               Mr Chetan Sharma, Sr Advocate with Mr
                               R.K. Gaur, Advocate for Defendant No.2.



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
     1.

 Whether reporters of Local papers may          Yes
        be allowed to see the judgment?

     2. To be referred to the reporter or not?         Not necessary

     3. Whether the judgment should be reported        Not necessary
        in the Digest?


RAJIV SAHAI ENDLAW, J

1. The plaintiff has instituted the suit for possession of property

bearing No.753 admeasuring 200 sq yrds out of Khasra No 305/212

situated in the area of village Shakarpur Khas in abadi of Ganesh

Nagar, Ilaka Shahdara, Delhi. The plaintiff claims to be the owner

of the land underneath the said property vide registered sale deed

dated 4th September, 1970 in his favour; the defendant No.1 is the

daughter of the sister (Smt Vidya Wati) of the plaintiff; the plaintiff

CS(OS) 1254/1997 Page No 1 of 26 permitted his other sister Smt Kailash Devi who was issueless to

reside in the said property; the defendant No.1 also started residing

with the said Smt Kailash Devi; Smt Kailash Devi died on 20th

December, 1985 and her husband Shri Bhavnish Chandra Chauhan

died on 5th January, 1996. The plaintiff, thereafter, requested the

defendant No.1 to vacate the property but the defendant No.1 did

not vacate in spite of assurances; that some time in 1991 the

defendant No.1 had made a proposal for purchase of the property on

the then prevailing price and the plaintiff executed a General Power

of Attorney dated 12th April, 1991 in favour of the defendant No.1 to

deal with pre-sale affairs of the property under the bona fide belief

that the defendant No.1 shall pay the sale consideration; that

besides the general power of attorney dated 12th April, 1991 the

plaintiff had also executed a Will dated 12th April, 1991 in favour of

the defendant No.1; that the GPA being without consideration did

not confer any right in the property on the defendant No.1; that in

early 1996 the close relatives of the parties affected a compromise

dated 4th February, 1996 between the plaintiff and the defendant

No.1 according to which the plaintiff and the defendant No.1 were

to own the said property in equal share with the defendant No.1

having a right of pre-emption; that the defendant No.1 did not act

upon the compromise of 4th February, 1996 and again the

"Arbitrators" on 24th February, 1996 with the consent of the parties

assessed the value of the property at Rs 23 lacs and the defendant

No.1 was to pay Rs 11,50,000/- to the plaintiff on or before 15th

March, 1996, out of which the defendant No.1 paid a sum of Rs 1 lac

only as earnest money and failed to pay the balance monies.

CS(OS) 1254/1997 Page No 2 of 26 The plaintiff, thus, claimed to have become entitled to possession of

the property from the defendant No.1. The plaintiff further claimed

the relief of declaration of the compromise dated 4th February, 1996

and 24th February, 1996 as null and void. The plaintiff further

claimed that the defendant No.1 had with malafide intention started

making efforts to sell the property on the basis of the GPA and Will

dated 12th April, 1991 and thus the plaintiff vide notice dated 18 th

April, 1996 cancelled the said GPA and Will but the defendant No.1,

on the basis of revoked GPA and Will dated 12th April, 1991, had

executed collusive sale deed dated 22nd May, 1996 with respect to

the said property in favour of the defendant No.2 who is the

husband of the sister of the husband of the defendant No.1. The

plaintiff also claimed the relief of permanent injunction and mesne

profits against the defendants.

2. The defendant No.1 contested the suit by filing a written

statement. The case of the defendant No.1 is that she is the adopted

daughter of Smt Kailash Devi and Shri Bhavnish Chandra Chauhan;

that Shri Bhavnish Chandra Chauhan had purchased the land under

the suit property benami in the name of the plaintiff; that Shri

Bhavnish Chandra Chauhan only had raised construction on the said

land and was always in possession of the said property; that the

plaintiff had executed a deed of relinquishment dated 10th October,

1986 with respect to the said property in favour of Shri Bhavnish

Chandra Chauhan and for the said reason only had executed the

power of attorney and Will both dated 12th April, 1991 in favour of

the defendant No.1 as the daughter of Shri Bhavnish Chandra

CS(OS) 1254/1997 Page No 3 of 26 Chauhan; that however the plaintiff became dishonest after the

death of Shri Bhavnish Chandra Chauhan and started claiming

ownership of the property and the defendant No.1 was compelled

against her wishes to sign the compromise dated 4th February, 1996

and 24th February, 1996 (supra) without any consideration; that the

document dated 24th February, 1996 was retained by the plaintiff

only and no copy was given to the defendant No.1 and the plaintiff

had tampered with the said documents and changed the figure of Rs

3 lacs as the total value of the property and figure of Rs 1,50,000/-

as the amount to be paid by the defendant No.1 to the plaintiff to Rs

23 lacs and Rs 11,50,000/- respectively; that the defendant No.1,

pursuant to the compromise dated 24th February, 1996, had agreed

to sell the property to the defendant No.2 and had out of the

advance received from the defendant No.2 paid a sum of Rs 1 lac to

the plaintiff; that the plaintiff was well aware of the sale of the

property by the defendant No.1 to the defendant No.2. The

defendant No.1 joined the plaintiff in claiming that the documents

dated 4th February, 1996 and 24th February, 1996 be declared as

null and void. The defendant No.1 also denied that the plaintiff had

given any notice dated 18th April, 1996 of revocation of GPA and Will

and claimed that the said notice was sent by the plaintiff only on 8 th

July, 1996 i.e., after the sale by the defendant No.1 of the property

to the defendant No.2 on 22nd May, 1996 on the basis of the said

GPA and the Will.

3. The plaintiff in his replication took a stand that the defendant

No.1 was in collusion with the defendant No.2; the plaintiff denied

CS(OS) 1254/1997 Page No 4 of 26 knowledge that the defendant No.1 was the adopted daughter of

Shri Bhavnish Chandra Chauhan. He denied execution of a

relinquishment deed dated 10th October, 1986; he denied that the

documents dated 4th February, 1996 and 24th February,1996 are

void (even though the plaintiff himself had sought declaration to the

said effect); he reiterated that the total price of Rs 23 lacs was

settled for the property; he denied that he was the benami owner of

the property or that Shri Bhavnish Chandra Chauhan was the real

owner of the property. He admitted receipt of Rs 1 lac from the

defendant No.1 and claimed that the defendant No.1 had failed to

pay the balance Rs 10,50,000. The defendant No.1 reiterated that

the GPA and the Will were revoked on 18th April, 1996, i.e. before

the sale by the defendant No.1 to the defendant No.2 on 22nd May,

1996.

4. The defendant No.2 also contested the suit. He claimed the

plaintiff and the defendant No.1 to be in collusion to deprive him of

the property purchased by him vide sale deed dated 22nd May, 1996.

He claimed that the documents dated 4th February, 1996 and 24th

February, 1996 had been prepared by the plaintiff and the

defendant No.1 in collusion. He further claimed to be the bona fide

purchaser in good faith of the property and that the plaintiff had not

served any notice upon him and as such the plaintiff could not

recover possession of the property and mesne profit from the

defendant No.2.

CS(OS) 1254/1997 Page No 5 of 26

5. The plaintiff in his replication to the written statement of the

defendant No.2 reiterated that the power of attorney, on the basis of

which the sale deed in favour of the defendant No.2 was executed,

had been revoked prior to the date of the sale deed and hence

defendant No.2 could not claim any title to the property.

6. It may be noticed that the defendant No.1 had filed an

application under Section 8 of the Arbitration and Conciliation Act

1996 on the basis of the documents dated 4th February, 1996 and

24th February, 1996 but the same was dismissed by this court vide

order dated 11th May, 1999, inter alia, on the ground that the

plaintiff had challenged the validity of the said documents and

claimed a relief that they are null and void and for the reason that

from the said documents no arbitration agreement was made out

between the parties.

7. In the aforesaid state of pleadings, the following issues were

struck on 24th July, 2003:

"1. Whether the suit is maintainable in its present form?

OPP

2. Whether the plaintiff has got any locus standi to file the present suit? OPP

3. Whether the power of attorney dated 12.4.1991 executed by the plaintiff in favour of defendant No.1 was concealed by the plaintiff before 22.5.1996? OPP

4. Whether the sale deed executed by defendant No.1 in favour of defendant No.2 on 22.5.1996 is valid and binding on the plaintiff? OPD

5. Whether the deed of relinquishment dated 10.10.1986 was executed by the plaintiff in favour of father of the defendant No.1, Sh. Bhavish Chandra, pertaining to the

CS(OS) 1254/1997 Page No 6 of 26 suit property and whether is binding upon the plaintiff, and if so what effect? OPD

6. Whether the agreements dated 4.2.1996 and 24.2.1996 have any legal sanctity, being obtaining from the defendant No.1, under duress and coercion and without consideration, by the plaintiff? OPD

7. Whether the agreement dated 24.2.1996 is tampered by the plaintiff to enhance the figures of alleged amount of consideration? OPD

8. Whether the defendant No.1 has made payment of Rs One lakh to the plaintiff, in pursuance of Agreement dated 24.2.1996? OPD

9. Whether defendant No.1 is adopted daughter of Mr. Bhavish Chandra? OPD.

10. Relief."

8. On 1st May, 2008 with the consent of the parties, it was

ordered that the issue No.3 above named should be read as under:

"3. Whether the power of attorney dated 12.4.1991 executed by the plaintiff in favour of defendant No.1 was cancelled by the plaintiff before 22.5.1996? OPP"

9. The plaintiff examined himself and Shri Raj Kumar Rana as

PW2. The defendant No.1 besides herself examined her husband

Shri B.S. Rathor as D1/W2, Shri Aman Singh her natural father as

D1/W3, Shri Balbir Singh colleague of her adoptive father Shri

Bhavnish Chandra Chauhan as D1/W4, Shri Bijender Singh as

D1/W5, her husband's elder brother Shri Kishan Pal as D1/W7, her

father in law Shri Ram Chander Singh as D1/W8 and the

handwriting expert also as D1/W8. Defendant No.2 examined

himself.

CS(OS) 1254/1997 Page No 7 of 26

10. Arguments have been heard from the counsel for the plaintiff

and the defendant No.1 and the senior counsel for the defendant

No.2. My issue-wise findings are as under:

Re: Issue No.1 ( Whether the suit is maintainable in its present form? OPP)

11. The issue was framed on the plea of the defendant No.1

contained in para 1 of the preliminary submission of her written

statement. The said plea itself is bereft of any particulars. No

arguments have been addressed by either of the parties as to how

the suit is not maintainable. If the plaintiff is found to have

cancelled the power of attorney on the basis of which the defendant

No.1 has sold the property to the defendant No.2, the plaintiff would

be entitled to maintain the suit for possession and mesne profits as

filed. The said issue is accordingly decided in favour of the plaintiff

and against the defendants.

Re : Issue No.2 (Whether the plaintiff has got any locus standi to file the present suit? OPP)

12. This issue was framed again on the plea of the defendant

No.1. The case of the defendant No.1 was that the plaintiff having

executed a deed of relinquishment with respect to the property in

faovur of Shri Bhavnish Chandra Chauhan and having executed a

power of attorney dated 18th April, 1991 in favour of the defendant

No.1 and the defendant No.1, on the basis of the said document,

having executed sale deed in favour of the defendant No.2, the

plaintiff had no locus to claim possession and mesne profits with

respect to the property. Thus, the decision of this issue will depend

upon the findings herein below on issues 5 and 3. If the

CS(OS) 1254/1997 Page No 8 of 26 relinquishment is found to be invalid and the cancellation of the

power of attorney is found to be before the sale dated 22nd May,

1996 in favour of the defendant No.2, the plaintiff would have locus

standi to file the suit and if otherwise then not.

Re: Issue No.3 (Whether the power of attorney dated 12.4.1991 executed by the plaintiff in favour of defendant No.1 was cancelled by the plaintiff before 22.5.1996? OPP)

13. The plaintiff in his affidavit by way of examination in chief

stated that upon the failure of the defendant No.1 to abide by the

compromise dated 24th February, 1996, he, vide notice dated 18th

April, 1996, cancelled the GPA in favour of defendant No.1. Copy of

the notice dated 18th April, 1996 is exhibited as Exhibit PW1/5 and

the registration slip is exhibited as Exhibit PW1/6.

14. I have, however, on the file not found any documents bearing

the said exhibit marks. There is, however, on the file a list of

documents dated 5th June, 1997 filed by the plaintiff bearing the

signatures of the plaintiff and the counsel for the plaintiff,

containing at serial No.5 "notice dated 18/04/1996 along with copy

of registered AD envelop". The same is a photocopy of a letter

dated 18th April, 1996 of the plaintiff to the defendant No.1. The

plaintiff by the said letter terminated/revoked the GPA and Will

dated 12th April, 1991 "with immediate effect" and a photocopy of a

postal certificate dated 18th April, 1996 with an endorsement in

hand dated 8th July, 1996 as under:-

CS(OS) 1254/1997                                         Page No 9 of 26
                    "08.07.96

                       By registered A.D.
                       To, Poonam Rathor"

15. The original postal certificate dated 18th April, 1996 has not

been filed before the court. It has been contended by the counsel

for the defendants that the plaintiff has totally failed to prove the

dispatch of any letter dated 18th April, 1996 to the defendant No.1

cancelling the power of attorney and further that the endorsement

set out hereinabove at the bottom itself shows that the cancellation

of the power of attorney was sent by the plaintiff to the defendant

No.1 for the first time on 8th July, 1996 by registered A.D. Post. It is

argued that the photocopy of the postal certificate dated 18th April,

1996 is a forged and fabricated document.

16. The plaintiff in his cross examination, by the counsel for the

defendant No.1, stated:

(a) that he had not given any notice to the defendant No.1 of cancelling the power of attorney and Will but had made a document on a stamp paper of Rs 10/- cancelling the power of attorney in favour of the defendant No.1 (no such document has been placed on record);

(b) that he did not remember whether he had filed any UPC receipt with regard to the notice sent to the defendant No.1;

(c) He reiterated that he had not sent any legal notice of revocation of the power of attorney to defendant No.1 before the filing of the suit.

17. The plaintiff in cross examination by the counsel for the

defendant No.2 stated that he had not given any advertisement in

CS(OS) 1254/1997 Page No 10 of 26 any newspaper with regard to the cancellation of power of attorney

in favour of the defendant No.1; he denied that the defendant No.2

had approached him to inquire about the status of the power of

attorney; he admitted having not given any notice to the defendant

No.2. PW2 examined by the plaintiff has not deposed on this issue.

18. The defendant No.1 in her affidavit by way of examination in

chief stated that it was after the registration of the sale deed by her

in favour of the defendant No.2 on 23rd May, 1996 that the plaintiff

sent a letter dated 8th July, 1996 through registered post cancelling

the GPA and Will. The said letter and the envelop had been proved

as exhibit D1/W1/4. She further stated that the said letter dated 8th

July, 1996 is the only notice sent by the plaintiff cancelling the GPA

and the Will and that the purported notice dated 18th April, 1996

alongwith UPC dated 18th April, 1996 filed by the plaintiff were

forged documents and no such notice had been received by her.

19. The defendant No.1 in cross examination by the counsel for

the plaintiff denied having received any notice in April, 1996 from

the plaintiff revoking the GPA and confirmed that she had received a

registered letter in July, 1996 from the plaintiff. It is significant that

the counsel for the plaintiff, while cross examining the defendant

No.1, did not challenge the statement in the examination in chief of

the defendant No.1 with respect to having received the letter dated

8th July, 1996 from the plaintiff cancelling the power of attorney and

which alongwith the postal envelop in which it was sent has been

proved as Exhibit D1/W1/4. The said letter dated 8th July, 1996 gives

CS(OS) 1254/1997 Page No 11 of 26 the subject thereof as "Revocation of general power of attorney and

the Will both of dated 12th April, 1991" and purports to cancel the

General Power of Attorney and the Will both dated 12th April, 1991

with immediate effect. The said letter nowhere mentions dispatch

by the plaintiff to the defendant No.1 of any letter dated 18th April,

1996 as pleaded in the plaint and does not even state that the power

of attorney and the Will had been revoked at any time prior to 8 th

July, 1996. The envelop in which the said letter was sent by the

plaintiff shows the date of posting thereof as 8th July, 1996 and the

sender as the plaintiff.

20. In my view the aforesaid letter dated 8th July, 1996

unequivocally falsifies the case of the plaintiff of having cancelled

the power of attorney on 18th April, 1996. As aforesaid, the

cancellation on 18th April, 1996 though pleaded in the plaint has, in

any case, not been proved by the plaintiff. The photocopy of the

postal certificate, though not proved but filed by the plaintiff can

always be read against the plaintiff and the same also contains an

admission of the plaintiff of having sent a letter dated 8th July, 1996

to the defendant No.1 by registered A.D. post.

21. Thus, under issue No.3, it is found that the power of attorney

dated 12th April, 1991 executed by the plaintiff in favour of the

defendant No.1 was not cancelled by the plaintiff before 22nd May,

1996.

CS(OS) 1254/1997 Page No 12 of 26

22. The counsel for the plaintiff, faced with the aforesaid position

which emerged during hearing, in his rejoinder, argued that the

power of attorney came to an end on 4th February, 1996 or in any

case on 24th February, 1996 and thus the sale registered on 23rd

May, 1996 on the basis of the said power of attorney is invalid. On

4th February, 1996 and 24th February, 1996, as aforesaid,

compromise had taken place between the plaintiff and the defendant

No.1. The counsel for the plaintiff argued that the power of attorney

was impliedly revoked on 4th February, 1996 and 24th February,

1996 and in this regard relied upon Section 207 of the Indian

Contract Act. Reliance was also placed upon Azam Khao v. S.

Sattar AIR 1978 AP 442 and Amrik Singh v Sohan Singh XLIII

1988 1 PLR 541. It was contended that once in the compromise on

4th February, 1996 it was settled that both the plaintiff and the

defendant No.1 had 1/2 share each in the house and further when

on 24th February, 1996 it was agreed that the defendant No.1 shall

purchase the share of the plaintiff for the price mentioned therein,

the authority of the defendant No.1 to act under the power of

attorney given by the plaintiff as sole owner of the property, stood

impliedly revoked.

23. In my view, the plaintiff is not entitled to even plead or

succeed on such a case. Firstly, this is not the case on which the

plaintiff approached the court. The plaintiff approached the court

with a specific case of the power of attorney having been revoked on

18th April, 1996 prior to the execution of the sale deed by the

defendant No.1 in favour of the defendant No.2 on the basis of the

CS(OS) 1254/1997 Page No 13 of 26 said power of attorney. The plaintiff obtained interim relief against

the defendants on the strength of such a case. The plaintiff at no

time during the trial took a stand that revocation instead of 18th

April, 1996 was on 4th February, 1996 or on 24th February, 1996.

The parties have not gone to trial on the said basis. Specific issue

No.3 was framed on the basis of the case of the plaintiff of having

revoked the power of attorney vide letter dated 18th April, 1996.

Allowing the plaintiff now to setup a case of implied revocation of

the power of attorney on 4th February, 1996 and 24th February,

1996, in my view, is contradictory to the case with which the

plaintiff approached the court.

24. Secondly, the question of revocation of the power of attorney

on 4th February, 1996 and 24th February, 1996 is a question of fact.

Without any pleadings and evidence on the same, the plaintiff

cannot be permitted to argue so, upon finding himself to have not

made out a case of cancellation on 18th April, 1996 pleaded in the

plaint. Thirdly, the plaintiff approached the court with a case and

with a prayer of declaration that the compromise dated 4th February,

1996 and 24th February, 1996 are null and void. A transaction which

the plaintiff claimed to be null and void, the plaintiff cannot be

permitted to fall back on and the same would again tantamount to

allowing the plaintiff to withdraw an admission. Fourthly, the

plaintiff who, it is now clear, had forged and fabricated the letter

dated 18th April, 1996 and the postal certificate dated 18th April,

1996 does not deserve any concession of the nature by the court.

Fifthly, even on merits, I do not find that there could be any implied

CS(OS) 1254/1997 Page No 14 of 26 revocation of the power of attorney on 4th February, 1996 and 24th

February, 1996. The compromise of 4th February, 1996 also

envisaged the sale of the property and the right of the defendant

No.1 to acquire the same. When the compromise envisaged, the

plaintiff seizing to have any claims as asserted by him over the

property, the cancellation of the power of attorney already executed

by the plaintiff in favour of the defendant No.1 could not be the

intent of the compromise. Similarly, the compromise of 24th

February, 1996 also contemplated payment of price by the

defendant No.1 of the plaintiff's share of the property. There was

no restriction on the defendant No.1 from paying the balance price

of the share of the plaintiff by sale of the property. Thus, the said

compromise also by implication authorized the defendant No.1 to

act under the power of attorney in her favour and could not by

implication have meant the cancellation or revocation of the power

of attorney. The plaintiff is, thus, not entitled to succeed on his

alternate arguments also under this issue. The issue No. 3 is

accordingly decided against the plaintiff and in favour of the

defendants.

Re: Issue No.4 (Whether the sale deed executed by defendant No.1 in favour of defendant No.2 on 22.5.1996 is valid and binding on the plaintiff? OPD)

25. The effect of the decision of Issue No.3 (supra) is that the

power of attorney given by the plaintiff in favour of the defendant

No.1 and whereunder the defendant No.1 was authorized to sell the

property was cancelled on 8th July, 1996 i.e., after the sale deed

dated 22nd May, 1996 and registered on 23rd May, 1996. Thus, as on

the date of the sale deed, the defendant No.1 was authorized to sell

CS(OS) 1254/1997 Page No 15 of 26 the property and to execute the sale deed on behalf of the plaintiff.

The only challenge to the said sale deed was on the ground of the

cancellation of the power of attorney prior thereto. The said

challenge has failed. Accordingly, it has to be held that the sale

deed is valid and binding on the plaintiff. The counsels for

defendants No. 1 and 2 relying on Section 204 of the Indian Contract

Act urged that, in fact, the agreement to sell the property had been

executed by the defendant No.1 acting on the power of attorney,

even prior to 18th April, 1996 and thus even if the power of attorney

was cancelled on 18th April, 1996, the same could not invalidate the

sale deed made in pursuance to an agreement to sell through a valid

attorney. However, having found as above that the power of attorney

had not been cancelled till 22nd May, 1996 when the sale deed was

executed, I do not deem it necessary to enter into the said aspect.

26. The counsel for the plaintiff again faced with the aforesaid

situation sought to fall back on Sections 215 and 216 of the Indian

Contract Act to urge that the defendant No.1 in the matter of sale

acted on her own and without obtaining the consent of the principal

and without acquainting the principal with all material

circumstances. However, the said argument is again bereft of any

pleadings and are not mere questions of law and cannot be

entertained at this stage. The power of attorney gave the unfettered

right to the defendant No.1 to sell the property to whomsoever and

without referring to the plaintiff first. The subsequent revocation of

the power of attorney would not affect the sale deed executed when

the power of attorney was valid and subsisting. I, therefore, find

CS(OS) 1254/1997 Page No 16 of 26 that the sale deed executed by the defendant No.1 in favour of the

defendant No.2 is valid and binding on the plaintiff. The said issue

is decided in favour of the defendants and against the plaintiff.

Re: Issue No.5( Whether the deed of relinquishment dated 10.10.1986 was executed by the plaintiff in favour of father of the defendant No.1, Sh. Bhavish Chandra, pertaining to the suit property and whether is binding upon the plaintiff, and if so what effect? OPD

27. The deed dated 10th October, 1986 is of a relinquishment of

rights of immovable property. Such a deed under Section 17 of the

Registration Act is compulsory registerable. The deed dated 10th

October, 1986 is admittedly not registered. The same cannot affect

any immovable property. The said position has not been

controverted by the counsel for the defendants also. It has,

however, been contended that the said deed can be used as an

estoppel against the plaintiff from averring contrary thereto. I find

such a proposition hard to digest. What the law prohibits to be done

cannot be permitted to be done in an indirect manner. The

requirement of compulsory registration of documents cannot be

whittled down by reading and using the said documents under some

other head or principle of law. The courts have made only one

distinction and which is provided under Section 49 of the

Registration Act itself i.e., the use of the documents for the collateral

purposes or in a suit for specific performance or earlier, as evidence

of part performance. The present is not a suit for specific

performance or claiming any benefit of part performance. The claim

on the basis of said document is also barred by the Benami

Transactions (Prohibition) Act. Thus, I do not find the said document

can be looked into for any purposes whatsoever. The documents

CS(OS) 1254/1997 Page No 17 of 26 cannot be admitted in evidence at all. However, the issue as framed

also requires me to find whether the said deed was executed by the

plaintiff or not. Even though in view of the findings hereinabove I do

not see any reason for returning the findings but since the issues

were framed more than 10 years ago and since the decree of this

court is subject matter of appeal, I proceed to return findings on this

aspect also.

28. The defendant No.1 denied his signatures on the said deed.

The said deed has witnesses. The plaintiff has not deposed as to

what animosity the said witness have against the plaintiff so as to be

privy to fabrication of a document against the interest of the

plaintiff. One of the said witnesses has been examined as D1W4 Shri

Balbir Singh and who has deposed of the plaintiff having executed

the said deed in his presence. The said witness was not cross

examined at all by the plaintiff with respect to the execution of

relinquishment deed. His statement remains unchallenged.

29. Even otherwise, in the facts and circumstances of the case, I

find it more believable/plausible that the plaintiff is the signatory of

the said deed. The plaintiff admits having executed a power of

attorney and a Will both dated 12th April, 1991 in favour of the

defendant No.1. The reason given by the plaintiff for the execution

of the said documents is not in the normal course of human conduct

and is not believable. The plaintiff claims to have given the power of

attorney to enable the defendant No.1 to complete the preliminaries

before the sale of the property by the plaintiff to the defendant No.1.

CS(OS) 1254/1997 Page No 18 of 26 However a perusal of the power of attorney would show that the

same is not for the said purposes but is to enable the defendant No.1

to exercise all powers/rights as owner with respect to the property.

If till then the price also had not been settled between the plaintiff

and the defendant No.1, it is inconceivable that the plaintiff would

give a general power of attorney to the defendant No.1 including the

clause enabling the defendant No.1 to sell the property. Had the

story of the plaintiff been true, the plaintiff would have given a

power of attorney for the specific purpose of carrying out the

preliminaries before sale. Further, it has not been stated as to what

preliminaries were required to be completed before the sale. Not a

single letter has been placed on record by the plaintiff enquiring

from the defendant as to whether she had completed the

preliminaries or not. Had the power of attorney been given for the

purposes alleged by the plaintiff, the same would have been

cancelled immediately upon no agreement to sell having been

finalized between the parties. On the contrary nothing whatsoever

was done from 12th April, 1991 till the compromise ultimately

effected on 4th February, 1996.

30. Further there is no explanation as to why a Will alongwith the

power of attorney was given. If the idea was to only enable the

defendant No.1 to do the spade work for the sale, there was no

occasion for execution of the will also. This court has already in

Asha M Jain v Canara Bank 94 (2001) DLT 841 and in Kuldeep

Singh Suri v Surinder Singh Kalra 76 (1998) DLT 232 held that

judicial notice can be taken on such power of attorney transaction in

CS(OS) 1254/1997 Page No 19 of 26 the city of Delhi. In the present case, the general power of attorney

and the Will are in consonance with transfer of rights in the

property. Of course, the agreement to sell which generally

accompanies such transactions is not to be found in the present case

but the agreement to sell was not required in view of the

relinquishment deed dated 10th October, 1986 already executed by

the defendant No.1 in favour of the plaintiff. These circumstances

also lead one to believe in the execution of the relinquishment deed

dated 10th October, 1986. Execution of relinquishment deed was

more in consonance with normal human behaviour and conduct and

there is every reason for the plaintiff to have executed the same. It

cannot also be lost sight of that the plaintiff has also not been able to

establish having at any time been in possession of the property or of

having constructed the property. On the contrary, it is in evidence

that the adoptive father of the defendant No.1 Shri Bhavnish

Chandra Chauhan was employed in CPWD and retired only on 18th

March, 1977. In the entirety of this circumstance, the version of the

defendant No.1 that it was, in fact, the adoptive father of the

defendant No.1 who had purchased the property and for that reason

the plaintiff had executed the relinquishment deed dated 10th

October, 1986 is more believable.

31. The plaintiff is also found to have lied with respect to the

adoption of the defendant No.1. The plaintiff in an attempt to gain

advantage in this case lied about the said adoption even when the

plaintiff himself has in the power of attorney and the Will admittedly

executed by him referred to the defendant No.1 as the daughter of

CS(OS) 1254/1997 Page No 20 of 26 Shri Bhavnish Chandra Chauhan. When the plaintiff is found to lie

on this aspect, I find it more probable that the plaintiff is lying with

respect to his signatures on the relinquishment deed also. It was

held by this court in V.P. Saxena v Avinash Chander Bhasin

94(2001) DLT 16 that when a witness is found to be lying on one

aspect his testimony on the other aspect is also liable to be

disbelieved.

32. The defendant No.1 has also examined a handwriting expert

who has also deposed that the relinquishment deed is signed by the

plaintiff. However, I find it more reliable to rely upon the

circumstances aforesaid rather than on the said report.

33. The issue No.5 is decided finding the defendant No.1 to have

executed the relinquishment deed but the same is of no effect.

Re: Issue No.6 (Whether the agreements dated 4.2.1996 and 24.2.1996 have any legal sanctity, being obtaining from the defendant No.1, under duress and coercion and without consideration, by the plaintiff? OPD

34. It is interesting to note that both the plaintiff and the

defendants have claimed that the agreements dated 4th February,

1996 and 24th February, 1996 are void and have no legal sanctity. In

view of the said unanimity between the parties at least on this

aspect, this issue ought not to have been framed. I do not find the

defendant No.1 also on whom the onus of this issue has been placed

to have established that the documents were got signed from her by

the plaintiff under duress and coercion or without consideration. On

CS(OS) 1254/1997 Page No 21 of 26 the contrary, the said compromise appears to have been executed by

the parties in the process of settling their claims and counter claims

with respect to the property and which had arisen after the demise

of Shri Bhavnish Chandra Chauhan. It is significant that during the

life time of the sister of the plaintiff and even till the life time of Shri

Bhavnish Chandra Chauhan, the plaintiff at no point of time made

any claims over the property. It is only thereafter that the plaintiff

started claiming rights over the property. The position then was

that title documents of the property were in the name of the plaintiff

and taking of the plea of benami had been barred by law and the

possession of the property was of the defendant No.1 coupled with

the relinquishment deed, power of attorney and the Will executed by

the plaintiff. There was no occasion for any of the parties to be

under duress and coercion from each other for signing the

documents to settle the disputes with respect to the property. I also

do not find that the said documents were without any consideration.

The said documents were signed in consideration of mutual terms

whereby each of the parties instead of claiming 100% rights over the

property confined his/her claim to 50% only over the property.

35. As far as the legal sanctity of the documents dated 4th February,

1996 and 24th February, 1996 is concerned, I find the same also of

no relevance inasmuch as nothing turns on the outcome of the said

issue. However, in the entirety of the facts and circumstances of the

case, I find the documents to have legal sanctity and capable of

being admitted in evidence. The said documents are in the nature of

a family settlement. The plaintiff and the defendant No.1 were

CS(OS) 1254/1997 Page No 22 of 26 members of a family and both had antecedent claims to the property

in the manner aforesaid and sought to settle the said claims by

confining their respective shares to 50% of the property. Thus, issue

No.6 is answered in the following manner: firstly, the agreements

dated 4th February, 1996 and 24th February, 1996 have legal

sanctity; secondly they were not obtained from the defendant No.1

by the plaintiff under duress and coercion or without consideration.

The plaintiff, however, has not sought to enforce his rights, if any,

under the said documents and on the contrary claimed a decree of

declaration of the said documents as null and void and chose to

exercise rights with respect to the property as absolute owner

thereof.

Re: Issue No.7 (Whether the agreement dated 24.2.1996 is tampered by the plaintiff to enhance the figures of alleged amount of consideration? OPD)

36. I find the said issue also to be redundant since the plaintiff

has not come with a monetary claim under the document dated 24 th

February, 1996. Had the plaintiff made such a claim, it would have

been necessary to adjudicate as to whether the defendant No.1 had

agreed to pay a sum of Rs 1.50 lacs or a sum of Rs 11.50 lacs to the

plaintiff. However, again feeling bound, I proceed to answer this

issue.

37. Both the plaintiff as well as defendant No.1 have examined

witnesses to the documents. The said witnesses supported the party

examining them. Thus, no relevance can be placed upon the said

testimonies. The same is the position with respect to the testimonies

CS(OS) 1254/1997 Page No 23 of 26 of the plaintiff and the defendant No.1. A perusal of the document

also does not lead me to any conclusion inasmuch as the addition, if

any, of 2 before 3 and of 1 before 1.50 is not decipherable from the

document. The plaintiff has admitted the document to be in his own

hand and that explains as to why, alternation even if any, is not

decipherable.

38. However, I find one factor which leads me to decide the issue

in favour of the defendant No.1 and against the plaintiff. It is in

evidence from the plaintiff that the market value of the property was

then the same as mentioned in the document, i.e., Rs 23 lacs. Had

that been the position, the plaintiff would have been satisfied with

receiving his share. The value written appears to be much below the

market value of the property, for the plaintiff to, in spite of having

entered into the compromise, to abandon the compromise altogether

and to not even call upon the defendant No.1 once to pay the amount

which he had agreed to receive but to rush to the court for

possession of the entire property as owner and for seeking

declaration of the document dated 24th February, 1996 as null and

void. The plaintiff appears to have succumbed to the pressure of the

family into agreeing to a very low value of the property, to receive

50% share thereof and seems to have taken the default of the

defendant No.1 to pay even the said amount, to claim the entire

property. I, therefore, decide issue No.7 in favour of the defendant

No.1 and against the plaintiff.

Re: Issue No.8 (Whether the defendant No.1 has made payment of Rs One lakh to the plaintiff, in pursuance of Agreement dated 24.2.1996? OPD

CS(OS) 1254/1997 Page No 24 of 26

39. The plaintiff has admitted payment of Rs 1 lac from the

defendant No.1 in pursuance of agreement dated 24th February,

1996 and this issue is decided accordingly.

Re: Issue No.9 (Whether defendant No.1 is adopted daughter of Mr. Bhavish Chandra? OPD.

40. This issue is also redundant and has no bearing on the

outcome of the suit. However, as noted by me above, the plaintiff

had admitted the defendant No.1 to be the adopted daughter of Shri

Bhavnish Chandra Chauhan in the power of attorney and Will

admittedly executed by the plaintiff in favour of the defendant No.1.

The plaintiff has been found to be lying in denying the said position.

The defendant No.1 has also placed on record various documents of

her school etc showing the name of her father as that of Shri

Bhavnish Chandra Chauhan. However, since this issue may have

repercussions on several other aspects and parties who are not

before this court and further since I have found the decision on this

issue to be irrelevant for the adjudication of the case, I deem it

appropriate to strike of this issue.

Re: Issue No.10 (Relief)

41. Having found the plaintiff to be the owner of the property and

having further found the relinquishment deed executed by the

plaintiff in favour of the father of the defendant No.1 to be of no

avail and having further found the plaintiff to have executed the

power of attorney, with a right to sell, in favour of the defendant

No.1 and having further found the said power of attorney to be valid

and subsisting on the date of the sale by the defendant No.1 of the

property to the defendant No.2, I find that the plaintiff is not

CS(OS) 1254/1997 Page No 25 of 26 entitled to the relief claimed of possession of the property. The

defendant No.1 acting under a valid power of attorney sold the

property to the defendant No.2 and the plaintiff is bound by the said

act of his agent. The plaintiff being not found entitled to possession,

the question of the plaintiff being entitled to mesne profits or

injunction does not arise. The documents dated 4th February, 1996

and 24th February, 1996 are also not liable to be declared null and

void as claimed by the plaintiff. The suit of the plaintiff is

accordingly dismissed with costs. Counsels fee assessed at Rs

50,000/- for each of the defendants, the plaintiff having been found

to have approached the court with a false case of cancellation on

18th April, 1996 of the power of attorney.

RAJIV SAHAI ENDLAW JUDGE.

September 12, 2008.

M




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