Smt. Taira vs Kanhiya Singh
2008 Latest Caselaw 1715 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       RFA No.132/2008

                                     Reserved on:      11th July , 2008
                                     Date of Decision : September 23, 2008

SMT. TAIRA                                                  ....Appellant
                               Through : Mr. S.H. Nizami, Advocate.

            versus

KANHIYA LAL                                                 .....Respondent
                               Through : Mr. S.K. Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MS. JUSTICE ARUNA SURESH

1.    Whether the Reporters of local papers
      may be allowed to see the judgment?                   YES
2.    To be referred to the Reporter or not?                YES

3.    Whether the judgment should be
      reported in the Digest?                               YES



                               JUDGMENT

23.09.2008 : MUKUL MUDGAL,J.

th

1. This appeal arises out of the judgment and decree dated 15 May 2007

wherein the learned Additional District Judge in Suit No.493/2003 titled as

Kanhiya Lal v. Smt. Taira, granted a decree of specific performance of

Contract /Agreement to sell, by which the defendant/appellant herein was

directed to execute the sale in favour of the plaintiff/respondent herein within

30 days from the date of the judgment. On the date of the execution of the sale

the respondent was required to pay to the appellant a sum of Rs.1,25,000/-. In

the alternative, the respondent would be entitled to recover from the appellant a

sum of Rs.4 lakhs with interest @ 9% per annum from the date of institution of

the suit till the amount recovered. The learned ADJ further granted a decree of

permanent injunction in favor of the respondent permanently restraining the

appellant along with her family members, agents, etc. from further selling,

alienating, transferring or parting with possession of the suit property to any

other person in any manner.

2. The brief facts of the case are as follows: -

a. The appellant was the owner of the property bearing No.E-1/320,

measuring about 25 sq. yds. situated at Madangir, Dr. Ambedkar Nagar,

Sector-04, New Delhi (hereinafter referred to as "the said property").

b. The appellant had sold the said property to the respondent for a

consideration of Rs.2 lakhs.

c. It is contended that after receiving the sale consideration amount from the

respondent, the appellant had executed title documents in favor of the

respondent like the indemnity bond, receipt of consideration, Will,

affidavit/declaration and the General Power of Attorney etc. including

Agreement to Sell, all dated 2nd November 2001.

d. The respondent is in possession of the second floor of the said property

only and the appellant is still in possession of the first floor of the said property.

The appellant had assured to hand over the actual and physical possession of

the ground floor as well as the first floor to the respondent but had not handed

over the possession to the respondent despite oral assurances and promises.

e. Ultimately, the respondent issued a legal notice to the appellant calling

upon the appellant to perform the contract and to get the Sale Deed registered

or in alternative to pay Rs.5 lakhs to the respondent. However, the appellant

failed to do so.

f. The respondent, thereafter, filed a suit for possession, declaration,

specific performance of the contract and recovery of damages/mesne profit for

Rs.4 lakhs.

3. The respondent-plaintiff sought the following reliefs in Suit

No.493/2003:

"i. A preliminary decree of specific performance of the contract be passed and thereafter final decree of specific performance and possession be passed in pursuant of the Agreement to Sell and other relevant documents dt.02.11.2001 and a Sale Deed to be drawn and executed in favor of the plaintiff and against the defendant as shown in red colour in the plan;

ii. A decree of declaration be passed in favor of the plaintiff and against the defendant valid documents as shown in red in site plan;

iii. The alternative relief of decreeing of Rs.4 lacs be passed alongwith further interest be passed in favor of the plaintiff and against the defendant with future interest from the date of institution of the suit till realization;

iv. A decree of permanent injunction against the defendant etc. be passed restraining them from further selling, alienating, transferring or parting with possession of suit property to any other person in any manner which is shown in red colour in site plan.

v. A decree of mandatory injunction be passed against the defendant etc.

directed to remove their belonging from the suit property and handed over the actual and physical possession of ground floor and first floor of the suit property bearing No.E-1/320, Madangir, Dr. Ambedkar Nagar, Sector-4, New Delhi-

110 063 which is shown in red colour in site plan;

vi. The cost of this suit in favor of the plaintiff and against the defendant."

4. On completion of the pleadings of the parties the following issues were

framed by the learned Additional District Judge:

"(i) Whether the Agreement to Sell, GPA and other documents were got signed from the appellant fraudulently by the respondent/plaintiff after he had advanced loan of Rs.35,000/-? OPD. This issue was modified by order dated 11.1.2005 as issue no.1 and 1(a).

1. Whether signatures of the defendant was obtained fraudulently on the pretext that they were required for the purpose of loan? OPD.

1(a) Whether GPA Agreement to Sell, Receipt etc. were executed by the defendant voluntarily? OPP.

2. Whether the defendant was not the owner of the property and thus was not competent to sell it? OPD.

3. Whether possession of second floor was handed over to the plaintiff only temporarily by the husband of the defendant? OPD.

4. Whether the suit has not valued properly for the purpose of court fees? OPD.

5. Whether the plaintiff is entitled to decree of specific performance as prayed for? OPD.

6. Whether the plaintiff is entitled to decree of declaration as prayed for? OPP.

7. Whether the plaintiff is entitled to decree for permanent injunction and mandatory injunction as prayed for? OPP.

8. Whether the plaintiff entitled decree in the sum of Rs.4,00,000/- in alternative? OPP."

th

5. The learned ADJ by his judgment and decree dated 15 May 2007

decided all the issues in favor of the respondent and against the appellant. His

findings are summarized as follows :-

a. The appellant had taken an inconsistent and false stand regarding her

signatures on all documents like GPA, Affidavit etc. and this goes against the

appellant.

b. The appellant had in her cross-examination deposed that she had taken a

loan of Rs. 35,000/- from the respondent as her husband and she were sick.

However, the appellant had confused the story of loan when she further deposed

in a cross-examination. These contradictory stands goes against the appellant.

c. The appellant had also failed to prove the defence of loan. The appellant

had further failed to prove that her signatures were obtained fraudulently on

various documents on the pretext that they were required for the purpose of

loan.

d. The respondent had proved beyond any doubt that the GPA, Agreement

to Sell, Receipt etc. were executed by the appellant voluntarily. The GPA

which is a registered document bears the thumb impressions of the appellant.

She had neither disputed her thumb impressions nor proved that the thumb

impressions are not of her through any expert evidence.

e. The registered GPA was witnessed by one Mr. Ravi and Sh. K.D. Shukla

and both of them deposed that the complete set of documents for transfer of suit

property were signed by the parties in their presence and no force was used.

f. The appellant had further failed to prove that she was not the owner of

the suit property and thus was not competent to sell it. No documents showing

the ownership of the suit property by the husband of the appellant were filed or

proved by the appellant.

g. There is no defect in the title of the appellant. Even if it may be, after the

death of the husband of the appellant, the appellant alongwith her two sons

became the owners of the suit property. The two sons had already executed no

objection / declaration which shows that the appellant is the owner and her two

sons Mohammad Anwar and Mohammd Shahid had surrendered all their rights

in favor of the appellant.

h. The appellant had failed to prove that the possession of the second floor

was handed over to the respondent temporarily by the husband of the appellant.

i. The Agreement to Sell, registered GPA, receipt of consideration etc.

executed on 2nd November, 2001 in favor of the respondent by the appellant are

valid legal documents.

6. Consequent to the above findings while decreeing the respondent's suit

the following relief's were granted in favor of the respondent by the learned

ADJ:

"Vide separate judgment, the suit of the plaintiff against the defendant is decreed with costs. The following relief's are granted in favor of the plaintiff and against the defendant:-

1. A decree of Specific Performance of Contract/Agreement to Sell dt.02.11.2001 by which defendant shall

execute the sale in favor of the plaintiff within 30 days from today. In alternative the plaintiff shall be entitled to recover from the defendant a sum of Rs.4 lacs with interest @ 9% p.a. from the date of institution of suit till amount recovered. On the date of execution of sale, the plaintiff shall pay to the defendant a sum of Rs.1,25,000/-;

2. A decree of permanent injunction in favor of the plaintiff and against the defendant thereby defendant is permanently restrained alongwith her family members, agents etc. from further selling, alienating, transferring or parting with possession of the suit property to any other person in any manner which shown in red colour in site plan. However, the execution of sale deed is subject to payment of Rs.1,25,000/- by the plaintiff to the defendant or in alternative payment of Rs.4,00,000/- by the defendant to the plaintiff with interest @ 9% p.a. from the date of institution of suit till amount recovered;

3. A decree of declaration in favor of the plaintiff and against the defendant thereby documents , i.e., Agreement to Sell, registered GPA, Receipt of consideration etc. executed on 02.11.2001 are declared as valid and legal documents;

4. After the execution of sale deed, it is mandated on the defendant to remove all the belongings from the suit property and handed (sic hand) over the actual and physical possession of ground floor and first floor of the suit property bearing

no.E-1/320, Madangir, Dr. Ambedkar Nagar, Sector-4, New Delhi-63 which is shown in red colour in the site plan to the plaintiff."

7. The learned counsel for the appellant Sh. S.H. Nizami contended that the

signature of the appellant were obtained fraudulently on the pretext that they

were required for taking a loan. The appellant had received an amount of Rs.

35,000/- as loan as she was in urgent need of money at that time. The counsel

for the appellant contended that the case set up in the plaint by the respondent/

plaintiff was that he purchased the property for Rs. 2,00,000/- and got executed

various documents like GPA, Agreement to Sell, Affidavit, Will etc. No where

it is the case of respondent that he purchased the property for Rs. 3,25,000/-.

The Counsel submitted that the appellant was not the owner of property at the

time of execution of alleged documents. It is also not mentioned in the alleged

documents as to how the appellant became the owner of the property. He

further submitted that in almost all documents it has been mentioned that

possession was delivered which did not actually happen. But possession of the

second floor has only been given which falsifies the stand taken by the

respondent.

8. The learned ADJ based on a rational and meticulous approach and on a

correct factual analysis of the circumstances of the case had rightly come to the

conclusion that the Agreement to Sell, registered GPA, receipt of consideration

executed on 2nd November, 2001 by the appellant in favor of the respondent are

valid legal documentS thereby granting a decree of specific performance of

contract / Agreement to Sell against the appellant. In our view also the

appellant had not come with clean hands as is demonstrated from the

contradictory stands taken by her regarding signatures on all the documents like

agreement to Sell, registered GPA, will, affidavit and further the deposition that

she had taken a loan from the respondent as her husband and she were sick.

The appellant inspite of being given many opportunities to prove her case had

failed to adduce evidence against the documents to prove her case. The

appellant had not been able to prove satisfactorily that her signatures were

obtained on the various documents on the pretext that they were required for the

purpose of loan. On the contrary, the respondent had proved that the GPA,

Agreement to Sell, receipt etc. were executed by the appellant voluntarily which

was also affirmed by the deposition made by the witnesses Mr. Ravi and Sh.

K.D. Shukla that the complete set of documents for transfer of suit property

were signed by the parties in their presence and no force was used on the

appellant.

9. The contention of the appellant that she was not owner of the suit

property and was not competent to sell it does not stand as no documents were

shown that the ownership of the suit property lies with the husband of the

appellant. The learned ADJ had rightly come to the conclusion that there was

no defect in the title of the appellant and she was competent to sell it. Besides,

the fact that the two sons of the appellant had already executed a no objection

declaration submitting that the appellant is the owner of the suit property and

they had surrendered all their rights in favor of the appellant.

10. The learned ADJ on the basis of the Agreement to Sell, Registered GPA,

receipt etc. executed by the appellant in favor of the respondent on 2nd

November, 2001 had passed a decree of specific performance of contract /

Agreement to Sell. In our view the relief granted by the learned ADJ does not

suffer from any infirmity as the documents relied upon by the respondents have

been found to be executed validly.

11. In light of the above, we are of the view that the appeal filed by the

appellant is without any merit. While dismissing the appeal, we affirm the

findings as given by the learned Additional District Judge as being reasonable

and not warranting any interference. Accordingly, while dismissing the appeal

we vacate all interim orders passed by this Court and direct further that the

directions given by the Additional District Judge in the impugned judgment

dated 15th May 2007 are given effect to not later than 7th November, 2008.

MUKUL MUDGAL (JUDGE)

ARUNA SURESH (JUDGE)

September 23, 2008 dr