Lotika Sarkar vs Preeti Dhoundial & Ors.
2009 Latest Caselaw 4843 Del

 *                       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        C.S. (OS) No.1983 of 2009 and I.A. Nos.13613-13615 of 2009

%
         LOTIKA SARKAR                                                      ......Plaintiff
                                          Through: Mr. A.K. Nigam, Senior Advocate with
                                                   Mr. Sanjoy Ghose & Ms. Pragnya,
                                                   Advocates with Ms. (Dr.) Lotika Sarkar.

                                               versus

         PREETI DHOUNDIAL & ORS.                                ......Defendants
                             Through: Mr. Prashant Mehndiratta, Advocate with
                                      defendants in person.

                                                        Date of Order: 26th November, 2009

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                         JUDGMENT

1. This suit was filed by the plaintiff aged about 86 years with a prayer of

cancellation of gift deed dated 28th June, 2007 whereby the property No.L-1/10, Hauz

Khas Enclave, New Delhi was gifted by the plaintiff to defendant No.1. A prayer is also

made that the defendants be directed to handover the peaceful and vacant possession of

the suit property to the plaintiff and they further be directed to render accounts in respect

of her funds and financial dealings.

2. In the ground for cancellation, it was stated by the plaintiff that the plaintiff and

her husband had no children and defendant No.2, husband of defendant No.1, was a

serving officer in Indian Police Service and his son, that is, defendant No.3 had to pursue

his education in Delhi and he wanted defendant No.3 to reside with the plaintiff and her

husband. Since the plaintiff and her husband were at advanced stage of their lives, the

plaintiff was persuaded by her husband to agree to this proposal and she agreed. The

plaintiff's husband passed away on 10th October, 2005 with the result that the plaintiff

came under immense trauma and grief. Taking advantage of this situation the defendants

shifted into the house of the plaintiff and took total control of the plaintiff and the suit

property. She was made to handover all her documents relating to her financial

investments, passport papers, etc. It is alleged that the plaintiff was not permitted to read

current news, magazines, etc. and was discouraged from going out door and was kept

under surveillance by the defendants. The plaintiff's relatives and friends reduced their

visits and she later on learnt that the defendants behaved in an unwelcome manner to her

relatives and friends with the result that their visits dropped. In a nutshell, it is stated that

the plaintiff's life and affairs were being regulated by the defendants. Her financial

affairs and other affairs regarding house came into the hands of the defendants because of

old age and grief of the plaintiff. However, it is stated that the defendants were in

fiduciary relationship of plaintiff and were in a position to dominate the Will of the

plaintiff and in this background, the plaintiff was made to sign certain documents and she

was taken to the Registrar office where her photograph was also taken and the plaintiff

was not clearly in a position to appreciate the purpose of this exercise and she was not

made to understand that the documents she executed was a gift deed whereby she gifted

her property at Hauz Khas Enclave worth crores of rupees in favour of defendant No.1.

She was made to understand that she was signing documents to transfer the property in

her own name. Based on these averments and certain other averments, it is pleaded that

the plaintiff was deprived of her property by way of executing a gift deed in favour of

defendant No.1 deceptively, under undue influence and the plaintiff was rendered

homeless at the age of 86 years. It is stated that on 11th January, 2009, one Mrs.

Ranjana Bharti, wife of plaintiff's former cook attempted to forcibly enter the suit

property and occupy the servants' quarter in purported execution of some decree.

Defendant No.2, who was posted at Patna rushed to New Delhi and an altercation took

place between defendant No.2 and Mrs. Ranjana Bharti over the suit property and this

was widely covered by national print and television media. It is then, the plaintiff learnt

that L-1/10, Hauz Khas Enclave i.e. her property, was being claimed by defendant No.1

as her property on the basis of a gift deed. She also intimated police on 7th February,

2009 that she did not wish to be contacted by the defendants and she has been compelled

to leave her home. There are various other facts which have been stated by the plaintiff

as to what happened thereafter in the media and how a writ petition was filed by the

defendants of habeas corpus for production of the plaintiff and this court appointed Mr.

Arjun Bhandari as Commissioner. She had also got served a notice on defendants and the

defendants refused to recognize the plaintiff as the owner of the property thus, this suit.

3. In the written statement it was stated that no cause of action had arisen in favour

of plaintiff and the plaintiff may not even be aware about the exact contents of the suit

and its ramifications. Plaintiff was able to appreciate the true and correct facts because of

her loss of memory coupled with brain washing, tutoring and undue influence of

conspirators.

4. The factum of acquaintance of defendants with the plaintiff and living of

defendant No.3 with the plaintiff's family during lifetime of plaintiff's husband and

thereafter living of defendant No.1 with the plaintiff, after death of plaintiff's husband

was not disputed. However, it was denied that any undue influence was exercised by the

defendants over the plaintiff. It was also denied that the plaintiff was ousted or

dispossessed of the property in any manner. It was submitted that the plaintiff was

illegally and against her wishes taken away by Mrs. Malvika Karlekar, Ms. Kamini

Karlekar and Mr. Mithu Allur on 13th January, 2009 at about 10:30 a.m. The Three

persons accompanied by Mrs. Usha Ramnathan arrived at Hauz Khas residence and

suggested that the plaintiff should be taken to Mumbai to stay with Mr. Mithu Allur. The

defendants submitted that prior to 13th January, 2009 despite the fact that the plaintiff's

husband had died, none of her relatives and friends had come forward to help. It was

only defendants who were looking after the plaintiff and helping her in all her works.

The sudden burst of concern on the part of these persons was considered suspicious by

the defendants. Although defendant No.2 was not in favour of sending the plaintiff with

these persons, however, on assurance of these persons to defendant No.2 that they will

not take her to Mumbai but they would like to take her to a good restaurant, the

defendants had no option but to allow these persons to take away the plaintiff, who at the

age of 86 years was having a fragile body and loss of memory. It is stated that after these

persons took the plaintiff, they all hatched a conspiracy to grab the property. Since they

learnt that the property has already been gifted, they made all kinds of false, incorrect and

malicious allegations against the defendants and made allegations that it was defendants

who had grabbed the property of the plaintiff. It was stated that defendant No.3 had

started living with the plaintiff and her husband at their invitation. It was Mr. Chanchal

Sarkar (husband of the plaintiff), who groomed defendant No.3 to be a Journalist and took

defendant No.3 to Pakistan in November, 2004 to attend a Youth Peace Conference at

Lahore. It is stated that during old age of the plaintiff and her husband, it were

defendants who had been helping both of them and none of the persons, who were

making hue and cry now had come to help the plaintiff. It was defendants who had taken

Mr. Sarkar to Ganga Ram Hospital and AIIMS and for dialysis and to Dr. Mahajan of

AIIMS for treatment. Mr. Chanchal Sarkar was also operated on and it was defendant

No.3 and other defendants, who took care of the plaintiff and her husband and provided

them all necessary personal care and help.

5. The defendants had also given other instances in their written statement to show

how defendants had been caring and loving the plaintiff and how none of the other

relatives were helping and coming forward even at the death of Mr. Chanchal Sarkar. It

is stated that at the time of performing last rites, even 'mukhagni' was performed by

domestic servant Dinesh Prasad since defendant No.2 could not reach, however, none of

the other relatives and friends, who had now come forward as relatives and friends were

there either at last ceremony or at other rites like sharad, etc.

6. It was vehemently denied that the defendants exercised any undue influence over

the plaintiff in execution of the gift deed. It was stated that the plaintiff executed gift

deed out of her own free will and desire. There was no instigation or suggestion given by

the defendants.

7. Considering the age of the plaintiff and the controversy involved, it was decided

that statement of plaintiff and defendant No.1 be recorded in the court under Order X

Rule 1 CPC to narrow down the controversial issues and to expedite the disposal of the

case. Today both Mrs. Lotika Sarkar and Mrs. Preeti Dhoundial, defendant No.1 had

appeared in the court for this purpose.

8. Statement of Mrs. Lotika Sarkar was recorded by the court. She was shown the

photocopy of gift deed dated 28th June, 2007 executed by her. She was also made to read

the document with the help of her counsel and after going through the document she

categorically stated that she had read the document at the time of signing the document

and she had signed the document after understanding its contents. She was asked as to

under what circumstances she had executed the document. She replied that after passing

away of her husband, Mrs. Preeti Dhoundial, defendant No.1, and her husband (defendant

No.2) agreed to look after her and the house and both of them were really looking after

her well. Thereafter she gifted the house to Mrs. Preeti Dhoundial so that the property

could be taken care of by the defendants. She stated that all of them were of great help to

her after death of her husband, when she was alone. However, she stated that she now

realizes that she should have been more careful about the property but she did execute the

gift deed. She stated that even after executing the gift deed, defendant husband and wife

looked after her well and they looked after the property also. Since she was being looked

after well, she just sat back and did not bother about anything.

9. During recording of her statement it looked that the plaintiff was having a problem

with her memory and she sometimes did not understand the questions properly. The

plaintiff during her good years had been a known legal luminary and a known Law

Professor. Despite her old age, she was able to understand the language of the gift deed.

From her statement however, it appears that she did not consider that the gift deed would

deprive her absolutely of the rights over the property. Her statement shows that she has

been more bothered about who will take care of the property and herself, since this

involved payment of different bills, house tax, electricity and water bills, bearing

expenses of the house and doing market work, etc. Her old age made her dependent on

the defendants as none of her other friends and relatives had come forward for help. It

also seems that she was quite happy with the services being provided to her by the

defendants. However, when she was asked did she give up her right over the property?

She categorically stated that she had not given up her right over the house. This only

shows that she executed gift deed thinking that this would help the defendants in payment

of all bills, etc. of the property. It would be appropriate to mention that all her expenses

and expenses over property were being met out of her savings. Her nearest relative, a

cousin Mr. Pradeep Sarkar was living far away from Delhi in Kolkata and he was not able

to look after her or the property. It is for this reason that at this ripe age, she considered

that executing gift deed in favour of the defendants to be the right thing.

10. Statement of Mrs. Preeti Dhoundial was recorded under Order X Rule 1 CPC. She

in her statement made it clear that her son, defendant No.3, used to live with Mrs. Lotika

Sarkar and her husband as a family member since 2004. She herself moved to the house

in the year 2005, that is, after death of husband of Mrs. Lotika Sarkar so that she could

look after Mrs. Sarkar. Prior to that, she was living at Patna with her husband. She stated

she moved to Delhi to help the plaintiff because of a commitment given to Mrs. Lotika

Sarkar. The relations of her husband with Mrs. Lotika Sarkar and Mr. Chanchal Sarkar

were more than 30 years old and she had known the family since 1982. Mrs. Sarkar even

used to visit their house wherever her husband was posted and used to stay with them.

She had not asked Mrs. Lotika Sarkar to gift the property. It was gifted by Mrs. Lotika

Sarkar of her own will. She had come to stay with her out of love and affection for her

and she had not come to stay with her for greed of the house. The house was immaterial

and love and affection were more material. She categorically stated that she was prepared

to give back the gifted house to Mrs. Lotika Sarkar (plaintiff) if Mrs. Lotika Sarkar so

desired. On her so saying, Mrs. Lotika Sarkar, who was present in the court was again

called and was made to face Mrs. Preeti Dhoundial, defendant No.1. Mrs. Lotika Sarkar

in presence of Mrs. Preeti Dhoundial told that she wanted her house back. On this Mrs.

Preeti Dhoundial told that she was prepared to give this house back to her, however, she

would not then be able to stay with her and would not be able to look after her. On this

Mrs. Lotika Sarkar told that if Mrs. Preeti Dhoundial wanted to live with her, she could

live with her in the house but she would like to have her house back and she would make

arrangements for her own welfare and taking care.

11. After recording of statements of the plaintiff and defendant No.1, I heard counsel

for the defendants and also defendant No.2 in person. I consider it was not a case where

Mrs. Preeti Dhoundial exercised any undue pressure or influence over plaintiff for

execution of the gift deed in her favour. It is not a case where fraud was played.

However, it does seem that Mrs. Lotika Sarkar did not understand the implications of

executing the gift deed at that ripe age. She not only had fragile body but a failing

memory also. It is the defendants own case in the written statement that Mrs. Lotika

Sarkar was suffering from loss of memory and she may not be knowing as to what was

written in the plaint. If that is so, the execution of gift deed has not taken place in a far

past. It had taken place only about two years back and as per the statement of Mrs. Lotika

Sarkar, she had been needing help right from the year 2005 onwards as she was not

capable of looking after herself or the property. Thus, it seems to me that though the gift

deed was executed by Mrs. Lotika Sarkar but she had executed the gift deed without

understanding the complete nature of document and the result of the document.

12. In any case, defendants after recording of the statements of Mrs. Lotika Sarkar and

Mrs. Preeti Dhoundial, made a categorical prayer to the court that the gift deed executed

by Mrs. Lotika Sarkar be cancelled and a consent decree be passed in this case for

cancellation of the gift deed and of reverting back the property to Mrs. Lotika Sarkar.

13. The possession of the property was already with the police and under lock and key

of the police. On making of this prayer by the defendants, counsel for the plaintiff also

agreed that a consent decree be passed and the suit be disposed of after passing a consent

decree in respect of cancellation of the gift deed. The plaintiff's counsel did not press any

other reliefs except that the possession of the property be handed over to the plaintiff

forthwith.

14. In view of this, the suit is decreed to the extent that the gift deed dated 28th June,

2007 executed by Mrs. Lotika Sarkar in favour of defendant No.1 in respect of house

No.L-1/10, Hauz Khas Enclave, New Delhi is hereby declared null and void and

cancelled with consent of the defendants. The property No.L-1/10, Hauz Khas Enclave,

New Delhi henceforth shall belong absolutely to Mrs. Lotika Sarkar and she shall be the

absolute owner of the property. The possession of the property which is presently lying

sealed under lock and key of police shall be handed over to Mrs. Lotika Sarkar forthwith.

The other reliefs in the suit are not pressed by the plaintiff.

The suit and the pending applications are, therefore, disposed of in view of the

aforesaid order.

SHIV NARAYAN DHINGRA J.

NOVEMBER 26, 2009 'AA'