Mr. V.M. Gupta & Others vs Mr. Shashi Gupta & Others.
2010 Latest Caselaw 5094 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                    Judgment Reserved on: 02.11.2010
                     Judgment Pronounced on: 09.11.2010

+           CS(OS) No. 1634/2002

MR. V.M. GUPTA & OTHERS                      .....Plaintiff

                           - versus -

MR. SHASHI GUPTA & OTHERS.                  .....Defendant

Advocates who appeared in this case:
For the Plaintiff       : Mr Sanjay Goswami, Adv.
For the Defendant       : Mr Sanjeev Sindhwani, Adv. for
                        Defendants 1 to 3
                          Mr Dinesh Garg, Adv. for
                         D-5&6
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether 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 Yes in Digest?

V.K. JAIN, J

1. This is a suit for declaration and permanent

injunction. Late Smt. Kamla Wati, mother of plaintiff No.1,

mother-in-law of plaintiff No.2 and grandmother of plaintiff

Nos.3 and 4 was the recorded lessee in respect of plot

No.16, School Lane, Babar Road, New Delhi. She expired on

21st December, 1984. In her lifetime, she had executed a

registered Will dated 09th August, 1994, bequeathing the

aforesaid property to her sons, namely, Radhey Mohan

Gupta, Inder Mohan Gupta and Virender Mohan Gupta and

given ownership rights in respect of different constructed

portions of the property individually to them. All the three

sons of late Smt. Kamla Wati entered into an

agreement/settlement on 22nd January, 1985, with respect

to the division of the property on the basis of the Will of

their mother. The first floor, verandah, living room and

dining room, bed room, kitchen and toilet, barsati toilet and

the terrace on the top floor, shown in green in the plan

annexed to the Will fell to the share of Shri Radhey Mohan

Gupta, who was the husband of defendant No.1 Shashi

Gupta and the father of defendant No.2 Smt.Namita Gupta

and defendant No.3 Kavita Gupta. The back portion of the

ground floor consisting of two bed rooms, one bath room,

toilet, rear gate and open area in the rear portion, as also a

portion of the first floor consisting of three bed rooms with

loft on rear bed room, toilet, passage and half of open

terrace fell to the share of Inder Mohan Gupta, husband of

plaintiff No.2 and father of plaintiff Nos. 3 and 4. He was

also permitted to use the loft by putting a wooden staircase

in the courtyard and the portion bequeathed to him was

shown in yellow in the site plan, annexed to the Will. The

ground floor portion consisting of open lawn, covered

verandah, the loft, drawing and dining room, two bed

rooms, open courtyard WC and bath and one store and

verandah on the top floor and terrace, including biggest loft

upon the bed room of the ground floor, were bequeathed to

plaintiff No.1 Virender Mohan Gupta and was shown in red

colour in the site plan, annexed to the Will. Inder Mohan

Gupta expired on 09 th October, 1991, whereas Shri Inder

Mohan Gupta expired on 25th March, 2000. It is alleged in

the plaint that defendants 1 to 3 have converted certain

windows, shown at points 'A' and 'B', in the site plans, into

doors and thereby they have access to certain areas in the

form of open courtyard and terrace which otherwise vests in

the plaintiffs. It has further been alleged that defendants 1

to 3 vacated the portion occupied by them on 30th August,

2002 after informing the plaintiffs that they had sold their

rights in favour of a builder, who was to use that portion or

was to give the same on rent for commercial purpose. They

also informed the plaintiffs that the purchaser would also

make some additional construction on their portion on the

first floor terrace and convert it into a multistoried building.

According to the plaintiffs, since property in question is a

lease hold property and no sub-division and sale or transfer

of any portion is permissible, the defendants could not have

sold, alienated or agreed to purchase only a portion of the

property in a lawful manner. They also apprehend an

imminent threat of breach of the lease deed by defendants

by using the property for non-residential purpose and by

raising unauthorized construction therein. They have

sought a decree for declaration, declaring that the sale or

transfer made by defendants 1 to 3 in favour of defendants

5 and 6, pursuant to the agreement to sell, General Power of

Attorney and possession letter dated 06th September, 2002

is illegal and void. They also want permanent injunction,

restraining the defendants from using any portion of the

property for non-residential purpose and from making

unauthorized construction therein. They also want an

injunction, restraining them from disturbing the use and

occupation of the plaintiffs, in respect of the portion

occupied by them. They also want an injunction against

mortgage of the property or creation of any charge or third

party interest therein.

2. The suit has been contested by the defendants. In

their written statement, defendants 1 to 3 have taken a

preliminary objection that the suit has not been properly

valued for the purpose of Court Fee and jurisdiction and is

bad for misjoinder to defendant No.4. On merits, it has been

alleged that the plaintiffs have no locus standi to challenge

the agreement to sell executed by them in favour of

defendant No.6. They have also alleged that the plaintiffs

themselves have carried out unauthorized construction in

the property and have misused it by carrying out

commercial activities there. They claim that they have not

violated any term of the lease and have neither carried out

any unauthorized construction nor have they ever misused

the property. They have also denied having converted the

windows at point 'A' and 'B' of site plant into doors.

According to them, the door exists since 1971 when

defendant No.1 got married. They have admitted that they

had entered into an agreement to sell their portion to

defendant No.6 on 06 th September, 2002 and have handed

over the vacant possession of that portion to it. They have

also admitted execution of General Power of Attorney in

favour of defendant No.5. They have, however, denied

having threatened commercial use of the property or

unauthorized construction therein.

3. Defendant Nos. 5 and 6, in their written statement,

have taken similar preliminary objections and have

admitted that defendants No.1 to 3 had handed over vacant

possession of their portion to defendant No.6 and had

executed a General Power of Attorney in favour of defendant

No.5. It has also been admitted that the portion of the

defendants 1 to 3 is now in occupation of defendant No.6.

4. No written statement has, however, been filed by

defendant No.4 Union of India, which has been sued

through Land and Development Office, Ministry of

Development and Urban Affairs.

5. The following issues were framed on the pleadings

of the parties:-

"1. Whether the suit has been property valued for the purposes of court fee and jurisdiction and the property court fee has been paid? OPP

2. Whether plaint discloses any cause of action against defendant Nos.5 and 6 on the date of filing of suit or afterwards? OPP

3. Whether the plaintiff have any locus standi to challenge the sale of their portion by defendant Nos. 1 to 3?

OPP

4. Whether the sale of their portion by defendants No.1 to 3 to defendant No.6 is liable to be set aside?

5. Whether the plaintiffs are entitled to the declaration as claimed? OPP

6. Whether the plaintiffs are entitled to the injunction as claimed? OPP

7. To what relief the plaintiffs are entitled to.

8. Relief."

Order SheSeptember, 2005

6. Issue No.1

No arguments on this issue were advanced before me.

Fixed Court Fee of Rs 19.50/- is payable on the relief of

declaration under Article 17(iii) of Schedule II, if no

consequential relief is prayed.

As held by a Full Bench of this Court in Purshottam

Dass and Ors. Vs. Har Narain and Anr. AIR 1978, Delhi

114, a suit for injunction will be treated as a suit under

Section 7(iv)(d) if the plaintiff can get the injunction sought

by him without the necessity of praying for declaration and

in such a case, the prayer for declaration will be the

surplusage. If, however, there is an obstacle to be removed

before the plaintiff can remove the relief of injunction

simplicitor, it cannot be said that the relief of declaration

sought by the plaintiff should be ignored as a surplusage.

The expression "consequential relief" used in Section 7(iv)(c)

of Court Fee Act refers to a relief which would follow directly

from the declaration given, the valuation of which is not

capable of being definitely ascertained, which is not

specifically provided for anywhere in the Act and cannot be

claimed independently of declaration, as a substantive

relief. This proposition of law laid down by Lahore High

Court in a Full bench of Lahore High Court in Zeb-ul-Nisa

v. Din Mohammad was approved by Supreme Court in

Shamsher Singh Vs. Rajinder Prashad and Ors. AIR 1973

SC 2384. Though the plaintiff has claimed declaration as

well as permanent injunctions, the reliefs of injunction

cannot be said to be the reliefs, consequent to relief of

declaration sought by the plaintiffs. The injunctions against

use of the property for non-residential purpose, against its

mortgage as well as injunction against forcible

dispossession of the plaintiff from the portion occupied by

them could have been claimed by the plaintiffs, even

without the transaction between defendants 1 to 3 and

defendant No.6. Thus, prescribed Court Fee has been paid

by the plaintiffs on the relief of declaration, claimed by

them. With respect to relief of injunction, in view of the

provisions contained in Section 7(iv)(d) of Court Fee Act, the

plaintiff could have given any valuation and was required to

pay ad valorem Court Fee on the transaction. They have

valued the relief at Rs.5,50,000/- for the relief of injunction

and have paid ad valorem Court Fee on that amount. The

issue is, therefore, decided in favour of the plaintiffs and

against the defendants.

These issues are interconnected and can be

conveniently decided together. The perpetual lease deed

executed by the Land and Development Office in respect of

Property No.16, School Lane, Babar Road, New Delhi is

Ex.P-1 and to the extent it is relevant, the document reads

as under:-

(11) The Lessee shall before every assignment or transfer of the said premises hereby demised or any part thereof obtain from the lessor or the Chief Commissioner of Delhi or such officer or body as the lessor may authorize in this behalf approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs

of the lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefor.

8. The question which comes up for consideration is

whether by entering into an agreement to sell a portion of

the suit property to defendant No.6, executing a General

Power of Attorney in favour of defendant No.5 and handing

over possession of a portion of the house constructed on

this plot to defendant No.6, defendants 1 to 3 have

contravened the aforesaid term contained in lease deed.

There shall be contravention of the aforesaid term if

defendants 1 to 3 have either assigned or transferred the

portion occupied by them in the suit property to defendant

No. 6. Admittedly, no sale deed or any other registered

document of transfer has been executed by defendants 1 to

3 in favour of defendant No. 6, thereby transferring the

ownership of their portion to defendant No.6. They have

only entered into an agreement to sell in favour of defendant

No. 6, but no sale deed in its favour has been executed by

them. The agreement to sell by itself does not amount to

sale, transfer or assignment of the property subject matter

of the agreement, to the person to whom it is agreed to be

sold, assigned or transferred. It only gives a right to that

person to obtain sale, transfer or assignment of the property

subject matter of the agreement, in his favour. It is very

much open to the lessee to apply to the lesser for the

requisite permission to sell, assign or transfer the property

to another person. If the requisite permission is granted,

the sale deed or other instrument of transfer can then be

executed by the lessee in favour of the person who has

agreed to purchase the property. But, there is no sale,

transfer or assignment so long as neither a sale deed is

executed and registered nor a document of transfer is

executed by the seller in favour of the purchaser. In this

regard, it would be appropriate to refer to the provisions of

Section 54 of Transfer of Property Act which provides that

transfer of ownership of immovable property of the value of

one hundred rupees and upwards can be made only by a

registered instrument. No such instrument has, however,

been executed by defendants 1 to 3 in favour of defendant

No. 6.

9. This issue came up for consideration before this

Court in Kuldip Singh Suri vs. Surinder Singh Kalra,

1998 (IV) AD Del 469. The perpetual sub-lease in that case

stipulated that the sub-lessee shall not sale, transfer, assign

or otherwise part with the possession of the whole or any

part of residential plot to any other member of the lessee

society except with the previous consent of the lessor which

he shall be entitled to refuse in his absolute discretion. It

was contended before this Court that the transaction

between the parties for sale of the plot subject matter of the

sub-lease was illegal in view of the aforesaid clause

contained in the sub-lease. Rejecting the contention, this

Court inter alia observed as under:

"The argument of learned counsel for the plaintiff that if the transaction is considered to be an agreement to sell, then in that event the same would be clearly void as no prior permission for entering into such a transaction was taken from the DDA for the transfer of the land, is devoid of force. An agreement to sell does not amount to sale or transfer of the immovable property. Therefore, under clauses 6(a) and (b) of the perpetual sub lease, there is no bar for a sub lessee to enter into an agreement to sell. As per clause 6(a) if the sub lessee desires to sell or transfer an unbuilt plot to any person who is not a member of the lessee, he is required to take the consent in writing of the Lessor.

10. The view taken by this Court in the case of Kuldip

Singh Suri (supra) was reaffirmed in Vinod Singh vs.

Phutori Devi, 2006 (III) AD Del 234. In the case of Kuldip

Singh (supra), the covenant contained in the sub-lease,

prohibited the sub-lessee not only from selling, transferring

or assigning the plot, but also from parting with the

possession of the whole or any part of the plot except with

previous consent in writing of the lessor. The sale deed

executed by Land & Development Office in the case before

this Court is more liberal since it does not contain any

covenant against parting with possession of the whole or

any part of the land subject matter of lease deed though it

does contain a prohibition against it sale, transfer or

assignment, except with the prior approval in writing of the

lessor. Therefore, the aforesaid clause, contained in the

lease deed has not been contravened by defendants 1 to 3

by entering into an agreement to sell in favour of defendant

No.6, appointing defendant No.5 as their attorney and by

handing over vacant possession of the constructed portion

occupied by them to defendant No.6.

11. Since there has been no sale of any portion of the

suit property by defendants 1 to 3 to defendant No.6, there

is no question of setting aside that transaction and the

plaintiffs, challenging the same on the ground that it

contravened the covenants contained in the lease deed.

Since there is no breach of the covenants contained in the

lease deed, merely by defendants 1 to 3 entering into an

agreement to sell in favour of defendant No.6 appointing

defendant No.5 as their attorney and by handing over the

constructed portion occupied by them to defendant No.6, it

is not permissible for the lessor to determine the lease and

re-enter the suit property on this ground alone. The issues

are decided accordingly.

12. Issue No.5

In my finding in Issues No. 2 to 4, the plaintiff is not

entitled to the declaration sought by them.

13. Issue No.6

The lease deed executed by Land and Development

Officer, inter alia, stipulates as under:-

"(5) The Lessee will not without the previous consent in writing of the Chief Commissioner of Delhi or of such officer or body as the Lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents.

(6) The Lessee will not without such consent as aforesaid use the said

premises or permit the same to be used for any purpose other than that of a residence or do or suffer to be done thereon any act or thing whatsoever which in the opinion of the Chief Commissioner of Delhi may be an annoyance or disturbance to the Governor General in Council or his tenants in the New Capital of Delhi. The front room of the said residence may, however, be used by the Artisans‟ Class for their legitimate deed."

14. In view of the aforesaid covenants contained in the

lease deed, it cannot be disputed that none of the parties

has any right to raise any construction in the suit property,

without prior approval of the lessor and none of them is

entitled to use the suit property or any part thereof for any

purpose other than that of a residence. The front room of

the property can, however, be used by artisan‟s class for

their legitimate right as permitted in the lease deed. If there

is contravention of 2(5) or 2(6) of the lease deed, the lessor

will be entitled to determine the lease and re-enter upon the

property in view of the provisions contained in clause 3 of

the lease deed which, to the extent it is relevant, provides

that if there shall have been in the opinion of the Lessor or

the Chief Commissioner of Delhi whose decision shall be

final, any breach by the Lessee or by any person claiming

through or under him of any of the covenants or conditions

hereinbefore contained and on his part to be observed or

performed then and in any such case it shall be lawful for

the Lessor or any person or persons duly authorized by him

notwithstanding the waiver of any previous cause or right of

re-entry upon any part of the premises hereby demised or of

the buildings thereon in the name of the whole to re-ender

and thereupon this demise and everything herein contained

shall cease and determine and the Lessee shall not be

entitled to any compensation whatsoever, nor to the return

of any premium paid by him.

15. As regards mortgage of the suit property or any

part thereof, since the land underneath the suit property

jointly belongs to all the lessees, it can be mortgaged only by

all of them, acting together in this regard and unless all of

them do it jointly, it is not permissible to mortgage the suit

property or any part thereof. The documents of title such as

lease deed of the land underneath the suit property is

property of all the lessees and, therefore, no one can pledge

those documents or create any equitable mortgage of the

suit property or any part thereof by depositing the lease

deed, except with the approval of the other co-lessees and if

required with the permission of the lessor. The issue is

decided accordingly.

16. Issues 7 and 8

In view of my findings on the issues, the plaintiffs are

entitled only to injunction against sale, assignment or

transfer of any portion of the suit property, without prior

approval of the lessor. They are also entitled to injunction

against any construction in the suit property, without prior

permission of the Competent Authority. They are further

entitled to permanent injunction against use of the suit

property or any part thereof for any purpose other than as a

residence except to the extent that the front room of the

house can be used by artisans‟ class for their legitimate

trade, wherever applicable. They are also entitled to

injunction, restraining defendants1 to 3, 5 and 6 from

interfering with their possession of the portion occupied by

them in the suit property and shown in red and yellow

colour in the site plan, annexed to the plaint, except by due

process of law. They are also entitled to injunction against

mortgage or charging of the suit property or any part thereof

either against title deed/lease deed of the land underneath

the suit property or in any other manner.

17. The plaintiffs have also claimed mandatory

injunction, seeking closure of the doors shown at point 'A'

and 'B' in the site plan. The plaintiffs have not filed the

approved building plan of the suit property to show that at

the time this property was constructed, two windows existed

at the points shown at point „A‟ and „B‟ in the site plan,

annexed to the plaint. In the absence of the sanction

building plan of the suit property, the Court is not in a

position to ascertain what exactly was the construction at

these places when this building was constructed. at The

prescribed period of limitation for claiming this relief is

three years from the date the doors are alleged to have been

closed and the case of defendant No.1 to 3 is that doors

shown at point 'A' and 'B' existed even when defendant No.1

was married in the year 1971. No evidence has been led by

the plaintiffs to prove that these doors were closed within

three years before this suit was filed on 09 th October, 2002.

In fact, the plaint even does not disclose the date on which

the windows at point 'A' and B‟ in the site plan are alleged to

have been closed. The plaintiff has not produced any

evidence to prove the date on which the windows at points

„A‟ and „B‟ in the site plan were allegedly closed. The

defendant No.1, on the other hand, has specifically stated in

her affidavit by way of evidence that doors existed at these

places even at the time she got married in the year 1971. In

view of failure of the plaintiff to produce any evidence to

prove the date on which the windows are alleged to have

been replaced by doors, I see no reason to disbelieve the

deposition of defendant No.1 in this regard and hold that

windows, if any, at point „A‟ and „B‟ were replaced by doors

on or before the date on which defendant No.1 got married

in the year 1971. Computed from that date, the suit is

patently barred by limitation as far as the relief of

mandatory injunction for removal of these doors is

concerned.

ORDER

18. In view of my findings on the issues, all the parties

to the suit are hereby restrained from using the suit

property or any part thereof for any purpose other than that

of a residence with the sole exception that front room can be

used by the artisan‟s class for their legitimate trade, as

provided in the lease deed. They are also restrained from

raising any construction in the suit property, except with

the prior permission of the Competent Authority. They are

further restrained from mortgaging the suit property shall

not create any mortgage in respect of the suit property or

any part thereof or charging the same in any manner,

except with the prior approval of all the lessees and if

required also with the prior approval of the lessor.

Defendant No.6, which is stated to be in possession of the

lease deed of the land underneathing the suit property shall

not create any mortgage in respect of the suit property or

any part thereof by deposit of this title deed/lease deed,

except with the prior approval in writing of other lessees and

if required also of the lessor. Defendants 1 to 3, 5 & 6 are

also restrained from dispossessing the plaintiff from any

portion occupied by them in the suit property except with

due process of law. There shall be no order as to costs.

Decree sheet be prepared accordingly.

(V.K. JAIN) JUDGE

NOVEMBER 09, 2010 bg