Umed Singh vs Rampat & Ors
2010 Latest Caselaw 4591 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                    Date of decision: 29.09.2010

+                                            CS (OS) 1490/2010

       UMED SINGH                                                                 ..... Plaintiff
                                Through : Ms. Nandni Sahni, Advocate.

                       versus

       RAMPAT & ORS                                                           ..... Defendants
                                Through : Sh. Munish Tyagi and Ms. Kamlesh Uniyal, Advocate,
                                for Defendant Nos. 1 and 2.
                                Sh. Sudhanshu Tomar, Advocate, for Defendant Nos. 3 and 4.

       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.

     Whether the Reporters of local papers        Yes.
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?           Yes.

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


MR. JUSTICE S.RAVINDRA BHAT, J

%

I.A. Nos. 9674/2010 & 9675/2010 in CS (OS) 1490/2010

1. This order will dispose of two applications, I.A. Nos. 9674/2010 and 9675/2010. In the first application, the plaintiff seeks an ad interim injunction directing Defendant Nos. 2 to 4 to deposit the sum of ` 77,30,000/- with the Registrar General of this Court, to be kept in a Fixed Deposit. In the second application, appointment of someone to act as the next guardian of the first defendant is sought.

2. The suit averments for the purpose of this order briefly are that the plaintiff seeks cancellation of a Sale Deed dated 02.03.2010, executed by the first defendant in favor of the third and fourth defendants on the ground that they are null and void; consequently permanent

I.A. Nos. 9674/2010 & 9675/2010 in CS (OS) 1490/2010 Page 1 and mandatory injunction are sought. The plaintiff is the paternal nephew of the first defendant. One late Roop Chand was the owner of the agricultural property, being Khata/Khatauni No. 296/302 and Khasra No. 6(2-16), 15/1 (2-0) 78/16 (4-16), 79/20/1 (2-16), 96/1 (4-16), 137/2 (4-

16), 140-2 (4-16), 140/3 (4-16), 78/25 (4-16), 190 (1-2), a total area measuring 37 Bigha 10 Biswa out of which land measuring 21 bigha was owned by the said late Roop Chand. He had three sons, i.e. Sh. Jugti Ram, the plaintiff's father; the first defendant and Sh. Banwari Lal, father of the second defendant. Sh. Roop Chand died long ago and was survived by his three sons. The first defendant is the uncle of the plaintiff and of the second defendant. He was single and unmarried, and remained so for more than four decades. Concededly, the first defendant is 88 years old; it is claimed that he is suffering from Alzheimer's Disease. The suit alleges that the first defendant was unable to pay his debts sometime in 1989 which was paid off by the plaintiff. In support, the plaintiff mentions about a demand made by the State Bank of India on 11.12.1989, which was satisfied by the plaintiff. The plaintiff alleges that the first defendant was under his care and protection till end 2008 and was been happily living with him. It is alleged that the second defendant, with sinister design, and taking undue advantage of the situation, managed to whisk away the first defendant sometime in December 2008. It is alleged that by virtue of the Sale Deed dated 02.03.2010, the first defendant disposed of his share of the property, which the plaintiff would have been legitimately entitled to, and the amounts have been appropriated by the second defendant.

3. On the first date of hearing, the Court had issued summons and required the appearance of the first defendant. Accordingly, the first defendant appeared in Court on 14.09.2010. The Court has recorded his statement in order to satisfy itself as to whether the said defendant was aware of his surroundings and in a position to form a judgment. An overall reading of the statement would disclose that the first defendant was aware that he was the owner of 7 bighas of property and had received ` 77,00,000/- as consideration for sale of the property. The first defendant stated that he was living in a Dharamshala for the last 24 years. He was conscious of the Court proceeding and also stated that he came in answer to a summons. The first defendant stated that he got married in March 2010 to the mother of the second defendant. His statement also is to the effect that he does not live with the second defendant and is staying in a piao. Apparently, he is left with only ` 7-8 lacs, which he claims, was deposited with one Sh. Harish Singh Gupta. He also admitted that he stayed with the first defendant for two years and that the

I.A. Nos. 9674/2010 & 9675/2010 in CS (OS) 1490/2010 Page 2 second defendant is providing food to him. When asked why he sold the property, the first defendant stated that the plaintiff had threatened to hit him with a brick and the plaintiff's son, Rajesh, had also participated in these acts of intimidation and threat, as a result of which he was constrained to dispose of the property. He also stated that he had married the second defendant's widowed mother (i.e. his sister in law) in March, this year.

4. This Court is of the opinion on an overall consideration of the facts that the plaintiff and the second defendant's sole objective appears to be to grab the first defendant's property. The first defendant's demeanor does not appear to be one who is completely incapable of forming judgment; he is extremely hard of hearing and concededly of an advanced age. The statement recorded by the Court brings-out the fact that all this while, he was unmarried and owner of the 7 bighas of land. He claims to have sold it off because of the threats held out by the plaintiff. He is also aware that the consideration received was ` 77,00,000/- in cash. He even states that most of the amount, i.e. ` 70,00,000/- was spent for the marriage of his younger brother's daughters, i.e. the sisters of the second defendant, and he, the first defendant is left with only ` 7-8 lacs. Though seemingly conscious of his surroundings and situation, the first defendant, in the opinion of the Court, is one capable of being subjected to influence, and prima facie has been prevailed upon to sell the land which was held by him, all these years for no apparent reason. Although there is no proof as to who did this, the fact remains that the circumstances strongly point to Defendant No.2 having appropriated the predominant share of consideration paid for that land. Whether that amount was actually used or some part of it was used for any marriage is a matter which would be unraveled in the course of an appropriate proceeding.

5. Having regard to the overall circumstances, this Court is of the opinion that to safeguard the interest of the first defendant, it would be appropriate that a guardian ad litem, who has no interest adverse to him or who has nothing to expect from him, should be appointed to look after his interests. Accordingly, Sh. Ashok Aggarwal, Advocate (Mob. No. 9811101923) is hereby appointed as guardian ad litum of the first defendant. The guardian shall ascertain the details about the exact amount which the first defendant is in possession of, or has deposited, and the particulars where such deposit has been made; the Defendant Nos. 2, 3 and 4 are directed to disclose to the Court by affidavits, within four weeks, the particulars of the amount paid to the first defendant. The second defendant shall also disclose the details of the marriage of his sisters

I.A. Nos. 9674/2010 & 9675/2010 in CS (OS) 1490/2010 Page 3 and the expenses incurred, with the further direction that the amount spent out of the account of the first defendant's money shall also be disclosed in the affidavit. This affidavit shall be filed within four weeks.

6. This Court is also of the opinion that both the plaintiff and the defendants - more so the second defendant are under an obligation in terms of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 to maintain the first defendant, in view of Section 4(4) of the said enactment. The guardian ad litem shall consider moving appropriate proceedings, under the Mental Health Act, 1987 as well as such other proceedings in this case as are necessary to assist the first defendant; the Delhi Legal Services Authority shall also render all material and financial assistance as is necessary in this regard, to the guardian appointed by the court. The guardian ad- litem shall have access to the first defendant; the other parties to the suit are directed to co- operate with him in this regard.

7. Defendant Nos. 3 and 4 are hereby restrained from creating any third-party rights or disposing of the suit property during the pendency of the present suit. The parties, particularly Defendant Nos. 2 to 4 are directed to maintain status quo with regard to the amounts paid as consideration towards the sale of the suit property till the next date of hearing. I.A. Nos. 9674/2010 and 9675/2010 are disposed of in the above terms.

CS (OS) 1490/2010

8. List on 12th November, 2010, for further proceedings.

Order Dasti.

                                                                           S. RAVINDRA BHAT
                                                                                     (JUDGE)
SEPTEMBER 29, 2010
'ajk'




I.A. Nos. 9674/2010 & 9675/2010 in CS (OS) 1490/2010                                         Page 4