Delhi High Court
Vinod Kumar And Ors vs Smt. Krishna Devi & Anr. on 18 February, 2011
Author: Valmiki J. Mehta
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 284/2001
% 18th February, 2011
VINOD KUMAR AND ORS ...... Appellants
Through: None.
VERSUS
SMT. KRISHNA DEVI & ANR. ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the „Regular Board‟ of this court since 3.1.2011. Today,
it is effective item no.4 on the „Regular Board‟. No one appears for the
parties although it is 12.30 pm. I have therefore perused the record and am
proceeding to dispose of the matter.
2. The challenge by means of this regular first appeal under Section 96 of
the Code of Civil Procedure, 1908 is to the ex parte impugned judgment and
decree dated 30.3.2001 whereby the suit of the appellants/plaintiffs for
RFA 284/2001 Page 1 of 6
possession and permanent injunction was dismissed. The appellants had laid
a case before the trial court that the original owner of the property bearing
no. 100, Gali No.11, Sarojini Park, Shastri Nagar, Delhi-110031, was Smt.
Bhagwati Devi, their mother, who became the owner thereof by means of
usual documents being the agreement to sell, general power of attorney, the
receipt, Will etc. dated 29.10.1986. It was stated that though Smt. Bhagwati
Devi had executed sale documents of the suit property in favour of the
defendant no.1/respondent no.1 at one point of time on 28.1.1999, however,
since the defendant no.1 failed to pay the total consideration of
Rs.3,50,000/- to Smt. Bhagwati Devi and only paid Rs.92,000/-, the said
documents in favour of respondent no.1 were cancelled and which
cancellation was also registered before the sub-Registrar. The amount of
Rs.92,000/- received by Smt. Bhagwati Devi from the respondent no.1 was
returned and a receipt dated 20.8.1999 was executed by the respondent
no.1 in favour of Smt. Bhagwati Devi. Smt. Bhagwati Devi thereafter
executed her Will dated 17.12.1999 whereby the suit property was
bequeathed in favour of the appellants/plaintiffs.
3. The respondents failed to appear in the trial court and hence were
proceeded ex parte. The trial court held the Will dated 17.12.1999 to be
proved as Ex.PW1/1 and also held the various documents dated 29.10.1986
executed in favour of late Smt. Bhagwati Devi to be validly proved. The
relevant portion of the impugned judgment and decree giving the aforesaid
RFA 284/2001 Page 2 of 6
conclusions read as under:-
"4. PW-1, Shri Nem Singh has been examined by the
plaintiffs to prove the Will of Smt. Bhagwati Devi who was
the mother of the plaintiffs and defendant No.1. He has
deposed that he knows Smt. Bhagwati Devi since 20 years
back. Smt. Bhagwati executed a Will on 17.12.99 in his
presence and the Will bears his signatures at point A. The
Will was executed in his presence and in presence of one
Shri Madan Lal and they both signed in the presence of each
other. Smt. Bhagwati Devi at the time of execution of Will
was not suffering from any disease and she was of sound
mind. Bhagwati also signed in his presence and Advocate,
Sh. Om Prakash Gupta Advocate also signed in his presence.
The Will has been proved as Ex.PW-1/1.
PW-2, Shri Madan Lal has deposed that Smt.Bhagwati
Devi (since deceased) executed the Will Ex.PW-1/1 in his
presence and at the time of execution of the Will Nem Singh
was also present. The same bears his signatures at point B.
He and Nem Singh signed in the presence of each other.
Shri Om Prakash Gupta Advocate also signed in their
presence and Smt. Bhagwati Devi also signed in their
presence. That Smt.Bhagwati was not suffering from any
disease and she was of sound mind. In his further
examination, he deposed that the receipt Ex.PW-3/1 was
executed in his presence and a sum of Rs.92000/- was
returned by Smt. Bhagwati Devi to Smt. Krishna Devi who
put her signatures on Ex.PW-3/1 after the receipt of
Rs.92000/-. The receipt bears his signatures at point B.
PW-3, Smt. Sarla Sehgal W/o Shri Madan Lal Sehgal has
deposed that receipt Ex.PW-3/1 was executed in her
presence and same bears her signatures at point A. Smt.
Bhagwati Devi returned amount of Rs.92000/- to Smt.
Krishna Devi and Smt. Krishna Devi after receiving the
amount signed the same in her presence and that her
husband also signed the same in her presence.
PW-4, Shri Vinod Kumar who is one of the plaintiff in the
present case has deposed that his mother, Smt. Bhagwati
Devi was the owner of plot bearing No.100, Gali No.11,
Sarojini Park, Shashtri Nagar, Delhi by virtue of documents
G.P.A., Ex.PW-4/1, Agreement Ex.PW-4/2, Will deed Ex.PW-
4/3 and Receipt Ex.PW-4/4................. ." (Emphasis added)
RFA 284/2001 Page 3 of 6
4. In spite of the above finding, the trial court has most surprisingly
dismissed the suit by holding that Smt. Bhagwati Devi was not the owner
because the documents Ex.PW4/1 to Ex.PW4/4 do not confer ownership
rights on Smt. Bhagwati Devi. This is a most puzzling and surprising finding
because the transferor of the property has never challenged the transfer of
rights in the subject property to Smt. Bhagwati Devi. These documents,
strictly may not be the ownership documents such as a sale deed, however,
these documents have been held to confer valid rights in favour of the
transferee by virtue of Section 53A of the Transfer of Property Act (doctrine
of part performance) and Section 202 of the Contract Act (disentitlement to
cancel a power of attorney executed for consideration). In fact, since the
documents executed in favour of Smt. Bhagwati Devi are dated way back on
29.10.1986, Smt. Bhagwati Devi would have become the owner of the
property by the law of prescription under Section 27 of the Limitation Act,
1963 as from 29.10.1998 whereas the impugned judgment was passed on
30.3.2001. This court has consistently recognized rights amounting to
ownership rights in favour of a transferee of such documents and two of
these judgments are Harbans Singh Vs. Shanti Devi 1977 RLR 487 and
Asha M. Jain Vs. The Canara Bank (2001) 94 DLT 841. In any case,
whatever rights which Smt. Bhagwati Devi acquired were capable of being
bequeathed to the appellants by virtue of the will dated 17.12.1999. The
findings and conclusions of the trial court are therefore illegal and perverse
RFA 284/2001 Page 4 of 6
inasmuch as it has held that no rights devolved upon the
plaintiffs/appellants, although, the Will of Smt. Bhagwati Devi was proved as
Ex.PW1/1, allegedly because, Smt. Bhagwati Devi allegedly did not have
rights in the subject property.
5. The appellants/plaintiffs also proved their entitlement to mesne
profits/damages as PW4 deposed that if the property was rented out it would
fetch a rent of Rs.2000/- per month which was the prevalent market rate and
he was not cross-examined and nor was any evidence led in rebuttal on
behalf of the respondents who were proceeded ex parte. The statement of
PW4 therefore had to be accepted.
6. The impugned judgment and decree is therefore clearly illegal and
perverse and is set aside and the suit for possession of the
appellants/plaintiffs is decreed against the respondents/defendants with
regard to the property No.100, Gali No.11 Sarojini Park, Shastri Nagar, Delhi.
The appellants will also be entitled to mesne profits/damages from the
respondents at the rate of Rs.2000/- per month from date of filing of the suit
till possession is handed over. Appellants will also be entitled to interest at
the rate of 9% per annum simple on the arrears of mesne profits awarded
from the date of filing of the suit till the same are realized and the aforesaid
rate of interest will be calculated from the end of the month for which the
mesne profits/damages would be payable. The respondents are also
restrained from in any manner transferring possession or creating any third
RFA 284/2001 Page 5 of 6
party interest in the subject property. Decree sheet be prepared. Trial court
record be sent back. Interim Orders stand vacated.
CM No. 877/2001 & CM No.878/2001
No orders are required to be passed in these applications since the
main appeal has been disposed of.
The applications stand disposed of.
FEBRUARY 18, 2011 VALMIKI J. MEHTA, J.
ib
