Kush Malhotra vs Prakash Malhotra And Ors.
2011 Latest Caselaw 3208 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment reserved on:    17.03.2011
                           Judgment delivered on:     .07.2011


                           RFA No. 437/2004

Kush Malhotra                                      ......Appellant.
                      Through:   Mr.Nitendra Sharma, Advocate.

                           Vs.

Prakash Malhotra and Ors.                         ......Respondents
                 Through:        Mr.Girish Aggarwal, Advocate for
                                 respondent No.4.
                                 Mr.Dinesh Agnani, Advocate for the
                                 respondents No.6 to 8.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may

     be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported

     in the Digest?


KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 96 read with

Order 41 Rule 1 of the Code of Civil Procedure, 1908 the

appellant seeks to challenge the judgment and decree dated

19.05.2004 passed by the learned trial court whereby the suit

filed by the appellant for declaration, cancellation of sale

deed, recovery of possession and perpetual injunction was

dismissed.

2. Brief facts of the case relevant for deciding the

present appeal are that the appellant is the son of respondent

no.1 (deceased) and brother of respondent no. 2 and 3 and

had filed a suit for declaration, cancellation of sale deed,

recovery of possession and perpetual injunction with respect

to the property bearing No.373, Block B in Janta Cooperative

House Building Society Ltd., Meera Bagh, Outer Ring Road,

New Delhi. The appellant had sought cancellation of the sale

deed dated 24.10.2001 registered on 8.11.2001 executed by

respondent no.1 namely Smt. Parkash Malhotra (deceased) in

favour of respondent no. 4 and also the cancellation of the

sale deed dated 22.6.2002 executed by respondent no. 4 in

favour of respondents no. 6 to 8 . The case of the appellant is

that the property in question was acquired by his late father

Sh. S.P. Malhotra through his own earnings in the name of his

wife Smt. Parkash Malhotra (respondent No.1 herein) and he

was the one who paid the entire amount towards the cost of

the said plot. That the appellant moved to USA in the year

1982 and he claims that he contributed major portion towards

the construction cost on the said plot by sending money from

USA. The respondent no.1 sold the suit property to

respondent no.4 for Rs. 8,05,000/- and the respondent no. 4

further sold the said property to respondents no. 6 to 8 for Rs.

12,08,500/-. The case set up by the appellant is that the

respondent no.1 had no right to sell the said property as it

was an ancestral property. The appellant also claims that the

sale deed executed by respondent no.4 in favour of

respondents no. 6 to 8 is liable to be cancelled on grounds of

insufficient consideration as the property was sold for much

less than its actual value. That the appellant filed the said suit

before the learned trial which vide judgment and decree

dated 19.5.2004 was dismissed and feeling aggrieved with the

same, the appellant has preferred the present appeal.

3. Assailing the impugned judgment and decree,

Mr.Nitendra Sharma, learned counsel appearing for the

appellant contended that the learned trial court failed to

consider the documentary evidence placed on record by the

appellant proving fabrication and forgery committed by the

respondents No.4, 6, 7 & 8 in collusion with the respondent

No.1. Counsel further argued that the learned trial court has

also not appreciated the fact that the suit property is a family

property and the appellant has invested his hard earned

money out of his savings towards construction of the suit

property. Learned counsel for the appellant also submitted

that the learned trial court has ignored the valuation of the

suit property which was more than 19 lacs and that it was

sold much below its actual value. Counsel also submitted that

the age of the respondent No.1 was 75 years and because of

her old age the respondent No.1 did not possess sound mind

to sell the property in favour of the respondent No.4. Based

on these submissions, counsel for the appellant seeks setting

aside of the impugned judgment and decree passed by the

learned trial court.

4. Opposing the present appeal, Mr.Girish Aggarwal,

learned counsel appearing for the respondent No.4 submitted

that the appellant had no legal right to file the said suit as he

was neither the owner of the suit property nor derived any

right in the suit property in any manner whatsoever. Counsel

also submitted that in para-3 of the present appeal the

appellant himself has admitted the source of earning of the

respondent No.1 after she became the proprietor of M/s.

Prakash Roadways. Based on these submissions, counsel for

the respondent No.4 submitted that the present appeal filed

by the appellant is patently illegal and unwarranted and,

therefore, the same merits dismissal.

5. Mr.Dinesh Agnani, learned counsel appearing for

the respondents No.6 to 8 opposed the present appeal. He

submitted that the appellant himself was one of the plaintiffs

in his capacity as a legal heir of Smt.Prakash Malhotra who

had filed a civil suit No.CS(OS) 500/04 seeking declaration,

cancellation of sale deeds and for recovery of possession

against the respondent No.4, 6, 7 and 8 and which suit was

well within the knowledge of the appellant and wherein he

had duly admitted the ownership of the respondent No.1 over

the suit property. Counsel thus submitted that the present

appeal filed by the appellant is a gross abuse of process of the

court on the part of the appellant and, therefore, the same

merits dismissal with exemplary costs.

6. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration to

the pleas put forth by them.

7. Indisputably, the appellant has admitted the

ownership of the respondent No.1 over the subject property

i.e. property bearing No.373, Block B in Janta Co-operative

House Building Society Ltd., Meera Bagh, Outer Ring Road,

New Delhi. The appellant has also admitted that the

respondent No.1 had sold the said property to respondent

No.4 vide sale deed dated 24.10.2001 registered on 8.11.2001

for a sale consideration of Rs.8,05,000/- and the respondent

No.4 later on sold the same very property in favour of the

respondent No.6 to 8 vide sale deed dated 22.06.2002 for a

sum of Rs.12,08,500/-. In the suit filed by him he sought

cancellation of both the abovementioned sale deeds i.e. that

executed by his mother and respondent No.4. The appellant

had also claimed possession of the suit property and also

permanent injunction so as to restrain the respondent No.6 to

8 from selling, alienating, transferring or otherwise parting

with possession of the suit property to anybody else. Initially,

the appellant had filed the suit only against the respondent

No.1 to 5, but later on he had also impleaded respondents

No.6 to 8 in whose favour the property was sold by the

respondent No.4.

8. The learned trial court in para-3 of the impugned

judgment has observed that the suit filed by the appellant is a

luxurious litigation. The learned trial court has also observed

that the appellant has failed to state as to how the suit

property is an ancesteral property as the same was purchased

by his mother, the respondent No.1 herein. The learned trial

court has also observed that appointment of Shri O.P.Sharma

as Special Power of Attorney by the appellant (plaintiff) is

doubtful because the appellant (plaintiff) did not file a copy of

the Special Power of Attorney along with the plaint. In para-6

of the impugned judgment, the learned trial court also

observed that the appellant had duly admitted that the

property in question stood in the name of the respondent No.1

as owner in the records of the Society and the appellant had

never filed any objections in the Society to object to the said

ownership of the respondent No.1. The learned trial court has

further observed that in his cross-examination, the appellant

duly admitted the fact that he had not filed any document on

record to show that he was ever shown as co-owner of the suit

property. Even before this Court the appellant has not been

able to satisfy as to what is the basis on which the appellant

has claimed a right over the said property. The learned trial

court rightly observed that simply because the appellant

happens to be the son of the respondent No.1 that alone will

not give him any right to challenge the sale deed executed by

his mother in favour of respondent No.4. It is not the case of

the appellant that he had contributed any amount towards

purchase of the land, as he had merely claimed contribution

of funds in the construction on the plot in question. The

appellant has also not led any evidence to show that he had

incurred any amount towards the construction of the house.

The appellant has also failed to prove that the said property

was an ancestral house. In his cross-examination the

appellant referred to some statement of accounts wherein he

had accounted for the money spent by him towards

construction. Admittedly, no such statement of account was

filed by him so as to prove the same in support of his said

plea. The learned trial court has clearly observed in para-16

of the impugned judgment that the appellant did not file and

prove the statement of account, so an adverse inference is

liable to be drawn against him. The appellant has further not

given any answer with regard to his own admission of

admitting the ownership of his mother, respondent No.1

herein in the said suit No.CS(OS) 500/04 filed by his mother

where the challenge was made to the sale deed executed by

the respondent No.1 in favour of respondent No.4 and further

to the sale deed executed by the respondent No.4 in favour of

the respondents No.6 to 8. It appears that with a view to file a

false suit, the appellant did not choose to file the same himself

and got the same filed through his attorney Mr.O.P.Sharma

and similarly has also got the present appeal filed through the

same attorney. It is quite surprising that in the said suit

No.500/2004 the appellant was impleaded as plaintiff No.2

being the legal heir of his mother Smt. Prakash Malhotra,

respondent No.1 herein wherein he had duly admitted the

ownership of his mother, but in this Court he sought to claim

the ownership of the same property in himself although

without any basis. The present appeal as well as the suit filed

by the appellant/plaintiff are clearly based on false, frivolous

and vexatious pleas and this Court does not find any illegality,

perversity or infirmity in the impugned judgment and decree

passed by the learned trial court. The learned trial court

rightly observed that adequacy of the amount of sale

consideration was immaterial so far the appellant was

concerned as the same at best could be agitated by the

vendors and not by the third party.

9. This case is a classic example of frivolous and

cantankerous litigation which causes the genuine cases a

delay in adjudication. The advocates should be mindful that it

is their duty as the officers of the court to winnow the clients

approaching them with malevolent intentions from the

bonafide seekers of justice to strengthen the justice delivery

system.

10. Based on the above discussion, I do not find any

merit in the present appeal. The present appeal is tainted by

false and vexatious considerations and, therefore, the same is

hereby dismissed with costs of Rs.20,000/-.

July   , 2011                          KAILASH GAMBHIR, J
dc