Smt. Janki Devi & Ors. vs Shri Harish Chander Chawla
2011 Latest Caselaw 2648 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on: 06.10.2010
                        Judgment delivered on: 18.05.2011


                          RFA 46/2005

SMT. JANKI DEVI & OTHERS                   ......Appellants

           Through: Mr.Sunil K.Mittal with Mr.Kshitij Mittal
                    and Mr.Abhishekh Sharma, Advocates.


                     Versus



SHRI HARISH CHANDER CHAWLA           ......Respondent
        Through: Mr.Vikas Nagpal, Advocate.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may            Yes
    be allowed to see the judgment?
2. To be referred to Reporter or not?                   Yes
3. Whether the judgment should be reported              Yes
    in the Digest?


KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 96 of the Code of

Civil Procedure, 1908 the appellants seek to challenge the

judgment and decree dated 01.12.2004 passed by the learned

Addl. District Judge, Delhi whereby the suit for specific

performance of agreement to sell dated 03.09.1997 was

decreed in favour of the respondent and against the

appellants alongwith Rs.1,80,000/- for recovery and

Rs.20,000/- towards damages from 1.10.2000 till realization

along with interest @5% p.a.

2. Brief facts of the case as set out by the respondent

in the plaint are that the appellants vide agreement to sell

dated 3.9.97 had agreed to sell the first floor of the property

bearing no. 11/16, Old Rajinder Nagar, New Delhi with

proportionate land underneath to the respondent for a total

consideration of Rs.3,10,000/-. Out of the said sale

consideration amount, an amount of Rs 3,00,000 was paid by

the respondent on 3.9.97, while the balance amount of

Rs.10,000/- was paid vide receipt dated 4.9.97 and a number

of documents to this effect were executed by the appellants in

favour of the respondent. That it was agreed to handover the

actual, vacant and physical possession to the respondent by

31.3.99 failing which the appellants were liable to pay

damages @Rs.10,000 p.m for a period of eighteen months and

then @ Rs.20,000 p.m thereafter. On failure of the

appellants to do so the respondent served a legal notice dated

20.9.2000 but no reply was received. Consequently the

respondent filed a suit for specific performance and

permanent injunction which vide judgment and decree dated

1.12.04 was decreed in favour of the respondent and against

the appellants.

3. Feeling aggrieved with the same, the appellants

have preferred the present appeal.

4. Mr. Sunil Mittal, learned counsel for the appellants

submitted that the agreement to sell dated 3.9.1997,

Ex. PW2/1 and the receipts dated 3.9.1997 and 4.9.1997;

Ex.PW- 2/2 and Ex. PW- 2/3, are forged and fabricated

documents. The contention of the counsel was that these

documents were fabricated by the respondent as he had got

the signatures of the appellants on blank papers pretending

that they were required for business needs. The counsel also

submitted that the respondent had secured signatures of the

appellants on blank papers and stamp papers on the pretext

that they were required to be filed in the Bombay High Court

where the firm of the appellants was fighting civil cases. The

contention of the counsel was that these blank papers and

stamp papers which were got signed by the respondent were

used to fabricate the alleged documents, PW 2/1, PW2/2 and

PW2/3.

5. Counsel for the appellants further submitted that

the appellants and respondent had very close family relations

and that the appellants had blind faith in the respondent.

The counsel also submitted that it is even admitted by the

respondent that the minor daughter of the respondent and

father-in-law of the respondent were partners in the firm of

the appellants i.e M/s D.P Textiles which was formed in

September, 1997 and worked up to March, 1999 where after

it was dissolved and the respondent used to even look after

the business of the said firm. The contention of the counsel

was that the appellants have been cheated by the respondent

who has taken advantage of their faith in him.

6. Counsel further argued that it is also an admitted

case of the parties that the respondent has been a Chartered

Accountant of the appellants and their firms and had filed

their Income Tax Returns up to the Assessment Year 1996. It

is also admitted by the respondent that one of the firms of the

appellants i.e. M/s. Vikki Textiles had been filing the returns

based upon the audited balance sheets and it was the

respondent who audited those balance sheets. Counsel also

submitted that the respondent has further admitted that the

dealings of giving and taking of money between him and the

appellants were always there. While not disputing his family

relationship with the appellants, the respondent did not

dispute that his wife even had gone to America with

appellants in the year 1987, the counsel submitted.

7. Counsel further submitted that it was also

admitted by the respondent that one of the attesting

witnesses, namely, Sh. Vinod Khanna, Advocate has been a

fast friend of the respondent. Counsel also submitted that Sh.

Vinod Khanna was examined as PW 6 and it was admitted by

him that he has been practicing in Tis Hazari Courts since

1979 and that he had no seat or chamber at the Parliament

Street Court Compound where the agreement to sell and the

receipt dated 3.9.97 were executed. The contention of the

counsel was that why would the two witnesses, Sh. Vinod

Khanna and Sh.Deepak Raj Dhingra, being advocates having

their chambers at Tis Hazari Court would come and get the

said documents executed at the Parliament Street Court

compound.

8. Counsel for the appellants also submitted that the

constructive possession of the property in question could not

have been handed over by the appellants in favour of the

respondent as the respondent was not in possession of any

portion of the premises in question and, therefore, insertion of

such a clause in the agreement to sell clearly shows that the

said agreement to sell is a forged and fabricated document.

Counsel further submitted that it was highly improbable that

the appellants would have agreed to pay a sum of Rs.10,000/-

per month for 18 months and Rs.20,000/- per month

thereafter in the event of their not handing over the

possession of the property in question on or before

31.03.1999. The contention of counsel for the appellants was

that the interest rate for retaining the possession would come

to @ 3.3% p.m. and further @ 6.6% p.m and no prudent seller

would agree to such an obnoxious clause in the agreement to

sell. Counsel further submitted that the agreement to sell was

typed on a Rs.10/- stamp paper which was alleged to have

been purchased from the I.T.O, although the legal

requirement of the stamp paper for the execution of

agreement to sell at the relevant time was Rs.2/- only and this

circumstance would create enough suspicion to disbelieve the

authenticity of the agreement to sell.

9. Another suspicion, as per the counsel for the

appellants, that can be gathered from the agreement to sell is

that the same has been typed in a small font and that too in a

compressed manner which would evidently show that the

alleged signatures were taken in advance and then the

agreement was later typed out. Counsel also submitted that

the stamp paper, on which the alleged agreement to sell was

prepared, bears the date of purchase as 18.07.1997, while the

date of execution of the said agreement to sell is 03.09.1997.

Counsel also submitted that the said stamp paper was

purchased by the respondent from I.T.O, but the same was

finally prepared, signed and notarized at the Parliament

Street Court. Counsel also submitted that as per the case set

up by the respondent in the plaint, the entire consideration

amount stood paid by him on 04.09.1997, but still the

respondent did not bother to ask for the possession of the said

property under sale. The contention of counsel for the

appellants was that it would be hard to believe that even after

the payment of the total sale consideration amount, the

vendee will not bother to claim the physical possession of the

purchased property for so long.

10. Counsel for the appellants also submitted that the

documents of sale, on which reliance was placed by the

respondent, were executed on different dates i.e. the first set

on 03.09.1997; the second set on 04.09.1997 and the third on

12.09.1997, but no explanation has come forth from the side

of the respondent as to why these documents were executed

on different dates. Counsel also submitted that in the

documents executed and registered on 12.09.1997, no

reference has been made to the agreement to sell dated

3.9.97 and the money receipts dated 3.9.97 and 4.9.97.

Counsel also submitted that the valuation of the property in

question was much higher than the alleged price of sale

consideration alleged to have been received and, therefore

also, the documents of sale alleged to have been executed

between the parties can be easily doubted.

11. Based on the above submissions, counsel for the

appellants submitted that the judgment and decree passed by

the learned trial court cannot sustain, as it has ignored the

aforesaid vital aspects, both legal and factual and, therefore,

the same is liable to be set aside.

12. Refuting the said submissions of counsel for the

appellants, counsel for the respondent submitted that the

respondent has successfully proved on record execution of all

the sale documents, while the appellants miserably failed to

impeach the credibility of all these documents. Counsel also

submitted that the appellants have also failed to prove on

record that any loan amount was advanced by the respondent

to the appellants or any blank documents were signed by the

appellants or that the appellants had signed blank documents

on the misrepresentation of the respondent that such

documents were required to be filed by the respondent in the

legal cases of the respondent pending in the Bombay High

Court. Counsel also submitted that the appellants have failed

to prove or establish on record any kind of fraud played by the

respondent in getting the said documents executed from the

appellants. Counsel also submitted that the appellant No.2 is

not illiterate as was claimed by him, as it was proved on

record by the respondent that the appellant no.2 had passed

Secondary School Examination from Ramjas Secondary

School with English as one of his subjects in which he had

scored 45 marks out of 100. Counsel thus stated that the

appellants had executed all the sale documents being fully

conscious of the fact that they were selling the first floor of

the property bearing No. 11/16, Old Rajinder Nagar, New

Delhi in favour of the respondent. Counsel also submitted that

the appellants had also executed the registered documents

i.e. the irrevocable general power of attorney, two special

power of attorneys and two Wills dated 12.9.97 and at the

time of registration of these documents the appellants had

duly appeared before the Office of the Sub-Registrar

concerned and, therefore, the appellants cannot claim that

they were ignorant about the sale transaction which was

entered by them with open eyes.

13. Counsel for the respondent also submitted that so

far the cancellation of the registered documents on 25.9.2000

was concerned, the same was a unilateral act on the part of

the appellants and the said cancellation was made by the

appellants after having received the legal notice from the

respondent on 20.9.2000. Counsel also submitted that the

said documents were cancelled by the appellants at the Office

of the Sub-Registrar, Janakpuri, while the documents of which

the cancellation was effected by the appellants, were

registered at the Office of Sub-Registrar, Kashmere Gate,

Delhi. The contention of counsel for the respondent was that

the said cancellation of documents has no legal effect on the

documents which were lawfully and validly registered by

them in favour of the respondent at the Office of Sub-

Registrar, Kashmere Gate. Counsel also submitted that the

irrevocable general power of attorney executed by the

appellants, which was duly registered by them, could not have

been revoked by the appellants when such an attorney was

executed to fulfill the obligations arising out of the agreement

to sell. Based on these submissions, counsel for the

respondent submitted that no fault can be found in the

impugned judgment and decree passed by the learned trial

court, as it has carefully taken into consideration the entire

material placed on record by both the parties and the same

being a well reasoned judgment cannot be termed as illegal or

perverse.

14. I have heard the learned counsel for the parties at

considerable length and gone through the records.

15. A suit for specific performance, permanent

injunction and recovery of damages was filed by the

respondent against the present appellants impleaded as

defendants No.1 & 2 and Smt.Rita Chawla, wife of the

respondent as performa defendant No.3. The case set up by

the respondent in the plaint was that the first floor of

property bearing No.11/16, Old Rajinder Nagar, New Delhi

with proportionate rights underneath the land was sold by the

appellants in his favour vide agreement to sell dated 3.9.97

for a sale consideration amount of Rs.3,10,000/-. Two

separate receipts were stated to have been executed by the

appellants i.e. one for a sum of Rs.3 lacs dated 03.09.1997

and the other for a sum of Rs.10,000/- vide receipt dated

04.09.1997. An agreement to sell was alleged to have been

executed on 03.09.1997, while one set of registered

documents i.e. comprising of irrevocable general power of

attorney, two special power of attorneys and two Wills were

executed on 12.09.1997. It is not in dispute between the

parties that the appellants were the co-owners of the said

property holding leasehold rights. As per the case of the

respondent, the appellants had agreed to sell the entire first

floor of the said property with proportionate rights

underneath the land in favour of the respondent for a total

sale consideration of Rs.3,10,000/-. Out of the said amount of

Rs.3,10,000/-, a sum of Rs.3 lacs was received by the

appellants on various dates as per the details given in the

receipt/acknowledgement dated 03.09.1997, while the

balance amount of Rs.10,000/- was paid by the respondent to

the appellants vide receipt dated 04.09.1997. So far the

receipt dated 03.09.1997 is concerned, the same reflects

receipt of Rs.50,000/- by the appellant No.2 on 03.09.1997,

while the remaining payments were made in the past, the first

being on 14.08.1995, alleged to have been received by the

appellant No.1. The agreement to sell is also alleged to have

been executed on 03.09.1997 i.e. the day when the first

receipt to acknowledge the amount of Rs.3 lacs was executed

by the appellants. After the execution of these documents, two

separate Wills were executed by the appellants No.1 and 2,

both of them being in favour of Divya Chawla, minor daughter

of the respondent. Under these Wills, both the appellants

have bequeathed their rights in favour of the said minor

daughter of the respondent in respect of the first floor with its

entire construction and terrace rights of the said property

bearing No.11/16, Old Rajinder Nagar, New Delhi with

proportionate rights underneath the said land. On the same

date i.e 12.09.1997, three more documents are stated to have

been executed by the appellants i.e. irrevocable general

power of attorney in favour of Ms.Rita Chawla, wife of the

respondent and two special power of attorneys, executed by

the appellants also in favour of Smt. Rita Chawla. Under these

attorneys, Ms.Rita Chawla, who was impleaded as defendant

No.3 in the suit, was given the authority to seek conversion of

the said property from leasehold to freehold and also to sell

off the said property and to execute all the sale documents in

favour of the purchaser and to get the same registered with

the Office of the Sub-Registrar concerned in favour of the said

purchaser. Both the Will and the attorneys were registered in

the office of Sub-Registrar, Kashmere Gate on the same date

i.e. 12.9.97. It is further not in dispute between the parties

that no steps were taken either by the appellants or by the

said attorney to seek conversion of the said first floor of the

property from leasehold to freehold and also the possession of

the said property was not handed over by the appellants to

the respondent on the agreed date i.e. on 31.03.1999. Legal

notice dated 20.09.2000 was sent by the respondent to the

appellants on the failure of the appellants to hand over the

possession of the said property to the respondent. Receiving

no response from the appellants, the respondent had

instituted the said suit for specific performance against the

appellants and also claimed damages @ Rs.10,000/- per

month effective from 01.04.1999 till 30.9.2000. The

respondent also claimed a decree for permanent injunction

seeking restraint order against the appellants not to transfer,

alienate or sell the said property in favour of any third party

except the respondent.

16. In the written statement filed by the appellants,

they had denied any such sale transaction having taken place

between the parties or that any amount was received by them

towards the said sale transaction. A preliminary objection was

raised by the appellants in the written statement that the suit

filed by the respondent was a result of sheer fraud as the

respondent fraudulently forged and fabricated the alleged

agreement to sell dated 03.09.1997 and also the receipts so

as to grab the said property in question. The appellants in

their written statement also took a stand that the respondent

and the appellant no.2 became very intimate friends due to

their close relations for the past 15 years and in fact the

respondent started treating the appellant no.2 like his own

son. The appellants also took a stand that the appellant no.2

is an illiterate person while on the other hand the respondent

is a qualified Chartered Accountant. The stand taken by the

appellants was that because of the close and trusted relations,

the respondent had secured the signatures of the appellant

no.2 on blank papers on the pretext that such papers were

required to fulfill some business needs. The appellants also

alleged that in the month of January, 1999, the respondent

secured signatures of both the appellants on some blank

papers including the stamp papers on the pretext that they

were required to be filed in the Hon'ble High Court of

Bombay, where the partnership firm of the appellant no.2 was

fighting five civil cases and the respondent was doing pairvi

on their behalf in the said cases at Bombay. The appellants

also took a stand that in the month of September 1997, the

appellant no.2 took a loan of Rs.2 lacs from the respondent

and the respondent got executed various documents from the

appellants with a view to secure the said loan amount. The

appellants also submitted that they had paid back the entire

loan amount with interest @2% p.a. in January 2000, but the

blank stamp papers and other papers on which signatures

were procured by the respondent were later misused by him

to prepare the alleged agreement to sell dated 03.09.1997

and the two receipts. So far the documents which were

registered with the office of the Sub-Registrar are concerned,

the defence raised by the appellants was that the same were

cancelled by the appellants on 25.9.2000 after having learnt

about the malafide intentions of the respondent and with

regard to the service of the legal notice dated 20.9.2000, the

appellants did not specifically deny the receipt of the said

notice but, however, pleaded that the notices, if any served by

the respondent were false and fabricated. Defendant no.3

filed a written statement, but she being wife of the

respondent supported the case set up by the respondent in

her written statement. In the replication filed by the

respondent, the respondent reiterated the case set up by him

in the plaint. Based on the pleadings of the parties, the

learned trial court framed the following issues:

"1. Whether the plaintiff has fraudulently forged and fabricated the agreement to sell dated 03.09.1997 along with the other documents as alleged in P.O. No.1? OPD

2. Whether the suit has not been properly valued and is not maintainable? OPD

3. Whether the suit is bad for mis-joinder and non- joinder of the necessary parties? OPD

4. Whether the defendants no.1 & 2 had executed an Agreement to Sell dated 03.9.1997 along with receipt dated 04.9.1997 in favour of the plaintiff ? OPP

5. Whether the plaintiff had paid a sum of Rs.3,10,000/- to the defendants no.1 & 2? OPPP.

6. Whether the plaintiff remained ready and willing and still ready to do the same? OPP.

7. Whether the plaintiff is entitled to a decree for a sum of Rs.1,80,000/- against the defendants no.1 & 2 as damages, if so, how much and for what period? OPP

7.(a) Whether the plaintiff is entitled to a decree of specific performance as prayed? OPP

8. Whether the plaintiff is entitled to a decree for permanent injunctions as prayed? OPP."

17. The respondent in support of his case examined

PW-1 Sunder Singh, Clerk from Ramjas Senior Secondary

School, Delhi to prove the fact that the appellant no.2 had

passed the Secondary School examination in the year 1978

and English was one of his subjects in which he had scored 45

marks. The respondent himself entered the witness box as

PW-2 and proved the agreement to sell, the receipts including

the legal notice dated 20.9.2000. PW-3, Sh. B.N. Srivastava, a

hand writing expert produced by the respondent proved his

report in respect of the disputed signatures and thumb

impressions of the appellants. PW-4, Shri Rahman was a

witness from the office of the Sub-Registrar who proved the

registration of the said registered documents. PW-5 Sh.

Deepak Raj Dhingra proved the agreement to sell and receipts

being an attesting witness to those documents. PW-6 Sh.

Vinod Khanna, Advocate also proved the execution of the

documents being an attesting witness. The appellants on the

other hand produced DW-1 Sh. Bhagwan Dass, the appellant

himself, DW-2 Shri Navtek Singh, Head Clerk from the Office

of Collector of Stamps, DW-3, Sh.S.P.Singh, Document

Examiner as witnesses to prove their case.

18. On all the issues, the learned trial court gave

findings in favour of the respondent and against the

appellants. The learned trial court did not believe the version

of the appellants that they had signed some blank papers

which were later converted by the respondent to fabricate the

agreement to sell and receipts etc. The learned trial court

also found that no evidence was led by the appellants to show

that any case was pending against their firm at the Bombay

High Court and that the same was being pursued by the

respondent. The learned trial court also found that the

documents which were registered in the office of the Sub-

Registrar i.e. General Power of Attorney and two Special

Power of Attorneys and the two Wills dated 12.9.97 cannot be

said to be forged and fabricated as the appellants themselves

had admitted the fact that they had appeared before the

Office of the Sub-Registrar to execute the same. So far the

defence of the appellants that those documents were

cancelled by them on 25.9.2000 is concerned, the learned

trial court held that such a step was an afterthought on the

part of the appellants and that the same was done by them

after the filing of the said civil suit by the respondent. The

learned trial court also placed reliance on Section 202 of the

Contract Act and the judgment of this Court in the case of

Harbans Singh Vs. Shanti Devi, 13(1977) DLT 369 to

hold that once an irrevocable power of attorney has been

executed by the vendor coupled with the execution of the

agreement to sell then such a power of attorney cannot be

cancelled or revoked on account of creation of interest or

right in the property by the vendor. On Issue No. 5, the

learned trial court found that the said receipts were duly

executed by the appellants and they were fully aware of the

contents of the same as nothing contrary could be established

from the examination of the appellants.

19. Before carrying on the discussion further, it would

be apt to reproduce Section 10 of the Specific Relief Act,

1963, which generally deals with the cases which must be

specially enforced:

"10. Cases in which specific performance of contract enforceable.- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-

(a) when there exists no standard for ascertaining the actual damage caused by the non- performance of the act agreed to be done; or

(b) when the act agreed to be done is such that compensation in money for its non- performance would not afford adequate relief.

Explanation.- Unless and until the contrary is proved, the court shall presume-

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

(b) where the property is held by the defendant as the agent or trustee of the plaintiff."

To claim a decree for specific performance, the plaintiff

approaching the Court has to first establish that there was a

concluding contract between the parties for the sale of the

subject property. The second requirement is that that the

plaintiff has already performed his part of the contract in

terms of the agreement; and thirdly, that he is always ready

and willing to fulfill the remaining part of his obligation. In

the present case, the appellants have vehemently disputed the

execution of the agreement to sell and receipts dated 3.9.97

and 4.9.97 respectively. The defence raised by them was that

the respondent with whom they were having close and trusted

relations had obtained their signatures on some blank papers

and stamp papers on two occasions i..e at the time of

advancement of loan and second at the time when certain

papers were to be filed in the five cases concerning their

partnership firms at the Bombay High Court. It is a settled

legal position that in civil cases the facts are not to be proved

beyond reasonable doubt but the conclusions are drawn based

on preponderance of probabilities. The appellants herein,

miserably failed to prove their defence before the learned

trial court as they could not establish the fact that a loan of

Rs.2 lacs was taken by them from the respondent in

September 1997 or the same was returned by them in January

2000. The appellants also failed to prove on record that the

respondent being a chartered accountant was pursuing their

five cases in the Bombay High Court and significantly no

details of such cases was given by the appellants either in the

written statement or in the evidence. The appellants also

failed to disclose the name of the advocate who was

conducting the said five cases. It is not the case of the

appellants that the respondent himself was conducting those

cases and rightly so, as the respondent is a chartered

accountant and not an advocate under The Advocates Act,

1961. The appellant no.2 in his cross-examination clearly

stated that he had signed the agreement to sell Ex. PW-2/1 at

point D and C and the signatures of his mother i.e. appellant

no.1 were appended at point A and B. Similarly on Ex. PW-2/2

the appellant no.2 confirmed his signatures and that of his

mother. On Ex. PW2/3 as well the appellant no.2 admitted his

signatures but with regard to his mother's signatures he

failed to take any stand and on Ex. PW2/4 also he

admitted his signatures and that of his mother. The appellant

no.2 also admitted the fact that he had signed and affixed his

thumb impression on Ex. PW2/4, in the presence of the Sub-

Registrar. He also admitted his own photographs and the

photographs of his mother on the said registered documents.

Similarly, on Ex. PW2/5 and Ex. PW2/6, he admitted his own

signatures and the signatures of his mother. He also

admitted that the said documents were registered with the

office of the Sub-Registrar, Kashmere Gate. Similar stand

was taken by the appellants so far the documents proved on

record as Ex.PW2/7 and PW2/8 are concerned. The appellant

no.2 even admitted the signatures of his mother on A.D. Card,

Ex. PW2/12 and also the address mentioned on the said A.D.

Card. The appellant no.2 no doubt has denied the signatures

of the two advocates who had signed the registered

documents as the attesting witnesses and somewhere he

denied the thumb impressions of his mother and her

signatures as well, but if the facts are seen in totality, the

appellants miserably failed to give any justification or

reasons for the execution of the said documents by them

before the Office of the Sub-Registrar. Before the Office of

the Sub-Registrar one has to personally appear and has to

affix his photographs and has to produce the residential proof

and identity proof and besides that the executant has to affix

his/her own thumb impression on the reverse of the

registered documents as well as on the relevant records of the

Office of the Sub-Registrar. No explanation worth its salt

came forth from the side of the appellants to establish as to

what compelled them to execute such documents and then to

present themselves for the registration of the same. The said

documents are not ordinary documents as by the general

power of attorney the authority to sell and alienate the said

first floor of the property in question was given by the

appellants in favour of the wife of the respondent Mrs. Ritu

Chawla and through the said two registered Wills the said

first floor of the property under sale was bequeathed by them

in favour of the minor daughter of the respondent namely

Divya Chawla.

20. Now, the pivotal question that arises is that had

there been no sale transaction between the parties, then

where was the need to execute and register the said

documents. The fact of registration of GPA, SPAs and two

Wills even belie the theory of the appellants vis-à-vis the

agreement to sell dated 03.09.1997 and the said two receipts

dated 3.9.97 and 4.9.97 and on the contrary the said

registered documents give strength to the execution of the

agreement to sell and both the receipts. Merely because of

the fact that both the parties had very close and intimate

relations for the past several years and they have been

attending each others family functions or even that the name

of the respondent was mentioned in the invitation card of the

marriage of the appellant no.2, that by itself is not enough to

assume that a sale transaction could not have taken place

due to intimacy in the relationship between the parties. The

onus to disprove the said documents i.e. agreement to sell,

receipts and the registered documents was very heavy upon

the appellants and they manifestly failed to discharge the

same after the onus was successfully discharged by the

respondent in proving the execution of the said documents.

21. No doubt, certain anomalies can be seen in

the conduct of the respondent and in the covenants and the

process undertaken in the execution of the agreement to sell

and the receipts, but by taking a holistic view of the facts

involved, it is difficult to accept the defence raised by the

appellants in their written statement. The execution of the

agreement to sell on a ten rupees stamp paper, the font of

the type being small, the matter of agreement to sell

compressed and squeezed to fit in just two pages, the

possession of the first floor remained throughout with the

appellants and no question of handing over of the

constructive possession to the respondents, improbability of

the insertion of a demand in the agreement to sell making the

appellants liable to pay a sum of Rs.10,000/- for 18 months

and thereafter Rs.20,000/- p.m. are the few instances on

which a lot of emphasis was laid by the counsel for the

appellants. No satisfactory explanation came forth from the

side of the appellants on questioning by this court and even in

the entire written statement, the appellants have offered no

explanation as under what circumstances they had agreed to

appear before the Office of the Registrar so as to get General

Power of Attorney, two Special Power of Attorneys and the

two Wills registered. With regard to the registered documents

the only stand taken by the appellants in the written

statement is that they cancelled all the documents on

25.9.2000 as soon as they came to know about the malafides

of the respondent. But these instances in any case cannot

disprove the execution of the said documents including the

registered documents. The appellants have also not given any

explanation as to why they choose not to send a reply to the

legal notice dated 20.9.2000 which was duly received by

them. The receipt of the legal notice can be safely presumed

from the fact that the appellants in their written statement

did not dispute the receipt of the same. The appellants have

also not disputed the correctness of the address on the A.D.

cards and the signatures on the A.D. Cards. By producing a

witness from Ramjas Secondary School, the respondent also

proved on record that the appellant no.2 was not an illiterate

person so as not to know the implication of the documents

which he along with his mother had executed. During the

course of arguments, counsel for the appellants made an

attempt to draw a distinction between an illiterate and an

educated person but by no stretch of imagination one can

fathom to accept that a person who knows the English

language up to secondary level and is running various

businesses and had been filing income tax returns would sign

various blank papers, even stamp papers, and also execute

various documents which were later registered in the office of

the Sub-Registrar and who even went to the extent of

appearing before the Office of the Sub-Registrar along with

his mother but will not know the consequences of his such

acts. Hence, the appellant no.2 cannot be said to be as

illiterate as sought to be projected by the counsel for the

appellants. The cancellation of the said documents on

25.9.2000, that too after the receipt of the legal notice dated

20.9.2000, during the pendency of the case cannot have the

effect of invalidating the said registered documents. Thus to

my mind the explanation given by the appellants is lame and

is a clear indication of the fact that the appellants find

themselves helpless in impeaching the authenticity and

genuineness of the said registered documents.

22. In the case of Ajit Narian Vs. Shri Arti Singh &

Ors. 1999 (Delhi) 932 this Court has held that that the

documents such as agreement to sell, general power of

attorney and special power of attorney and will etc. are the

routine documents executed when sale of immovable

property takes place in Delhi. It was held that:

"14. The stand in the suit in this Court is clearly contradicted by the plea in the suit before the Civil Judge, Furthermore the plaintiff is a businessman upon his own showing and thus his plea that he signed documents of such importance blindly is far fetched. The plaintiff has thus failed to make out a prima facie case for continuance of the interim injunction granted on 13th July, 1998. There is no Explanationn in the pleadings or arguments as to why the plaintiff who for his loan of Rs. 1,50,000/- did not execute any documents was persuaded not only to sign the documents where loan was given by the defendant but also to have them registered. At least the factum of registration should have alerted the plaintiff. Furthermore the documents executed i.e. (a) Power of Attorney, (b) Agreement to sell, (c) Will (d) The power of attorneies to deal with local authorities such as NDMC etc., clearly leads to the prima facie conclusion that the plaintiff had gone through a transaction of sale. These documents are the routine documents executed when a sale of immovable property takes place in Delhi and the execution and further registration of the documents thus primafacie indicates that what was intended was a sale of the property and not the loan as alleged by the plaintiff."

Hence in the present case also, the registration of the two

SPAs and GPA etc. prima facie indicates that what was

intended was a sale of the property and not the loan as

alleged by the appellants. It is also a settled legal position

that for proving a fraud on the other party, specific

allegations without any vagueness have to be levelled which

are to be proved with sufficient and cogent evidence as per

the mandate of order VI rule 4 of the Code of Civil Procedure,

1908 which states that:

"Order VI Rule 4. Particulars to be given where necessary In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."

23. It would also be useful to refer here to the observation

of the Apex Court in the case of Bishundeo Narain vs.

Seogeni Rai and Jagernath AIR1951SC280 where it was

held that:

"28. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion."

Hence, as already stated above, the appellants not only failed

to plead enough facts in the written statement with regard to

their allegation of fraud and fabrication but also equally failed

to prove any fraud and fabrication on the part of the

respondent in getting the said documents executed.

24. It is a settled legal position that once a contract to

transfer of immovable property is proved on record then the

normal rule is to grant specific performance and not granting

the same can be only under exceptional circumstances. To

grant specific performance, no doubt, is an equitable

discretionary relief and the court need not grant order for

specific performance merely because it is lawful to grant the

same but such a discretion however has to be exercised by

the courts based on metes and bounds of judicial

principles and not in an arbitrary or unreasonable manner.

Some of the circumstances have been duly mentioned in

Section 20 (2) of the Specific Relief Act, 1963 as to under

what circumstances the court shall exercise such discretion,

the same being that if under the terms of the contract the

plaintiff gets unfair advantage over the defendant the court

may not exercise its discretion in favour of the petitioner or

where the defendant would be put to undue hardship which

he did not foresee at the time of execution of the agreement

and where it is inequitable to grant specific relief in the

given facts. I do not find that any such circumstances exist in

the present case, more over the discretion exercised by the

trial court, which always has the advantage of watching the

demeanor of the witnesses during the course of recording of

the evidence, should not be lightly interfered unless the

exercise of such discretion by the trial court seem to be not

based on the correct appreciation of the material on record

and on a sound reasoning. Reverting back to the facts of the

present case, this court does not find that the learned trial

court has exercised its discretion in an arbitrary or

unreasonable manner as the appellants could not succeed in

offering any explanation for the execution of the sale

documents and more importantly the documents registered by

them by presenting themselves before the Office of the Sub-

Registrar.

25. So far the damages awarded by the learned trial

court @ Rs.20,000 per month from 1.10.2000 till the date of

handing over the possession of the suit property are

concerned, the same are set aside as no such relief was

claimed by the respondents and even otherwise such claim of

damages at such exorbitant rate is without any basis and

manifestly unconscionable. Thus the relief of Rs.1,80,000 for

recovery alongwith interest @5% p.a from the date of filing of

the suit till realization granted by the learned trial court is

accordingly upheld.

26. Therefore, in the light of the above discussion,

there is no merit in the present appeal and the same is hereby

dismissed, leaving the parties to bear their own costs.

May 18, 2011                   KAILASH GAMBHIR, J
dc/mg