Ike S. Gill vs Govind S. Gill & Anr.
2012 Latest Caselaw 3331 Del

*             HIGH COURT OF DELHI : NEW DELHI

+             I.A. No.1082/2012 in CS (OS) No. 2380/2010

%                              Judgment pronounced on : 18.05.2012

IKE S. Gill                                               ..... Plaintiff
                         Through    Mr. Akhil Sibal, Adv. with
                                    Mr. Vedanta Varma, Ms. Manmeet
                                    Kaur & Mr. Vibhor Kush, Advs.


                         Versus

Govind S. Gill & Anr.                                  ..... Defendants
                     Through        Mr. V.P. Singh, Sr. Adv. with
                                    Ms. Yashika Vats, Adv. for D-2.
                                    Ms. Meera Mathur, Adv. for D-1.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I shall dispose of IA No.1082/2012 filed by the plaintiff seeking temporary restraint order restraining the defendants from seeking/effecting the registration of any gift deed with respect to the suit property or in any manner transferring or creating any rights with respect to the suit property in favour of defendant No. 1 during the pendency of the suit.

2. The brief facts of the case which lead to the filing of the present application are enunciated as under:

a) The plaintiff is the son of defendant No. 2, Smt, Bhagwant Rani Gill (hereinafter referred as Rani Gill). It is stated in the plaint that Rani Gill was married to Air Commodore Padam Singh

Gill and out of the said wedlock, the following children were born:

            Smt. Sartaj Kaur Gill
            Shri. Ike S. Gill - Plaintiff

b)     It is submitted that the defendant No. 2 was the owner of the

built up property admeasuring 800 Square Yards bearing No. B-2 West End, New Delhi which is subject matter of the present proceedings. It is stated that after the demise of the Shri Padam Singh, the plaintiff used to take care of his mother and not the defendant No. 1. It is further mentioned in the plaint that the defendant No. 1 is the youngest son and he being a doctor took defendant No. 2 with him for her treatment and regular medical supervision. It is stated that the defendant No. 1 had ulterior motives to appropriate the properties of his mother to his advantage and the same was done on the pretext of taking care of his mother by the defendant No.1.

c) It is averred in the plaint that the defendant No. 1 applied to the Supreme Court of the State of New York, County of Dutechess for appointment of Guardian of Rani Gill. The plaintiff has mentioned about the contents of the application which reveal that the said application contained the averment that Rani Gill is susceptible to undue influence and the petitioner in the said application (defendant No. 1 herein) believes that as a result of this susceptibility, Mrs. Gill has had a significant portion of her assets misappropriated and used for the benefit of others including by and for the benefit of Ikebal S. Gill, her former attorney in fact.

d) It is further stated by the plaintiff that after the consideration of the said application, the US court was pleased to appoint defendant No. 1 as a guardian of the properties of the defendant No. 2. The said guardian was given the following powers:

"a) Marshall her income and assets and establish bank, brokerage and other similar accounts in the name of the Guardian for RANI B. GILL, and endorse, collect, negotiate and deposit all negotiable instruments drawn to the order of RANI B. GILL, including, but not limited, government entitlement checks; invest funds with the same authority as a trustee, pursuant to New York EPTL section 11-2.2; inventory personal belongings, and store or dispose of, as appropriate.

b) Pay such bills as may be reasonably necessary for the maintenance and care of RANI B. GILL.

c) Make gifts, subject to prior Court approval, pursuant to Mental Hygiene Law, Section 81.21(b), except that no prior Court approval shall be required for any gift or gifts to an individual, if the total of all gifts to that individual in the same year does not exceed $500.00, AND the total of all gifts to all individuals in the same year does not exceed the lesser of 5% of all liquid assets in the guardianship estate or $10,000.00.

d) Establish an irrevocable pre-paid funeral trust and submit proof of such trust to the Court.

e) Establish a luxury account in accordance with Medicaid regulations.

f) Establish a separate interest bearing savings account in the guardian's name, as guardian, entitled "Guardianship Administrative Account", in the amount of $20,000.00, and denominated in the "Comments" on the bank records "As and for Administrative Costs of the Guardianship Proceeding", and such separate account shall not be deemed an available Medicaid asset unless and until all administrative costs are paid.

g) Prosecute and defend civil proceedings, including administrative proceedings, in this jurisdiction or other jurisdictions, and settle and compromise all matters related to such proceedings, as Guardian. However, all settlements are subject to this Court's prior approval.

h) Sign and file income tax returns and all other tax documents for any and all tax obligations and appear before federal, state and local taxing authorities on all claims, litigation, settlements and other matters related thereto.

I) Authorize access to or release of confidential records.

j) Retain an attorney solely for necessary legal work, or an accountant to assist in the preparation of initial, annual and final accountings and to assist in the preparation of Federal and State income tax returns, subject to Court approval of fees, upon an affidavit of services submitted with the initial, annual or final reports (Mental Hygiene Law, Sections 81.30, 81.31 and 81.33). (Fees pay not be paid prior to Court approval.)

k) Pay the funeral expenses out of any funds remaining in the guardianship estate at death, to the extent that a pre-paid funeral trust, if any, is insufficient to pay for same.

l) Pay such bills after death if incurred prior thereto and if authority to pay same would have otherwise existed.

m) Engage in Medicaid and estate planning subject to prior Court approval of all proposed transfer, pursuant to Mental Hygiene Law 81.21 (B).

n) Enter into contracts (including contracts for the sale of real property), provided that prior to the closing of title, the Court approves the terms of sale, upon submission of a copy of the fully executed contact and a written appraisal of the value of the property; however, a prior court order is required to mortgage real property.

(Other contracts for the sale or purchase of assets [e.g., real estate, cars, boats, etc.], including construction contracts, shall require prior court approval, if the contract price is in excess of $10,000 or 10% of the guardianship estate, whichever is less, provided that no prior court approval shall be required when the contract price is less than $500);

o) Commence or pursue turnover proceedings as in the discretion of the Guardian may be best suited for RANI B. GILL, pursuant to Mental Hygiene Law, Section 81.44; and it is further

p) Any other power which the Court in its discretion shall deem appropriate to meet RANI B. GILL's property management needs."

e) It is stated that the plaintiff had given a legal notice to the Sub-

Registrar IX of Delhi under the apprehension that the defendant No. 1 would misuse his position and will appropriate the property of the defendant No. 2 which is owned by her in Delhi. The said notice dated 8.12.2009 was sent to the Sub-Registrar Delhi bringing to the notice of the Registrar, the order passed by Supreme Court of New York. Reply to said notice was given by the Sub-Registrar in his letter dated 17.03.2010 to the plaintiff stating that two instruments styled as Will and Gift Deed dated 11.03.2010 and 12.03.2010 respectively executed by Rani B. Gill in favour of defendant No.1 have been produced before his office and the said documents produced are found fit for registration as per the relevant laws and his office cannot refuse to register such an instrument unless, a stay order is passed by the competent authority restraining him not to register the instrument. Thus, the present application has been filed.

f) The plaintiff contends that the defendant No. 1 has illegally got the gift deed dated 12.3.2010 executed in his favour and presented the same before the Sub-Registrar. The said gift deed as per the plaintiff is executed contrary to the orders of the Supreme Court of New York and the compliances directed therein including court's approval have not been taken prior to entering into such contract. The said act of the defendant No.2 is done by her under the undue influence exercised by him over defendant No.1

g) The plaintiff has therefore filed a suit seeking a declaration that the gift deed dated 12.3.2010 be declared to be null and void.

3. As a matter of backdrop, it is pertinent to mention that the plaintiff earlier filed a suit seeking declaration that the Will dated 11.03.2010 and gift deed dated 12.03.2010 be declared void. But, thereafter amended the plaint, this court by order dated 20.12.2010 allowed the amendment whereby, the plaintiff was allowed to confine his challenge to the gift deed only.

4. The defendants are served and have filed their respective written statements and replies thereof. The defendants have further narrated some factual aspects and defences in the written statement which are mentioned as under:

a) That the plaintiff has abused his position as an attorney of his mother defendant No. 2 and that became the reason for the change of the attorney and therefore the defendant No. 1 was appointed as an attorney of the defendant No. 2.

b) The defendant Nos. 1 and 2 both have given the instances of such abuse of the position, one of which being the case where

the plaintiff had raised a loan of US$ 800000 in the name of his mother by mortgaging her estate and caused immense detriment to her. Likewise, there are other instances mentioned in the written statement which as per the defendants, show that the plaintiff is only interested in benefitting himself and not the other family members and his mother. Consequently, the defendant No. 2 sought the appointment of the defendant No. 1 as her attorney.

c) It is stated that whatever complaint the plaintiff has against the defendant No. 1 for the violation of the guardianship's court order, the same should be urged by the plaintiff to the Guardianship Court and not to this court in the form of the suit filed in the present form. Therefore, this court lacks jurisdiction to decide as to whether such act of the defendants is in violation of the guardianship's court order or not.

5. After the completion of pleadings in the application, the matter came up for hearing before this court.

6. Mr. Akhil Sibal, Advocate appearing on behalf of the plaintiff has made his submissions which can be outlined to the following effect:

a) Firstly, Mr. Sibal has argued that in the present case, the defendant No. 1 has been appointed as a guardian of defendant No. 2 by Supreme Court of New York on the premise that the defendant No. 2 is incapacitated.

In order to support his submission, Mr. Sibal has read over to the court the averments made in the application/ petition presented before US Court which reads as under:

"Mrs. Gill is susceptible to undue"

"Owning to RANI B. GILL'S inadequacies, she is incapable of managing her affairs and cannot adequately understand the nature and consequences of such inability"

"She is also likely to suffer harm because she cannot adequately understand and appreciate the nature of her inability to provide for her finances as a result of her functional limitations."

Mr. Sibal has further referred to the order passed by the US Court dated 07.01.2008 which reads thus:

"It is established to the satisfaction of the court that it is necessary to appoint a Guardian of the property of Rani B. Gill as she needs a person other than herself to provide for financial property management."

b) As per Mr. Sibal, the aforementioned averments in the application and order passed thereon by US court would show that the defendant No. 2 is incapacitated as per her own showing before the US court, therefore, is incapable of giving her consent and consequently, the gift deed dated 12.03.2010 could not have been entered into by the defendant No. 2 herself, but, for the undue influence exercised by defendant No. 1. Resultantly, the gift deed dated 12.03.2010 is prima facie invalid and till the time, said dispute in the form of present suit is adjudicated, the gift deed ought not to be allowed to be registered as the same may change the status quo between the parties, other legal rights would be accrued in favour of defendant No.1 under Section 123 of Transfer of Property Act, 1882.

c) Mr. Sibal has furthered his earlier submission by stating that the powers of the guardian as per the US court order include the following:

 Power to make gifts, subject to prior court approval, provided no such approval is required for the gifts the value of which is below a certain stipulated amount. ( para 9 (c )of the order)  The power to prosecute and defend civil proceedings in the jurisdiction of the New York or in other jurisdictions. (Para 9 (g) of the order)

d) Mr. Sibal also submitted that in the application/ petition filed

before the US court for appointment of the guardian, the suit

property is also mentioned as assets for the purpose of which,

the guardian was appointed.

Mr. Sibal also read the definition of guardian as per Article 81.3(a) of the New York Mental Hygiene Law which reads as under:

"(a) "guardian" means a person who is eighteen years of age or older, a corporation, or a public agency, including a local department of social services, appointed in accordance with terms of this article by the supreme court, the surrogate's court, or the county court to act on behalf of an incapacitated person in providing for personal needs and/or for property management."

e) Mr. Sibal argued that the conjoint reading of powers of guardian, the definition of guardian as well as the assets enlisted in the petition would make it clear that the defendant No. 1 is the guardian of the suit property and therefore, before

entering into any gift deed or for that matter gifting the suit property to himself through his mother, the defendant No. 1 required approval of the US court as per the court's order and therefore, the gift deed as such in the present form is vitiated by the undue influence and also by the prior approval of the US court which is the embargo created by the defendant No. 2 by appointing defendant No. 1 as guardian. Therefore, till the time, the defendant No. 1 takes prior approval of the US court and the court permits to enter into such transaction, the gift deed ought not to be allowed by this court to be registered in favour of defendant No. 1.

f) Mr. Sibal relied upon Section 13 of the Code of Civil Procedure, 1908 to urge that the judgment passed by Supreme Court of New York is binding upon this court in relation to the matter of appointment of guardian as well as the powers of the guardian as the same has been adjudicated between the same parties which are defendant No.1 and defendant No. 2 before the Supreme court. It is thus not open to the defendants to plead to the contrary. Therefore, this court should proceed on the premise that the defendant No. 2 is incapacitated and the guardian was validly appointed by the court.

g) Mr. Sibal further argued that the defendants action of execution of the gift deed can be said to be valid till the time the defendants seek recall or reversal of the order of the US guardianship court. This is due to the reason that the said order will continue to bind the defendants and the defendant No.2 could not act on her own, except, through her guardian until the said order is reversed. All the actions of the so called incapacitated person which is defendant No.2 shall be invalid

or illegal in the eyes of law till the time the position is rectified by seeking recalling of the order.

h) Mr. Sibal argued that this court has plenary powers to exercise parenspatriae jurisdiction to protect the interest of those persons who are unable to protect their interest themselves. Mr. Sibal relied upon the dictum of Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 wherein, the Supreme Court has invoked such jurisdiction to protect the interest of the incapable person at the behest of third party's petition.

Thus, as per Mr. Sibal, if the plaintiff though is not the one who can avoid the contract directly, but, even if the plaintiff is alarming the court that the illegality is going to be perpetuated to the detriment to the incapable person whereby the guardian is gifting the property to himself of his mother by exercising undue influence, then this court, if interferes and prohibits the registration of the gift deed, would in fact be protecting the interest of the said incapable person. In the present case, this court should exercise such jurisdiction by preventing the registration of the gift deed.

i) Mr. Sibal argued that the suit in the present form is maintainable as the plaintiff in the present case is not seeking declaration of his right which is being denied. Thus, the rigours of Section 34 of the Specific Relief Act, 1963 would not be applicable.

Mr. Sibal argued that Section 34 is not the sole repository of the declaratory suits. In this context, Mr. Sibal relied upon following judgments:

 Venuareddi Ramaraghava Reddy vs. Konduru Seshu Reddy, AIR 1967 SC 436, the Supreme Court observed:

"(11) In our opinion, Section 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of Section 42 of the Specific Relief Act."

7. Mr. Sibal thus submitted that the plaintiff is not altogether a stranger lacking interest in the matter. In view of the parenspatriae jurisdiction available with this court coupled with the established position in law that Section 34 is not the sole repository of declaratory suit, the present suit in the instant form is maintainable.

8. Mr. Sibal concluded his submissions by urging that this court should pass an interim order restraining the defendants from registering the gift deed dated 12.03.2010, as prima facie the said gift deed is executed in violation of the orders of New York Supreme Court and the plaintiff would suffer irreparable loss if the said gift deed is allowed to be registered at this stage.

9. Per contra Mr. V.P. Singh, learned Senior counsel appearing on behalf of the defendant No.2 has made his submissions which can be crystallized in the following manner:

a) Firstly, Mr. Singh, learned Senior counsel argued that the suit in the instant form is not maintainable. It is argued that the plaintiff has no right in the suit property which actually belonged absolutely to defendant No.2. Mr. Singh argued that the plaintiff does not dispute the position that the defendant No. 2 is owner of the property. In that event, as per the learned

Senior counsel, the plaintiff has no right to seek declaration in relation to the nullity of the gift deed in the absence of any vested right in the suit property of the plaintiff. In the present case, whatever right which is going to accrue to the plaintiff shall be after the death of his mother. Therefore, the suit for declaration on the basis of the possible future right is not maintainable.

This has been argued by the learned Senior counsel for the defendant by citing paragraphs from the plaint as well as from the application for temporary injunction, whereunder the plaintiff has stated that he has approached this court to enforce his lawful rights when no such rights exist in law at present. Therefore, as per the learned Senior counsel for the defendant, the suit in the present form is violative of Section 34 of the Specific Relief Act, 1963 as no status or right exists in present which is denied for which any declaration can be sought for.

Learned Senior counsel for the defendant relied upon the following judgment in support of his argument:

 Ahmad Yar Khan v. Haji Khan & Another, AIR 1944 Lahore 110 at 113  Dr. Narayan v. Dr. R. Vaidyanath and others, AIR 1975 Karnataka 117

b) Mr. Singh, learned Senior counsel for the defendant taking his submission on maintainability further submitted that the suit as framed, is not intended to be the one seeking declaration other than the ones prescribed under Section 34 of the Specific Relief Act, 1963.

Mr Singh explained this with the aid of the averments in the plaint which state that the plaintiff's rights are going to

effected, if, the gift deed is allowed to be registered. There is a fact pleaded in the plaint that the defendant No. 2 had executed a Will in the year 2004 where under both the plaintiff as well as defendant No. 1 were given equal rights and the registration of the gift deed would deprive the plaintiff from its lawful rights.

For all these aforementioned reasons, it is argued by Mr. Singh that the suit was never intended to be one for the protection of the rights of the defendant No.2, but, was filed seeking protection of plaintiff's rights which are going to be perfected in the future. Therefore, the suit for the declaration based upon said rights is not maintainable.

In view of submissions of Mr. Singh on maintainability, it is argued that the plaintiff has no prima facie case in his favour.

c) Mr. Singh, learned Senior counsel for the defendant argued that the gift of immovable property is essentially of the nature which is irrevocable and thus cannot be declared void on any ground whatsoever. It is argued that once the gift deed is executed and given to the donee and the donee has accepted the property, the registration becomes a ministerial act and unless there is a strong case made out, the court should not injunct the statutory authority to perform its function.

The judgments passed in Atmaram Sakharam Kalkye vs. Vaman Janardhan Kashelikar, AIR 1925 Bom 210, Venkat Subba Srinivas Hedge v. Subba Rama Hegde, AIR 1928 PC 86, T.V. Kalyansundaram Pillai v. Karuppa Mooppanar and Others, AIR 1927 PC 42 are relied upon to support the arguments that the gifts are irrevocable in nature and their registration is not dependent upon the consent of the donor.

d) Mr. Singh argued that the judgment passed by the New York Supreme Court is not binding upon this court. Mr. Singh argued that the principle envisaged under Section 13 is in the nature of res judicata and therefore, the judgment passed by the foreign court must be rendered between the same parties. It is stated that the subject matter adjudicated by the New York Court is not the same as that of the present suit and consequently, it cannot be said that the judgment passed by the New York Supreme Court is binding on this court.

Mr. Singh relied upon the judgment passed in the case of R. Vishwanathan v. Rukn-ul-Mulk Sayed Abdul Wajid, AIR 1963 SC 1 to support this argument.

e) Mr. Singh has argued that the plaintiff is indulging into forum shopping by trying his hand over each and every forum as firstly the plaintiff approached the Sub Registrar and thereafter this court and lastly to the New York court. It is submitted that the plaintiff has tried his hand fully before the Sub Registrar before whom defendant No.2 appeared and was examined fully in relation to her mental capacity. When the Registrar was not satisfied with the plaintiffs objection qua mental incapacity of the defendant No.2, the plaintiff approached this court. This practice of forum shopping as per Mr. Singh must be deprecated.

f) Lastly, Mr. Singh argued that there is difference between the guardian for the purposes of property management and guardian of a person under US law. It has been argued that the New York Court specifically excluded the word incapacitated in the order which indicates to the effect that the guardianship

has not been of the person but, for the property management. It is submitted that the fact that the defendant No.2 was allowed to operate her bank accounts itself shows the guardianship was limited and she was not suffering from any mental inability. Therefore, the judgment passed by the New York Court will not come in the way of the defendant No. 2 dealing with her own property in the manner she deems fit.

10. Mr. Singh submits that it is actually the plaintiff who is obstructing the lawful transfer of property of the old lady like defendant No.2 and is trying to create complications so that he may fetch something out of the said property when she has no intentions to give any share to the plaintiff.

11. Mr. Singh concluded his submissions by stating that in view of the aforementioned arguments, this court should dismiss the plaintiff's application for interim injunction on this aspect i.e. about registration of gift deed. The counsel for the defendant No. 1 has also made the same submissions and adopted the same arguments of Mr. Singh.

12. I have gone through the plaint, written statement, application and reply filed by the parties and have also given my careful consideration to submissions advanced by the learned counsel for the parties at the bar.

13. I think it is for me to first point out that the order dated 07.01.2008 passed by the guardianship court of New York although appoints defendant No.1 as a guardian. But, the said order of guardianship court is based mainly on the consent of the defendant No.2 which has been recorded by the guardianship court and is not on the basis of finding of fact that Rani Gill is an incapacitated person.

14. The relevant portion of findings arrived by the guardianship court are extracted below:

" Now on reading and filing the report and recommendations of Pauline M. Galvin Esq, the court evaluator herein and upon the consent of Rani B. Gill, filed with this court, it is established to the satisfaction of the court that it is necessary to appoint a Guardian of the property of Rani B. Gill as she needs a person other than herself to provide for financial property management and that she has consented to a Guardian for her property management except for control over her Citibank account ending in numbers 1469 referenced in the consent of Rani. B. Gill and it having been determined that Govinf S. Gill, is eligible for appointment as a Guardian and is best suited to exercise the powers to assist Rani B. Gill, because he is her son and he is fully familiar with her affairs and it having been established......"

" ordered and Adjudged that Rani B. Gill is consenting to the appointment of a guardianship of her property except for control over her Citibank account ending with the numbers 1469, referenced in the consent of Rani B. Gill or any substituted bank account..."

14.1 The aforesaid quoted excerpts are only the findings and the

reasonings given by New York Supreme Court for the appointment of

guardian of Rani Gill defendant No. 2 herein. Nowhere, the said court

in its order deals with the aspect of incapacitated person and arrived at

the positive finding that Rani Gill is an incapacitated person.

14.2 Rather, New York court again and again emphasized (in

several paragraphs of its judgment) on the aspect of "consent" given

by Rani Gill for the purposes of appointment of guardian in the New

York court and basing upon which, the said guardian was appointed.

14.3 It is further noteworthy that the wordings relating to

incapacitated person which were recorded in the order earlier were

struck off or cut from the pen and the order was further corrected. All

this is again indicative of the fact that the court's intention was not to

appoint the guardian on the basis of the finding of incapacitated

person but on the basis of the consent of the Rani Gill to appoint

guardian for managing her properties.

14.4 This has persuaded to me to refer to the relevant article in

New York Mental Hygiene law so as to discern as how the guardian is

appointed and the powers of appointment of the guardian, the relevant

article reads as under:

"§ 81.02 Power to appoint a guardian of the person and/or property; standard for appointment

(a) The court may appoint a guardian for a person if the court determines:

1. that the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and

2. that the person agrees to the appointment, or that the person is incapacitated as defined in subdivision (b) of this section. In deciding whether the appointment is necessary, the court shall consider the report of the court evaluator, as required in paragraph five of subdivision (c) of section 81.09 of this article, and the sufficiency and reliability of available resources, as defined in subdivision (e) of section 81.03 of this article, to provide for personal needs or property management without the appointment of a guardian. Any guardian appointed under this article shall be granted only those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as

appropriate to the individual and which shall constitute the least restrictive form of intervention, as defined in subdivision (d) of section 81.03 of this article.

(b) The determination of incapacity shall be based on clear and convincing evidence and shall consist of a determination that a person is likely to suffer harm because:

1. the person is unable to provide for personal needs and/or property management; and

2. the person cannot adequately understand and appreciate the nature and consequences of such inability.

(c) In reaching its determination, the court shall give primary consideration to the functional level and functional limitations of the person. Such consideration shall include an assessment of that person's:

1. management of the activities of daily living, as defined in subdivision (h) of section 81.03 of this article;

2. understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living;

3. preferences, wishes, and values with regard to managing the activities of daily living; and

4. the nature and extent of the person's property and financial affairs and his or her ability to manage them.

It shall also include an assessment of (i) the extent of the demands placed on the person by that person's personal needs and by the nature and extent of that person's property and financial affairs; (ii) any physical illness and the prognosis of such illness; (iii) any mental disability, as that term is defined in section 1.03 of this chapter, alcoholism or substance dependence as those terms are defined in section 19.03 of this chapter, and the prognosis of such disability, alcoholism or substance dependence; and (iv) any medications with which the person is being treated and their effect on the person's behavior, cognition and judgment.

(d) In addition, the court shall consider all other relevant facts and circumstances regarding the person's:

1. functional level; and

2. understanding and appreciation of the nature and consequences of his or her functional limitations."

14.5 Clearly and plainly, the power to appoint guardian under

clause (a) (1) covers management of properties and provides for two

distinct eventualities which are:

a) If the person agrees for the appointment or

b) If that person is incapacitated as defined under subdivision (b) of this section.

14.6 The usage of the expression "or" makes this provision as

disjunctive in as much as even if a person agrees for appointment

along with the courts determination that it is deemed expedient that

for the purposes of managing the affairs of the property, the guardian

is necessary, even then the guardian can be appointed. In the

alternative is the other eventuality which relates to sub division (b) of

this section where under detailed enquiry and judicial determination is

warranted as extracted above.

15. On the reading of the judgment, it appears prima facie that the said order of appointment of guardian is passed on the basis of first eventuality which is the consent of the defendant No.2 and not on the basis of judicial determination of the fact that she is an incapacitated person. This is perhaps the reason, why the New York

court again and again emphasis on the word consent while recording its finding. Further, it also indicates the reason as to why the New York court excludes the finding of incapacitated person from its order. Therefore, at this stage, on the reading of the New York Court's order, it cannot be said that the said guardian was appointed by the court on the basis of determination that Rani Gill is an incapacitated person, but, rather the said appointment seems to be on the basis of her consent.

16. Of course, there is a finding that she needs a person other than herself to provide for financial property management and that she has consented to a guardian. But, that is a part of court's enquiry under the first eventuality and nowhere the said finding indicates that she has been declared as an incapacitated person. A person may need another person providing for financial property management because she is in advance age of her life or otherwise, not capable of managing the diversified property affairs singularly and may require a manager for decision making subject to person's own consent. But, that by itself does not mean that she is of unsound mind or incapacitated. I think that may be a reason of providing first disjunctive part of the eventuality enabling the court to invoke jurisdiction of appointment of guardian unlike the other one which requires extensive enquiry as well as judicial determination thereon.

17. It is one thing to say that a person has pleaded in the petition certain events which are jurisdictional facts for the satisfaction of the court to exercise a jurisdiction over the subject matter, however, it is altogether a different thing to say as to on what basis the court has given its decision which may or may not subsume the events pleaded by the party or the person and may be based on the consent of the party or the person.

18. In the present case too, the situation akin to the said principle has occurred wherein the defendants have pleaded before the New York court, certain events which may enable the court to exercise the jurisdiction for the appointment of guardian. But, the court's determination as per article 81.2 of the law is based on two distinct eventualities and thus, the same may not coincide with the events pleaded relating to incapacitation of Rani Gill. Therefore, when Mr. Sibal reads the contents of the application/ petition relating to incapacitation of the Rani Gill which nowhere finds mention in judicial determination, then, the said averments from the application cannot be co-related with the finding and it cannot be said that the finding of New York court is based on such pleadings of incapacitation.

19. In view of the above discussion, it is clear that the appointment of guardian by the New York court is based on the consent of Rani Gill and not on the basis of positive finding of incapacitation. Under these circumstances, unless New York court further clarifies that there is a finding of incapacitation, it cannot be assumed on a priori basis that defendant No.2 is an incapacitated person.

20. In that event of the matter, the order of New York court at present cannot come in the way of the Registrar to register the said gift deed and even if the submissions of Mr. Sibal are accepted, still the said order will not preclude the Registrar from not registering the gift deed. This is so due to the reason that enquiry before the Sub Registrar under Section 35 of Indian Registration Act, 1908 is extremely limited which relates to the cases where person appearing before the Registrar appears to him as an idiot or lunatic. The said Section reads as under :

"35. Procedure on admission and denial of execution respectively.-

(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or

(b) if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or

(c) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61, inclusive.

(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine anyone present in his office.

(3)(a) If any person by whom the document purports to be executed denies its execution, or

(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or

(c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:

Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII."

Nowhere the cases where the guardians are appointed by consent are covered as a matter of enquiry before the Sub-Registrar before registering any document. Rather, it prima facie shows that the

defendant No. 2 is capable of giving free consent and her consent is not vitiated by undue influence.

21. I find force in the submission of Mr. Singh that if there would have been intention to declare defendant No.2 as an incapacitated person then the court would not have left the control of the operation of Bank Account in City Bank in the hands of defendant No.2. This is an additional factor and attended circumstance which persuades me to take this view.

22. This was also seen when the defendant No. 2 appeared before the Sub-Registrar and no infirmity was found by him during examination. It is also clear when the defendant No. 2 has filed a separate written statement before this court with the signed and sworn affidavit in support of the same. In the said written statement, defendant No.2 has categorically stated that she has no desire to give any part of share of the said property to the plaintiff. All this again shows that she is capable of giving such consent and express her free will. Therefore, there is no reason for disallowing either the defendants or restraining the Registrar from registering such document incase, the defendant No.2 is able to satisfy the conditions of law. It is always open to the plaintiff to challenge the said registration before the competent jurisdiction, incase the request of defendant No.2 is allowed by the Sub-Registrar.

23. I think no further submissions raised by both parties at this stage remains to be examined as advanced by the learned counsel for the parties. The submissions of Mr. Singh, learned Senior counsel for the defendant shall be considered at the appropriate stage of the suit.

24. Learned counsel appearing on behalf of defendants on instructions has fairly given an undertaking that subject to this court giving leave to register the document, the defendants shall not create

any third party interest in the suit property during the pendency of the suit. The said undertaking of the defendants is accepted, subject to the condition referred by the defendants and orders are passed accordingly.

25. Accordingly, Sub-Registrar-IX, Govt. of NCT of Delhi, Old Terminal Tax Building, Kapashera, New Delhi-17 is allowed to exercise his discretion to register the said gift deed dated 12.03.2010 in accordance with law.

26. In View of the order passed in I.A. No.1082/2012, the statement made by the learned counsel for the defendants on 18.01.2012 shall be treated as withdrawn.

27. It is clarified that all findings arrived by the Court in this order are tentative and the order passed today shall have no bearing when the matter would be considered on merit at the final stage after the trial.

28. The application IA No.1082/2012 filed by the plaintiff is disposed of with these directions.

CS (OS) No. 2380/2010

29. List on 13.08.2012 before Joint Registrar for directions.

MANMOHAN SINGH, J.

MAY 18, 2012