Delhi High Court

Sanjay Gupta vs Arun Gupta on 24 May, 2013

Author: A. K. Pathak

$~9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     RFA 411/2012

                                             Decided on 24th May, 2013

      SANJAY GUPTA                                   ..... Appellant
                              Through:   Mr. Achal Gupta, Adv. along
                                         with appellant in person.
                              versus

      ARUN GUPTA                                      ..... Respondent
                              Through:   Mr. Suhail Dutt, Sr. Adv. with
                                         Mr. Azhar Alam, Mr. Sankalp
                                         Goswami and Mr. K.K.
                                         Sharma, Advs. along with
                                         appellant in person.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK


A.K. PATHAK, J. (ORAL)

1. Appellant-defendant is real brother of respondent-plaintiff.

2. Disputes between the parties revolve around the second floor of

property bearing no. 6253, Block No. 6-B, Gali No.1, Dev Nagar,

Karol Bagh, Delhi (for short the whole property hereinafter is referred

to as "the suit property").

3. Suit property was purchased by the mother of parties from Mrs.

Ravinder Kumari vide a registered sale deed dated 4th August, 2008.

Thereafter, she executed a registered gift deed on 3 rd October, 2008 in

favour of respondent. Subsequently, respondent executed a registered

gift deed in favour of the appellant on 1st May, 2009 in respect of the

second floor. It is this gift deed which is bone of contention between

the parties.

4. Respondent filed a suit for declaration and permanent

injunction before the trial court alleging therein that gift deed dated 1st

May, 2009 was executed by him under undue influence, pressure and

coercion of the appellant. By the judgment and decree impugned in

this appeal trial court has passed a decree of declaration holding the

gift dated 1st May, 2009 to be null and void, on an application under

Order 12 Rule 6 CPC filed by the respondent. Trial court has returned

a categorical finding that it was evident from the record that a clear

admission was made about non existence of second floor as on the

date of execution of gift deed dated 1st May, 2009, thus, same was hit

by Section 124 of the Transfer of Property Act, 1882 (the Act, for

short). As regards relief of injunction suit is still pending.

5. Learned counsel for the appellant has vehemently contended

that no clear and unequivocal admission was made in the pleadings

that the second floor was not in existence at the time when gift deed

was executed nor the same could have been inferred from the

documents placed on record. It is the case of appellant that second

floor was in existence but was subsequently demolished and the suit

property was reconstructed only upto ground floor in order to deprive

the respondent of his rights to second floor. It is vehemently

contended that as to whether the second floor was in existence or not

is a matter of fact which could have been thrashed out only after a full

fledged trial, thus, trial court has committed a grave error in decreeing

the suit on the basis of purported admission which did not exist.

6. There is no gain saying that if Court is satisfied at any stage of

the proceeding, that a clear and unequivocal admission of fact has

been made it shall pass a decree under Order 12 Rule 6 CPC even

without any formal application. Order 12 Rule 6 CPC envisages that

where admission of fact have been made either in the pleading or

otherwise, whether orally or in writing, the court may at any stage of

the suit either on the admission of any party or of its own motion and

without waiting for the determination of any other question between

the parties, makes such order or give such judgment as it may think fit

having regard to such admission. In Uttam Singh Dugal and Co. Ltd.

versus Union Bank of India and others AIR 2000 SC 2740, Supreme

Court held, thus: "as to the object of the Order XII Rule 6, we need

not say anything more than what the legislature itself has said when

the said provision came to be amended. In the objects and reasons set

out while amending the said rule, it is stated that where a claim is

admitted, the Court has jurisdiction to enter a judgment for the

plaintiff and to pass a decree on admitted claim. The object of the

Rule is to enable the party to obtain a speedy judgment at least to the

extent of the relief to which according to the admission of the

defendant, the plaintiff is entitled. We should not unduly narrow down

the meaning of this Rule as the object is to enable a party to obtain

speedy judgement. Where other party has made a plaint admission

entitling the former to succeed, it should apply and also wherever

there is a clear admission of facts in the face of which, it is impossible

for the party making such admission to succeed". In Shikharchand and

others versus Mst. Bari Bai and others AIR 1974 Madhya Pradesh 75,

it has been held that it is open for the court to pass a judgment on a

statement by a party not only in the pleadings but also de hors the

pleadings. Such admissions may be made either expressly or

constructively. In Chairman & Managing Director, VSP and others

versus Goparaju Sri Prabhakara Hari Babu 2008 (5) SCC 569,

Supreme Court has observed that judicial admission can be made the

foundation of rights of the parties.

7. In this case, the short question which needs to be considered is

whether the second floor was in existence as on the date of execution

of the gift deed. In case the second floor was not in existence the gift

deed is obviously null and void in view of Section 124 of the Act.

8. Relevant it would be to refer to Section 124 of the Act with

advantage, which reads as under :-

"Gift of existing and future property - A gift comprising both existing and future property is void as to the latter."

9. A bare perusal of aforesaid provision makes it clear that a gift

in respect of a non existence and/or future property is void. In

Commissioner of Income-tax, Kanpur versus Dr. R.S. Gupta AIR

1987 SC 785, Supreme Court has observed that in order to constitute a

valid gift there must be an existing property.

10. Thus, the whole issue revolves around the existence of gift

deed.

11. In the plaint, respondent has categorically averred that second

floor does not exist. In the written statement, this fact has been

admitted. It has not been stated in the written statement that there

existed a second floor and the same was demolished subsequently.

The whole written statement is silent on this aspect, inasmuch as, it

has been admitted that second floor does not exist. Admission

regarding non existence of second floor can be inferred from the

statements made in the written statement, inasmuch as, documents

clearly indicate its non existence. It has been stated in the written

statement that an oral agreement was arrived at between the parties

that second floor would be constructed and the same along with half

of the third floor would vest in appellant. Pleadings to this effect are

contained in para 6 and 7 of the written statement. In para 7 of the

plaint respondent has made a categorical assertion about the non-

existence of the second floor. In the written statement, this assertion

has practically remained uncontroverted, inasmuch as, it is stated that

parties had agreed that it would be constructed. The relevant portion

of the written statement is quoted for the sake of ready reference and

the same reads as under :-

"..........It is submitted that as per the oral agreement entered between the parties to the suit and family members more particularly mother of the parties to the suit that the second floor is to be constructed and half of the third floor is to be constructed and rest half of the third floor is to be handed over to the defendant........."

12. The non-existence of second floor is also evident from a perusal

of sale deed executed by Mrs. Ravinder Kumari through her attorney

in favour of mother of the parties. Sale deed was executed on 4th

August, 2008 and there is no reference of second floor therein.

Immediately, thereafter mother of the parties had executed a

registered gift deed in favour of respondent on 3 rd October, 2008

where also there is no mention of second floor, inasmuch as, site plan

attached with the gift deed shows existence of only ground and first

floor. Thus, in my view, trial court has not committed any illegality in

concluding that there was a clear admission with regard to the non-

existence of second floor.

13. Learned senior counsel has vehemently contended that