Farida Khan And Anr vs Shyam Sahni & Ors
2013 Latest Caselaw 4575 Del

$~8
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              DECIDED ON: 03.10.2013
+                         FAO (OS) 401/2013
                          CM APPL.14031/2013

       FARIDA KHAN AND ANR                           ..... Appellants
                    Through: Mr. Jayant Tripathi, Advocate.

                          versus

       SHYAM SAHNI & ORS                          ..... Respondents

Through: Mr. Dinesh C. Pandey with Mr. Piyush Sharma, Advocates.

Mr. Chava Badri Nath Babu, Advocate for D-8.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. This appeal is directed against an order made by the learned Single Judge dated 21.05.2013 in CS (OS) 1134/2013. Learned Judge had, by that order, framed ten issues. The appellant (7 th defendant in the suit) is aggrieved by certain observations especially those contained in paragraph 33. It is argued that issue no.4 pertains to the legality of the General Power of Attorney (for short 'GPA') issued in the appellant's favour by Smt. Niamat Sahni during her lifetime on 3.1.2002 authorizing Smt. Usha Prakash to sell a portion of the suit property. It is stated that the appellant acquired title through such

FAO (OS) 401/2013 Page 1 GPA. Counsel submitted even while recognising that the appellants may be the bona fide purchasers pursuant to the GPA, the observations in paragraph 33 preclude them from saying that they have lawful and valid title. To say so, the appellant submits that Smt. Usha Prakash was in fact a legatee named in a will in respect of a property or at least part thereof and in the event that issue - framed as issue no.(i) is answered in favour of the appellants'/vendors, the observations in paragraph 33 would preclude her from setting up valid and binding title to the extent it can be established and enforced in law.

2. Learned counsel for the respondents contended that there is no infirmity in the impugned order and that paragraph 33 states an obvious proposition, i.e., that if the vendor's title is suspect, the subsequent purchaser, even if a bona fide one, cannot claim to be true owner.

3. This Court has considered the matter. Whilst the Court would not interfere with the framing of issues, at the same time, the Court is of the considered opinion that paragraph 33 to a certain extent precludes any argument or contention on the part of the subsequent purchasers who acquired rights from one of the other legal heir, especially based upon the GPA, to a valid title. If indeed some of them, like the appellant, claim that the vendor had independent title which could be established in answer to Issue no.1, the impugned observations would come in their way.

4. In the above view of the matter, the Court is of the opinion that the observations in paragraph 33 shall not be construed as precluding

FAO (OS) 401/2013 Page 2 any party from establishing title on the basis that his/her or their original vendors had rights through bequeaths, etc. made by the owner Smt. Niamat Sahni to one or the other of her heirs in the event the will is upheld. The observations in paragraph-33 shall accordingly be read down at the stage of the final hearing. All rights and contentions of the parties are kept intact.

5. The appeal is allowed to the above extent.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) OCTOBER 03, 2013 /vks/

FAO (OS) 401/2013 Page 3