Delhi High Court
Saranpal Kaur Anand vs Praduman Singh Chandhok & Ors on 6 April, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: 6th April, 2015
+ I.A. No.17994/2012 & I.A. No.7950/2014 in CS(OS) 873/2012
SARANPAL KAUR ANAND ..... Plaintiff
Through Mr.Chetan Sharma, Sr.
Adv. with Mr.D.C.Pandey
& Mr.Upin P. Singh,
Advs.
versus
PRADUMAN SINGH CHANDHOK & ORS ..... Defendants
Through Mr.Anil Sapra, Sr.Adv.
with Mr.Rakesh Malhotra
for D-1 & 2.
Mr.Jagjit Singh, Adv. for
D-4 & 5.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiff has filed the present suit against nine defendants.
The plaintiff is unmarried daughter of Late Sardar Harnam Singh
Anand and Late Smt. Harbans Kaur seeking inter-alia the following
prayer :
a) Pass a decree of declaration that the suit property being
property No.4-C/7, New Rohtak Road, New Delhi is the joint
undivided family property of the plaintiff and defendants No.3 to
9 belonging to and being the successors of Late Sardar
Harnam Singh and Smt Harbans Kaur and that defendants
No.1 & 2 have no right/interest/title upon or to the said property
and;
b) Grant a decree of declaration whereby declaring purported sale
deed dated 23rd August, 1969 alleged to have been executed
by Smt.Harbans Kaur through her alleged attorney in favour of
Mrs. Tej Kaur as fictitious, sham, incompetent, bad,' illegal,
nullity and void ab initio in law. Orders be passed for
cancellation of alleged sale deed and;
c) Grant a decree of declaration whereby declaring the purported
sale deed dated 12th October, 1995 by Smt Tej Kaur in favour of
defendant No.2 as fictitious, sham, incompetent, bad, illegal,
nullity and void ab initio in law; and
d) Pass a decree of permanent injunction restraining the
defendants. No.1 and 2, their agents, nominees, successors,
assigns, representatives etc. from raising
construction/additions/ alteration, entering into any agreement
to sell, creating any third party rights interest, claims, or partying
with possession thereof in respect of any portion of the suit
property comprising of 2 ½ storey residential building
constructed on Plot No.4-C/7, New Rohtak Road, New Delhi
and;
e) Conduct an inquiry to determine the amount of damages/
mesne profits payable and admissible for usage of suit property
from date of its use to date of delivery of vacant peaceful
possession thereof unto the plaintiff and plaintiff shall pay
necessary Court fee on quantification of the amount pursuant to
the inquiry; and
f) Permit the plaintiff to add/amend and claim further and
additional relief under Order 2 Rule 2 of CPC.
g) Award cost of the suit in favour of the plaintiffs and against the
defendants; and
h) Pass such further order or orders as this Hon'ble Court may
deem fit and proper and in interest of justice.
2. The defendant Nos.3 to 5 and 9 and the plaintiff are the real
brother and sisters and sons/daughters of Late Sardar Harnam Singh
Anand and Late Smt. Harbans Kaur who died on 23rd September,
1974 and 6th August, 2005 respectively. The defendant No.1 is the
real brother of Late Smt. Harbans Kaur and maternal uncle of the
plaintiff and defendant No.3 to 5 &9. The defendant No.2 is the son of
defendant No.1 and is maternal brother of the plaintiff and defendants
No.3 to 5 and 9. The defendant No.6 is the wife of late Shri Kultaran
Singh/brother of plaintiff and the defendants No.7 & 8 are the sons of
defendant of 6 and Late Shri Kultaran Singh who died in the year 2003
in Iran.
3. Brief facts of the case as per plaint are :
i) Late Sardar Harnam Singh Anand prior to and at the time of his
sad demise on 23rd September, 1974 was having various
successful and prosperous Joint Hindu Family business and
establishments both in India and in Iran and had purchased
various properties including in the name of his wife Smt. Harbans
Kaur in India. Plaintiff and the defendants No.3 to 9 being
successors-in-interest were entitled to their respective shares
therein under the law of succession. The plaintiff and the
defendants No.3 to 5 and 9 including Late Sh. Kultaran Singh
were quite of young age and along with their mother late Smt.
Harbans Kaur were not able to manage/supervise and monitor the
business and properties left behind by Late Sardar Harnam Singh
Anand. There were various eviction petitions pending in respect to
the suit property in the Competent Court at Delhi.
ii) Father of Smt. Harbans Kaur (who the eldest in her family)
demised when she was only 8 years old and the defendant No.1
and his mother Smt. Tej Kaur did not have sufficient means to
sustain and maintain themselves. Smt. Harbans Kaur was married
to late Sardar Harnam Singh at the age of 16 years .and
thereafter both Sardar Harnam Singh and Smt. Harbans Kaur did
everything possible to maintain her mother Smt. Tej Kaur and the
defendant No.1. Some portions of the suit property already under
tenancy was vacated from some of the erstwhile tenants after
paying consideration and after due negotiation and Smt. Tej Kaur
and defendant No.1 along with their family was permitted to use
and occupy the same by way of permissive use during the life
time of Smt. Tej Kaur and/or till they made alternative
arrangements. Likewise defendant No.1 was employed by the
parents of the plaintiff to look after/supervise the business and
properties of the parents of the plaintiff in India and at Iran who
reposed full faith, trust, confidence upon him in all respects.
iii) After the death of Sardar Harnam Singh Anand, Smt. Harbans
Kaur on account of the faith and trust reposed upon the defendant
No.1 and also on account of the fact that her children were too
young to manage/look after the business affairs/court cases
depended upon the defendant No.1 for all her decision making.
The defendant No.1 as the trustee/guardian was in a fiduciary
position and obliged to protect/preserve, the business and family
properties of Sardar Harnam Singh Anand and Smt. Harbans
Kaur. In the garb of taking steps for managing the business and
properties and prosecuting the court cases (eviction petitions) he
managed to induce Smt. Harbans Kaur to sign various blank
papers/documents under misrepresentations which have been
misused to usurp and make all possible benefits by grabbing the
properties which belonged to the family of the plaintiff and
defendant No.3 to 9.
iv) It is only after the death of Smt. Harbans Kaur that the plaintiff and
defendants Nos.3 to 9 were looking to take over the
properties/business of their family that they came across various
fraudulent transactions indulged into by the defendant No.1 in joint
concert and active connivance with his mother Late Smt. Tej Kaur
and the defendant No.2 including creating documents purporting
to be Sale Deed dated 23rd August, 1969 which got registered on
27th August, 1969. The same was never disclosed at any point of
time to the late parents of the plaintiff and defendant Nos.3 to 9.
The consideration mentioned also was never paid nor the
defendant No.1 or even his late mother Smt. Tej Kaur had any
means to pay. The defendant No.1 further created the sham,
fictitious, non-est, illegal documents purporting to be Sale Deed
dated 12th October, 1995 alleging claimed to have been executed
by Late Smt. Tej Kaur in favour of the defendant No.2. The
defendant No.1 as Power of Attorney Holder to Late Smt. Tej Kaur
and also of the defendant No.2 sought to file the CM No.5848 of
2008 in CM (Main) No.982 of 2004 seeking to bring on record the
defendant No.2 as LR of late Smt. Tej Kaur on the basis of
purported Will dated 24th July, 2007 alleged to have been
executed by Late Smt. Tej Kaur bequeathing the suit property in
favour of the defendant No.2 thereby playing fraud upon by
concealing the self-serving documents and now being claimed the
purported Sale Deed dated 12th October, 1995 to have been
executed in favour of the defendant No.2 by Late Smt. Tej Kaur.
The number of frauds played by the defendant No.1 in the case of
the properties/business of the plaintiff and the defendant No.3 to 9
are apparent. The receipts of the purported self-claimed
transaction are not reflecting and the same are fictitious and non-
est transactions conferring no rights, interest or title upon the
defendants No.1 and 2 in any manner. The documents allegedly
got signed by the defendant No.1 from the plaintiff and defendant
No.3 to 5 and 9 for the purposes of eviction proceedings have
been fabricated and misused in order to grab the properties of the
plaintiff and defendant No.3 to 9.
4. The defendant Nos.1 and 2 have filed their written statements
who have denied all the averments made in the plaint. It is stated by
them that the suit is not maintainable as it is barred by limitation. As
there is no cause of action against the said defendant Nos.1 and 2, the
suit is apparently barred by time and the same is liable to be
dismissed.
5. From the plaint, it is evident that the plaintiff admittedly has sought
the relief of declaration qua the registered sale deed executed by
Harbans Kaur - deceased mother of the plaintiff on 23rd August, 1969
in favour of Tej Kaur further the registered sale deed dated 12th
October, 1995 was executed by Tej Kaur (maternal grand mother of
plaintiff) in favour of the defendant No.2.
The present suit has been filed in March 2012 after a period of
around 43 years after execution of sale deed in the year 1969 by the
mother of plaintiff in favour of Tej Kaur. However, the plaintiff in para
12 of the suit has averred that the plaintiff now has learnt recently
about the sale deed executed by her mother on 23rd August, 1969,
who has further claimed that cause of action arose on 10th October,
2008 and 24th October, 2008 when the plaintiff called upon the
defendant No.1 and 2 to admit and acknowledge the right of the
plaintiff and it also claimed to be arisen on September, 2011 to
October, 2011 when plaintiff again called upon the defendant to admit
or deny the right of the plaintiff qua the suit property.
6. After filing the suit, the plaintiff's application for an amendment of
plaint is also pending being I.A. No.17994/2012, it is alleged in the
application that the plaintiff having inadvertently omitted to claim the
relief of possession in the prayer clause despite having pleaded and
set-forth foundational pleadings with regard to her claim for possession
in para No.31 and having paid requisite court fees for the relief of
possession, as per Para No.37 of the plaint. In view of the said lapse
the plaintiff was constrained to file an application under Order 6 Rule
17 read with Section 151 of CPC seeking to incorporate the prayer qua
the relief of possession registered.
7. When the matter was listed before Court for further proceedings,
on 7th February, 2014 the following order was passed by this Court :
"A prima facie perusal of the plaint and especially the cause
of action clause, in the light of the relief claimed by the
plaintiff, shows that the suit is hopelessly barred by time.
Accordingly, the following preliminary issue is framed :
(I) Whether the suit as framed is liable to be rejected
under Order VII Rule 11 (d) of the CPC on the ground of
limitation ? OPD"
8. Before the hearing of said issue framed by the Court, the plaintiff
filed another application for amendment of plaint being I.A.
No.7950/2014. It is stated in the application by the plaintiff that in order
to elaborate and detail the cause of action, the facts in the plaint could
not be detailed in the cause of action clause, as per para 33.The
abovementioned second application for amendment of plaint has been
filed by the plaintiff after passing of the order dated 7th February, 2014
passed by this Court. Notice has not been issued in the second
application for amendment to the defendant Nos.1 and 2, however the
arguments were addressed on the behalf of the said defendants.
9. The prayer of the second application for amendment is also
opposed by the defendant Nos. 1 and 2 who stated that the
amendment sought is not a subsequent fact which has been arisen
after filing of the suit rather the purpose of seeking amendment at this
stage is covering the lacunas only and this has been moved when this
Court on the basis of pleading was pleased to frame the preliminary
issue with respect to the limitation issue. The amendment is sought in
order to avoid hearing of issue framed by the Court. It is submitted on
behalf of defendant Nos.1 and 2 that if this unwarranted amendment is
allowed then there would open endless procedure for completion of
pleading which will not be in interest of justice and the plaintiff cannot
now be allowed to improve her case or to fill lacuna and this relief
which is well in the knowledge of the plaintiff and at this stage this
amendment cannot be allowed. The application is nothing but an
abuse of process of law, which is filed with malafide intention.
10. Mr. Chetan Sharma, learned Senior counsel appearing on behalf
of plaintiff has pressed that firstly the plaintiff's two pending
applications for amendment be decided by this Court, thereafter issue
of limitation may be considered. The said request is opposed by
counsel for defendant Nos.1 and 2 who submitted that if on the basis
of material placed on record that the suit is apparently time barred then
there is no need to decide the said applications. After some
discussion, both parties are agreeable to make their submissions in
the pending amendment applications as well as issue of limitation
which was framed by order dated 7th February, 2014. Accordingly
arguments were advanced by both sides.
11. In order to understand the relationship between the parties it is
necessary to extract the flow chart hereunder :
Mrs. Tej Kaur (died on 24.07.2007)
(Daughter) (Son)
Mrs. Harbans Kaur died on 06.08.2005 Praduman Singh Chandhok
(Defendant No.1)
(Son)
Married to Mr. Harnam Singh Anand Pervinder Singh Chandhok
Smt. Sh. Gurdev Sh. Iqbal Sh. Surjit Sh. Kultaran Smt.
Saranpal Singh Anand Singh Anand Singh Singh Anand Sarvinder
Kaur Anand (Son) (Son) Anand (Son) (Son) (Since Kaur
(Daughter) deceased) Chandhok
through his (Daughter)
LRs
Smt. Damanpal Kaur Anand Mr. Jaspreet Singh Anand Mr. Gursimar Singh
(Wife) (Son) Anand (Son)
12. It is argued by Mr. Sharma, learned Senior counsel that the
admitted position borne from the eviction proceedings are that till the
year 1982 the purported sale of the suit property was never completed
and nothing has been placed on record to prove the completion of the
alleged sale till date in any of the proceedings. The said fact is duly
substantiated from the fact that in the year 1973 the eviction
proceedings for the suit property was initiated by Smt. Harbans Kaur
and not Tej Kaur.
13. His main argument is that all the fraud committed by the
defendant No.1 and 2 and late Smt. Tej Kaur came to the knowledge
of the plaintiff just prior to the filing of suit, thus, the suit is not barred
by limitation. Even if the fraud has been played upon the plaintiff,
there is no period of limitation. Thus, at this stage, it is not necessary
to reject the plaint. The issue in question is a mixed question of law
and facts, the same requires trial. It would be appropriate if the
hearing on this issue be postponed.
14. Before deciding the rival submissions of both parties, few relevant
dates and events happened between the parties as per their pleadings
are referred as under :
i) On 20th January, 1958, the suit property bearing No.4C/7, New
Rohtak Road, New Delhi from Shri Ram Rattan, S/o. Pt. Ram
Kishan vide registered Sale Deed dated 20th January, 1958
registered as No.315 Additional Book No.1, Volume No.406 on
page 43 to 50 on 17th February, 1958 with the officer of sub-
registrar in the name of Smt. Harbans Kaur. The property was
under tenancy of tenants.
ii) On 23rd August, 1969, Smt. Harbans Kaur through her attorney
sold the property bearing No.4C/7 New Rohtak Road by way of
registered sale deed in favour of Tej Kaur.
iii) On 23rd November, 1970 and 10th December, 1970 a demand
notice addressed to Mrs. Tej Kaur by MCD and representation
submitted by Mrs. Tej Kaur with MCD.
iv) On 21st September, 1971 the notice was issued to the tenant of
the subject property on behalf of Ms. Harbans Kaur wherein the
factum of the sale of the subject property in the name of Tej
Kaur was brought to the notice of the tenant and responded by
tenant on 5th October, 1971.
v) On 25th April, 1973 plaintiff Mrs. Saranpal Kaur attained the age
of 18 years.
vi) In the year 1974 Sardar Harnam Singh Anand father of plaintiff
expired.
vii) On 17th January, 1976 Succession certificate was obtained by
Mrs. Harbans Kaur qua the estate left by Mr. Harnam Singh
Anand bearing No.722/74.
viii) On 19th April, 1980 a letter was written to DDA for mutation of
the subject property in the name of Mrs. Tej Kaur on behalf of
Ms. Harbans Kaur.
ix) On 3rd May, 1982 Eviction petition filed by Mrs. Tej Kaur against
the tenant wherein Mrs. Harbans Kaur was impleaded as
respondent No.3 (performa party) as a erstwhile owner.
x) On 25th May, 1982 Notice qua the eviction proceedings titled as
Tej Kaur vs. K.S. Gupta was served to Mrs. Harbans Kaur as a
performa respondent being predecessor interest and this notice
was served on 59/7, New Rohtak Road, Karol Bagh, New Delhi
where she was residing.
xi) On 23rd August, 1982 Mutation of the subject property was
executed with the office of Tehsildar with the name of Mrs. Tej
Kaur.
xii) On 12th October, 1995 Mrs. Tej Kaur sold suit property by
executing a registered sale deed in favour of Mr. Pervinder
Singh Chandhok, defendant No.2.
xiii) On 6th August, 2005 Mrs. Harbans Kaur expired.
xiv) On 28th October, 2006 Defendant No.3 being one of the LR of
Mrs. Harbans Kaur refused to accepted the summons to be
served by Bailiff of High Court in CM Main No.982/2004 titled
as K.S. Gupta (Chander Kala Ors. vs. Mrs. Tej Kaur and finally
on 10th May, 2007 they all were served by way of publication.
Plaintiff as well as her family members moved an
application in the said eviction case pending before this Court
wherein the factum of selling the property and the title in favour
of defendant No.2 was available on the record of the said case.
xv) On 24th July, 2007 Mrs. Tej Kaur expired.
xvi) On 16th March, 2008 An application under Order 1 Rule 10 of
CPC was moved by the plaintiff and other defendants before
the Court of ARC whereby acknowledging the sale of the
subject property in favour of Mrs. Tej Kaur and thereafter in
favour of defendant No.2. The said application was duly signed
by the plaintiff as well as defendant Nos.3 to 5 and 9.
xvii) In the year 2008 Suit filed by Mr. Jaspreet Singh Anand
(defendant No.7) before this Court bearing CS(OS)
No.977/2008 for the relief of partition qua the property of
Mrs.Harbans Kaur and Mr. Harnam Singh in respect of other
immovable properties. The subject property was found not
mentioned in the said suit.
xviii)In September, 2008 The counsel of the one of the defendants
No.4 and 5 namely Mr. Iqbal Singh Anand and Mr.Surjit Singh
Anand brothers of the plaintiff inspected the judicial file of the
C.M. Main No.982 of 2004 emanating from eviction petition filed
by Mrs. Tej Kaur against one of the tenant of the subject
property wherein sale deed was part of that judicial file.
xix) On 10th/24th October, 2008 legal notice issued on behalf of
plaintiff through her counsel wherein plaintiff has claimed the
right qua the subject property on the basis of one of legal heir of
Mrs. Harbans Kaur who predeceased her mother Mrs. Tej Kaur.
xx) Similarly, on 3rd August, 2010 Mr. Gurdev Singh Anand
(Defendant No.3) filed suit against the plaintiff and other
defendants for the relief of partition with respect to the assets of
Mrs. Harbans Kaur and Mr. Harnam Singh and again the
subject property was found not mentioned in the said suit.
xxi) On 27th March, 2012 Plaintiff filed the present suit.
15. In T.Arivandandam vs. T.V. Satyapal, (1977) 4 SCC 467, the
Supreme Court while dealing with the powers of the Court under Order
7 Rule 11 CPC had noted that where the meaningful reading of the
plaint disclosed that the suit which had been filed was in fact vexatious
and meritless; it being a case of clever drafting which has created the
illusion of a cause of action, it must be nipped in the bud by the Court.
16. It is also settled law that in case the court is doubtful about the
issue of limitation or two views are possible, the benefit would go in
favour of the plaintiff and the issue of limitation is to be postponed for
determination after trial. However, at the same time, it is also settled
law if it is apparent on record from the reading of plaint and documents
that the plaint does not disclose cause of action and the suit is
evidently barred by law, then the plaint is to be rejected.
17. Reliance is placed on various decisions in view of objection of
limitation raised by the defendant Nos. 1 and 2 and to decide the issue
framed by the court.
i) In Abdul Rahim & Ors vs. Abdul Zabar & Ors., (2009) 6 SCC
160 it was held as under:
"28. A suit for cancellation of transaction whether on the
ground of being void or voidable would be governed by Article
59 of the Limitation Act. The suit, therefore, should have been
filed within a period of three years from the date of knowledge
of the fact that the transaction which according to the plaintiff
was void or voidable had taken place. The suit having not been
filed within a period of three years, the suit has rightly been held
to be barred by limitation."
ii) In the case of J.D. Jain & Ors vs. Sharma Associates & Ors.,
167 (2010) DLT 766 it was held as under:
"17. It is evident from the above materials that the plaintiffs
were aware and in any event deemed to have been aware of
the defendants' possession regarding the suit property and the
basis of their claim for possession, i.e., the partnership deed
dated 18.11.1987 some time during that year or at best
sometime in 1988--at the latest on 30.6.1988 when they filed
the suit i.e. CS (OS) 194/1988. Articles 58 & 59, of the
Schedule, to the Limitation Act prescribe the period of limitation
in respect of the relief of declaration; it is three years from the
date of accrual of the cause of action. Even if the Courts have
to take a liberal and charitable view about the plaintiffs'
knowledge having been acquired after the Suit filed by the
defendants, their best case would be awareness sometime in
the year 1988. If that were the starting point of the period of
limitation, clearly the three year period ends sometime in 1991.
That the plaintiffs were pursuing concurrent remedies in respect
of the same suit property with this awareness is also evident
from the copies of the complaint under Section 145 filed by
them. Therefore, the Suit is clearly time barred as far as the
relief of declaration claimed is concerned."
iii) In N.V.Srinivasa Murthy & Ors. vs. Mariyamma, (2005) 5 SCC
548 it was observed that the mutation proceedings in the year 1994
did not give rise to a fresh cause of action as it was only in furtherance
to the sale deed dated 5th May, 1953 and it appeared to have been
made as a camouflage to get over the bar of limitation. Therefore, the
Court had dismissed the suit under Order 7 Rule 11 CPC.
18. It is also settled law that the Court must not refuse bonafide,
honest and necessary amendment but at the same time, it is also
settled law that the Court should never permit malafide, dishonest and
unnecessary amendment which may cause prejudice to the other side
which cannot be compensated adequately in terms of money. If plaint
does not disclose cause of action as per averment made in the plaint
and the suit is apparently barred by law, the Court normally should
reject the amendment in case a party is trying to introduce different
new case and seeking to displace the case of the other side by
withdrawing admissions.
a. In Muni Lal v. The Oriental Fire & General Insurance
Company Ltd. and Anr., AIR 1996 SC 642 it was held as
under:
"6. On a consideration of this case in its proper
perspective, we are of the view that granting of amendment
of plaint seeking to introduce alternative relief of mandatory
injunction for payment of specified amount is bad in law.
The alternative relief was available to be asked for when
the suit was filed but not made. He cannot be permitted to
amend the plaint after the suit was barred by the limitation
during the pendency of the proceeding in the appellate
court or the second appellate court. Considered from this
perspective, we are of the view of the opinion that the
District Court and the High Court were right in refusing the
prayer of amendment of the suit and the courts below had
not committed any error of law warranting interference."
b. The Supreme Court in the case of Radhika Devi vs. Bajrangi
Singh., JT 1996 (2) SC 238 held as under:
"The appellant has instituted Partition Suit No.24/88 in the
Court of Subordinate Judge, Aurangabad for partition of
certain properties. Respondents 16 to 20 herein filed
written statement on June 15, 1988 wherein they pleaded
that Ramdeo Singh had executed and registered a gift
deed in their favour on July 28, 1978 bequeathing the
properties covered there under. They became owners of
those lands and the appellant is bound by the same.
Pending the suit, the appellant filed an application under
Order 6 Rule 17, CPC on November 11, 1992 seeking
declaration that the gift deed was obtained by the
respondents illegally and fraudulently and, therefore, it was
ineffective and does not bind the appellant.
xxx xxx xxx
Shri Sanyal, the learned senior counsel for the
respondents, contended that the appellants had lost the
right to seek the above declaration as being barred by
limitation. The registration of the document is a notice to
everyone claiming any right, title and interest therein; even
otherwise, the respondents in the written statement filed on
June 15, 1988 has specifically pleaded about the gift being
made by Ramdeo Singh in their favour. Despite that, the
appellant had not taken any steps till November 1992 by
which time even the suit for declaration within the limitation
of three years from the date of knowledge had got time-
barred. Therefore, the appellant is not entitled to amend
the plaint which would prejudicially affect the rights of the
respondents."
19. It appears from the relevant dates and events that the present suit
has been filed in March 2012 after a period of around 43 years of sale
of the suit property challenging the registered sale deed duly executed
by the mother of the plaintiff in 1969. The plaintiff's entire family
continued to live together at 59/7 New Rohtak Road, New Delhi.
Whereas defendants No. 1 and 2 and Mrs. Tej Kaur have continued to
enjoy undisturbed possession of the property as their residence owned
by them at 4C/7 New Rohtak Road, New Delhi, which is near to the
suit property. They are residing there for the last 45 years.
20. It is a matter of record that in the para 17 of the plaint the plaintiff
has along with her family members who are the other defendants
moved an application in CM Main No.982/2004 as a legal heir of
respondent No. 14 therein i.e. Mrs. Harbans Kaur by filing a CM No.
14245/2008 under Order 22 Rule 4 of C.P.C. and thereafter it has
been itself admitted by the plaintiff that this Court through its order on
29th September, 2008 was pleased to grant liberty to the plaintiff to
claim/raise their rights as and when any subsequent pleading arises,
even despite their previous knowledge of the sale deed, the plaintiff
has filed the present suit in March, 2012 after the expiry of three years
from the date of knowledge.
21. It is also a matter of fact that after the sale of the suit property,
Mrs. Tej Kaur instituted eviction petition before ARC wherein Mrs.
Harbans Kaur impleaded as performa party being erstwhile owner and
party of predecessor interest. Mrs. Harbans Kaur had accepted
summons on 25th May, 1982 at her residential address 59/7 New
Rohtak Road thereafter she continued to be on record as a proforma
party. Post her death Mr. Gurdev Singh Anand who is her eldest son
and is also defendant No.3 refused to accept summons served by the
bailiff of this Court on 28th October, 2006 at the same address where
the entire family continues to reside till today and he has stated before
the bailiff that his mother has passed away and he cannot accept the
said summons which has been duly observed by the Court.
Subsequent thereto in order to serve them by substituted mode of
service, a publication was carried out in the news paper Statesman on
10th May, 2007, meaning thereby at least family members had full
knowledge from 10th May, 2007.
22. The plaintiff has also got notices issued through her counsel on
10th October, 2008 and 24th October, 2008 to the defendant Nos.1 and
2, the same are part of the plaint. The contents would show that
plaintiff was claiming her right in respect of suit property being LR of
Mrs. Tej Kaur, and the plaintiff and family members were in the
knowledge of ownership of suit property being with Mrs. Tej Kaur after
the sale by Mrs. Harbans Kaur in 1969.
23. The plaintiff and her family members, despite admitting their own
admission in the said notices whereby they acknowledge Mrs. Tej
Kaur as the owner of the suit property and claim to demand their share
from her estate seeking partition, they have now turned around and
claim that suit property was never sold to Mrs. Tej Kaur. From these
facts the plaintiff cannot deny that she was not aware about the
ownership of Mrs. Tej Kaur. The present suit was filed in March, 2012,
at least as per law, it could have been filed within three years from the
date of cause of action accrues.
24. It is also a matter of fact that in the said suit plaintiff along with
her family members through her attorney has filed the vakalatnama on
16th March, 2008, and moved an application under Order 1 Rule 10
CPC before the Court of ARC, Delhi whereby acknowledging the
factum of the sale of the suit property in favour of Mrs. Tej Kaur and
thereafter title in favour of defendant No.2. The plaintiff has filed the
present suit on the strength that she came to know about the said sale
only in 2012. The said fact is apparently not correct. The same is
alleged by the plaintiff just in order to avoid the objection of limitation,
which on the other hand indicates otherwise.
25. There is no force in the averments made in the plaint pertaining to
the suit property in view of another fact that in their own family partition
suit filed by Mr. Jaspreet Singh Anand on 18th May, 2008 bearing CS
(OS) No.966/2008 against the plaintiff and other defendants with
respect to the assets of their parents Mrs. Harbans Kaur and Mr.
Harnam Singh wherein all the properties of both of them are
mentioned, no relief qua the suit property has been claimed.
26. Even in subsequent partition suit CS (OS) No.1677/2010 filed by
Mr. Gurdev Singh on 3rd August, 2010 against the plaintiff and other
defendants with respect to the assets of Mrs. Harbans Kaur and Mr.
Harnam Singh wherein all the properties of both of them are
mentioned and no relief qua the suit property has been claimed. It is
on record that in the said partition suit the plaintiff and her family
members claim to file the Suit No. 1677/2010 to cover entire estate of
Harnam Singh and Harbans Kaur which was not part of suit No.
966/2008. The suit property is not part of that proceedings meaning
thereby they were very well aware that they do not have any kind of
right qua the suit property and have instituted malicious prosecution.
27. From these actions and conduct of the plaintiff and her family
members, it is clear that the statement made by the plaintiff in March,
2012 that he has now come to knowledge of sale deed by her mother
in favour of Tej Kaur is apparently not correct.
28. The above actions on part of the plaintiff and her family members
would show that they were having positive knowledge about the sale
of the suit property and its changes of hands thereafter qua the title as
well as possession of the suit property. They were always aware from
the day of sale in 1969; the actions of her mother in her lifetime in
decade of 1970, 1980, 1981 and 1982; their own actions/applications
filed/NOCs/Notices issued etc. post death of Harbans Kaur in 2007,
2008, 2009, 2010 and 2011.
29. The suit apparently has been filed after decades after she attained
majority. As per her own admission, parties are related to each other
and the suit property and where the plaintiff and her family members
were residing are nearby.
30. Therefore, the plaint discloses no cause of action and is
hopelessly barred by limitation even if the averment made in the
application for amendment of plaint are taken into consideration in
view of admissions and knowledge of the plaintiff and her family
members. The plaint is liable to be rejected under the provisions of
Order 7 Rule 11 CPC.
31. It is also argued by Mr. Chetan Sharma, learned Senior counsel,
that defendants No.1 and 2 have not paid the entire sale consideration
against the purported sale deed dated 27th August, 1969 against
receipts/acknowledgements. However, they have failed to place
anything on record to show that the remaining payment as stipulated
had been paid to late mother, thus, it was a fraudulent transaction
having no basis in law and conferring no rights, interest or title in any
manner upon the defendants No.1 & 2 or even their late mother Smt.
Tej Kaur.
32. Mr. Jagjit Singh, Advocate who is appearing on behalf of
defendant Nos.4 and 5 i.e. family members of the plaintiff has also
supported the argument of Mr. Chetan Sharma, learned Senior
counsel and has referred the decision of the Supreme Court in the
case of Kaliaperumal vs. Rajagopal and Anr., (2009) 4 SCC 193
para 19 to 21 and 25 which are reproduced as under :
"19. The answer to the question whether the parties
intended that transfer of the ownership should be merely by
execution and registration of the deed or whether they
intended the transfer of the property to take place, only after
receipt of the entire consideration, would depend on the
intention of the parties. Such intention is primarily to be
gathered and determined from the recitals of the sale deed.
When the recitals are insufficient or ambiguous the
surrounding circumstances and conduct of parties can be
looked into for ascertaining the intention, subject to the
limitations placed by Section 92 of Evidence Act.
20. In this case, the execution of the sale deed on June 26,
1983 is not in dispute. The said instrument was presented for
registration on October 21, 1983 and registered on October
26, 1983, as the first respondent/vendor appeared before the
Sub-Registrar and admitted that the vendors had executed
the documents, but refused to make an endorsement to that
effect on the deed as the vendors had not received the
balance consideration of Rs.40,000/-.
21. Applying the above mentioned principles to the facts of
this case, we find that the parties intended that ownership of
the property would be transferred to the appellant only after
receipt of the entire consideration by the vendors, as a
condition precedent. The operative portion of the sale deed
clearly states that the vendors have agreed to receive
Rs.40,000/- in the presence of the Sub- Registrar on the date
of the registration of the sale deed and that in consideration
of payment to be so made, the property was being conveyed
to the purchaser. This makes it clear that the title was
intended to pass only on the payment of balance
consideration of Rs.40,000/- in the presence of the Sub-
Registrar. This is also supported by the evidence of DW-1 to
DW-4. The Sub-Registrar has also clearly recorded that no
amount was tendered or paid by the purchaser to the vendors
in his presence. Therefore title in fact did not pass either on
execution or registration of the sale deed.
25. Therefore, on the facts and in the circumstances of the
case, we are of the considered view that the parties really
intended that title of ownership to the suit properties would
pass to the purchaser, only after payment of full consideration
by the purchaser to the vendor as a condition precedent.
Parties did not intend that there should be transfer of
ownership merely on execution and registration of the deed.
The trial court and first appellate court having misinterpreted
the legal position, the High Court rightly set aside the decree
passed in favour of the appellant and dismissed the suit. No
ground is made out by the appellant to interfere with the
decision of the High Court. Therefore, the appeal, which is
devoid of merits, deserves dismissal."
33. Mr.Sapra learned counsel appearing on behalf of the defendants
No.1 and 2 has refuted the argument who stated the entire payment
was made as parties were related to each other, raising of issue after
53 years has even otherwise no consequence in view of death of all
relevant persons involved in the transaction. The said plea is time
barred.
34. The submission of Mr.Jagjit Singh and Mr.Chetan Sharma have
no force. They cannot raise the said plea as the same is also barred
by limitation. Under the law of estoppels, the said objection cannot be
raised. The said issue of limitation in this regard has been discussed
in detail in the two decisions.
35. Mr.Sapra has referred said decisions in support of his
submissions:
i) The first case is of Premnarayan and Anr. Vs.
Kunwarji and Anr., AIR 1993 MP 162 where the entire
scheme of Section 54 of the contract of sale has been
discussed in para 8 and 9, the same is read as under :
"8. In Afsar Shaikh v. Soleman Bibi, AIR 1976 SC
163 their Lordships have laid down the law in the
following terms (at page 169):
"It is not sufficient for a person seeking the relief
to show that the relations of the parties have been
such that the one naturally relied upon the other
for advice, and the other was in a position to
dominate the will of the first in giving it. "More than
mere influence must be proved so as to render
influence in the language of the law, 'undue'."
Upon a determination of the issue at the second
stage, a third point emerges which is of the "onus
probandi". If the transaction appears to be
unconscionable, then the burden of proving that it
was not induced by undue influence is to lie upon
the person who was in a position to dominate the
will of the other."
9. In Subhas Chandra Das Mushib v. Ganga
Prosod Das Mushib, AIR 1967 SC 878 also their
Lordships have mandated the courts scrutinising
pleadings to find out if the plea of undue influence
had been made out and whether full particulars
thereof were given before examining whether undue
influence was exercised or not."
ii) Same issue has been discussed in the case of Delhi
Development Authority vs. Skipper Construction Co.
(P) Ltd. and Ors., AIR 2000 SC 573 wherein in para 29
to 32 it was held as under :
"29. These points depend upon the effect of the
provisions in sub-section (6) of Section 55 of the
Transfer of Property Act. That section starts with the
words: "In the absence of a contract to the contrary",
and reads thus (insofar as it is material for our
purpose):
"55. (6)(b) The buyer is entitled--
(a)***
(b) unless he has improperly declined to accept
delivery of the property to acharge on the property,
as against the seller and all persons claiming under
him, to the extent of the seller's interest in the
property, for the amount of anypurchase-
money property paid by the buyer in anticipation of
the delivery and for interest on such amount; and,
when he properly declines to accept the delivery,
also for the earnest (if any) and for the costs (if any)
awarded to him of a suit to compel specific
performance of the contract or to obtain a decree for
its rescission."
It is plain from the above provision that, in the
absence of a contract to the contrary, the buyer will
have a charge on the seller's interest in the property
which is the subject-matter of the sale agreement
insofar as the purchase money and interest on such
amount are concerned, unless the buyer has
improperly declined to accept delivery. The charge
is available against the seller and all persons
claiming under him. This charge in favour of the
buyer is the converse of the seller's charge under
Section 55(4)(b). The buyer's charge under this
section is a statutory charge and differs from a
contractual charge which a buyer may be entitled to
claim under a separate contract [M.M.R.M. Chettiar
Firm v. S.R.M.S.L. Chettiar Firm, AIR 1941 PC 47 :
46 CWN 57] . No charge is available unless the
agreement is genuine [Trimbak Narayan
Hardas v.Babulal Motaji, (1973) 2 SCC 154 : AIR
1973 SC 1363] . As pointed out in Mulla's
Commentary on Transfer of Property Act, 8th Edn.
(p. 411), the charge on the property under Section
55(6)(b) is enforceable not only against the seller
but against all persons claiming under him. Before
the amending Act of 1929, the words "with notice of
payment" occurred after the words "all the persons
claiming under him". These words were omitted as
they allowed a transferee without notice to escape.
After the amendment of 1929, notice to the
purchaser has now become irrelevant.
30. When the property upon which the charge is
created gets converted into another form, the buyer
will be entitled to proceed against the substituted
security. This is a general principle of law and
Section 73 of the Transfer of Property Act is only an
example of the said principle. The above principle
has been applied to enforce mortgage on
substituted securities (see Barhamdeo
Prasad v. Tara Chand [(1913-14) 41 IA 45 : 12 All
LJ 82 : 16 Bom LR 89 : ILR (1914) 41 Cal 654 (PC)]
andSurapudi Muniappa v. Nookala Seshayya Gari
Subbaiah [AIR 1917 Mad 880] ). The same principle
which is applicable to mortgages applies to cases of
statutory charge under Section 55(6)(b). If
immovable property is charged and is converted into
another property or money, then the charge will
fasten on the property or money into which the
subject-matter of the agreement is converted.
31. The above sub-section of Section 55 also makes
it clear that the buyer is entitled to interest on the
amount of purchase money paid. Interest is payable
from the date of payment of the purchase money to
the seller till the date of delivery of property to the
purchaser or till the execution of the sale deed,
whichever is earlier. Points 1 and 2 are decided
accordingly in favour of the buyers.
32. Article 62 of the Limitation Act, 1963 (which
corresponds to Article 132 of the Limitation Act,
1908) provides a period of 12 years "to enforce
payment of money secured by a mortgagee or
otherwise charged upon immovable property". Time
runs from the date "when money becomes due"."
35. From the above, it is evident that the period of limitation for
enforcement of statutory change created under Section 56(6)(b) is 12
years from the date when it becomes due. In the present case,
admittedly the matter of the plaintiff has sold the property to Tej Kaur
in the year 1962. The suit was filed in 2012 i.e. after 50 years. The
plaintiff became major in April, 1973, the said objection is even raised
after 39 years. Thus, it is too late on the face of it to raise such
objection. Though the finding arrived in the case of Kaliaperumal
(supra) is legally correct, however the facts and circumstances in the
present case are materially different.
36. With regard to the other objection raised by Mr.Chetan Sharma
that in case the property was again sold by virtue of registered Will in
favour of defendant No.2 filed by the mother of the plaintiff in 1969 in
favour of Tej Kaur who subsequently sold to defendant No.2 on 12th
October, 1995 why she would after expiry of more than 11 years i.e.
on 4th May, 2007 again sold by virtue of registered Will in favour of
defendant No.2 then after the expiry of about 12 years she executed
the Will again in favour of defendant No.2. It might be the correct
position as raised by the plaintiff but the fact remain that on 12th
October, 1995 Tej Kaur has sold the suit property in favour of
defendant No.2 by virtue of registered document i.e. sale deed. This
fact has not been denied by the plaintiff. In case of registered sale
deed executed by Tej Kaur if she has also executed the registered Will
bequeathing the same property in favour of defendant after the expiry
of 11 years i.e. 2007, the same does not help the case of the plaintiff
as far as limitation issue is concerned because the suit would still
become time barred from the said date. Even otherwise, it is a matter
of fact that the mother of plaintiff has sold the property to Tej Kaur in
the year 1969 by virtue of registered sale deed.
37. As a matter of fact, it is evident from the entire gamut of matter
that the plaintiff and other family members were aware about the sale
of suit property in favour of Tej Kaur and later on defendant No.2 but
they did not raise any protest at that time as there was hardly any
value of immovable suit property. Due to increase of prices in city
after the long period of time, the plaintiff and her family members are
not ready to accept the said fact of sale and started raising the
objections by filing of suit through plaintiff who no doubt deserves
sympathy but the Court has to decide the matter as per law. The
Court has no option but to decide the issue. The subsequent sale by
Tej Kaur in favour of defendant No.2 has no much bearing although
the suit itself is time barred from the date of Will of Tej Kaur in favour
of defendant No.2. Thus, the objection of plaintiff in this regard is not
sustainable and the same is rejected.
38. Considering all the previous actions and conduct of plaintiff and
her family members, despite of admitting their own admission in the
said notices whereby they acknowledge Mrs. Tej Kaur as the owner of
the said property and claim to demand their share from her estate
seeking partition, they have now turned around and claiming that
property was never sold to Mrs. Tej Kaur. It is evident from such
actions of plaintiff and her family members not bonafide as they have
had full knowledge of the sale deed.
39. The suit is apparently time barred. Hence, the plaint is rejected,
the issue framed in the matter is accordingly decided against the
plaintiff and in favour of defendant Nos.1 and 2, the amendment
applications filed by the plaintiff are malafide and are not maintainable
as the same itself is time barred on the face of pleadings and
documents placed on record. Both applications are accordingly
dismissed.
40. The plaint is rejected. All pending applications are also disposed
of consequently.
(MANMOHAN SINGH)
JUDGE
APRIL 06, 2015
