Anjali Kapur Gonsalves vs Madhuri Kapur Singh & Ors
2015 Latest Caselaw 6264 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Order delivered on: 25th August, 2015

+                  I.A. No.1481/2014 in CS(OS) No.1558/2012

       ANJALI KAPUR GONSALVES                    ..... Plaintiff
                    Through Mr.Ashok Agrwaal, Adv. with
                            Mr.Anuj Kapoor, Adv.

                          versus

       MADHURI KAPUR SINGH & ORS             ..... Defendants
                   Through Mr.Nitin Nanda, Adv. for D-1.
                            Mrs.Santosh Singh, Adv. for D-2
                            and 3.
                            Mr.Subrat Deb, Adv. for D-4.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of this order I propose to decide the above mentioned application filed by defendant Nos. 2 and 3 under Order VII Rule 11(a) and Order VI Rule 16 CPC.

2. The plaintiff has filed the present suit for declaration, mandatory injunction and possession under the Specific Relief Act in respect of property bearing Flat No. 109 (first floor), Category SFS-II, Hauz Khaz, New Delhi (hereinafter referred to as the "suit property") against the defendants. Plaintiff is a resident of Canada who has filed the present suit through her special attorney.

3. The brief facts leading to the present case as per plaint are as under:

3.1 The plaintiff and the defendant No.1 are sisters, both are daughters of late Mr. Pratap Kapur and late Mrs. Saroj Kapur. Mr. Pratap Kapur was a government servant and served in various posts, including in the office of the Registrar of Newspapers of India. While in service he was allotted government accommodation at DI-5 Bharti Nagar, Delhi-110003. After his retirement he worked as a journalist, with accreditation to the PIB. He worked for the "Free Press Journal" among other newspapers. The plaintiff got married on 13th April, 1985 and after her marriage she and her husband resided at 24E, Block 2, East of Kailash Ext-II.

3.2 The plaintiff's father died on 4th April, 1986. After his death, the plaintiff and her husband closed down their residence in East of Kailash Extension-II and moved in with the plaintiff's mother, so as to be able to look after her and to take care of her and the defendant No.1 financially. The defendant No.1 was unemployed at that time and was also living in the same house. She was completely dependent on the plaintiff for subsistence and support. 3.3 Since the plaintiff's mother was residing in government accommodation allotted to her husband (plaintiff's father), shortly after his death the entire family shifted to B-14, Sujan Singh Park, New Delhi-110003.

3.4 The plaintiff's mother had no income or assets of her own. Her husband/plaintiff's father also left her nothing except a paltry family

pension that she drew as the surviving spouse of a former government employee. In addition the plaintiff's father left behind some loans that he had taken to pay for his wife's treatment for cancer. The plaintiff arranged to repay part of the loan to the persons to whom this money was owed and the remaining part was waived by them, out of their regard for the plaintiff's father. Thus, after the death of her father both the plaintiff's mother and the defendant No.1, who was unemployed at that time, were entirely dependent financially and otherwise upon the plaintiff and her husband. 3.5 After the father's death, on seeing the condition of the mother, his friends helped her to obtain an out of turn allotment of a DDA flat in her name, from the Lt. Governor's discretionary quota. The plaintiff's husband too played an important role in this process. Thus, in November, 1986, this effort enabled the plaintiff's mother to an out- of-turn allotment of a DDA SFS flat, No.A-24 Siddharth Extension from the Lt. Governor's discretionary quota. The cost of this flat was paid entirely by the plaintiff and her husband by taking loans from their provident funds and drawing down their savings. Neither the plaintiff's mother nor the defendant No.1 contributed anything towards this price.

4. It is prayed in the plaint that the Sale Deed dated 3rd April, 2006 in respect of the suit property executed between defendant No.1 as vendor and defendants Nos.2 and 3 as vendees, be declared null and void. It is further prayed for possession of the suit property from the defendants No.2 and 3 and for damages from the defendants No.1 to 3 jointly and severally. The prayer is also made for mesne

profits from the said defendants No.2 and 3 for use and occupation of the suit property till the handing over of possession and mandatory injunction to the defendant No.4 to cancel mutation of the suit property in favour of the defendant No.1, and the conversion of the leasehold of the said property into freehold, in favour of the defendant No.1.

5. It is stated in the plaint that subsequent to the death of their mother in 2004, the defendant No.1 knowingly, wilfully and fraudulently misappropriated the plaintiff's share in the suit property by filing false documents before concerned authorities like the MCD and the DDA, claiming herself to be the sole heir of their late mother, Mrs. Saroj Kapur.

The MCD mutated the suit property in favour of the defendant No.2 in December 2005 on the basis of the false averments, affidavits and indemnities executed by her. Similarly, the defendant No.4 allowed conversion of the suit property from lease hold to freehold in the sole name of the defendant No.1, without due diligence, and consequently in violation of the applicable laws, rules and regulations. It came to the notice of the plaintiff later on when the sale of the suit property was made by defendant No.1 to defendant Nos.2 and 3.

6. Plaintiff has allegedly claim that the defendants No.2 and 3, who are mother and son, were earlier tenants in the suit property before purchasing the same by sale deed dated 3rd April, 2006, though the said contention is denied by the defendant Nos.2 and 3.

Counsel appearing on their behalf stated that they were residing in the same complex and were not the tenants of the suit property. Counsel for the defendants No.2 and 3 states that the said property was purchased by them from defendant No.1 as she claimed herself to be sole proprietor of the same. The defendants No.2 and 3 were not aware at the time of execution of sale deed that the plaintiff has any interest in the suit property. Therefore, the suit against the defendants No.2 and 3 is not maintainable. The plaint is liable to be rejected.

7. In para 6(vii) to (XLIII) of the plaint, the plaintiff has narrated the facts from the year 1987 to 2000 and how the plaintiff has been residing out of India as well as the condition of the property and mother who had suffered at the hands of the defendant No.1. It is further stated in the plaint that in the year 2000, the plaintiff thereafter shifted to Canada. Every time the plaintiff spoke with the defendant No.1, she assured the plaintiff that she was regularly receiving the rent from the tenants in the property. These assurances were repeated during the plaintiff's visit in India during January 2007 when she stayed for part of the time with the said defendant No.1 at her residence at E-92, 1st Floor, Sector 41, Noida-201301. It is stated that irrespective of the fact that whether the defendant Nos.2 and 3 were aware or not, the defendant No.1 was not entitled to sell the property to the said defendants although according to the plaintiff they were aware that the defendant No.1 was not the owner of the suit property in view of the circumstantial evidence as they were

neighbour and even earlier residing in the same apartment/complex where the suit property is situated.

8. The submission of the learned counsel for the defendants No.2 and 3 is that in case the contention of the plaintiff is correct, the cause of action arises only against defendant No.1 i.e. her sister but not against his clients. The sale deed is dated 3rd April, 2006 whereby the defendant No.1 had declared herself to be the only daughter of her deceased mother, Saroj Kapur, and hence, being the only legal heir, the defendants No.2 and 3 have purchased the property being bonafide purchasers.

9. It is stated in the application that the plaintiff should have filed the suit for recovery against the defendant No.1 to the extent of 25% in the suit property instead of trying to deprive the defendant Nos.2 and 3 of their suit property being bonafide purchasers.

10. I have heard the rival submissions of the learned counsel for the plaintiff as well as the defendants No.2 and 3. It is settled law that at the time of considering the application under Order VII Rule 11 CPC, the Court has to consider the averments made in the plaint. The defence raised by the defendant cannot be gone into. In case the plaint is read in a meaningful manner, it appears that there are serious allegations against the defendant No.1 and the specific averment is also made in the plaint that the defendant Nos.2 and 3 were aware that the plaintiff is the sister of defendant No.1 who was not exclusive owner of the entire property. Thus, at this stage, the Court cannot come to the conclusion that the suit against the

defendant Nos.2 and 3 is not maintainable once the defendant No.1 claimed herself to be the only daughter of the deceased which fact on the face of it is false. Thus the plaint under these circumstances cannot be rejected against the applicant. The plea raised by the defendant Nos.2 and 3 would be decided after trial. The application is therefore dismissed.

CS(OS) No.1558/2012

List before Court on 16th November, 2015.

(MANMOHAN SINGH) JUDGE AUGUST 25, 2015