Delhi High Court

Sarjit Singh Awla vs Kuldeep Singh Awla on 13 January, 2015

Author: Indermeet Kaur

$~14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment:13.01.2015


+     CS(OS) 574/2014, I.A.No.3707/2014, I.A.No.12881/2014 and
      I.A.No.25069/2014


      SARJIT SINGH AWLA                                 ..... Plaintiff
                    Through            Mr.Sanjeev       Soni          and
                                       Mr. Y.R.Shamra, Advocates.

                         versus

      KULDEEP SINGH AWLA                                ..... Defendant
                   Through             Mr.Ashim      Vacher,        Mr.
                                       M.L.Mahajan and Mr. Gaurav
                                       Mahajan, Advocates

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (oral)

I.A.No.12881/2014 (u/O 7 Rule 11 (d))

1.

This is an application filed by the defendant seeking rejection of

the plaint on the ground of limitation. Submission is that the plaintiff

has instituted the present suit for declaration, possession, permanent

injunction and damages. The plaintiff is seeking declaration to the

effect that the plaintiff by virtue of a relinquishment deed dated

21.01.2008 had not relinquished his right, title or interest in favour of

the defendant with respect to the suit property. Submission is that the

present suit which has been filed in the year 2014 qua the

relinquishment deed which is admittedly of the year 2008 is beyond the

period of limitation. Attention has been drawn to the power of attorney

dated 17.9.2007 pursuant to which this relinquishment deed had been

executed. Submission being reiterated that on all counts the suit of the

plaintiff having been filed after more than six years from the date on

which cause of action had arisen is barred by limitation. Additional

submission being that there is no averment in the plaint whatsoever that

the plaintiff learnt about the fate of the relinquishment deed at any later

point of time which would enlarge the period of limitation.

2 Reply has been filed to the application. It is pointed out that to

answer the arguments of the learned counsel for the applicant, the Will

of the deceased mother of the parties as also the contents of the power of

attorney and the relinquishment deed have to be adhered to; submission

being that the plaintiff is not seeking invalidation of either the power of

attorney or the relinquishment deed; his prayer is that he be granted

possession of his divided share in the property which is the first floor

and the garage. What he had relinquished in terms of the

relinquishment deed dated 21.01.2008 was only his undivided rights in

the suit property and not his divided interest.

3 Arguments have been heard. Record has been perused.

4. This is a dispute between two brothers. The plaintiff is a citizen

of Germany and he had admittedly executed power of attorney dated

17.9.2007 in favaour of defendant no.2 (wife of defendant no.1).

Relevant extract of the power of attorney reads herein as under:

1. To sign and submit documents/papers what-so-ever required in respect of transfer of my Undivided share in Property No.D-44 situated at South Extn., Part-II, New Delhi inherited through WILL dated 07.5.1993, which is registered in the office of the Sub-Registrar, New Delhi as Doc. No.2281 in Addl.Book No.III, Vol. No.729 on pages 194-1999 in favour of Shri Kuldip Singh Awla Alis Kultheep Uongkhattri resident of D-44, South Extension Part-II, New Delhi

2. To execute, sign and present documents for Release/Relinquish my share in respect of said property, before proper Registering

Authorities for Govt. of India, Municipal Corporation of Delhi or Semi Government or others."

5 Submission being that this power of attorney was only qua the

undivided share of the plaintiff in the aforenoted property i.e. property

D-44, South Extension, Part-II, New Delhi. It did not encompass the

interest of the plaintiff in his divided share of the property which

included the first floor and the garage on the ground floor. To further

advance this argument, learned counsel for the plaintiff has drawn

attention of this Court to the Will of the deceased mother of the parties.

This Will is dated 07.5.1993 and is an admitted document. It has been

executed by Mahender Kaur Awla detailing the bequeath of her

immovable property i.e. D-44, South Extension, Part-II, New Delhi. In

this Will, it was stated that a 2½ storied building had been raised on this

plot of land; the ground floor of the property fell to the share of the

defendant; the first floor fell to the share of plaintiff declaring both the

parties the absolute owners thereof. Qua the barasati floor, there was

one room constructed upon it; the plaintiff had the right to give the same

on rent and to take the proceeds thereof; the two garages in the annexe

had devolved upon the plaintiff and the defendant in equal shares; the

defendant had also been given entitlement to give on rent the annexe

portion and to keep the proceeds thereof.

6. Another relevant portion of the extract of the Will reads herein as

under:

"That it is made clear that after the devolving of the property as existing on the date of the Will both my sons/S/Sh.Sarjit Singh Awla and Kuldip Singh Awla would be entitled to raise further construction on the Barsati Floor and thereupon in accordance with the sanction from the authorities concerned. Such construction shall be raised with the funds to be provided by both of them in equal shares and, therefore, they shall be the owners in equal shares of such newly construction portion."

7. This part of the bequeath is related to the rights of the parties on

the barasati floor of the suit property; the testator desired that whenever

further construction on the barsati floor is raised in accordance with the

sanction given by the authorities concerned the funds will be given by

both her sons in equal shares and thereafter they would become owners

of this newly constructed portion.

8. Submission of the learned counsel for the plaintiff on this count

being reiterated that it was the ground floor and the garage in the

annexe which was the divided share of the plaintiff for which he had not

given any power of attorney to defendant no.2; the power of attorney

specifically states that this power of attorney is qua his undivided share

in the suit property meaning thereby that this power of attorney was

executed only qua the undivided rights of the plaintiff on the barsati

floor and the right of the plaintiff to take rent from the proceeds of the

said barasati floor. Further submission being that the plaintiff had in

fact given the first floor on lease w.e.f. year 1996 for a period of three

years which again shows that his interest in the property qua the first

floor was his divided interest. Power of attorney had been given to

defendant no.2 only qua his undivided interest, pursuant to which the

relinquishment deed had been executed by defendant no.2 in favour of

defendant no.1. He has no grievance on this count. He is seeking

possession of his divived interest in the immovable property which

clearly continues to belong to him i.e. the first floor and the garage on

the ground floor qua which Article 65 of the Limitation Act, 1963,

Schedule-I encompasses a period of 12 years and the cause of action

would arise from the date when the possession of the defendant became

adverse to the plaintiff. In this case, even presuming that the cause of

action had arisen on the date of the execution of the relinquishment deed

which in this case is 21.01.2008, the suit of the plaintiff filed in the year

2014 being within the span of 12 years is clearly within limitation.

9. On the perusal of the record and the documentary evidence filed

by both the parties i.e. the will of the deceased mother of the parties, the

power of attorney dated 17.9.2007 executed by the plaintiff in favour

of defendant no.1 and the subsequent relinquishment deed dated

21.01.2008 executed by defendant no.2 in favour of defendant no.1, it

transpires that the case of the defendant no.1 stands on a strong footing.

10. Admittedly on 17.9.2007 a power of attorney had been executed

by the plaintiff in favour of defendant no.2 (his sister-in-law). The

relevant extract of the same has been quoted supra. This power of

attorney declares that the plaintiff who is a resident of Germany

appoints and constitutes Baljit Kaur Vongkhattri (defendant no.2) as his

true and lawful legal attorney to submit documents and papers whenever

required in respect of his undivided share in the suit property i.e. D-44,

South Ext.Part-II, New Delhi which has been inherited through the Will

dated 07.5.1993. This power of attorney also authorizes defendant no.2

to release/relinquish the share of the plaintiff in respect of the suit

property.

11. Vehement contention of the learned counsel for the plaintiff on

this count is that this power of attorney refers only to his undivided

share which would be his right and interest on the barsati floor alone, is

negatived by a wholesome reading of the said documents. Both the

documents i.e. the Will and the power of attorney when read as a whole

and in conjunction with one another clearly authorize defendant no.2 to

deal with the share of the plaintiff in the suit property which he had

inherited in terms of the Will of his mother. A scrutiny of this Will

shows that it does not bequeath the property in favour of her two sons

separately as a divided and undivided interest; there is no division of a

divided or an undivided share. It merely states that the ground floor of

the property fell to the share of defendant no.1 and first floor would

fall to the share of the plaintiff and the two garages would devolve

equally to the plaintiff and to the defendant. These portions of the

property were constructed, demarcated and delineated. The barsati floor

had only one room constructed upon it. The Will stipulated that on the

raising of construction by the two brothers on the barsati floor which

would be funded equally by both of them; the barsati floor would then

again devolve upon both of them in equal shares. These two documents

i.e. the power of attorney and the Will when read in concurrence with

one another do not demarcate the property separately as a divided and an

undivided share of the plaintiff. It is a complete property and the

complete interest of the plaintiff which the plaintiff had authorized (vide

power of attorney of dated 17.9.2007) defendant no.2 who had the full

authority to deal with his complete share in this property. It was not

only to submit papers in respect of the transfer of his share in the suit

property but also to release/relinquish it. The word "undivided" does

find mention in para 1 of the power of attorney but by no strech of

imagination can it be restricted only to the share of the plaintiff on the

barsati floor of the suit property.

12. The subsequent document i.e. relinquishment deed of the year

2008 executed by defendant n.2 in favour of defendant no.1 had

reqliquished/released this property i.e. one half share of the plaintiff in

the suit property in favour of defendant no.1. As already noted supra the

plaintiff has not challenged the execution of this relinquishment deed.

His submission is only restricted to the interpretation of the terminology

used in the Will, power of attorney and subsequently in the

relinquishment deed.

13. This Court is of the view that the intent of the plaintiff was to

authorize defendant no.2 to deal with his complete half share in the suit

property and even to relinquish it/release it. The power of attorney is

dated 17.9.2007 and the relinquishment deed followed just three months

thereafter i.e. on 21.01.2008 whereby defendant no.2 relinquished this

half share of the plaintiff in favour of her husband (defendant no.1).

The fact that the plaintiff was a resident of Germany and was living

there since the last several years was probably the reason which has

weighed in his mind to allow his brother (defendant no.1) to enjoy the

property completely.

14. Even as per the case of the plaintiff, he did not care to find out

what happened to the property after the execution of his power of

attorney on 17.9.2007. The plaint speaks of the relinquishment deed

dated 21.01.2008 but it is conspicuously silent as to when the plaintiff

learnt about this relinquishment deed. Plaintiff had given a legal notice

to the defendant in October, 2013. Issuance of legal notice would not by

itself enlarge the period of limitation in favour of the plaintiff. This is

also not his argument. Attention has been drawn to the cause of action

which has been contained in para 13. After 17.9.2007 (the date of the

execution of power of attorney) and 21.01.2008 (the date of execution of

the relinquishment deed) there is no cause of action which has arisen in

favour of the plaintiff except the issuance of the legal notice which has

been mentioned as 31.10.2013.

15. The prayers made in the present plaint are also relevant. They

read as under:

a) Pass a decree of declaration in favour of the plaintiffs and against the defendant no.1, thereby declaring that the plaintiff by virtue of relinquishment deed dated 21.01.2008 absolutely had never relinquished his right, title and interest in favour of defendant no.1 with respect to the plaintiff specifically divided portions i.e. the first floor and one garage in the Annexe portion i.e. the "suit property", and as such he is the absolute

and exclusive owner of the above portions, and is entitled to its physical possession, damages against the defendants for unauthorized use and occupation of the said portion/suit property by them and/or by their tenants, and for getting the defendants injuncted from creating any third party interest, alienating, disposing it of.

b) pass a decree of possession in favour of the plaintiffs and against the defendants jointly and severely thereby directing them to handover the peaceful vacant and physical possession of the entire first floor measuring about 334.29 sq. mtrs., and one garage measuring about 23.25 sq. mtrs, situated at the left hand side garage facing the main entrance, situated at the ground floor in the Annexe portion situated at the annexe portion i.e. the suit property, part and parcel of property bearing no.D-44, situated at South Extension Part-II, New Delhi to the plaintiff.