Veenakshi Sharma vs Meera Devi Vasudev
2017 Latest Caselaw 3922 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.198/2017

%                                                         4th August, 2017

VEENAKSHI SHARMA                                           ..... Appellant
                          Through:       Mr. A.P.S. Ahluwalia, Senior
                                         Advocate with Mr. S.S. Ahluwalia
                                         & Mr. Jatin Teotia, Advocates.
                          versus

MEERA DEVI VASUDEV                                         ..... Respondent

                 Through:                None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the judgment of the First Appellate Court dated 28.3.2017

whereby the first appellate court has decreed the suit for possession

and mesne profits filed by the respondent/plaintiff. Learned Trial

Court by its judgment dated 8.8.2016 has decreed the suit for

possession, however, it held that possession can be received by the

respondent/plaintiff only if Rs.18 lakhs is paid by the

respondent/plaintiff to the appellant/defendant in discharge of the

debt/liability of the respondent/plaintiff's son. The first appellate court

by its impugned judgment dated 28.3.2017 has deleted the direction

given by the trial court in its judgment of entitlement of the

respondent/plaintiff to receive possession only if payment of Rs.18

lakhs is made by the respondent/plaintiff to the appellant/defendant.

The suit property is an area of 226 sq. ft. in the upper ground floor of

Suneja Tower-1, Plot No.7, District Centre, Janakpuri, New Delhi.

2. The facts of the case are that the respondent/plaintiff filed

the subject suit for possession and mesne profits of the suit property

pleading that she had given the suit property to her son Sh. Sanjay

Vasudev to use the property but Sh. Sanjay Vasudev since could not

run the business, he therefore closed the same and handed over the suit

premises to the respondent/plaintiff on 31.12.2010. The

respondent/plaintiff pleaded that she put her lock upon the suit

property on 31.12.2010 itself. It is further pleaded in the plaint that in

the first week of January 2011, the respondent/plaintiff's son came to

her and requested that since some articles have been left in the shop,

the keys of the shop be handed over to him and which the

respondent/plaintiff did. It is further pleaded in the plaint that the son

of the respondent/plaintiff Sh. Sanjay Vasudev never returned the

keys. It is pleaded that the appellant/defendant since 15.1.2011 claims

possession of the shop but the possession is illegal and unauthorized

and therefore, the suit for possession and mesne profits was prayed to

be decreed.

3. The appellant/defendant contested the suit by pleading

that the respondent/plaintiff's son Sh. Sanjay Vasudev and the

appellant/defendant were good old friends and the

respondent/plaintiff's son approached the appellant/defendant for

financial help. The appellant/defendant pleaded that she agreed to be

a financial help of Rs.18 lakhs subject to possession of the suit shop as

a security. A Memorandum of Understanding (MOU) dated 17.1.2011

is said to be executed by the respondent/plaintiff's son Sh. Sanjay

Vasudev as the attorney of the respondent/plaintiff as also the wife of

the son Smt. Anshu Vasudev with the appellant/defendant. As per this

MOU, a sum of Rs.18 lakhs was paid to Sh. Sanjay Vasudev and his

wife Smt. Anshu Vasudev and if the son of the respondent/plaintiff

wished to claim back possession of the shop, the possession was to be

handed over by the appellant/defendant to them only on amount of

Rs.18 lakhs being paid by Sh. Sanjay Vasudev and his wife to the

appellant/defendant. The suit was, therefore, prayed to be dismissed

without the appellant/defendant being paid a sum of Rs.18 lakhs.

4. After pleadings were completed, the trial court framed the

following issues:-

"ISSUES:

1. Whether the suit of the plaintiff is not maintainable as the plaintiff has no locus-standi to institute the suit on the strength on hand-written, un-registered, un-probated & un-notorized "Will" executed by the husband of the plaintiff? OPD.

2. Whether any memorandum of understanding executed between the son of the plaintiff and the defendant on 17.01.2011? OPD.

3. Whether the plaintiff is entitled for a decree of possession of the suit property? OPP.

4. Whether the plaintiff is entitled for a decree of Rs.30,000/- as mesne profits for the period from 15.01.2011 to 15.04.2011? OPP

5. Whether the plaintiff is entitled for a decree of pendent lite & future mesne profit. If so, for what rate? OPP.

6. Relief."

5. As already stated above, the trial court decreed the suit

subject to payment of Rs.18 lakhs by the respondent/plaintiff to the

appellant/defendant. However, the first appellate court as per its

impugned judgment deleted this condition and has passed a decree for

possession of the suit property along with mesne profits at Rs.10,000/-

per month from 15.1.2011 to 15.4.2011 and also mesne profits

pendente lite and future till possession is received.

6. It is seen that the first appellate court has arrived at the

finding that MOU dated 17.1.2011/Ex. DW1/A, cannot bind the

respondent/plaintiff for two reasons. Firstly, it is held by the first

appellate court that if a MOU creates right in the suit property, then

such a MOU was required to be registered in view of Section 17 of the

Registration Act, 1908 and since it was not the same cannot be looked

into in view of Section 49 of the Registration Act. The second reason

given by the first appellate court is that the son Sh. Sanjay Vasudev

who signed the MOU as the attorney of the respondent/plaintiff has

not been proved to be the attorney of the mother/respondent/plaintiff,

and therefore, the appellant/defendant can take no benefit of the MOU.

It has been observed by the first appellate court, that it is unbelievable

that if the son Sh. Sanjay Vasudev signed the MOU as an attorney of

the mother/respondent/plaintiff, then the appellant/defendant would

not have taken a copy of the power of attorney of the

mother/respondent/plaintiff said to have been executed in favour of

the son Sanjay Vasudev.

7.(i) I may note that admittedly, the MOU dated 17.1.2011 is

between the son and daughter-in-law of the respondent/plaintiff on the

one hand and appellant/defendant on the other hand. In this MOU at

page 2, the son Sh. Sanjay Vasudev is said to be an attorney with

respect to the shop in question. Therefore, once the MOU itself

mentions that son Sh. Sanjay Vasudev was the attorney of the suit

property, then if this was correct, then such an attorney should have

existed, and admittedly the appellant/defendant has failed to prove that

any such power of attorney exists. The first appellate court has rightly

commented that in a commercial transaction it could not be believable

if the MOU stated Sh. Sanjay Vasudev acted as the attorney with

respect to the suit property, then why the appellant/defendant did not

have with her the copy of this alleged attorney by which Sh. Sanjay

Vasudev was made as an attorney with respect to the suit property. I

may also add that MOU dated 17.1.2011 in no manner talks that Sh.

Sanjay Vasudev and his wife are owners of the suit property and Sh.

Sanjay Vasudev is only shown to be an attorney of the suit property,

meaning thereby that Sh. Sanjay Vasudev is admittedly not the owner

of the suit property.

(ii) Once therefore admittedly the respondent/plaintiff is found to

be the owner of the suit property and it is the case of the

appellant/defendant that she had rights under the MOU dated

17.1.2011/Ex. DW1/A, then onus was upon the appellant/defendant to

show that Sh. Sanjay Vasudev was the attorney of the

respondent/plaintiff and in which the appellant/defendant has clearly

failed and has rightly been observed by the first appellate court, as

discussed above.

8. In my opinion, the first appellate court has also rightly

held that since a right is sought to be created by the MOU in favour of

the appellant/defendant, and such right is in excess of Rs.100/-

because the suit property is secured for a sum of Rs.18 lakhs, the

MOU was required to be registered in terms of Section 17 of the

Registration Act, and once it is not registered, therefore the MOU

cannot be looked in terms of Section 49 of the Registration Act.

9. Learned counsel for the appellant/defendant argued that the

son Sh. Sanjay Vasudev should have been made as a party to the suit and

it is also pleaded that the son Sh. Sanjay Vasudev as also his wife Smt.

Anshu Vasudev were necessary parties, however I cannot agree with this

argument because a necessary party is a party without whom the rights in

the suit cannot be decided or as against such a party relief is claimed. In

the present case, the issue turns upon the proof of validity of the MOU

including for the reason that Sh. Sanjay Vasudev has to be proved to be

an attorney of the respondent/plaintiff, and on none of these aspects it is

required that son Sh. Sanjay Vasudev and his wife Smt. Anshu Vasudev

should be defendants in the suit because proof of a fact, viz existence and

validity of the MOU, is a proof of that fact either by a document or by a

witness, and that to prove a fact it is not necessary that witness must

become a party/defendant in a suit. I, therefore, reject the plea that the

suit was bad for non-joinder of necessary parties being the son and

daughter-in-law of the respondent/plaintiff Sh. Sanjay Vasudev and Smt.

Anshu Vasudev respectively.

10. A second appeal under Section 100 CPC lies only if there

arises a substantial question of law. On the admitted terms of the

MOU dated 17.1.2011 the first appellate court was justified in arriving

at a conclusion that no right could be created in favour of the

appellant/defendant not only because son Sh. Sanjay Vasudev has not

proved to be an attorney of the respondent/plaintiff but also that the

MOU cannot be looked into in view of the provisions of Section 17

and 49 of the Registration Act.

11. No substantial question of law arises. Dismissed.

AUGUST 04, 2017                             VALMIKI J. MEHTA, J
srb