Vijay Kumar vs Rashmi Skadegaard & Anr.
2018 Latest Caselaw 1229 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 183/2018

%                                                    21st February, 2018

VIJAY KUMAR                                              ..... Appellant
                          Through:       Mr. Anil Sapra, Sr. Adv. with
                                         Ms. Madhu Sweta and Ms.
                                         Kanika Tandon, Advocates.
                          versus
RASHMI SKADEGAARD & ANR.                               ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?         YES

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

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

impugning the judgment of the trial court dated 13.10.2017 by which

the trial court has dismissed the suit for declaration and consequential

relief filed by the appellant/plaintiff against the respondent/defendant.

By the suit the appellant/plaintiff who was the owner of the subject

property being House No. 203, Jor Bagh, New Delhi, and who had

executed a registered Gift Deed of the first floor and barsati of the

property in favour of his sister/respondent no.1/defendant no.1,

contended that though the Gift Deed was executed, but by this Gift

Deed dated 23.11.2001 the appellant/plaintiff had not given

proportionate rights in the land to the respondent no.1/defendant no.1

and therefore the addition of words to the Gift Deed of "proportionate

land underneath" as found in third last line of page 3 of the Gift Deed

since have been illegally added the same should be held as an illegal

interpolation in the Gift Deed. In sum and substance, the

appellant/plaintiff by the suit contended that though he did execute the

Gift Deed in favour of his sister/respondent no.1/defendant no.1 but by

the Gift Deed it was only intended to give the first floor and barsati

floor to the sister/respondent no.1/defendant no.1 and it was not

intended to give the sister/respondent no.1/defendant no.1

proportionate rights in the land.

2. The Gift Deed in this case has been proved as Ex.PW1/2.

Pursuant to the Gift Deed dated 23.11.2001 the respondent

no.1/defendant no.1 has transferred her rights received in the subject

property to the defendant no.2 in the suit i.e respondent no.2 herein.

3. The contention of the respondent no.1/defendant no.1,

who filed the written statement, was that appellant/plaintiff is

incorrectly pleading that there was an interpolation in third last line of

page 3 of the Gift Deed because this addition of the words

"proportionate land underneath" was made in the office and in

presence of the Sub-Registrar and duly attested by the Sub-Registrar.

It was also pleaded that in law whenever a person acquires any floors

or flats in a property then such a person also automatically acquires

proportionate rights in the land on which the floors/flats are situated.

4. After pleadings were complete the following issues were

framed by the trial court:-

"1. Whether the plaintiff is entitled for declaration as prayed for? OPP

2. Whether the plaintiff is entitled for consequential relief consequent to declaration? OPP

3. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP.

4. Whether the suit of the plaintiff is bad for non-joinder of the parties particularly concerned Sub-Registrar? OPD

5. Relief."

5. Evidence was led by the parties and these aspects are

recorded in paras 12 and 13 of the impugned judgment and which read

as under:-

"12. In evidence, plaintiff examined himself as PW1 vide affidavit Ex.PW1/A. PW1 relied upon documents Ex.P1 and Ex.P2 as mentioned above and documents viz., (i) copy of Challan and acknowledgement issued by L&DO dated 22.12.1999 as Ex.PW1/1: (ii) copy of Gift Deed dated 23.11.2001 as Ex.PW1/2; (iii)copy of challan for payment of house

tax dated 08.10.2001, 24.10.2002 and 17.12.2009 as Mark A, Mark B and Mark C respectively. PW1 was cross-examined.

13. Defendant no.1 examined herself as DW-1 vide affidavit Ex.DW1/A. DW1 was cross-examined."

6. The issue which is to be determined by this Court is the

contention of the appellant/plaintiff that the interpolation which is

found in third last line of page 3 of the Gift Deed Ex.PW1/2 whether it

is an illegal interpolation and because it is an illegal interpolation the

same would not give proportionate rights in the land to the respondent

no.1/defendant no.1.

7. Learned senior counsel for the appellant/plaintiff has

placed reliance upon Section 20 of the Registration Act, 1908 with its

two sub-sections to argue that neither the addition of the expression

"proportionate land underneath" bears the signatures of the donor

and the donee i.e appellant/plaintiff and the respondent no.1/defendant

no.1 and that even the Sub-Registrar has not made a note in the

register maintained in the Sub-Registrar's office with respect to such

addition in the third last line of page 3 of the Gift Deed.

8. At the outset, I would like to note that even assuming this

expression "proportionate land underneath" was not found in the

subject Gift Deed, yet whenever a person receives a constructed

property he automatically also gets proportionate rights in the land. It

cannot be said that a person only has a right in the constructed portion

of a building without having any proportionate rights in the land on

which the building is constructed. This is so held by the Supreme

Court in the judgment in the case of T. Lakshmipathi and Others vs.

P. Nithyananda Reddy and Others (2003) 5 SCC 150 . The relevant

paras of this judgment are paras 21 to 24 and which paras read as

under:-

"21. In Woodfall's Laws of Landlord and Tenant (28th Edition, Vol. 1) the relevant law is so stated:-

"Where the lessee covenants to pay rent at stated period (without any exception in case of fire), he is bound to pay it, though the house be burnt down; for the land remains, and he might have provided to the contrary by express stipulation, if both parties had so intended. And this rule applies, although the lessee's covenant to repair contain an exception in case of fire. Similarly, an action for use and occupation still lies in respect of the whole period of the tenancy notwithstanding the destruction of the premises by fire."

"In a lease of land with buildings upon it the destruction of even the entirety of the building; does not affect the continuance of the lease or of the lessee's liabilities under it, unless so provides by express contract."

"A demise must have a subject-matter, either corporeal or incorporeal. If the subject- matter is destroyed entirely, it is submitted that the lease comes automatically to an end, for there is no longer any demise. The mere destruction of a building on land is not total destruction of the subject-matter of a lease of the land and building, so the demise continues. But if by some convulsion of nature the very site ceases to exist, by being swallowed up altogether or buried in the depths of the sea, it seems clear that any lease of the property must come to an end."

22. A lease of a house or of a shop is a lease not only of the superstructure but also of its site. It would be different not only the site but

also the land beneath ceases to exist by an act of nature. In the present case the appellants who are the successor of the tenancy right have demolished the superstructure but the land beneath continues to exist. The entire tenancy premises have not been lost. Moreover, the appellants cannot be permitted to take shelter behind their own act prejudicial to the interest of the respondent No. 1 under whom the respondents No. 2 and 3 were holding as tenants and then inducted the appellants.

23. In D.G. Gouse & Co. (Agents) Pvt. Ltd. v. State of Kerala, while dealing with Entry 49 of List II of the Seventh Schedule of the Constitution, making a reference to Oxford English Dictionary, this Court has held that the site of the building is a component part of the building and therefore inheres in the concept or ordinary meaning of the expression 'building'. Referring to Corporation of the City of Victoria v. Bishop of Vancouver Island, it was held that the word 'building' must receive its natural and ordinary meaning as 'including the fabric of which it is composed, the ground upon which its walls stand and the ground embraced within those walls".

24. We are, therefore, of the opinion that in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of subject matter of demise and the destruction of the building alone does not determine the tenancy when the land which was site of the building continues to exist; more so when the building has been destroyed or demolished neither by the landlord nor by an act of nature but solely by the act of the tenant or the person claiming under him. Ample judicial authority is available in support of this proposition and illustratively we refer to George J. Ovungal v. Peter, Rahim Bux and Ors. v. Mohammad Shafi, Hind Rubber Industries Pvt. Ltd. v. Tayebhai Mohammedbhai Bagasarwalla and Jiwanlal & Co. and Ors. v. Manot & Co. Ltd. The Division Bench decision of Kerala High Court in Dr. V. Sidharthan v. Pattiori Ramadasan, appears to take a view to the contrary. But that was a case where the building was totally destroyed by fire by negligence of the tenant. It is a case which proceeds on very peculiar facts of its own and was rightly dissented from by Bombay High Court in Hind Rubber Industries Pvt. Ltd. v. Tayebhai Mohammedbhai Bagasarwalla and Ors. , (supra)." (underlining added)

9. Therefore on this limited ground itself the suit was in fact

liable to be dismissed even at the stage of pleadings itself what to talk

of a trial having been taken place in the suit.

10. The issue then to be decided and as argued on behalf of

the appellant/plaintiff is that the written words of "proportionate land

underneath" in the third last line of page 3 of the Gift Deed is an

illegal interpolation, and therefore, it cannot be looked into especially

because there is violation of Section 20 of the Registration Act. This

aspect has been dealt with by the trial court rightly in paras 21 to 24 of

the impugned judgment for rejecting the same and these paras read as

under:-

"21. Section 20 of Registration Act, 1908, reads as follows : ¬

20. Documents containing interlineations, blanks, erasures or alterations - (1) The registering officer may in his discretion refuse to accept for registration any document in which any interlineation, blank, erasure or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineation, blank, erasure or alteration.

(2) If the registering officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineation, blank, erasure or alteration.

22. In case of D.R. Rathna Murthy (supra) wherein insertion had been made to convert the absolute sale deed into a conditional sale deed, it had been appreciated that by virtue of Karnataka Act 41 of 1984, sub Section (2) of Section 20 had been deleted w.e.f. 07.11.1986 whereas corresponding provisions in Karnataka Registration Rules, 1965 provided examination of a document by the Registering Officer and made an obligation on his part that if there are unattested interlineations, alterations, erasers or blanks which the Registering Officer considers should be attested, by the signatures of the executant, he shall not alter the document himself in any way. Rule 42 of the Karnataka Registration Rules 1965 embodied that each important interlineation, eraser or alteration occurring in a document shall, whenever possible, be caused to be noted or described at the foot of the document and to be signed by the executant before the document is accepted for registration. Therefore, Rule 42 aforesaid mandatorily required that such interlineation, erasure, alteration etc. must be duly signed by the executant before the document is

accepted for registration. In that fact of the matter, the Apex Court pronouncement had come in D.R. Rathna Murthy case (supra). Herein Sub Section (2) of Section 20 of the Registration Act, 1908 stands not deleted. In Delhi Sub Section (1) of Section 20 of The Registration Act 1908 gives discretion to the Registering Officer whereby he may refuse to accept for registration any document in which any interlineation appear, unless the executors of documents attest it with their signatures or initials. Sub Section (2) of Section 20 of The Registration Act 1908 provides that in case Registering Officer registers any such document containing interlineations, he shall make a note in the register of such interlineations at the time of its registration.

23. True that interlineations "proportionate land underneath" in para 1 of the Gift Deed, copy Ex. PW1/2 does not find signatures and initials of parties to the lis and the documents but fact remains that at portion B to B1 on the Ex. PW1/2, there is note of Sub Registrar with his signature and it reads as follows :

"Valuation report dated 19.11.2001 by Virender Saini & Co., valuer filed. Addition at page 3 last but 3rd line attested by parties". The same endorsement is overleaf the first page of Gift Deed in question.

24. Sub Registrar concerned was cited as a witness in the list of plaintiff witnesses but was not summoned nor was asked to produce any register for making a note of interlineations in Gift Deed in question. Evidence on record depicts that Registering Officer in his discretion accepted for registration document, Gift Deed, copy Ex. PW1/2 containing afore elicited interlineations "proportionate land underneath" in para 1 at Portion A to A1, though said interlineation was neither attested with signatures nor initials of the parties to the lis" .

11. I do not find any substance in the arguments urged on

behalf of the appellant/plaintiff or any illegality in the reasoning and

conclusions of the trial court contained in paras 21 to 24 of the

impugned judgment because no doubt the expression "proportionate

land underneath" written in hand in the third last line of page 3 of the

Gift Deed is not attested by the signatures of the parties however

admittedly in the Gift Deed there is an endorsement which appears at

the back side of page 1 that the addition of the handwritten expression

at page 3 third last line is attested by the parties and this endorsement

is said to bear the signatures of the Sub-Registrar. In my opinion, the

provision of Section 20 of the Registration Act cannot be read so

technically that there can be proper endorsement of an alternation only

if parties sign the same inasmuch as the attestation can also be

evidenced in terms of a statement made before the Sub-Registrar who

registers the document and this was done in the present case where the

endorsement of the Sub-Registrar appears at the back of the first page

of the Gift Deed bearing the expression "addition at page 3 last but

third line attested by the parties". The intent and purport of Section

20 of the Registration Act in my opinion is satisfied by the aforesaid

endorsement of the Sub-Registrar.

12. I may note that though learned senior counsel for the

appellant/plaintiff argues that signatures do not appear of the Sub-

Registrar below the handwritten notation at the back of the first page

of the Gift Deed, however neither the appellant/plaintiff has made any

effort to summon the original Gift Deed from the

respondents/defendants, and which if summoned would have shown

whether or not the Sub-Registrar's signatures do appear at the back of

the first page of the Gift Deed and nor did the appellant/plaintiff make

any effort except once to summon the record of the Sub-Registrar with

respect to the copy of the Gift Deed existing in the Sub-Registrar's

record as to whether the endorsement of the Sub-Registrar at the back

of the first page of the Gift Deed was or was not signed by the Sub-

Registrar. I may note that it is true that appellant/plaintiff did move an

application to summon the Sub-Registrar personally as also the

document with respect to the aspect of endorsement made at the back

of the first page of the Gift Deed, however, this application was made

as late as on 24.8.2017 for the date of hearing fixed on 29.8.2017 and

therefore this prayer was rejected by the trial court. In fact on

29.8.2017 the appellant/plaintiff surprisingly closed his evidence in

affirmative and did not ask for any further opportunity to lead

evidence for summoning of the Sub-Registrar and Sub-Registrar's

record inasmuch as the order dated 25.8.2017 dismissed the

application only because of lack of time between 25.8.2017 when the

application for summoning of Sub-Registrar and Sub-Registrar's

record came up and the next date which was fixed as 29.8.2017. This

order dated 25.8.2017 reads as under:-

"25.08.2017File has been taken up today on an application for summoning of witnesses.

Present: Ms. Kanika Tandon, Ld. Proxy counsel for plaintiff.

Previous date of hearing was 25.04.2017 when matter was fixed for plaintiff evidences for 29.08.2017 by my Ld. Predecessor. This application has been preferred on 24.08.2017 i.e yesterday. The steps have not been taken in time. There is no sufficient time for issuance and service of the process. Prayer for summoning witnesses is declined.

Put up on the date fixed i.e 29.08.2017."

13. Therefore, this Court fails to understand as to why

appellant/plaintiff could not have made a request on 29.8.2017 not to

close the evidence of the appellant/plaintiff and that the

appellant/plaintiff being granted a date for fresh evidence for

summoning of the Sub-Registrar and the Sub-Registrar's record.

Also, admittedly, the appellant/plaintiff has not made any prayer in

this appeal to set aside the order dated 25.8.2017 passed by the trial

court dismissing the application to summon the Sub-Registrar with the

records and which the appellant/plaintiff could have done under

Section 105 CPC.

14. In view of the above, there is no merit in the appeal.

Dismissed.

FEBRUARY 21, 2018/ib                                VALMIKI J. MEHTA, J