Delhi High Court
Tara Sikand Atwal vs Viraj Sikand & Ors on 10 April, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th April, 2019
+ CS(OS) No.444/2018, IAs No.12262/2018 (u/O XXXIX R-1&2
CPC) & 3769/2019 (u/O VI R-17 CPC).
TARA SIKAND ATWAL ..... Plaintiff
Through:Mr. Ravi Gupta, Sr. Adv. with Mr.
Akhil Sachhar, Mr. Sachin Jain, Ms.
Jiya Kapoor & Ms. Sunanda
Tulsyan, Advs.
Versus
VIRAJ SIKAND & ORS. .....Defendants
Through: Mr. Gaurav M. Liberhan & Mr.
Ankit Jain, Advs. for D-1.
Ms. Monisha Handa, Adv. for D-
2&3.
Ms. Cauveri Birbal & Mr. Sohan
Kumar, Advs. for D-5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
The plaintiff has instituted this suit against (a) Viraj Sikand, (b) Smt.
Gita Sikand, (c) Indira Sikand, (d) Vikram Sikand, (e) Sanjay Sikand, for
(i) cancellation of registered Relinquishment Deed dated 6th October, 2015;
(ii) declaration that the Relinquishment Deed dated 6 th October, 2015
executed by defendants no.2 to 5 are not valid and binding on the plaintiff;
(iii) partition of property No.98, Sunder Nagar, New Delhi holding the
plaintiff to be entitled to 40% share therein; and, (iv) permanent injunction
restraining the defendants from alienating, encumbering or otherwise
dealing with the property No.98, Sunder Nagar, New Delhi.
2. The suit came up before this Court first on 12 th September, 2018
when while issuing summons thereof, vide ex parte ad-interim order the
defendants were restrained from dispossessing the plaintiff from property
No.98, Sunder Nagar, New Delhi.
3. Finding that the defendant no.4 Vikram Sikand, in the memo of
parties itself was described as deceased, vide order dated 17 th December,
2018 the defendant no.4 Vikram Sikand was deleted.
4. On 17th December, 2018, on going through the averments in the
plaint, it was also prima facie felt that the suit as framed was not
maintainable and questions as to the maintainability of the suit were raised
and the suit posted to 14th March, 2019 for completion of pleadings and for
hearing on the maintainability of the suit and if found to be maintainable,
for framing of issues if any in suit.
5. The matter could not be heard on 14th March, 2019 and was
adjourned to today. The senior counsel for the plaintiff and the counsel for
the defendant no.1 have been heard.
6. The case of the plaintiff is, that (i) properties No.96 and 98, Sunder
Nagar, New Delhi were owned by the Hindu Undivided Family (HUF) of
which Harnam Dass Sikand was the Karta and the Manager; (ii) vide
preliminary decree for partition dated 26th May, 1976 in Suit No.123/1976
of properties No.96 and 98, Sundar Nagar, New Delhi, the share of (a)
Harnam Dass Sikand was declared as 1/5th; (b) Ashok Sikand, son of
Harnam Dass Sikand was declared as 1/5th; (c) Krishan Sikand, son of
Harnam Dass Sikand was declared as 1/5th; (d) Anil Sikand, son of Harnam
Dass Sikand was declared as 1/5th; and, (e) Prita Sikand, wife of Harnam
Dass Sikand was declared as 1/5th; (ii) Krishan Sikand, son of Harnam Dass
Sikand died intestate on 2nd October, 1982 leaving defendant no.5 Sanjay
Sikand as his natural heir; (iii) Prita Sikand, wife of Harnam Dass Sikand
died intestate on 27th December, 1982; (iv) Ashok Sikand, son of Harnam
Dass Sikand died intestate on 5th October, 1983 leaving behind his widow
Neira Sikand, plaintiff as his daughter and defendant no.1 as his son; Neira
Sikand died intestate leaving plaintiff and defendant no.1 as her heirs; (v)
Anil Sikand, son of Harnam Dass Sikand died intestate on 26th August,
2013 leaving defendant no.2 Gita Sikand as his widow and defendant no.3
Indira Sikand as his daughter as his only natural heirs; (vi) Harnam Dass
Sikand died on 12th March, 2009 leaving behind a Will dated 21st January,
2009 bequeathing his 1/5th share in property No.96, Sunder Nagar, New
Delhi in favour of defendant no.5 Sanjay Sikand and leaving his 1/5th share
in property No.98, Sunder Nagar, New Delhi ―in favour of the defendant‖;
(vii) in terms of Family Settlement concerning share of Prita Sikand wife of
Harnam Dass Sikand in properties No.96 and 98, Sunder Nagar, New Delhi
her 1/5th share in property No.98, Sunder Nager, New Delhi fell to the share
of ―the plaintiff and defendant jointly‖ and her 1/5th share in property
No.98, Sunder Nagar, New Delhi devolved on Krishan Sikand; (viii)
though the plaintiff was married on 12th April, 1993 and residing along with
her husband in her matrimonial home but on the insistence of the mother of
the plaintiff, the plaintiff in the year 1997 along with her husband and
daughter permanently shifted to ―the suit property‖, presumably property
no.98, Sunder Nagar, New Delhi, also being a co-owner thereof; (ix) the
plaintiff along with her husband and daughter have been residing on the
ground floor of the property and the defendant no.1 resides on the first floor
of the property; the plaintiff and the defendant no.1 have a common kitchen
on the ground floor; the barsati floor is lying vacant; (x) the defendant no.1,
being the brother of the plaintiff, in September, 2013 broached the idea of
reconstruction of property No.98, Sunder Nagar, New Delhi where the
branch of Ashok Sikand was residing to the exclusion of the other branches
of the larger family of Harnam Dass Sikand; (xi) the defendant no.1 met
several builders in this context but represented that in the absence of a
comprehensive Family Settlement, the property was owned severally by
three branches of the patriarch Harnam Dass Sikand and for reconstruction
of the property, it was imperative to have a Family Settlement wherein it is
expressly recorded that the property belongs exclusively and solely to the
branch of the family of Ashok Sikand; (xii) it was always the understanding
between the plaintiff, the defendant no.1 and their mother Neira Sikand that
pursuant to reconstruction of the property, one floor of the property shall
devolve exclusively to the share of the plaintiff; (xiii) post the demise of
Neira Sikand, on 23rd November, 2013, the share in property No.98,
Sunder Nagar, New Delhi of (a) plaintiff Tara Sikand Atwal is 1/5th; (b)
defendant no.1 Viraj Sikand is 2/5th; (c) family of Anil Sikand is 1/5th; and,
(d) the family of Krishan Sikand is 1/5th; (xiv) though on the demise of
Neira Sikand, the proposal for reconstruction of the property was shelved
but the defendant no.1 again in September, 2015 approached the plaintiff
and represented that in order to reconstruct the property, it was imperative
to have some arrangement on paper wherein it is expressly recorded that the
property belongs exclusively and solely to the branch of the family of
Ashok Sikand; (xv) the defendant no.1 proposed the concept / idea of
execution of some documents by the plaintiff in his favour to facilitate the
same and represented that he would formally purchase the share of the
plaintiff for an agreed consideration and till such time he purchases the
share of the plaintiff, the plaintiff and her family would continue to be in
possession of the property in her own right; (xvi) thus the concluded
agreement between the plaintiff and the defendant no.1 was that the
defendant no.1 would buy out the share of the plaintiff and the plaintiff
would be adequately compensated for the value of her share in the property;
(xvii) the plaintiff reposed complete faith in her brother defendant no.1 and
agreed to the said proposal; (xviii) the Relinquishment Deed executed by
the plaintiff in favour of defendant no.1 was to enable the defendant no.1 to
facilitate with the builder; otherwise, the plaintiff was to secure a best
market value of her share in the suit property; (xix) this arrangement was
entered into between the plaintiff and the defendant no.1 with the express
understanding that defendant no.1 shall remit consideration of a sum as
agreed inter se the parties and the same was in any case to be equivalent to
the value of at least one floor in the property which is commensurate to the
size and situs of the property; (xx) in the backdrop of this understanding,
the family members of late Krishan Sikand and Late Anil Sikand, in order
to arrive at an amicable settlement, met the plaintiff and the defendant no.1
in the month of September, 2015; (xxi) accordingly, the branches of the
families of Late Krishan Sikand, Late Ashok Sikand and Late Anil Sikand
executed contemporaneous Relinquishment Deeds dated 6 th October, 2015
wherunder the members of each branch relinquished their respective share
with the understanding that (A) other properties jointly held viz. 8,
Kasturba Gandhi Marg, New Delhi and 7, Barakhamba Road, New Delhi
would vest solely in the branch of the family of Anil Sikand represented by
defendants no.2 and 3; (B) property No.96, Sunder Nagar, New Delhi shall
vest solely and exclusively in the branch of the family of Krishan Sikand
represented by defendant no.5; and, (C) property No.98, Sunder Nagar,
New Delhi shall vest solely and exclusively in the branch of the family of
Ashok Sikand comprising of plaintiff and defendant no.1; (xii) after the
execution and registration of the Relinquishment Deed, though for
sometime the behaviour of defendant no.1 to the plaintiff was friendly and
affable and the defendant no.1 kept on assuring the plaintiff that the
Relinquishment Deed executed by the plaintiff was a mere paper document
and that he would remit to the plaintiff adequate consideration to enable her
to purchase an alternate accommodation of the same repute but in August,
2017, there was a change in behaviour of the defendant no.1 towards the
plaintiff and the defendant no.1 started claiming to be the sole owner of
property No.98, Sunder Nagar, New Delhi; finally in December, 2017, the
defendant no.1 also questioned the right of the plaintiff to continue residing
in the property; (xxiii) when the plaintiff sought to remind the defendant
no.1 of the concluded understanding between the plaintiff and defendant
no.1, of him remitting consideration towards purchase of an alternative
residential accommodation of the same repute, the same was completely
denied by the defendant no.1; (xxiv) it seems the intent of the defendant
no.1 right from the inception of the understanding was to fraudulently
induce the plaintiff to relinquish her share in the property; (xxv) the
defendant no.1 in August, 2018 alleged that the plaintiff had no right to
continue residing in the property and called upon the plaintiff to vacate the
property; (xxvi) due to the dishonest acts of defendant no.1, the
Relinquishment Deed executed by the plaintiff is void at the option of the
plaintiff and the plaintiff has reasonable apprehension that the same, if left
outstanding may cause serious injury to the plaintiff; (xxvii) the
Relinquishment Deeds executed by defendants no.2,3 and 5 relinquishing
their share in property No.98, Sunder Nagar, New Delhi exclusively in
favour of the defendant no.1 were also pursuant to the holistic Family
Settlement and on the understanding that the defendant no.1 shall remit
adequate consideration to the plaintiff and since the defendant no.1 is
reneging from the said understanding, the Relinquishment Deeds executed
by defendants no.2,3 and 5 of their share in property No.98, Sunder Nagar,
New Delhi in favour of defendant no.1 are also not binding on the plaintiff;
and, (xxvii) in any event the Relinquishment Deed dated 6th October, 2015
does not specifically relinquish the 4/90th share inherited by the plaintiff
from Neira Sikand; thus even if Relinquishment Deed dated 6th October,
2015 is valid, the plaintiff in any case has a 4/90th in the property.
7. During the hearing on 17th December, 2018, it was enquired from the
counsel for the plaintiff, whether not the claim of the plaintiff in the suit
was contrary to the registered document and if so how, was it sustainable.
Doubt was also expressed that the ground pleaded, of the plaintiff having
executed the Relinquishment Deed on the understanding that she will be
paid some money and it had not been paid, constitutes a ground for setting
aside of a registered document. It was further enquired as to what was the
locus of the plaintiff to seek setting aside of the Relinquishment Deeds
executed by defendants no.2,3 and 5 in favour of defendant no.1. The basis
of valuation of the suit for the purpose of court fees and jurisdiction and of
the court fees paid was also enquired.
8. The senior counsel for the plaintiff has today contended, that (i) ―the
plaintiff is not challenging any term of registered document‖ i.e. the
Relinquishment Deed executed by the plaintiff of her share in property
No.98, Sunder Nagar, New Delhi in favour of defendant no.1; (ii) it is the
case of the plaintiff that there was a separate agreement of the plaintiff with
the defendant no.1 whereunder the defendant no.1 had agreed to pay money
equivalent of the value of one of the floors of the reconstructed / re-
developed property; (iii) the plaintiff has been residing in the property since
1997 and save for the Family Settlement aforesaid there was no other
reason for the plaintiff to relinquish her share in the property in favour of
defendant no.1; (iv) Section 92 of the Evidence Act, 1872 does not come in
the way of the plaintiff; the case of the plaintiff is covered by proviso 3
thereto which provides that ―existence of any separate oral agreement,
constituting a condition precedent to the attaching of any obligation under
any such contract, grant or disposition of property, may be proved‖; and,
(v) the suit can thus be not dismissed at the threshold as not maintainable
and an opportunity has to be given to the plaintiff to prove such separate
oral agreement constituting a condition precedent to any obligation of the
plaintiff under the Relinquishment Deed executed by the plaintiff.
9. The counsel for the defendant no.1 has argued that the plaintiff being
a signatory to the Relinquishment Deed has to pay ad-valorem court fees on
the value of the share relinquished and the suit valued for the purpose of
jurisdiction at Rs.30 crores with court fees only of Rs.20/- suffers from
deficiency of court fees and the plaintiff is liable to make good the
deficiency in court fees and pay ad-valorem court fees on Rs.30 crores. It is
also argued that the suit is not maintainable and is liable to be dismissed at
the threshold in terms of Aditya Prasad Dube Vs. Shobha Dube 2018 (169)
DRJ 52.
10. The counsel for the defendants no.2 and 3 states that the defendants
no.2 and 3 are supporting the plaintiff. However, on enquiry whether they
have made any counterclaim or claim otherwise for cancellation of the
Relinquishment Deeds executed by them in favour of defendant no.1, the
counsel for the defendants no.2 and 3 states that the defendants no.2 and 3
though supporting the plaintiff are not seeking setting aside of the
Relinquishment Deeds executed by them in favour of defendant no.1 and
are also not pleading that the defendant no.1 was liable to pay any monies
to the defendants no.2 and 3. It is stated that the support to the plaintiff is
only to the extent of the agreement pleaded by the plaintiff whereunder the
defendant no.1 had agreed to pay money to the plaintiff.
11. The counsel for the defendant no.5 states that the plaintiff cannot in
her suit seek setting aside of the Relinquishment Deed executed by the
defendant no.5 in favour of defendant no.1. It is stated that the parties are
bound by the registered documents executed by them.
12. I have enquired from the senior counsel for the plaintiff, whether not
the Relinquishment Deed admittedly executed by the plaintiff in favour of
defendant no.1 relinquishing the plaintiff's share in property No.98, Sunder
Nagar, New Delhi in favour of the defendant no.1, is in consideration of
love and affection for the defendant no.1.
13. The senior counsel for the plaintiff states that the Relinquishment
Deed nowhere mentions the same to have been executed in consideration of
love and affection of the plaintiff for the defendant no.1.
14. I have next enquired from the senior counsel for the plaintiff that if
not love and affection what is the consideration for the Relinquishment
Deed.
15. The senior counsel for the plaintiff states that no consideration is set
out and it is for this reason only that the plaintiff is entitled to plead and
prove a separate agreement and to which the bar of Section 92 of the
Evidence Act does not apply.
16. The counsel for the defendant no.1 points out that on page no.1 of the
Relinquishment Deed, also bearing the signatures and photograph of the
plaintiff, against the column ―Consideration Price (Rs.)‖ on the e-stamp
paper of the Relinquishment Deed, ―0 (Zero)‖ is written.
17. I have further enquired from the senior counsel for the plaintiff,
whether not a Relinquishment Deed on a stamp paper of Rs.100/-, as on
which subject Relinquishment Deed is engrossed, is permissible in law only
when executed in consideration of natural love and affection in favour of a
sibling or a parent and else if transfer for consideration is affected of a share
in the property, even if in favour of a sibling or a parent, the stamp duty as
per the consideration set out or as per the valuation of the property
transferred / sold as per the prescribed circle rates in Delhi has to be paid
and such document generally has the nomenclature of a Transfer Deed or a
Sale Deed and not the nomenclature of a Relinquishment Deed.
18. The senior counsel for the plaintiff agrees.
19. I have further enquired from the senior counsel for the plaintiff that if
it is the case of the plaintiff, as has been argued, that the plaintiff is ―not
challenging any term of the registered document‖ and that the plaintiff is
pleading a separate agreement with the defendant no.1 of payment of
money equivalent to value of one floor of the re-constructed / re-developed
property, by the defendant no.1 to the plaintiff, why has the plaintiff sued
for cancellation of the Relinquishment Deed and whether not the remedy of
the plaintiff for such a relief is to seek specific performance of the
Agreement pleaded and / or seek recovery of the money due from the
defendant no.1 to the plaintiff.
20. The senior counsel for the plaintiff states that the ―plaintiff is unable
to do so as the Relinquishment Deed executed by the plaintiff will come in
the way of the plaintiff in such a suit‖.
21. That lets the cat out of the bag. Once the plaintiff admits that the
registered document will come in the way of the plaintiff enforcing the
separate agreement pleaded, it necessarily follows that the plaintiff is
pleading oral agreement contradicting, varying, adding to or subtracting
from the terms of the registered documents and which is barred by Section
92 of the Evidence Act and the proviso (3) thereto has no application.
22. The senior counsel for the plaintiff has referred to Gangabai Vs.
Chhabubai (1982) 1 SCC 4, particularly to para 11 thereof, laying down
that the bar imposed by Section 92 (1) applies only when a party seeks to
rely upon a document embodying the terms of the transaction; in that event,
the law declares that the nature and intent of the transaction must be
gathered from the terms of the document itself and no evidence of any oral
agreement or statement can be admitted as between the parties to such
document for the purpose of contradicting or modifying its terms; however
the said provision is not attracted when the case of the party is that the
transaction recorded in the document was never intended to be acted upon
at all between the parties and that the document is a sham - such a question
arises when the party asserts that there was a different transaction
altogether, and what is recorded in the document was intended to be of no
consequence whatsoever - for that purpose oral evidence is admissible to
show that the document executed was never intended to operate as an
agreement but that some other agreement altogether not recorded in the
document, was entered into between the parties. It is stated that the said
judgment was followed recently in Sparsh Builders Pvt. Ltd. Vs.
Maharishi Ayurveda Products Pvt. Ltd. 206 (2014) DLT 63 and appeal
whereagainst was dismissed by the Division Bench of this Court in
Maharishi Ayurveda Products Pvt. Ltd. Vs. Sparsh Builders Pvt. Ltd.
2016 SCC OnLine Del 1383.
23. I have enquired from the senior counsel for the plaintiff, whether not
the present suit is not maintainable in terms of Karan Madaan Vs.
Nageshwar Pandey 2014 SCC OnLine Del 1277, appeal whereagainst was
dismissed by the Division Bench of this Court in Nageshwar Pandey Vs.
Karan Madaan MANU/DE/0312/2016.
24. The senior counsel for the plaintiff states that Karan Madaan supra
does not notice Gangabai supra and thus notwithstanding Karan Madaan,
Ganga Bai would bind this Bench. It is also contended that in Karan
Madaan no separate agreement within the meaning of proviso (3) supra
was pleaded.
25. It is apposite to set out hereinbelow Sections 91 and 92 of the
Evidence Act:
"91. Evidence of terms of contracts, grants and other dispositions of
property reduced to form of document
When the terms of a contract, or of a grant, or of any other disposition of
property, have been reduced to the form of a document, and in all cases
in which any matter is required by law to be reduced to the form of a
document, no evidence shall be given in proof of the terms of such
contract, grant or other disposition of property, or of such matter, except
the document itself, or secondary evidence of its contents in cases in
which secondary evidence is admissible under the provisions
hereinbefore contained.
Exception 1. - When a public officer is required by law to be appointed
in writing, and when it is shown that any particular person has acted as
such officer, the writing by which he is appointed need not be proved.
Exception 2. - Wills admitted to probate in India may be proved by the
probate.
Explanation 1- This section applies equally to cases in which the
contracts, grants or dispositions of property referred to are contained in
one document and to cases in which they are contained in more
documents than one.
Explanation 2--Where there are more originals than one, one original
only need be proved.
Explanation 3. - The statement, in any document whatever, of a fact
other then the facts referred to in this section, shall, not preclude the
admission of oral evidence as to the same fact.
92. Exclusion of evidence of oral agreement
When the terms of any such contract, grant or other disposition of
property, or any matter required by law to be reduced to the form of a
document have been proved according to the last section, no evidence of
any oral agreement of statement shall be admitted, as between the parties
to any such instrument or their representatives in interest, for purpose of
contradicting, varying, adding to, or subtracting from, its terms;
Proviso (1) - Any fact may be proved which would invalidate any
document, or which would entitle any person to any decree or order
relating thereto; such as fraud, intimidation, illegality, want of due
execution, want of capacity in any contracting party, [want or failure] of
consideration, or mistake in fact or law.
Proviso (2) - The existence of any separate oral agreement as to any
matter on which a document is silent, and which is not inconsistent with
its terms, may be proved. In considering whether or not this proviso
applies, the Court shall have regard to the degree of formality of the
document.
Proviso (3). - The existence of any separate oral agreement, constituting
a condition precedent to the attaching of any obligation under any such
contract, grant or disposition of property, may be proved.
Proviso (4). - The existence of any distinct subsequent oral agreement to
rescind or modify any such contract, grant or disposition of property,
may be proved, except in cases in which such contract, grant or
disposition of property is by law required to be in writing, or has been
registered according to the law in force for the time being as to the
registration of documents.
Proviso (5) - Any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that
description, may be proved. Provided that the annexing of such incident
would not be repugnant to, or inconsistent with the express terms of the
contract.
Proviso (6).--Any fact may be proved which shows in what manner the
language of a document is related to existing facts.‖
26. I have in Aditya Prasad Dube supra (SLP(C) No.996/2018 preferred
whereagainst was dismissed on 4th July, 2018) referred to
Ranganayakamma Vs. K.S. Prakash (2008) 15 SCC 673 reiterating that
renunciation, in the Indian context, may be for consideration or may not be
for consideration; property can be transferred without consideration--such
transfer is a gift; a registered instrument releasing the right, title and interest
of releasor without consideration operates as a transfer by way of a gift if
the document clearly shows an intention to effect the transfer and is signed
by or on behalf of the releasor and attested by at least two witnesses. It was
also held that when a property is owned by two parties or co-owners, the
releasee has already an undivided share in the property and what the
releasor purports to do by the document is to effect himself, in respect of
both his title and his right to possession in favour of the releasee. It was yet
further reiterated that love and affection is also a consideration within the
meaning of Sections 122 and 123 of the Transfer of Property Act, 1882.
27. This Court in Karan Madaan supra was concerned with an
application under Order VII Rule 11 of the CPC for rejection of a
counterclaim (for cancellation of sale deed) in a suit (for recovery of
possession) of immovable property, registered sale deed with respect
whereto had been executed by the defendant/counterclaimant in favour of
the plaintiff and which sale deed recorded possession having been
delivered. It was the case of the defendant / counterclaimant that possession
had not been delivered because the intention was not to transfer the
property by way of sale deed. It was held, that (i) the defendant /
counterclaimant having admitted that he was executing the sale deed, it was
not open to the defendant / counterclaimant to claim that the instrument of
sale was hit by fraud because according to the defendant / counterclaimant
the intent of the parties was to create a security for the loan granted; (ii) the
spirit and purpose of enacting Sections 91 and 92 of the Evidence Act is to
render the written contract, grant or other disposition, the sole repository of
the terms contained therein; (iii) if the intention of the parties was, as is
claimed by the defendant/counterclaimant, then that intention/objective/
purpose should have been so spelled out in the instrument; (iv) to permit a
party to plead contrary to the terms of a sale deed to which he is a party,
would be to put premium on dishonesty; (v) the terms of a contract reduced
to writing cannot be ascertained by allowing parole evidence as to what
transpired antecedent to the contract or what the parties did subsequent to
the contract; once the contract between the parties is reduced to writing, the
court can only look at the writing alone in order to construe what the terms
of the contract are; (vi) the terms of a registered document can be altered,
rescinded or varied only by subsequent registered document and not
otherwise; (vii) if the oral arrangement is allowed to be substantiated by
parole evidence it would mean re-writing of the registered document which
is not permissible; and, (viii) once there is an admission of execution of sale
deed, the defence which is barred by Sections 91 and 92 of the Evidence
Act has to be ignored. Resultantly, the counterclaim was rejected.
28. Similarly in Jai Bhagwan Vs. Rajesh 2008 Indlaw Del 419 also, the
suit seeking cancellation of registered sale deeds executed in favour of the
defendants on the plea that the entire sale consideration was not received
and the sale deed was got executed for more land than intended to be
conveyed by taking advantage of the illiteracy of the plaintiff therein, was
summarily dismissed. It was further added that a bare allegation that the
plaintiff had not received the full consideration or that the plaintiff had
signed the document without reading the contents thereof is not a ground
for cancellation; if the plaintiff chooses not to read the document, he does
so at his own peril.
29. To the same effect is Phoolwati Vs. Ram Dei (2008) 150 DLT 105
where the plea of the plaintiff for seeking declaration of the sale deed as
null and void because the intention was to create a mortgage was held to be
barred. Recently, Om Prakash Vs. IOCL Officers Welfare Society
MANU/DE/0232/2019, a suit for recovery of balance sale consideration
under a sale deed, when sale deed recorded that the entire agreed sale
consideration had been paid, was summarily rejected, again discussing the
law on the said aspect in detail.
30. I am afraid, the claim of the plaintiff in the present suit is in the teeth
of the said judgments.
31. I may also state that the proviso to Section 92 of the Evidence Act
which is sought to be invoked is of 1872 vintage i.e. nearly 150 years old,
of an era when most of the population of India lived in rural areas and did
not have the benefit of literacy, and most importantly when practices as of
benami were peculiar to India and when even the practicing advocates in
the Courts in India were not considered to be well versed in drafting
pleadings and benefit thereof was given by the British Courts and the
British Judges. The said law, though remains on a statute book, in today's
day and age has to be applied contemporaneously and appropriately and not
by blindly following the words thereof, made in the context of the then
prevailing conditions and circumstances. The plaintiff here claims to have
studied in Modern School, New Delhi and further pleads the reason for
wanting to reside in the property, to be able to have her daughter admitted
in the same school. To say the least, the plaintiff is educated and well
aware and the law made for the cases of illiterates and novices, cannot be
blindly pasted on to the plaintiff.
32. The plaintiff here also admits to having agreed to execute
Relinquishment Deed of her share in favour of her brother defendant no.1
and while so relinquishing her share in the property in favour of her bother
defendant no.1 did not provide / record the consideration which her brother
defendant no.1 had agreed to pay to her and for which she was so
relinquishing her share. Rather, from the nature of the document executed
by the plaintiff, which could have been executed only when there was no
consideration for such relinquishment except natural love and affection and
from the factum of the plaintiff on the document mentioning the
consideration as ‗0 (Zero)', the plaintiff was fully aware that she was not to
receive any consideration for so relinquishing her share. The plaintiff
admits such relinquishment to be part of a Family Settlement and
whereunder not only the plaintiff but the other defendants also similarly
relinquished / released their share in the subject property in favour of the
defendant no.1. In fact, the plaintiff in this suit is seeking setting aside not
only of Relinquishment Deed executed by her in favour of defendant no.1
but also the Relinquishment Deeds executed by other defendants in favour
of defendant no.1. However, though the plaintiff pleads that in accordance
with the said Family Settlement other properties viz. 8, Kasturba Gandhi
Marg, New Delhi, 7, Barakhamba Road, New Delhi and 96, Sunder Nagar,
New Delhi fell to the exclusive share of the other defendants and in
implementation whereof the plaintiff as well as the defendant no.1 must
have executed Relinquishment Deeds of their respective shares in the said
properties in favour of the other defendants but the plaintiff is not seeking
the setting aside of the said Relinquishment Deeds, not even of the
Relinquishment Deed executed by her of her share in the said other
properties. The only inference is that the plaintiff is selectively reneging
from only some parts of the Family Settlement and not from the other parts
of the Family Settlement. The plaintiff, by seeking cancellation of
Relinquishment Deeds executed by the other defendants in favour of
defendant no.1, is claiming to have 40% share in the property, without
reciprocally seeking cancellation of Relinquishment Deeds executed by her
and by the defendant no.1 with respect to their respective shares in the other
properties.
33. The plaintiff, though has pleaded the Family Settlement but not filed
the document if any recording the Family Settlement along with her
documents. However, the defendant no.1 along with his Counter Claim has
filed the Memorandum of Partition of September, 2015 executed by all the
parties to the suit containing the same Family Settlement as pleaded by the
plaintiff. The said Memorandum of Partition with respect to all the
properties aforesaid also unequivocally records that defendant no.1 would
become the owner of property No.98, Sunder Nagar, New Delhi upon
giving up of shares therein by the defendants as well as the plaintiff herein.
The plaintiff has neither denied her signatures on the said Memorandum of
Partition nor sought setting aside thereof or challenged the same in any
manner whatsoever. For this reason alone, the suit is liable to be dismissed.
Rather, the plaintiff is guilty of concealment of the said document.
34. Family Settlement admittedly pleaded by the plaintiff, has been given
a special status under the Indian law and such settlement, even if not arrived
at and implemented following the technicalities of law, is not permitted to
be disturbed / challenged, with a view to preserve harmony and peace of the
family which has been accorded a special status in the Indian culture and
preservation of which is found to be essential for maintaining the fabric of
the society. For this reason also, it is felt that the Family Settlement
admittedly arrived at between the members of the larger family of Harnam
Dass Sikand should not be permitted to be disturbed on such specious pleas
which would put not only the said property but also properties bearing
No.96, Sunder Nagar, New Delhi, 8, Kasturba Gandhi Marg, New Delhi
and 7, Barakhamba Road, New Delhi into dispute and which properties
may also have been dealt with in the last nearly four years and third party
rights wherein may have been created in favour of bona fide unsuspecting
people.
35. The Relinquishment Deed executed by the plaintiff and cancellation
whereof the plaintiff is now seeking is an executed contract and not an
executory contract whereunder the plaintiff ―relinquished, gave up,
abandoned, surrendered and waived all her rights, titles, interests or claims
(half of 1/5th share) in property No.98, Sunder Nagar, New Delhi in favour
of defendant no.1‖. The plaintiff therein also declared that ―hereafter she
will be left with no right, title, interest or claims in the above said property
bearing No.98, Sunder Nagar, New Delhi in any manner whatsoever and he
/ she / they disclaim all his / their rights or title to the same in any manner
whatsoever.‖ At the moment of the registration of the said Relinquishment
Deed, the plaintiff ceased to have any right in the property and no
obligation to be performed by the plaintiff under the said Relinquishment
Deed remained to be performed and which the plaintiff can refuse to
perform claiming that a condition precedent for performance whereof
agreed by the plaintiff with the defendant no.1 has not been performed.
36. As far as reliance by the senior counsel for the plaintiff on Gangabai
supra is concerned, the case of the plaintiff therein was that though she had
executed a sale deed of her property in favour of the defendant and
executed a rent agreement taking the said property on rent from the
defendant and was paying rent to the defendant but the real transaction
between of parties was of a loan and a sham of sale deed and rent
agreement was created to secure the repayment of loan by the plaintiff to
the defendant and to disguise payment of interest as rent. Supreme Court
held the said plea to be not barred by Section 92 of the Act. However, that
is not the position here. It is not the case of the plaintiff that the
Relinquishment Deed was a sham for any other transaction between the
plaintiff and the defendant no.1. I have, in Satyendra Jain Vs. Omway
Buildestate Pvt. Ltd. (2013) 199 DLT 710, held that the law permits a plea
of a transaction being a sham one being taken but for such a plea to be
taken,the circumstances in which the person pleading the transaction to be a
sham was made to succumb thereto and the reasons for creating a
camouflage have be pleaded. Though the said judgement was reversed vide
order dated 10th July, 2013, in FAO(OS) No. 254/2013 preferred
thereagainst, but on consent of the parties and on the defendant therein
furnishing bank guarantee for 50% of the suit amount and depositing
balance 50% of the suit amount in the Court as a condition for grant of
leave to defend.
37. The plaintiff admits that the property is to exclusively vest in the
defendant no.1 and in support of which plea the senior counsel for the
plaintiff has argued that he is ―not challenging any term of the registered
Relinquishment Deed‖. The case of the plaintiff is that the defendant no.1
had agreed to, after re-development of the property, pay the value
equivalent to that of one floor of the property to the plaintiff. The same
does not amount to creating a sham document to disguise another
transaction between the parties. Moreover, though in Gangabai supra the
Court found reasons to secure the repayment of the loan and payment of
interest through a sham document, the only reason given by the plaintiff
here is, for the purpose of re-developing the property. However such re-
development, as the senior counsel for the plaintiff also agrees, could have
been carried out by obtaining release of share of other defendants in
property No.98, Sunder Nagar, New Delhi besides in favour of defendant
no.1 also in favour of the plaintiff and by the plaintiff and the defendant
no.1 jointly taking steps for re-development of the property including of
entering into an agreement with a builder. Thus, the plaintiff has not
pleaded a case of the need to create a sham document or the reason therefor.
38. It has been held in Sunrise Construction Vs. Veena Wahi 2009
(111) DRJ 710 that proviso (2) to Section 92 does not apply where the
separate oral agreement is on the same matter on which the agreement in
writing is and where the separate oral agreement is contradictory to and
inconsistent with the agreement in writing. Here, the separate oral
agreement pleaded, of payment of consideration by defendant no.1 to
plaintiff for relinquishment by plaintiff of her share in the property in
favour of defendant no.1 is contradictory of and inconsistent with the
consideration for relinquishment shown as ―Zero‖ in the Relinquishment
Deed.
39. I may also mention that Karan Madan supra takes notice of Roop
Kumar Vs. Mohan Thedani (2003) 6 SCC 595 and sets out passages
thereof referring to Gangabai supra. It thus cannot be said that Karan
Madan is in ignorance of Gangabai or is not to be followed for this reason.
In fact, mention is found in Karan Madan of Sparsh Builders Pvt. Ltd.
supra also.
40. Thus, I hold the cause of action for the suit to be on a pleading which
the plaintiff is barred from proving and the suit claim is thus barred by law.
41. As far as the contention of the senior counsel for the plaintiff, of the
plaintiff in any case having 4/90th share in the property, inherited from her
mother Neira Sikand, is concerned, the same is also contrary to the terms of
the registered Relinquishment Deed and the pleaded case of the plaintiff.
The plaintiff, vide the Relinquishment Deed admittedly executed by her
―relinquished, gave up, abandoned, surrendered and waived all her rights,
titles, interests or claims‖ in the property in favour of the defendant no.1
and declared that she was left with ―no right, title, interest or claim in the
property in any manner whatsoever and disclaimed all her rights and titles
to the property in any manner whatsoever‖. Use of such language would
also include the share inherited by the plaintiff from her mother. It is not as
if the mother of the plaintiff has died after the date of execution of the
Relinquishment Deed for the plaintiff to contend that she could not have
relinquished the share which till then had not vested in her. The mother of
the plaintiff had admittedly died prior to the date of execution of the
Relinquishment Deed and the plaintiff, by use of such language has
relinquished the share inherited from the mother Neira Sikand also, even
though in the recitals to the Relinquishment Deed the same has not been
mentioned. However, the recitals in a Relinquishment Deed do not affect
the operative part i.e. habendum of the document and it is the words used in
the operative part / habendum of the document which prevail over the
recitals. The operative part / habendum of a deed cannot be controlled, cut
down or qualified by a recital if the operative words are clear and
unambiguous. Reference, if any required, in this regard may be made to i)
Dharmshi D. Bhanushali Vs. Municipal Corporation of Greater Bombai
MANU/MH/3431/2018, ii) Bharti Televentures Ltd. Vs. Crystal
Technology Pvt. Ltd. 2011 SCC OnLine Del 4906 (DB) [SLP(C)
No.2987/2012 preferred whereagainst is pending in the Supreme Court as
of this date], iii) Commercial Auto Sales (P) Ltd. Vs. Auto Sales
MANU/UP/2393/2010, iv) Muslim Educational Society Vs. K.A. Paryayi
AIR 1987 Ker 80 (DB), v) Bankidas Moolraj & Co. Vs. The State of
Rajasthan MANU/RH/0100/1967 (DB), vi) Beli Ram & Brothers Vs.
Chaudri Mohammed Afzal AIR 1948 PC 168, vii) Bhanu Lal Chaudhari
Vs. W.A. Vincent AIR 1922 Pat 619 (FB), and, viii) T. Hussain Vs. Chin
Chong (1925) ILR 3 RANG 53 (DB).
42. I am also of the view that the plaintiff has no locus to seek setting
aside of the Relinquishment Deeds executed by the other defendants in
favour of the defendant no.1 and to which the plaintiff is not a party. The
plaintiff has not pleaded and the senior counsel for the plaintiff has not even
made any argument in this respect. A third party to a document is not
entitled to seek cancellation thereof without pleading any prejudice from
the said document. While under Section 31 of the Specific Relief Act, 1963
any party against who a written instrument is void or voidable is entitled to
seek cancellation thereof, it is essential for the party to establish an
apprehension of serious injury being caused if the written instrument is left
standing, in order to claim relief therein. Reference in this regard may be
made to i) Jika Dula Vs. Bai Jivi AIR 1938 Bom 37, ii) Debi Prasad Vs.
Malika AIR 1972 All 376, and, iii) Yanala Malleshwari Vs. Anathula
Sayamma AIR 2007 AP 57 (FB).
43. Query on 17th December, 2018 as to the maintainability of the suit
was also ma,de with respect to valuation of the suit and court fees paid
thereon. Para 12 of the plaint in this respect is as under:
―12. That for the purpose of Court Fees and Jurisdiction, the value of the
property is only tentatively assessed at Rs.30 crores. The Plaintiff is in
joint, actual and constructive possession of the suit property and has
accordingly affixed fixed court fee of Rs.20/-. The Plaintiff submits that the
value of the Suit for the purpose of relief of cancellation is an amount of
Rs.200 on which a fixed court fee of Rs.20/- is affixed. The Plaintiff
submits that the value of the Suit for the purpose of relief of declaration is
an amount of Rs.200 on which a fixed court fee of Rs.20/- is affixed. The
value of the suit for the purposes of seeking the relief of Permanent
Injunction is valued at Rs.130/- on which a fixed court fee of Rs.13/- is
affixed. The Plaintiff undertakes to pay any additional fee as she may be
directed to pay upon the final adjudication of the present suit.‖
44. The only argument of the senior counsel for the plaintiff with respect
to valuation and court fees is that the document, setting aside of which is
sought, is of no value so no court fees could be paid thereon.
45. However a perusal of para 12 of the plaint set out hereinabove would
show that the plaintiff has invoked the pecuniary jurisdiction of this Court
by valuing the suit for the purpose of partition at Rs.30 crores and paying
fixed court fees of Rs.20/- thereon by claiming to be in joint and
constructive possession of the property. However, the plaintiff in the face
of the Relinquishment Deed has no share in the property to have any locus
to claim partition thereof. The relief claimed of partition is consequential to
the relief claimed of cancellation of the Relinquishment Deed and which if
were to be permitted to be cancelled and upon cancellation whereof if
permitted, the plaintiff would have had a share in the property to entitle the
plaintiff to claim partition of the property. The relief of partition being
consequential to the relief of cancellation, this Court if not having
pecuniary jurisdiction to entertain the suit for cancellation of the
Relinquishment Deed, would not have jurisdiction to entertain the suit on
account of the relief of partition. The relief of cancellation has been valued
at Rs.200/- only and which is below the minimum pecuniary jurisdiction of
this Court.
46. In view of the aforesaid, need to go into the aspect of valuation of the
suit for court fees and jurisdiction and court fee payable on the reliefs
claimed in the suit is not felt.
47. The defendant no.1, along with his written statement is found to have
filed a counterclaim for mandatory injunction directing the plaintiff to
vacate the portion of the property in her possession and for permanent
injunction restraining the plaintiff from dealing with the property.
However, neither the said counterclaim has been numbered till now nor
notice thereof has been issued.
48. Though a counterclaim, notwithstanding the dismissal of the suit, has
to be proceeded with but the defendant no.1 is found to have valued the
counterclaim for the reliefs of mandatory and permanent injunction at
Rs.130/- i.e. below the minimum pecuniary jurisdiction of this Court. I
have thus enquired from the counsel for the defendant no.1 /
counterclaimant whether the defendant no.1 counterclaimant is willing to
value the counterclaim appropriately.
49. The counsel for the defendant no.1 states that in view of the dismissal
of the suit, the defendant no.1 does not press the counterclaim, with liberty
to separately sue the plaintiff for the reliefs claimed in the counterclaim and
/ or reliefs to which the defendant no.1 may be entitled to against the
plaintiff.
50. The counterclaim is disposed of as not pressed with liberty as
claimed.
51. The suit is dismissed as not maintainable.
52. I refrain from imposing costs on the plaintiff in the hope that the
good sense will prevail on the plaintiff and the plaintiff will not further
precipitate the matter. However, if the plaintiff chooses to do so, it will be
open to the defendant no.1 to, in appeal, also seek costs of the suit.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
APRIL 10, 2019
‗gsr'
(Corrected & released on 22nd April, 2019)
