* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.553/2018
% 20th July, 2018
LOKESH BHARTI ….. Appellant
Through: Mr. Madan Lal Sharma, Advocate.
versus
HARISH CHANDER ( DECEASED) THROUGH HIS LRS ORS.
….. Respondents
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 28388/2018 (for exemption)
1. Exemption allowed, subject to just exceptions.
C.M. stands disposed of.
RFA No.553/2018 and C.M. Appl. Nos. 28195/2018 (for stay)
28196/2018 (for additional evidence)
2. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the defendant no. 2 in the
suit impugning the judgment of the Trial Court dated 27.3.2018 by
which the trial court has decreed the suit for possession, injunction and
RFA No.543/2017 Page 1 of 12
mesne profits filed by the respondent Nos.1 to 4 against the
appellant/defendant no. 2 and respondent no. 5/defendant no.1. The
suit property is one bearing no. 166-B, part of Khasra No. 24/25, 100
sq. yards, Village Ranhola, now known as Rishal Garden, Najafgarh,
Nangloi Road, New Delhi.
3. Original plaintiff in the suit Sh. Harish Chander (since
expired and his now represented by respondents no.1 to 4 as his legal
heirs), was the father-in-law of the respondent no.5/defendant no. 1 in
the suit. Appellant/Defendant no. 2 in the suit is the brother of
respondent no.5/defendant no. 1. By the suit the plaintiff claimed
ownership of the suit property and set up a cause of action that in term
of the documents executed by plaintiff in favour of defendant
no.1,being the General Power of Attorney, Will, Gift Deed and
Possession Letter dated 23.10.2002, the plaintiff did not transfer the
suit property to the respondent no.5/defendant no. 1. Appellant
/Defendant no. 2 in the suit being the brother of respondent
no.5/defendant no. 1 was originally not a party to the suit but was
added on his application as the defendant no.2 in the suit because the
appellant/defendant no. 2 pleaded that by the documentation dated
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24.6.2009 (being the Agreement to Sell, General Power of Attorney,
Will, Possession Letter, etc.), rights in the suit property were
transferred by respondent no. 5/defendant no.1 to appellant/defendant
no. 2.
4. The facts of the case are that admittedly the original
plaintiff Sh. Harish Chander was the owner of the suit property. The
daughter of the plaintiff Smt. Rekha @ Radhika was married to the
respondent no. 5/defendant no.1 on 17.2.2002. Earlier there was a
roka ceremony of the daughter of the plaintiff with respondent no. 5/
defendant no. 1 on 7.4.2001. Since the respondent no.5/defendant no.
1 at the time of matrimony was living in a very small accommodation
on a plot of 25 sq. yards, the plaintiff for residence of respondent
no.5/defendant no.1 and his family purchased the suit plot from the
erstwhile owner one Sh. Jaiveer Singh on 3.7.2001 by means of usual
documentation being the Agreement to Sell, Affidavit, Possession
Letter, etc. As per the plaint the suit property was thereafter
constructed by the plaintiff and for which he had used the help of
respondent no. 5/defendant no. 1. Plaintiff pleaded that he had paid an
amount of Rs.1,10,000/- to the respondent no. 5/defendant no. 1 by
RFA No.543/2017 Page 3 of 12
means of cheques for construction and also in addition a sum of
Rs.85,000/- in cash. The further case in the plaint was that since
respondent no. 5/defendant no. 1 pressurized the plaintiff, therefore to
keep peace in the family and his own daughter happy, with respect to
the suit property, the plaintiff executed the General Power of Attorney,
Will, Possession Letter and Gift Deed on 23.10.2002 in favour of the
respondent no.1/defendant no. 1. The matrimonial relationship
between the plaintiff’s daughter and the respondent no. 5/ defendant
no. 1 did not work out and a consent decree of divorce was obtained
from the concerned Court 6.10.2007. The plaintiff cancelled the
General Power of Attorney and Will dated 23.10.2002 vide
Cancellation Deed dated 9.6.2009. Hence the subject suit was filed
seeking possession and mesne profits qua the suit property.
5. Respondent no.5/Defendant no. 1 contested the suit and
pleaded that he had purchased the suit property from the plaintiff by
means of the subject documentation dated 23.10.2002 by paying a sum
of Rs.7,00,000/-. It was also pleaded that the plaintiff and the
respondent no.5/defendant no. 1 had entered into a Rent Agreement on
15.3.2002. Suit was therefore prayed to be dismissed. In the written
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statement of appellant/defendant no. 2, besides supporting respondent
no.5/defendant no. 1, it was pleaded that the appellant/defendant no. 2
had purchased the suit property in terms of documentation dated
16.4.2009/24.6.2009.
6. After pleadings were complete, the trial court framed the
following issues:-
“1. Whether the plaintiff is entitled for the decree of possession of the
suit property? OPP.
2. Whether the plaintiff is entitled to damages as prayed for? OPP.
3. Whether the plaintiff is entitled for permanent and mandatory
injunction as prayed for?OPP.
4. Whether the plaintiff is the owner of the suit property? OPP.
5. Relief.”
6. Evidence was thereafter led by the parties and these
aspects are recorded in paragraphs 19-26 of the impugned judgment
and these paragraphs read as under:-
“PLAINTIFF’S EVIDENCE:-
19. Plaintiff has examined 4 witnesses in his evidence. Initially, the
plaintiff filed his affidavit in evidence, who was also examined in chief but
due to his death, he was not subject to cross examination, therefore, his
evidence cannot be read.
20. After the death of plaintiff, his son Gunjan Kumar examined himself as
PW-1. PW-2 Danveer Sharma, UDC from the office of Sub Registrar,
PW-3 Mukesh Kumar, Clerk from Punjab National Bank, Branch WestRFA No.543/2017 Page 5 of 12
Patel Nagar, New Delhi and PW-4 Rajesh Kumar, Clerk from Corporation
Bank.
21. PW-1 Gunjan Kumar has filed his affidavit in evidence in which he has
reiterated and reaffirmed the same facts as stated in the plaint. He has
relied upon the following documents:-
(a) Mark A, B and C – GPA, Agreement to sell and receipt,
respectively, in favour of plaintiff (since deceased) all dated
13.07.2001;
(b) Mark D – GPA dated 23.10.2002 in favour of defendant no.1
executed by plaintiff;
(c) PW1/2 and PW1/3 – cancellation deed dated 09.06.2009
and WILL, respectively;
(d) PW1/4 – certified copy of divorce petition of plaintiff’s
daughter;
(e) Ex.PW1/5 – statements of both the parties recorded in divorce
petition;
(f) PW1/6 – decree sheet u/s 13 B(2) of HMA;
(g) PW1/7 – notice dated 9.6.2009, sent by plaintiff to defendant;
(h) Ex.PW1/8 – proof of service of the notice;
(i) Ex.PW1/9 – publication in the newspaper dated
19.6.2009;
(j) PW1/10 – notice dated 4.7.2009 sent to defendant no.1;
(k) Ex.PW1/11 – proof of said notice;
(l) Ex.PW1/12 – site plan of the suit property;
(m) Ex.PW1/13 – marriage card of plaintiff’s daughter and
defendant no.1.
22. While tendering the affidavit by PW-1, certain objections were
raised by defendants counsel, therefore, the documents Ex.PW1/3 and
Ex.PW1/2 were given mark PX3 and PX2. Similarly, Ex.PW1/12 was
given mark as PX12. PW1/10 was also given mark as PX10 and PW1/11
was marked as PX11.
23. PW-2 has proved the summoned record i.e. cancellation deed dated
09.06.2009 of GPA and WILL.
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24. PW-3 had proved the statement of account of plaintiff for the period
1.1.2001 to 31.12.2002.
25. PW-4 is Rajesh Kumar from Cooperation Bank. He has
proved the summoned record i.e. statement of account of
defendant no.1 for the period 1.10.2007 to 30.11.2007.
DEFENDANTS’ EVIDENCE:-
26. Defendant no.1 has examined only himself in his evidence. He has
filed his affidavit in evidence in which he has reiterated and reaffirmed the
same facts as stated by him in the written statement. He has
relied upon the following documents:-
(a) Ex.D1W1/A – Deed of gift dated 23.10.2002
(b) Ex.D1W1/B – Deed of WILL dated 23.10.2002
(c) Ex.D1W1/C – Possession letter
(d) Ex. D1W1/C-1 – affidavit dated 23.10.2002
(e) Ex. D1W1/D – agreement to sell and purchase dated
16.04.2009.
(f) Ex.D1W1/E – Receipt dated 16.04.2009
(g) Ex.D1W1/F – GPA dated 24.06.2009
(h) Ex.D1W1/G – agreement to sell dated 24.6.2009
(i) Ex.D1W1/H – affidavit dated 24.6.2009
(j) Ex.D1W1/I – receipt dated 24.6.2009
(k) Ex.D1W1/J – possession letter dated 24.6.2009
(l) Ex.D1W1/K – WILL dated 24.6.2009
(m) Ex.D1W1/L – rent agreement dated 15.03.2002,
which was de-exhibited and marked as mark X.”
7. To the extent that the trial court had held that the alleged
Gift Deed dated 23.10.2002 said to have been executed by the
erstwhile plaintiff in favour of defendant no. 1 is not a legally valid
document as neither the Gift Deed is registered and nor is the same
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witnessed as required by law, and therefore the requirements of a validGift Deed specified under Section 123 of the Transfer of Property Act,
1882 were not satisfied, counsel for the appellant/defendant no.2 could
not and did not raise any argument. The finding of the trial court in
this regard in any case being factually and legally correct, since the
gift deed is neither registered nor witnessed as required under Section
123 of the Transfer of Property Act, the Gift Deed dated 23.10.2002
could not have transferred the ownership rights in the suit property to
the respondent no. 5/defendant no.1.
8(i). The only issue now to be examined is as to whether the
General Power of Attorney and the Will dated 23.10.2002 executed by
the erstwhile plaintiff in favour of the respondent no.5/defendant no.1
transferred rights in the suit property. In this regard, learned counsel
for the appellant/defendant no.2 argued by placing reliance upon the
clause of the General Power of Attorney dated 23.10.2002 as per
which General Power of Attorney is irrevocable, and accordingly it is
argued that the respondent no.5/defendant no.1 got ownership rights in
the suit property by virtue of this General Power of Attorney.
RFA No.543/2017 Page 8 of 12
8(ii). I cannot agree with the argument urged on behalf of the
appellant that the General Power of Attorney dated 23.10.2002 is
irrevocable inasmuch as every Power of Attorney is revocable unless
the Power of Attorney is given for consideration. This is so specified
in Section 202 of the Indian Contract Act, 1872. Neither in the
subject power of attorney there is any mention of payment of
consideration by the respondent no.5/ defendant no. 1 to the erstwhile
plaintiff, and nor has this passing of alleged consideration has been
proved by the defendants in the suit and as against the plaintiffs. At
the cost of repetition, no amount of moneys have been proved to have
been transferred by the respondent no.5/defendant no. 1 to the
erstwhile plaintiff under the documentation dated 23.10.2002.
Therefore once there is no consideration which passed under the
General Power of Attorney dated 23.10.2002, therefore the General
Power of Attorney cannot be irrevocable merely because it is so
mentioned in the General Power of Attorney in asmuch as a power of
attorney as per Section 202 of the Indian Contract Act only becomes
irrevocable if it is executed for consideration which passes. The
General Power of Attorney was therefore validly cancelled by the
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plaintiff in terms of the Cancellation Deed dated 9.6.2009/Ex.PW1/2
as the General Power of Attorney was irrevocable but revocable.
9. So far as the Will is concerned, admittedly the Will has
been revoked by the Cancellation Deed dated 9.6.2009/Ex.PW1/2
during the lifetime of the original plaintiff, and since a Will can
always be revoked by the executant before his death, therefore, the
respondent no.5/ defendant no. 1 in the suit could not have claimed
ownership rights in the suit property in terms of the Will dated
23.10.2002.
10. I may note that the documentation executed in favour of
the erstwhile plaintiff by the original owner Sh. Jaiveer Singh are
dated 3.7.2001, i.e prior to the amending of Section 53A of Transfer of
Property Act w.e.f 24.9.2001 by Act 48 of 2001, and therefore such
documentation did confer rights in the nature of ownership rights,
though not strictly an owner, to the plaintiff in the suit. The
documentation however executed by the erstwhile plaintiff in favour
of the respondent no.5/defendant no.1 are subsequent to the
amendment of Transfer of Property Act and the related provisions of
Stamp Act, 1899 and Registration Act, 1908 by Act 48 of 2001, and
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therefore the unregistered documentation dated 23.10.2002 said to
have been executed by the erstwhile plaintiff in favour of the
respondent no.5/defendant no.1 were in any case beyond the sanction
of law. Since respondent no.5/defendant no.1 was not the owner,
hence the respondent no.5/defendant no.1 could not have validly
transferred any rights in the suit property to the appellant /defendant
no.2, and in any case the documents in favour of the
appellant/defendant no.2 again being of the year 2009 i.e. post the Act
48 of 2001, and these documents are unregistered documents, these
documents in themselves also, without anything further, did not create
any rights in the suit property in favour of the appellant/defendant
no.2.
11. Learned counsel for the appellant/defendant no.2 argued
that trial court has wrongly awarded a very high rate of mesne profits
against the defendants in the suit, being the appellant and the
respondent no.5, and which argument prima facie seemed to have
merit, however, in the peculiar facts of this case, and once trial court
has taken judicial notice of the increase of rent and thus of mesne
profits, in the facts of the present case, I would not like to interfere
RFA No.543/2017 Page 11 of 12
with the findings with respect to the mesne profits given under issue
no.2 at paragraph 41 of the impugned judgment.
12. In view of the above, I do not find any merit in the appeal
and the same is hereby dismissed.
JULY 20, 2018 VALMIKI J. MEHTA, J
AK
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