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Lokesh Bharti vs Harish Chander ( Deceased) … on 20 July, 2018

* 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

RFA No.543/2017 Page 2 of 12
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

RFA No.543/2017 Page 4 of 12
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 West

RFA 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.

RFA No.543/2017 Page 6 of 12

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

RFA No.543/2017 Page 7 of 12
witnessed as required by law, and therefore the requirements of a valid

Gift 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

RFA No.543/2017 Page 9 of 12
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

RFA No.543/2017 Page 10 of 12
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

RFA No.543/2017 Page 12 of 12

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