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2013 DIGILAW 2193 (DEL)

Dipta Ganguly v. Roopak Bhattarcharjee

2013-11-13

M.L.MEHTA

body2013
ORDER M.L. Mehta, J. IA 18163/2013 (under Order 7 Rule 11(a) and (d) read with Section 151, CPC filed on behalf of the defendant Nos. 1 and 2) Counsel appearing for the defendant Nos. 1 and 2 seeks permission to withdraw this application. Heard Allowed. The application is accordingly dismissed as withdrawn. IA 16049/2013 (under Order 7 Rule 11, CPC filed on behalf of defendant No. 3), IA 16050/2013 (under Order 39 Rule 4, CPC filed on behalf of the defendant No. 3) and IA 12612/2013 (under Order 39 Rules 1 and 2, CPC filed on behalf of the plaintiff) 1. Pleadings in the applications are complete. In the application being IA 12612/2013 filed by the plaintiff, an interim order was passed on 12.8.2013 to the effect that all the parties are restrained from creating any third party interest in the suit property. The defendant No. 3 has filed aforementioned applications, one being under Order 39 Rule 4, CPC for vacation of the aforesaid interim order and the second being, under Order 7 Rule 11, CPC for rejection of the plaint, alleging the same to be devoid of cause of action, and not maintainable as per the law. 2. The arguments have been heard on all the three applications together. 3. The plaintiff has filed this suit for declaration, possession, partition, permanent and mandatory injunction against the defendants. The defendant No. 1 is her brother, defendant No. 2 his brother's wife and defendant 3 is the purchaser of second floor of the suit premises from defendant Nos. 1 and 2. 4. The admitted case of the parties is that the father of the plaintiff and defendant No. 1 died intestate on 1.5.2006 leaving behind them as also their mother as the only legal heirs. Thus, by virtue of succession, all the three inherited one-third share each in the suit premises i.e. H-1474, Chittaranjan Park, New Delhi-110019. Both the plaintiff and the defendant No. 1 executed relinquishment deeds of their respective one-third shares in favour of their mother, on 25.5.2006, i.e. within about 24 days of the death of their father. On 26.6.2012, their mother executed a registered gift deed in favour of the defendant No. 1 as also his wife defendant No. 2. Both the plaintiff and the defendant No. 1 executed relinquishment deeds of their respective one-third shares in favour of their mother, on 25.5.2006, i.e. within about 24 days of the death of their father. On 26.6.2012, their mother executed a registered gift deed in favour of the defendant No. 1 as also his wife defendant No. 2. Armed with the gift deed in their favour, these defendants executed a sale deed of second floor along with the 25% undivided shares in the plot of the suit premises in favour of the defendant No. 3 on 16.7.2012 i.e. within a span of 20 days of the gift deed, for a total consideration of Rs. 55 lakh. 5. The plaintiff while maintaining that she executed a relinquishment deed of her one third share in favour of her mother, submits that this deed was executed in her favour so as to enable her mother to come out of the depression suffered due to shock and grief of the death of her husband and for impending financial hardships, so as to enable her to let out the premises, and have the rent. She also submits that defendant No. 1 had represented to her that relinquishment deed was also required for the mutation purposes, and that in any case, after the death of their mother, the entire premises was to be devolved in the names of both of them only. She states that on these representations, and keeping in view the health of her mother, she executed relinquishment deed of her share in favour of her mother. She alleges that the defendants had mala fide intentions to grab her one-third share and hatched a conspiracy to deprive her of her share. She also alleges that the above mentioned gift deed was not executed by her mother out of her own free will and consent, but by fraud and undue influence exercised by defendant Nos. 1 and 2. She alleges that from the contents of the said gift deed, it would appear that her mother paid stamp duty of Rs. 11,46,000/- for its registration, which she was unable to pay being the housewife and having no income or any money. In any case, it is also unbelievable that the huge amount of stamp duty would be paid by the person executing the gift deed and not by the donees. 11,46,000/- for its registration, which she was unable to pay being the housewife and having no income or any money. In any case, it is also unbelievable that the huge amount of stamp duty would be paid by the person executing the gift deed and not by the donees. She submits that in fact, this amount of Rs. 11,46,000/- was the amount which defendant No. 3 paid in the name of her mother vide cheques dates 15.2.2012, 22.2.2012 and 4.4.2012, which are of the period prior to the execution of the gift deed dated 26.6.2012. Predicated on this, she submits that the sum of Rs. 14 lakh by way of aforesaid cheques was already paid by defendant No. 3 to her mother even before the execution of the gift deed by her in favour of the defendant Nos. 1 and 2, and this all proves that the gift deed was got executed from her mother under undue influence and fraud exercised by defendant Nos. 1 and 2 in connivance with defendant No. 3. Further, even the defendant Nos. 1 and 2 had taken Rs. 8 lakh by way of cheque dated 14.6.2012 from defendant No. 3 even prior to the execution of the gift deed in their favour, and from all this, it would be seen that gift deed that was got executed was for consideration flowing from defendant No. 3 and this was illegal in view of Section 122 of the Transfer of Property Act. Based on all this, the plaintiff has sought declaration of the gift deed and the sale deed being illegal as also injunction against the defendants restraining them from creating any third party interest in the suit premises. 6. The averments as set out in the applications under Order 7 Rule 11, CPC as also under Order 39 Rule 4, CPC are identical to the averments as pleaded in the reply/written statements filed by the defendant Nos. 1 and 2 as also by the defendant No. 3. The foremost submission of the defendants is that the plaintiff had relinquished all her rights by registered relinquishment deed in favour of her mother on 25.5.2006 and now, she has no locus standi to dispute the same after seven years and also, after the demise of her mother. 1 and 2 as also by the defendant No. 3. The foremost submission of the defendants is that the plaintiff had relinquished all her rights by registered relinquishment deed in favour of her mother on 25.5.2006 and now, she has no locus standi to dispute the same after seven years and also, after the demise of her mother. Further, it is their submission that in the absence of any relief sought as regard to relinquishment deed, and the same being admitted, the plaintiff was left with no right or interest in the suit premises, and the defendant Nos. 1 and 2 having acquired legal rights by virtue of registered gift deed registered by their mother in their favour, got the absolute rights in the entire suit premises and, thus, were competent to sell the second floor of the suit premises to defendant No. 3. It is also the case of the defendant No. 3 that it has acquired the second floor of the suit premises for lawful consideration and being a bona fide purchaser, the suit was not maintainable against it in view of the provisions of Section 44 of the Transfer of Property Act. Predicated on all this, it is averred that the plaintiff has no cause of action to file the instant suit, and was also estopped from challenging the rights of the defendants, and thus, the injunction was liable to be vacated and the plaint was to be rejected as per the provision contained under Order 7 Rule 11(a) and (d), CPC. 7. The execution of relinquishment deed by the plaintiff in favour of her mother is not disputed by her. It is also admitted case of the defendant Nos. 1 and 2 that the mother of the plaintiff and the defendant No. 1 had entered into an agreement with defendant No. 3 in respect of second floor of the suit premises and defendant Nos. 1 and 2 completed the transaction with defendant No. 3 after the demise of their mother. Having regard to the entire factual matrix and the controversies, which have been raised, I do not consider it appropriate to reject the case of the plaintiff at the threshold. It is primarily because the plaintiff has raised certain triable issues, which would require determination and adjudication and cannot be ignored out rightly at this stage. Having regard to the entire factual matrix and the controversies, which have been raised, I do not consider it appropriate to reject the case of the plaintiff at the threshold. It is primarily because the plaintiff has raised certain triable issues, which would require determination and adjudication and cannot be ignored out rightly at this stage. It is undisputed that defendant No. 3 had made payment of Rs. 14 lakh to the mother of the plaintiff much prior to the execution of gift deed by her in favour of the defendant Nos. 1 and 2. Further, it is also not disputed that the stamp duty of Rs. 11,46,000/- was also paid by the donor i.e. the mother of the plaintiff and not by the donees i.e. the defendant Nos. 1 and 2. It appears that this huge amount of stamp duty was the same which was received by her from defendant No. 3. That being the state of affairs, it was a triable issue as to whether the donor i.e. the mother executed the gift deed out of her free consent, and without any undue influence of defendant Nos. 1 and 2 with whom she was residing. Further, the aspect that she had already received huge money from the defendant No. 3 prior to the execution of gift deed in favour of defendant Nos. 1 and 2, is also worth considering and would have an influence on the validity of the gift deed. Further, equally important aspect for consideration is that defendant Nos. 1 and 2 had also received a good amount of money from the defendant No. 3 even prior to the execution of the gift deed in their favour. It is not desired to comment further on these aspects as it may prejudice the parties on the merits of their case. 8. The pleas which are raised by the defendants that the plaintiff has executed the registered relinquishment deed and now, she is estopped to dispute the same after seven years and further that in the absence of any relief seeking declaration of the relinquishment deed, plaint in the present form challenging only the gift deed and the sale deed was not maintainable, are prima facie not tenable. The plaintiff has not challenged the relinquishment deed, and states having come to know about the gift deed and the sale deed only recently. The plaintiff has not challenged the relinquishment deed, and states having come to know about the gift deed and the sale deed only recently. She has raised certain issues as regard to the execution of relinquishment deed that it was executed having regard to the ill-health of her mother and on the representations that it was required only for mutation as also that, in any case, the suit premises was to devolve upon only two of them. All these issues cannot be brushed aside outrightly and would require further consideration. Even without seeking a specific relief regarding relinquishment deed, the plaintiff would be entitled to one-half share of the suit premises along with the defendant No. 1, in the event of reliefs which are sought regarding gift deed and sale deed are granted in her favour. I do not see the plaint to be not maintainable in the absence of the relief regarding declaration of cancellation of relinquishment deed. 9. As is noted above, since the plaintiff is not seeking cancellation of relinquishment deed, as that would not affect her rights, she cannot be said to be estopped from challenging the gift deed as also the sale deed. What is challenged by her is that the gift deed was got executed by the defendant Nos. 1 and 2 from her mother by playing fraud and undue influence on her, and taking advantage of her advancing age and ill-health. Further, the receipt of consideration by her mother even prior to the execution of the gift deed and thereby creating encumbrance on the suit premises, is pointing finger towards the validity and genuineness of the Will. 10. In view of the controversy that has arisen, the plaintiff has made prima facie case of maintaining status quo. The balance of convenience also lies in favour of plaintiff inasmuch as the second floor of the suit premises has already been sold out in favour of defendant No. 3 for consideration. The plaintiff shall suffer irreparable loss if the status quo is not maintained and the defendant Nos. 1 and 2 are not restrained from creating further third party interest in the remaining part of the suit premises and the defendant No. 3 is not restrained from further dealing with the second floor of the suit premises as also its 25% undivided share in the land. 11. 1 and 2 are not restrained from creating further third party interest in the remaining part of the suit premises and the defendant No. 3 is not restrained from further dealing with the second floor of the suit premises as also its 25% undivided share in the land. 11. In view of above discussion, both the applications of the defendant No. 3 under. Order 39 Rule 4, CPC as also under Order 7 Rule 11, CPC are dismissed and the application of the plaintiff under Order 39 Rules 1 and 2, CPC is allowed. All the parties shall maintain status quo qua the structure, possession and interest/rights in the suit premises till the disposal of the suit. Applications are disposed accordingly. CS (OS) 1560/2013 List before the Joint Registrar for completion of pleadings and admission-denial of documents on 21.1.2014. Disposed off.