Delhi District Court
In The Court Of Sh. M.P. Singh vs Smt. Usha Kush on 9 September, 2019IN THE COURT OF SH. M.P. SINGH, ADDITIONAL DISTRICT JUDGE­ 03 (EAST), KARKARDOOMA COURTS, DELHI
CS No. 2414/16
In the matter of: ­
Ashok Kumar Sharma w/o late Kishori Lal Sharma
R/o H. No. 358, Old Post Office Gali,
Chhota Bazar, Shahdara, Delhi …….Plaintiff Versus
1. Smt. Usha Kush w/o Sh. Naresh Kush R/o C­158, Surajmal Vihar, Delhi ­ 32 2. Sh. Naresh Kush s/o Sh. Hari Kishan Kush R/o C­158, Surajmal Vihar, Delhi ­ 32 ……Defendants SUIT FOR DECLARATION AND PERMANENT INJUNCTION Suit filed on – 08.03.2016 Arguments heard on – 31.08.2019 Judgment pronounced on – 09.09.2019 JUDGMENT

1. Plaintiff’s case is as follows: ­ I) Plaintiff claims to be absolute owner and in possession of property no. B­101/2, in khasra no. 442 of village Uldhanpur, Kanti Nagar, Delhi – 51 measuring 107 sq. yards (for short the ‘suit property’). He is paying the house tax of the suit property. Its water connection is in his name. To buttress his averments vis­a­vis possession of the suit property, plaintiff avers that he let out three room set with common facilities of CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 1 of 26 latrine­cum­bath and passage to a tenant namely Shiv Dutt (PW2) who has been regularly paying the rent to him against rent receipts.

II) Late Bhagwat Prasad Sharma (for short ‘BPS’) was plaintiff’s real paternal uncle. He had no son. He had only one daughter namely Ms. Usha Kush (defendant no.1), who is married to Naresh Kush (defendant no.2). Defendant no.1, post­marriage, is residing at her matrimonial house.

III) BPS was very close to the plaintiff and his family members. In March 2012, BPS, in his old age, requested the plaintiff to provide him space in the suit property as he had no son. Plaintiff, acceding to this request, executed a registered gift deed dt. 16.03.2012 (Ex. DW1/P1) in favour of BPS qua the suit property for ‘certain period’. It was also agreed on 16.03.2012 that BPS would later on, at plaintiff’s request, transfer the suit property to his children. Plaintiff had executed the gift deed due to good family relations and the trust and confidence reposed in him by BPS. BPS passed away on 01.11.2015. As deposed by plaintiff (PW1) BPS was around 80 years of age at the time of his demise.

IV) Plaintiff however alleges that contents of the gift deed were neither read over to him nor he was allowed to read the same; that he executed the gift deed due to misrepresentation and undue influence on the part of BPS at the time of its execution and registration; that BPS cheated and played a fraud upon him with malafide intention; that BPS gave him no consideration at the time of execution and registration of the CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 2 of 26 gift deed; and that the transaction was a ‘temporary’ one entered into in good faith, although he (plaintiff) had no intention to transfer or sell the suit property to anyone; and that he had never handed over physical possession of the suit property to BPS. Neither were any of the two defendants ever in its possession.

V) Plaintiff avers that he had constructed the suit property for his livelihood and that of his children and family members. The original title deeds of the suit property were already in possession of BPS being the elder member of the family. Plaintiff avers that he had given the original title deed to BPS in good faith and due to blind trust that he had reposed in him.

VI) Plaintiff subsequently requested BPS to execute the transfer documents of the suit property in favour of his children, but the latter kept on deferring the matter on one filmsy ground or the other. Due to implementation of circle rate in the locality and due to paucity of funds with the plaintiff, BPS could not execute transfer deed of the suit property favour of plaintiff’s children. The transfer of the suit property from BPS to plaintiff’s children was/is expensive and as such the same could not be done during lifetime of BPS.

VII) After demise of BPS, defendants visited the suit property and claimed themselves to be its owner(s). They started to contact local property dealers in order to create third party interest and compel plaintiff’s tenant (PW2 Shiv Dutt) to vacate so that they could earn good market CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 3 of 26 price from the prospective buyer.

VIII) Plaintiff then wrote a letter dt. 06.11.2015 (Mark D) to the Sub­ Registrar for cancellation of the gift deed. The Sub­Registrar in his reply dt. 16.11.2015 (Mark E) stated that he was not competent under the law to cancel/revoke the registered deed and that it was actually the court of competent jurisdiction that could do the needful. Plaintiff then approached Sub­Registrar’s office on 18.02.2016 and handed over an application (Ex. PW1/11) for cancellation of the gift deed, but to no avail.

IX) The defendants are now allegedly threatening the plaintiff to hand over its vacant possession to them. On these averments, following reliefs are sought for: ­ (a) Declaratory decree that the registered gift deed dt. 16.03.2012 is null and void, illegal, inoperative and not binding on the plaintiff, (b) Declaratory decree that plaintiff is the absolute owner of the suit property, (c) Permanent injunction decree to restrain the defendants from interfering or claiming any right, title or interest in the suit property and also to restrain them from creating any third party interest or from dispossessing plaintiff’s tenant and his other family members.

2. Defendants, in their written statement filed on 06.04.2018, state that
the gift deed had been executed in favour of BPS after complying with all the
essential requirements of gift and that after demise of BPS on 01.11.2015,
defendant no.1 Ms. Usha Kush, being the only heir of late BPS, became CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 4 of 26 absolute owner of the suit property in terms of a registered Will dt.
28.04.2014 of late BPS. Defendants aver that plaintiff out of his own free will
had executed a registered gift deed after complying with all the essential
requirements of gift and had handed over its possession to BPS. It is averred
that defendant no.1 Ms. Usha Kush is in symbolic possession of the suit
property after her father’s demise. Defendants submit that the suit property
already stands mutated in the name of defendant no.1 Ms. Usha Kush.
Plaintiff is thus, according to defendants, left with no right, title or interest in
the suit property. Defendants allege that plaintiff, in connivance with his
tenant, is in illegal possession of the suit property and that the rent receipts are
forged and fabricated. They go on to state that it was after receiving notice of
the present suit that they came to know that plaintiff in connivance with his
tenant had trespassed into the suit property after demise of BPS. They deny
the other averments of the plaintiff. Besides this, the defendants also take the
following legal objections:­ The suit has not been property valued and the
plaintiff has not affixed appropriate Court fees; that the suit is bad for mis­
joinder and non­joinder of necessary party; that the suit is time barred; that
no cause of action ever arose in plaintiff’s favour and the plaint merits
rejection under Order VII Rule 11, CPC; and that the plaintiff has suppressed
true and correct facts. Defendants seek dismissal of the suit.

3. Plaintiff in his replication, filed on 18.07.2016, reiterated and
reaffirmed his averments as set out in the plaint and refuted defendants’
averments as averred in their written statement.
CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 5 of 26
4. Issues framed on 24.11.2016 are as follows: ­ 1. Whether the suit has not been valued properly and the Court Fee is deficient as alleged by the defendant? OPD
2. Whether the suit is bad for misjoinder/ non­joinder of the parties as alleged by the defendant? OPD
3. Whether the suit is barred by limitation as alleged by the defendant? OPD
4. Whether the plaintiff has no cause of action and the suit is liable to be rejected under Order VII Rule 11 CPC, as alleged by the defendant? OPD
5. Whether the plaintiff is guilty of suppressing the material facts from the Court as alleged by the defendant? OPD
6. Whether the plaintiff is entitled for a decree of declaration in respect of the gift deed dated 16.03.2012 as prayed for? OPP
7. Whether the plaintiff is entitled to a decree of declaration declaring the plaintiff as absolute owner of the suit property? OPP
8. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
9. Relief.

5. In plaintiff’s evidence following two witnesses were examined: ­  PW1 Ashok Kumar Sharma. He is the plaintiff himself.

 PW2 Shiv Dutt. He entered the witness box to depose that he was plaintiff’s tenant in the suit property.

6. In defendants’ evidence, following three witnesses were examined: ­ CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 6 of 26  DW1 Usha Kush. She is defendant no.1 and daughter of the donee (BPS).

 DW2 Naresh Kush. He is defendant no.2 and husband of defendant no.1 Usha Kush. He is also the son­in­law of the donee (BPS). He is also an attesting witness to the gift deed Ex. DW1/P1.

 DW3 Ram Naresh, an official from office of Sub­Registrar­IV, Vivek Vihar/ Nand Nagri. He entered the witness box to prove the factum of registration of the Will dt. 28.04.2014 (Ex. DW1/C) of late BPS.

7. I have heard the arguments of Ld. counsels Amarjeet Singh and
Inderjeet Singh for the plaintiff and Ld. counsel Akhil Chaudhary for the
defendants. Record perused.

8. Issue­wise findings are as follows:

9. Issue No.2 ­ The issue is whether the suit is bad for mis­joinder/ non­
joinder of parties as alleged by defendants; onus being on defendants to prove
it. Firstly, under the law mis­joinder of a party cannot be fatal to plaintiff’s
case. It is only non­joinder of a necessary party that renders a suit bad
(Proviso to Order I Rule 9, CPC). Therefore, even on the premise that any of
the two defendants may have been mis­joined, the suit cannot be held to be
bad. Secondly, so far as the issue of non­joinder of necessary party is
concerned, the defendants do not state as to who it was who should have been
necessarily joined, but not actually joined, to instant lis. They in their written
statement merely state that the suit is bad on this count without even CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 7 of 26 specifying as to who should have been necessarily joined as a party. That
apart, having gone through the record, I do not think that any other person
ought to have been necessarily joined as a party. For these reasons, this issue
is decided in plaintiff’s favour and against the defendants.

10. Issue No.1 ­ The issue is whether the suit has not been valued properly
and the court fee is deficient as alleged by defendants; onus being on
defendants to prove it. The valuation of the relief of permanent injunction at
Rs. 130/­ and payment of fixed Court fee thereon cannot be said to be
erroneous (see Delhi High Court Rules Chapter – 3 Part C & D, Volume – I).
Valuation of the relief of declaration of ownership qua the suit property at Rs.
200/­ and payment of fixed Court fee thereon is also adequate (see Delhi High
Court Rules Chapter – 3 Part C & D, Volume – I). Plaintiff is the executant of
the gift deed. The gift deed reflects the market value of the suit property to be
Rs. 37,50,000/­ . The valuation for the purpose of declaration of the gift deed
being null and void, inoperative and illegal and not binding on the plaintiff at
Rs. 37,50,000/­ and payment of ad valorem Court fee thereon is also correct.
Defendants’ counsel argued that in terms of the decision in Suhrid Singh @
Sardool Singh Vs. Randhir Singh and Ors. AIR 2010 SC 2807, the
plaintiff, himself being the executant of the gift deed, ought to have sued for
its cancellation and not for its declaration. This is hardly germane for the
present issue for the reason that the plaintiff has already paid ad valorem
Court fee for the relief of declaration vis­a­vis the gift deed. That apart, the
relief of declaration as prayed for by the plaintiff vis­a­vis the gift deed can CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 8 of 26 be taken by this Court to be actually one for the relief of cancellation of the
gift deed. This issue is accordingly answered in plaintiff’s favour and against
the defendants.

11. Issue No.6 ­ The issue is whether plaintiff is entitled for a declaratory
decree qua the gift deed dt. 16.03.2012 as prayed for; onus being on plaintiff
to prove it. In Asokan Vs. Lakshmikutty & Ors., JT 2007 (13) SC 598 Apex
Court held that the following are the essentials of a gift under the Transfer of
Property Act: ­ (i) the absence of consideration, (ii) the donor, (iii) the donee,
(iv) the subject matter, (v) the transfer, and (vi) the acceptance. In the case at
hand, the gift deed is a registered one, duly signed by two attesting witnesses,
namely, Naresh Kush and Pramod Kumar. A bare reading of the gift deed
would show that there is ‘absence of consideration’. In fact it is the plaintiff
himself who in his plaint states that that BPS gave him no consideration at the
time of execution and registration of the gift deed. The gift deed in question
has a ‘donor’ as also a ‘donee’ and its ‘subject matter’ is the suit property.
The gift deed also clearly records ‘transfer’ of the property from the donor to
the donee. Further, the gift deed (clause 3 thereof) states that the donee has ‘accorded his acceptance of the above said mentioned gift’. The fact that BPS
had ‘accepted’ gift is also evident from the averments in the plaint itself; in
the plaint, plaintiff himself avers that he had given the original title deeds of
the suit property to BPS. In Asokan (supra) there is an observation that runs
as follows, “14. Gifts do not contemplate payment of any consideration or
compensation. It is however, beyond any doubt or dispute that in order to CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 9 of 26 constitute a valid gift acceptance thereof is essential. We must, however,
notice that the Transfer of Property Act does not prescribe any particular
mode of acceptance. It is the circumstances attending to the transaction
which may be relevant for determining the question. There may be various
means to prove acceptance of gift. The document may be handed over to a
donee, which in a given situation may also amount to a valid acceptance. The
fact that possession had been given to the done also raises a presumption of
acceptance. [See Sanjukta Ray v. Bimelendu Mohanty, AIR 1997 Orissa
131; Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415; Samrathi Devi
v. Parsuram Pandey, AIR 1975 Patna 140].” In the instant case, all the
essentials of a gift under section 122, Transfer of Property Act have been duly
complied with. Being a registered instrument, the gift deed Ex. DW1/P1
carries with it the presumption under section 114, Evidence Act. Section 34,
Registration Act, inter alia, contemplates the registering authority being
satisfied with the identity of the executant and whether or not the executant
had in fact executed the document before he can order for registration of the
document presented for registration. Furthermore, the Sub­Registrar had duly
made the necessary endorsements in compliance with section 58, Registration
Act on the gift deed Ex. DW1/P1. Endorsement on the gift deed Ex. DW1/P1
would reflect that plaintiff himself had presented it for registration before the
Sub­Registrar. Further, as per Sub­Registrar’s endorsement on the gift deed
Ex. DW1/P1 plaintiff had admitted the contents thereof as correct and put his
signatures and thumb impressions thereon in Sub­Registrar’s presence. Now,
all these statutory endorsements cannot be set at naught on the mere self­ CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 10 of 26 serving ipse dixit of the plaintiff.

12. Now to plaintiff’s various contentions as set out in the plaint. Plaintiff’s
contention is that ‘possession’ of the suit property was never transferred to the
donee (BPS) and as such the gift deed was void. Even accepting as gospel
truth that possession of the suit property was not transferred to the donee and
that it always remained with the donor, yet the gift deed cannot be held to be
invalid or inoperative. Under sections 122/123, Transfer of Property Act, gift
of an immovable property is to be made by a registered instrument duly
signed by or on behalf of the donor and attested by at least two witnesses and
such gift should be ‘accepted’ by or on behalf of the donee. A bare reading of
sections 122/123, Transfer of Property Act would show that ‘transfer of
possession’ of the immovable property covered under the registered gift deed
is not sine qua non for making the gift valid. What is material is ‘acceptance’
of the gift and not ‘transfer of possession’ of the immovable property. In this
regard, reference can be had to a three Judge Bench decision of Supreme
Court of India in Renikuntla Rajamma (D) by LRs Vs. K. Sarwanamma,
JT 2014 (8) SC 283. For this proposition, Apex Court decisions in Asokan
(supra) and K. Balakrishnan Vs. K. Kamalam, JT 2004 (1) SC 572 can also
be referred to. Therefore, it is not at all necessary that the donee must have
taken ‘possession’ of the suit property covered under the gift deed. On the
part of the donee what is essential is that he must have ‘accepted’ the gift. In
the case at hand, as already noted hereinabove, the donee (BPS) had accepted
the gift.
CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 11 of 26
13. The contention that that BPS gave no consideration to the plaintiff at
the time of execution and registration of the gift deed is noted only to be
rejected. A gift deed under the law requires no consideration.

14. It was next the plaintiff’s contention that he executed the gift deed
owing to misrepresentation and undue influence on the part of BPS and that
BPS had cheated and played a fraud upon him with malafide intention. This
contention is sans any merit. Order VI Rule 4, CPC mandates that ‘in all
cases in which the party pleading relies on any misrepresentation, fraud,
breach of trust, willful default, or undue influence, and in all other cases in
which particulars may be necessary beyond such as are exemplified in the
forms aforesaid, particulars (with dates and items if necessary) shall be
stated in the pleading.’ The plaint is conspicuous by absence of the requisite
particulars qua the allegations of misrepresentation, fraud and undue
influence. The plaint sets out no particulars qua the allegation of undue
influence. Even as regards the allegation of fraud and cheating no particulars
are specified in the plaint. The alleged representation of BPS that he would
subsequently execute ownership documents in favour of plaintiff’s children is
actually no misrepresentation under the law. In short, the plaint falls short of
complying with the requirements of Order VI Rule, 4 of CPC. Secondly, in
order to make out a case of undue influence the plaintiff has to, in the very
first place, establish that BPS was in a dominant position vis­à­vis him.
Without first establishing this, the plaintiff cannot draw up a case of undue
influence and in this context the report of Anil Rishi Vs. Gurbaksh Singh, CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 12 of 26 AIR 2006 SC 1971 can be referred to. Thirdly, it is highly doubtful if BPS
was in a position to exert undue influence on the plaintiff. BPS, as per
plaintiff himself, was in his old age (around 80 years) when the gift deed was
executed. BPS, as per the plaintiff himself, had no son and his only daughter
had been living in her matrimonial house post­marriage and not with BPS. As
per the plaintiff himself, he (plaintiff) had been living in the suit property with
his family members. Therefore, given the averments of the plaintiff himself it
appears to be highly doubtful that BPS, enfeebled by age, in the evening of
his life at 80, living without the company of his only child, was in a position
to dominate the will of the plaintiff, who was much younger to him and who
had the benefit of the company of his family members. Fourthly, plaintiff
himself in his plaint (paragraph no. 5 thereof) avers, “The said gift was also
registered in the office of Sub­Registrar, Delhi in good faith…………The said
transaction was a temporary transaction in good faith, although the plaintiff
had no intention to transfer or sell the said property to any body since from
the very beginning till date.” Therefore, the averments that the transaction was
entered into and registered in ‘good faith’ cannot go hand in hand with the
allegations of misrepresentation, fraud, undue influence etc. Fifthly, in the
two complaints (Mark D dt. 06.11.2015 and Ex. PW1/11 dt. 18.02.2016) to
Sub­Registrar no particulars of fraud or undue influence were given. The
averments about the alleged representation of BPS, as set out in the complaint
Mark D dt. 06.11.2015, is actually no misrepresentation in the eyes of law.
Sixthly, plaintiff (PW1) in his cross­examination states, “It is correct that I
have carefully gone through the each document which I executed before I CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 13 of 26 signed.” Seventhly, during the lifetime of BPS plaintiff lodged no complaint
with any authority that BPS cheated him, committed fraud, exerted undue
influence and made misrepresentations. His two complaints (Mark D dt.
06.11.2015 and Ex. PW1/11 dt. 18.02.2016) made to the Sub­Registrar were
after the demise of BPS. It is significant to note that in one of his complaints
(Ex. PW1/11 dt. 18.02.2016) to the Sub­Registrar plaintiff avers that he had
executed the gift deed Ex. DW1/P1 for ‘religious purpose’ and it actually
contains no allegations of fraud, cheating, undue influence or
misrepresentation. In Prem v. Birbal, (2006) 5 SCC 353 it has been held, “There is presumption that a registered instrument is validly executed. A
registered document, therefore, prima facie would be valid in law. The onus
of proof, thus, would be on a person who leads evidence to rebut the
presumption.” Plaintiff’s allegations of fraud, undue influence,
misrepresentation and cheating have actually no basis either in law or on
facts.

15. Plaintiff’s next stand is that it had been mutually agreed on 16.03.2012
that BPS would later on, at plaintiff’s request, transfer the suit property to his
children. In his complaint dt. 06.11.2015 (Mark D) to the Sub­Registrar
plaintiff had made a similar averment that BPS had given an assurance that if
the gift deed was executed in his favour he would transfer the ownership
rights in favour of his son / legal heirs. This plea is hardly tenable. Firstly, if
the ownership rights have to be transferred to one’s own children / legal heirs,
why would one then adopt a circuitous route of first executing a gift deed in CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 14 of 26 favour of someone else and then asking that donee, and that too when the
donee is in the evening of his life and much older in age, to then execute
ownership documents in favour of his children / legal heirs. Such transfer of
ownership to one’s own children / legal heirs can be done directly even
without adopting such a circuitous and complex route. I am unable to fathom
a reason for adopting such a complex and circuitous route of transfer of
ownership rights to one’s own children. This assertion of the plaintiff is
hardly a convincing one. Secondly, sections 91/92 of Evidence Act bar such
an oral plea. Thirdly, this is actually no misrepresentation within the meaning
of section 18 of Contract Act.

16. It was next the plaintiff’s contention that contents of the gift deed were
neither read over to him nor he was allowed to read the same. This argument
is not correct. Firstly, plaintiff (PW1) in his cross­examination concedes, “It
is correct that I have carefully gone through the each document which I
executed before I signed.” Secondly, a bare perusal of the rear side of the
registered gift deed Ex. PW1/D1 would show that there is an endorsement of
the Sub­Registrar to the following effect, “Contents of the document
explained to the parties who understand the conditions and admit them as
correct.” In the face of this endorsement of the Sub­Registrar and his own
admission in his cross­examination, the plaintiff is not correct in arguing that
the contents of the documents had not been read over or that he was not
allowed to read the same.

17. It was next the plaintiff’s contention that the gift was a ‘temporary’ CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 15 of 26 one entered into in good faith, although he (plaintiff) had no intention to
transfer or sell the suit property to anyone. This contention is meritless.
Plaintiff is trying to make out a case contrary to law. Section 122/123,
Transfer of Property Act do not provide for a gift deed to be ‘temporary’.
Further, contrary to sections 91/92, Evidence Act plaintiff cannot assert that
gift deed was ‘temporary’. Plaintiff’s serving ipse dixit that he executed the
gift deed although he had lacked the intention to execute the same is noted
only to be rejected. The gift deed is a registered one executed by the plaintiff
and therefore to say that he lacked the intention to execute the same has no
basis in law and on facts of the case. The plaintiff knew what he was
executing. He concedes in his cross­examination that before executing the gift
deed he had carefully read the same. It is not his case that he was not in his
senses at the time of execution of the gift deed. His allegations of fraud,
misrepresentation, undue influence and cheating have no basis at all.
Therefore, to say that he lacked the intention to execute the gift deed is devoid
of any merit.

18. Plaintiff’s counsel pointed out that election card numbers of the donee
and the donor on the gift deed Ex. DW1/P1 was incorrect and as such the gift
deed was defective. Firstly, this is no ground to say that the gift deed is
defective. This does not put the registered gift deed in the category of void or
voidable documents. This innocuous error ipso facto will not render the
registered instrument inoperative. Secondly, putting the election card number
or the number of any other document of identity proof of individual(s) in an CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 16 of 26 instrument is essentially for the purpose of identification of the parties. In the
case at hand, identity of the parties is not in dispute. Thirdly, the law
(Explanation 3 to section 91 of Evidence Act) in fact provides for leading oral
evidence to show as to what was the correct number of the election card of the
parties. In this context, in Karan Madaan & Ors. v. Nageshwar Pandey,
2014 SCC OnLine Del 1277 it was observed, “Explanation 3 only states that
the statement of a fact in a document, “other than the facts referred to in this
section” may be proved by leading oral evidence. The “fact referred to in this
section” are the “terms of a contract, or a grant, or of any other disposition
of property” which have been reduced to the form of the document. For
instance, if the age or address, or paternity of a party is recorded in an
instrument, it shall be open to the parties to lead evidence to establish that the
same is not correctly recorded, or that the same is in fact, different from what
the instrument records. However, this explanation cannot be invoked to
disprove the terms of a contract, or of a grant, or of any other disposition of
property.”

19. Plaintiff’s counsel next pointed out that the gift deed Ex. DW1/P1 was
defective as paragraph no. 16 thereof stated that ‘both the parties hereby
declare that the abovesaid property under sale has never been booked’. It was
his argument that mention of the word ‘sale’ in the gift deed renders the same
inoperative. This appears to be an innocuous typographical error. This can be
no reason to hold the gift deed to be defective. This neither puts the registered
gift deed in the category of void or voidable documents. That apart, it is well CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 17 of 26 settled that in understanding a deed or a document the same has be read as a
whole to ascertain its true import. In L & T Komatsu Ltd. v. Senior Sub­
Registrar, Yelahanka & Ors., AIR 2004 Kar 308 it has been held, “It is well
settled principle of interpretation that in understanding a Deed or a
document, particularly a document, conveying title, it should be read as a
whole…” Reading as a whole the registered gift deed Ex. DW/P1 it is evident
that it is a gift deed and not a sale deed. And mention of word ‘sale’ at a
solitary place in the instrument will not alter the nature of the instrument Ex.
DW1/P1 or render the same void/ inoperative.

20. It was next the contention that gift deed Ex. DW1/P1 was defective
inasmuch as there was no reference therein of the fact that an old tenant (PW2
Shiv Dutt) was in occupation thereof. This can be no ground to render the gift
deed Ex. DW1/P1 as inoperative. As already noted hereinbove, the gift deed
Ex. DW1/P1 complies with all the essential requirements of a gift under the
Transfer of Property Act as set out in Asokan (supra). Under the law, there is
no mandatory requirement to make mention in the gift deed of the factum of a
tenant occupying the immovable property covered under said deed. That
apart, under the law a landlord (in the instant case the donor Ashok Kumar
Sharma) continues to retain legal possession although the actual possession,
user and control may be with the tenant (Sadashiv Shyama Sawant v. Anita
Anant Sawant, (2010) 3 SCC 385. And as already noted hereinabove,
transfer of possession of the immovable property covered under the gift deed
from the donor to the donee is not an essential requirement of gift under the CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 18 of 26 Transfer of Property Act.

21. It was next the contention that gift deed Ex. DW1/P1 was not attested /
witnessed by two ‘independent’ witnesses. The two witnesses to the gift deed
are Naresh Kush (defendant no.2 in this suit and donee’s son­in­law) and
Pramod Kumar. As per the plaintiff, Pramod Kumar is a close friend of
Naresh Kush. Under section 123 of Transfer of Property Act a gift deed is to
be attested by ‘at least two witnesses’. Section 123 of Transfer of Property
Act does not say that the witnesses should be ‘independent’ witnesses.
Secondly, the law nowhere says that relative or a friend of either the donee or
the donor cannot attest or witness a gift deed.

22. It was next the contention that the gift deed was executed on the basis
of an unregistered General Power of Attorney (for short ‘GPA’) dt.
24.08.1977. As per the plaintiff, the said unregistered GPA could not have
empowered him to transfer the suit property by executing the gift deed. It was
also contended that plaintiff was the lawful attorney qua undivided ½ share in
the suit property and that the gift deed could not have been executed by him
(plaintiff) alone unless the suit property was divided by metes and bounds. It
is certainly not that the plaintiff was unaware of these facts when he was
executing the gift deed. And if despite this, he went ahead and executed the
gift deed he himself and none else is to blame. That apart, it is rather strange
that plaintiff asks the court to exercise its discretion and grant him the
discretionary relief of declaration to avoid his own folly. Further, such
averments were not at all set out in the plaint. Only if the plaintiff had made CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 19 of 26 such averments in the plaint, that the defendants could have given an adequate
reply thereto. Order VI Rule 2 (1), CPC requires that all the material facts
should be averred in the pleadings. The plaintiff cannot seek to make out a
case which is not there in his pleadings. We have no evidence as to whether
the said GPA was backed by consideration or not. If at all there was
consideration to back up the said GPA, the same could not have been
terminated without the attorney’s consent (section 202, contract Act). Further,
there is nothing in law that a donor cannot gift his undivided share in an
immovable property. For these reasons, this Court is not inclined to accept
this stand of the plaintiff.

23. Plaintiff pointed out that gift deed Ex. DW1/P1 mentions that Ashok
Kumar, Shri Jai Bhagwan Gupta, Shri Inder Singh and Shri Ram Kishore
Gupta are the actual owners and bhoomidar of the property/ khasra. As per
the plaintiff ‘if’ the said fact was correct then the plaintiff could not have
executed the gift deed in favour of BPS. This argument is of no avail. These
persons may been the bhoomidars several decades ago. In fact, the contents of
the gift deed reflect that the colony wherein the immovable property is
situated has already been regularised. There is no agricultural activity being
carried out in the suit property. Further, the plaintiff himself has conditioned
this argument with a big ‘if’. As on date, it is not clear as to whether all those
persons are the bhoomidars or not. We have no evidence to this effect on
record. The plaintiff had neither set out the requisite averments to this effect
in his plaint. And as such, the defendants had no opportunity to counter this CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 20 of 26 with their own suitable reply in their pleadings. Without any pleadings or any
evidence on this score, this Court will not return any finding in favour of the
plaintiff on this score. That apart, the plaintiff cannot seek to obtain a
discretionary relief from this Court in his favour in order to avoid his own
folly.

24. It was pointed out that the attesting witness (DW2 Naresh Kush), as per
his own admission in his cross­examination had not gone through the gift
deed Ex. DW1/P1 before signing the same. The contention was that for this
reason the gift deed Ex. DW1/P1 was inoperative. A gift deed cannot be held
to be inoperative for this reason. In this regard, in Chanderkala Krishna
Dhole Vs. Bhimrao Dattu Kadam & Ors. 2019 SCC OnLine Bom 459, it
was observed, 21. I have gone through the evidence of Mr. Ghadage, attesting witness and I found it reliable, cogent consistent and stood to the test of cross examination. Thus, there is a compliance of provisions of Section 68 of the Evidence Act. However, evidence of this witness has been disbelieved by the learned appellate Court, only on the ground that, this witness did not read the contents of the Will and put his signature at the instance of Mr. Salunke (scribe). The learned appellate Court thus held that since the attesting witness knew nothing about the contents of the Will, his evidence was falling short of the requirements of Section 68 of the Evidence Act.

22. In my view, the reasons for discarding the evidence of this attesting witness are unfounded and not acceptable. The requirement of Section 68 of the Evidence Act is to prove the execution of document, which is required by law to be attested. Therefore, what is to be proved, is execution of the Will and not the contents of it. Thus, the learned Appellate Court has committed an error by discarding the evidence of this witness.
CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 21 of 26
25. To sum up the discussion on this issue, it is held that the gift deed Ex.
DW1/P1 is a valid instrument. Plaintiff has miserably failed to prove that the
gift deed Ex. DW1/P1 dt. 16.03.2012 is null and void, illegal, inoperative and
not binding upon him (plaintiff). Plaintiff is not entitled to the discretionary
relief of declaration vis­a­vis the registered gift deed Ex. DW1/P1 dt.
16.03.2012. He can neither be entitled for cancellation of the gift deed Ex.
DW1/P1 dt. 16.03.2012. It is ordered accordingly. This issue is thus answered
against the plaintiff and in defendants’ favour.

26. Issue No.7 ­ The issue is whether plaintiff is entitled to a decree of
declaration declaring him to be the absolute owner of the suit property; onus
being on plaintiff to prove it. The outcome of issue no.6 a fortiori entails that
plaintiff is entitled to a declaratory decree declaring him to be the absolute
owner of the suit property. This issue is answered against the plaintiff and in
defendants’ favour.

27. Issue No.8 ­ The issue is whether the plaintiff is entitled to a decree of
permanent injunction as prayed for; onus being on plaintiff to prove it. The
outcome of issue no.6 a fortiori entails that plaintiff is entitled to the
discretionary relief of permanent injunction against the defendants. This issue
is answered against the plaintiff and in defendants’ favour.

28. Issue No.3 ­ The issue is whether suit is time barred as alleged by
defendants; onus being on defendants to prove it. The suit is ex facie time
barred. Under Article 58 of the Schedule of Limitation Act, 1963 limitation to CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 22 of 26 obtain any other declaratory relief is 03 years and the time begins to run when
the right to sue first accrues. Under Article 59 of the Schedule of Limitation
Act, 1963 limitation to sue for cancellation / setting aside an instrument is
again 03 years and time begins to run when the facts entitling the plaintiff to
have the instrument cancelled or set aside first became known to him. In the
case at hand, plaintiff was very much aware about the nature of the gift deed
Ex. DW/P1 and the contents thereof at the time of its execution/ registration.
He in his cross­examination stated, “It is correct that I have carefully gone
through the each document which I executed before I signed.” That apart, the
contents of the plaint would itself show that the plaintiff was aware about the
nature of the document that he had executed in favour of BPS. So long as BPS
was alive the plaintiff had no grievance. It was only after the demise of BPS
that the plaintiff started to raise allegations. That apart, the gift deed is
registered. Sub­Registrar’s endorsement thereon would show that contents
thereof had been explained to the plaintiff who had understood the conditions
and admitted them as correct. Plaintiff was thus very much aware about the
nature of the gift deed and the contents thereof. It is actually none of the case
of the plaintiff that he did not know as to what he had executed. As already
noted hereinabove, plaintiff’s allegations of cheating, fraud, undue influence
and misrepresentation have no basis. The suit filed on 08.03.2016, in relation
to the gift deed Ex. DW1/P1 dt. 16.03.2012, is ex facie time barred. This issue
is thus answered against the plaintiff and in defendants’ favour.

29. Issue No.5 ­ The issue is whether plaintiff is guilty of suppressing CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 23 of 26 material facts from the Court as alleged by defendants; onus being on
defendants to prove it. There can certainly be no denial from the settled
principle of law that suppression of ‘material’ fact by a litigant disqualifies
him from obtaining any relief. This rule has been evolved out of the need of
the courts to deter a litigant from abusing the process of court by deceiving it.
But what is essential is that the suppressed fact must be a ‘material’ fact. It
must be material in the sense that had it not been suppressed it would have
had an effect on the merits of the case. Decisions reported as Mayar (H.K.)
Ltd. & Ors. vs. Owners & Parties, Vessel M.V. Fortune Express & Ors.,
(2006) 3 SCC 100, M/s S.J.S. Business Enterprises (P) Ltd. vs. State of
Bihar & Ors., AIR 2004 SC 2421 and Virender Nath Gautam vs. Satpal
Singh & Ors., AIR 2007 SC 581 can be referred to in this context.
Defendants’ stand is that plaintiff resorted to suppression of ‘material’ facts
by not truly stating that the gift deed had been executed out of his (plaintiff’s)
free will and volition after complying with all the essential requirements of
gift and that he (plaintiff) had trespassed into the suit property after demise of
BPS. This is hardly a suppression of ‘material’ fact on plaintiff’s part. Had it
been plaintiff’s case that he had executed the gift deed out of his own free will
and volition, he would not have in the very first place knocked the doors of
this Court by bringing the present action. Further, from plaintiff’s point of
view, the allegation that he had trespassed into the suit property was not
germane. These are actually defences of the defendants. A plaintiff, in a given
case, by not accepting defence of defendant(s) to be correct does not in fact
invite the accusation of having suppressed material facts. As to which of the CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 24 of 26 two versions is actually correct is essentially a matter of trial. The fact that the
version of a litigant does not match with that of the adverse party does not
necessarily mean that he suppressed material facts. It is held that there has not
been suppression of ‘material’ facts on plaintiff’s part. This issue is answered
against the defendants and in plaintiff’s favour.

30. Issue No.4 ­ The issue is whether plaintiff has no cause of action and
the suit is liable to be rejected under Order VII Rule 11 CPC, as alleged by
defendants; onus being on defendants to prove it. To determine as to whether
or not plaintiff’s case merits rejection, for want of cause of action, under Order
VII Rule 11 of CPC, it is only and only the averments in the plaint and the
documents annexed therewith that are germane. For this, defendants’
defence(s) or averments in their written statement are not at all to be
considered. Rejection of plaintiff’s case under Order VII Rule 11, CPC is
essentially based on a plea of demurrer taking averments in the plaint to be
correct. From a bare reading of the plaint it is evident that the allegations of
undue influence, cheating and fraud are without substance and devoid of the
necessary particulars as required under Order VI Rule 4, CPC. The alleged
representation is no misrepresentation within the meaning of section 18 of
Contract Act. The averment that gift was incomplete as plaintiff did not hand
over possession of the suit property to the donee is devoid of substance as
handing over of possession of the immovable property is not an essential
requirement of the gift deed. Given these averments in the plaint, this Court is
of the view that it was fit case where the plaint ought to have been rejected for CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 25 of 26 want of cause of action under Order VII Rule 11, CPC. This issue is
accordingly decided against the plaintiff and in defendants’ favour.

31. Relief – This suit stands dismissed. No order as to costs. Decree sheet
be drawn up. File be consigned to record room.
Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi ANNOUNCED IN THE OPEN Date:
2019.09.09 16:34:14 +0530 COURT ON 09.09.2019 (M. P. SINGH) ADJ­3 (EAST) KKD COURTS DELHI/ 09.09.2019 CS No. 2414/16 Ashok Kumar Sharma v. Usha Kush & Anr. Page No. 26 of 26

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