Delhi District Court
Shanti Devi vs Kanshi Ram Another on 29 March, 2025
1
IN THE COURT OF MS. GUNJAN GUPTA:
DISTRICT JUDGE-04, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI.
In the matter of
CS DJ 9579/16
SMT. SHANTA DEVI
(since deceased)
Through her legal representative.
Sh. Rajesh Arora,
S/o. Sh. Jog Dhian Arora,
Resident of shop/flat no. 13, Krishna Market,
Kalkaji, New Delhi-110 019
.....Plaintiff
VERSUS
KANSHI RAM GERA
(SINCE DECEASED)
Through his Legal Representatives
(i). Smt. Sheela Devi,
W/o. Late Sh. Kanshi Ram Gera,
(ii). Sh. Ashok Kumar Gera,
S/o. Late Sh. Kanshi Ram Gera,
(iii). Sh. Darshan Kumar Gera,
S/o. Late Sh. Kanshi Ram Gera,
(iv). Smt. Rita
D/o. Late Sh. Kanshi Ram Gera,
All r/o. A-726, Sector-19,
Noida, U.P
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CS DJ NO. 9579/2016 - Shanta Devi vs. Kanshi Ram and ors
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v). Sh. Surinder Kumar Gera
S/o. Late Sh. Kanshi Ram Gera,
R/o. A-37, Sector-15,
Noida, U.P
2. UNION OF INDIA,
Through Land and Development Office
Nirman Bhawan, Maulana Azad Road,
New Delhi.
3. KUNDAN LAL GERA
S/o. Late Sh. Ram Kishan Gera,
R/o. C-IV/148, Dayanand Colony,
Lajpat Nagar,
New Delhi ....Defendants
Date of Institution : 03.08.1989
Date of judgment : 29.03.2025
DECISION : DECREED
AND
In the matter of
CS DJ 7815/2016
KUNDAN LAL GERA,
S/o. Late Sh. Ram Kishan Gera,
R/o. C-IV/147, Dayanand Colony,
Lajpat Nagar,
New Delhi-110 024
....Plaintiff
VERSUS
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CS DJ NO. 9579/2016 - Shanta Devi vs. Kanshi Ram and ors
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KANSHI RAM GERA (DECEASED)
Through his Legal Representatives
(i). Smt. Sheela Devi Gera,
W/o. Late Sh. Kanshi Ram Gera,
R/o. A-726, Sector-19, NOIDA
(ii). Shri. Surender Kumar Gera,
S/o. Late Sh. Kanshi Ram Gera,
R/o. A-65, Sector-19, NOIDA
(iii). Sh. Ashok Kumar Gera,
S/o. Late Sh. Kanshi Ram Gera,
R/o. A-36, Sector-19, NOIDA
(iv). Sh. Darshan Kumar Gera,
S/o. Late Sh. Kanshi Ram Gera,
R/o. A-726, Sector-19, NOIDA
(v). Smt. Rita Arora,
W/o. Sh. Nalin Arora,
D/o. Late Sh. Kanshi Ram Gera,
R/o. C2-C, Pocket-2, Flat No. 129,
Janakpuri, New Delhi.
2. RAJ KUMAR ARORA,
Son of Jog Dhian Arora,
3. RAJESH KUMAR ARORA,
Son of Jog Dhian Arora,
4. KAMLESH KUMARI ARORA,
Daughter of Jog Dhian Arora,
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All resident of 13, Krishna Market,
Kalkaji, New Delhi-110 019
....Defendants
Date of Institution : 09.03.2006
Date of judgment : 29.03.2025
DECISION : PARTLY DECREED
Suit for Declaration, Cancellation, Partition,
Possession, Mesne Profits and Injunction
JUDGMENT
1. By way of this common judgment, I shall dispose off
two suits namely:
i). CS DJ 10259/16- Shanta Devi vs. Kanshi Ram
Gera for Specific Performance (hereinafter referred
to as “First Suit”).
(ii). CS DJ 7815/2016 – Kundal Lal Gera Vs.
Kanshi Ram Gera (since deceased) through Lrs and
Ors for Declaration, Cancellation, Partition,
Possession, Mesne Profits and Injunction
(hereinafter referred to as “Second Suit”).
2. For the purposes of convenience, in this judgment Smt.
Shanta Devi shall be referred to as ‘plaintiff’, Sh. Kanshi
Ram Gera shall be referred to as ‘defendant No. 1’, L&DO
shall be referred to ‘defendant no.2’ and Sh. Kundan Lal Gera
shall be referred to as ‘defendant No.3’.
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PLEADINGS IN THE FIRST SUIT
3. CASE OF PLAINTIFF – SHANTA DEVI
Brief facts of the case, as culled out from the plaint are as
follows:
The plaintiff and defendant no.1 entered into an
agreement to sell dt 04.10.1987 for the sale of property
bearing no. 13, Krishna Market, Kalkaji, New Delhi
(hereinafter referred to as ‘suit property’) for a total sale
consideration of Rs. 6.5 lacs. The sale consideration was
paid from time to time in the following manner:
i). Rs. 10,000/- In cash 04.10.1987
ii). Rs. 40,000/- by cheque 04.10.1987
iii). Rs.55,000/- by cheque 30.10.1987
iv). Rs. 95,000 Pay Order 30.10.1987
(Total comes to Rs. 2 lacs as per first agreement)
v). Rs.1,75,000/- Pay Order 07.03.1988
vi).Rs. 2,50,000- Cash 08.03.1988
Thus the total consideration of Rs. 6.25 was paid to
defendant no. 1 pursuant to the Agreement to Sell dt
04.10.1987 and the remaining sale consideration of Rs.
25,000/- was to be paid at the time of registration of the
sale deed. After execution of agreement to sell dt
04.10.1987, defendant no. 1 approached Smt. Shanta Devi
to execute another agreement for a sale consideration of
Rs. 4 lacs instead of agreed sale consideration of Rs. 6.5
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lacs as the previous agreement dt 04.10.1987 regarding the
sale consideration of Rs. 6.50 lacs would burden him with
huge tax liability.
As per the agreement, defendant no.1 was to obtain
sale permission from L&DO and also income tax clearance
certificate. Thereafter, sale deed was to be executed in
favour of the plaintiff failing which the plaintiff was
entitled to have sale deed registered through court of law at
the costs and expenses of defendant no. 1. Meanwhile,
possession of the property including the shop on the
ground floor which was already in possession of Smt.
Shanta Devi as tenant was handed over to Smt. Shanta
Devi. There was a delay in obtaining the sale permission
from L&DO. However, defendant no. 1 executed a Will dt
08.03.1988 and a GPA in favour of husband of Smt. Shanta
Devi, affidavit of his two sons namely Surender Kumar
and Ashok Kumar and his own affidavit to the effect that
the suit property has been sold to Smt. Shanta Devi and
the possession of the same has been delivered to her. A
receipt of the entire consideration amount paid to
defendant no.1 was also executed by him.
Despite repeated requests, the defendant no.1 did not
obtain sale permission and the income tax clearance
certificate, therefore, the plaintiff issued a legal notice dt
13.07.1988 through her Advocate to defendant no.1. The
legal notice dt 04.07.1988 which was apparently ante
dated, was issued on behalf of defendant no.1 claiming the
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balance consideration of Rs. 2.75 lacs by referring to the
first agreement dt 04.10.1987 only. The plaintiff issued
another legal notice dt 15.09.1988 which was replied to by
defendant no.1 on 03.10.1988. Thereafter the plaintiff
received a notice of the suit for recovery of possession
filed by defendant no.1 on frivolous grounds. It is averred
that since the defendant no.1 has denied the second
agreement dt 08.03.1988 the same stands cancelled and he
is liable to perform his obligation under the agreement dt
04.10.1987. Hence the present suit is filed by the plaintiff
praying for a decree of specific performance of the
agreement dt 04.10.1987.
4. W.S OF DEFENDANT NO.1
Defendant no.1 filed his W.S stating that the present
suit is a counter blast of the suit bearing no. 1666/89 filed
by defendant no.1 on 07.07.1989 against the plaintiff for
recovery of possession of the suit property. Defendant
no.1 had entered into an agreement to sell dt 04.10.1987
with respect to the suit property for a total consideration of
Rs. 6.50 lacs. A sum of Rs. 3.75 lacs towards part payment
of sale consideration was received by defendant no.1 and
physical, vacant and peaceful possession of the suit
property was handed over to the plaintiff on 07.03.1988.
Plaintiff failed to pay the balance amount of Rs. 2.75 lacs
and, therefore, defendant no.1 issued a legal notice dt
04.07.1988 calling upon him to pay the same, intimating
the plaintiff that the said agreement shall stand rescinded if
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the remaining sale consideration is not paid. The said legal
notice was not replied by the plaintiff, instead the plaintiff
issued a legal notice dt 30.07.1988 qua agreement to sell dt
08.03.1988 relying upon the agreement to sell dt
08.03.1988 for a total consideration of Rs. 4 lacs.
In the said legal notice, the plaintiff did not allege that
any amount exceeding Rs. 3.75 lacs was paid to defendant
no.1. The said legal notice was replied by defendant no.1
vide his reply dt 26.07.1988 repudiating the Agreement to
Sell dt 08.03.1988 being illegal and unenforceable by
virtue of having been got executed by undue influence,
pressure and coercion and the sale consideration of Rs. 4
lacs being insufficient and further stating that the
agreement between the parties is the agreement dt
04.10.1987, whereby the sale consideration of Rs. 6.50
lacs was agreed. However, instead of paying the balance
sale consideration as demanded, the plaintiff served
another notice dt 15.09.1988 for the first time admitting
the agreement dt 04.10.1987 but falsely claiming that Rs.
6.25 lacs has been paid. The defendant replied the said
notice on 03.10.1988 denying the receipt of Rs. 2.50 lacs
in cash, as alleged, apart from Rs. 3.75 lacs.
Another notice dt 27.01.1989 was issued to the
plaintiff demanding the balance consideration amount of
Rs. 2.75 lacs and intimating that upon non-payment of the
same amount, the defendant no. 1 shall be entitled to get
back the possession of the property and he shall also be
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willing to repay the amount of Rs. 3.75 lacs received by
him. The plaintiff did not reply the said notice, the
defendant no.1, therefore, filed a suit for recovery bearing
no. 1666/89.
The execution of documents i.e. Will dt 08.03.1988,
GPA, Affidavit of defendant no.1 and his sons is denied.
Even the execution of the receipt of Rs. 6.25 lacs was
denied being forged.
5. W.S OF DEFENDANT NO.2- L&DO
L&DO filed its W/S stating that the suit property was
leased out in the name of Sh. Uttam Chand Gera vide
registered lease deed dt 29.08.1969. On the basis of the
court decree furnished by Sh. Kanshi Ram, the said
property was mutated in his name vide letter dt
16.10.1980. Kanshi Ram applied for sale permission in
favour of Smt. Shanta Devi vide letter dt 14.10.1987. On
inspection of the suit property, some unauthorised
construction was found at the site and a notice was issued
to defendant no.1 vide letter dt 12.01.1989 in this regard.
The said letter was not replied by defendant no.1. Thus
unless and until the breaches are not regularized and the
charges are not paid by defendant no.1, sale permission
cannot be granted. L&DO in its W.S further denied rest of
the averments of the plaint for want of knowledge. It is
stated that L&DO has no objection to issue sale permission
provided the terms and conditions are fulfilled and all the
Government dues are paid by defendant no.1.
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6. REPLICATION TO THE W.S OF DEFENDANT NO.
2- L&DO
In the replication, the plaintiff denied the averments
of the W.S and reiterated the contents of the plaint.
7. W.S OF DEFENDANT NO.3-SH. KUNDAN LAL
GERA
Defendant no.3 filed his WS stating as follows :-
The agreement to sell dt 04.10.1987 executed
between defendant no.1 and the plaintiff is illegal and void
as Sh. Kanshi Ram Gera was the the owner of only half
share in the suit property, by virtue of the Will dated
27.04.1960 executed by Sh. Uttam Chand Gera who was
the original lessee in respect of the suit property, whereby
he had bequeathed the property equally in favour of Sh.
Kanshi Ram Gera & Sh. Ram Kishan Gera. Defendant
no.3 has become the owner of half share bequeathed in
favour of his father Sh. Ram Kishan Gera by virtue of Will
dated 14.03.2005 executed by Sh. Ram Kishan Gera in
favour of defendant no.3. The alleged agreement dated
04.10.1987 was executed without any knowledge and
permission of Sh. Ram Kishan Gera. Even the plaintiff was
aware of the said facts and despite that entered into the
said agreement with defendant no.1. The said agreement
mentioned that defendant no.1 is absolute owner of the suit
property on the basis of lease deed and the conveyance
deed dated 29.08.1968, whereas in the said deed itself Sh.
Uttam Chand Gera has been recorded as the owner of the
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suit property and thus the suit is liable to be dismissed.
It is further submitted that Sh. Kanshi Ram Gera/
defendant no.1 had filed a suit against Sh. Uttam Chand
Gera bearing no.40/1978 titled as Kanshi Ram Gera vs.
Uttam Chand Gera for relief of declaration in respect of
suit property despite the fact that Sh. Uttam Chand Gera
had already expired on 29.04.1960. Thus the suit was filed
after 18 years from the death of Sh. Uttam Chand Gera. In
the said suit, a compromise decree dt 01.05.1978 was
obtained declaring Sh. Kanshi Ram Gera as owner of the
suit property. It is submitted that on the basis of the said
fraudulent decree, defendant no.1 got the mutation of suit
property effected in his name in the records of L & DO,
New Delhi. On the basis of said compromise decree, the
alleged agreement dated 04.10.1987 was executed and thus
even on this ground, the suit is liable to be dismissed.
Defendant no.3 had filed a suit bearing no.432/06
titled as Kundan Lal Gera vs. Kanshi Ram Gera for
declaration and cancellation of the fraudulent compromise
decree dated 01.05.1978 and for declaration and
cancellation of agreement to sell dated 04.10.1987 and
08.03.1988 executed between the plaintiff and defendant
no.1 and for the partition of the suit property.
It is stated that the present suit is liable to be
dismissed for non joinder of the necessary party i.e. the
MCD, New Delhi which now as per Notification dated
24.03.2006 published in the Gazette of India, is the
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concerned department with respect to the suit property and
the records pertaining to suit property have been
transferred from L&DO to the MCD.
It is stated that the suit is liable to be dismissed as the
plaintiff has not approached the court with clean hands and
had played a fraud on the government authorities as it is
her admitted case that the agreement dated 08.03.1988 for
a lesser sale consideration was executed with a view to
dupe the tax authorities. It is further stated that the
agreement to sell does not mention the fact that the
defendant no.3 is the co-owner of the suit property and
therefore, specific performance cannot be granted u/s 20 of
The Specific Relief Act, 1963. It is submitted that the suit
is also barred u/s 62 of The Indian Contract Act 1872. It is
further submitted that the plaintiff has not claimed any
declaration qua the legal notice dated 27.01.1989 of
defendant no.1 for cancellation of the agreement to sell
dated 04.10.1987 and therefore, the present suit for
specific performance of the agreement to sell is not
maintainable.
PLEADINGS IN THE SECOND SUIT
8. CASE OF SH. KUNDAN LAL GERA
Brief facts of the case as culled out from the plaint
are as follows:
The plaintiff by way of this suit is seeking declaration
that the judgment and decree dt 01.05.1978 passed in suitCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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cancellation of the same on the ground that it was obtained
by playing fraud upon the Court. Consequential reliefs
have also been claimed. In this suit, defendant no.2 to 4
are L.Rs of one Smt. Shanta Devi with whom the
defendant no.1 had entered into Agreement to Sell with
respect to the property bearing no. 13, Krishna Market,
Kalkaji, New Delhi (hereinafter referred to as ‘suit
property’).
Relationship between Sh. Kundan Lal Gera and defendant
no1 is shown in the chart below:
Uttam Chand
|
|
_________________________________
| |Ram Kishan Gera Kanshi Ram Gera
(Son) (Son)
|
Kundan Lal Gera
(Son)It is the case of Sh. Kundan Lal Gera that the suit
property was purchased by his grand father-Sh. Uttam
Chand Gera from L& DO after the family shifted to Delhi
from Pakistan after partition. Also property bearing no. C-
IV/147 and C-IV/148, Dayanand Colony, Delhi was
purchased by his father Sh. Ram Kishan Gera from
Ministry of Rehabilitation from his own funds. In good
faith and trust, property no. C-IV/148, Dayanand Colony,
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Delhi was purchased in the name of his brother namely
Kanshi Ram Gera, however, the entire cost/expenses of
acquiring the said property was borne by his father. Hence
possession of property bearing no. C-IV/148, Dayanand
Colony, Delhi always remained with him and Sh. Ram
Kishan Gera from the date of allotment till date.
Property no. 13, Krishna Market, Kalkaji, New
Delhi i.e. suit property is a residential-cum-commercial
property with shop in front and residence at the back side.
Defendant no. 1 with his family was residing at the
residential accommodation of the suit property, while Ram
Kishan Gera alongwith his family was residing at property
bearing no. C-IV/147 and C-IV/148, Dayanand Colony,
Delhi.
Thereafter Uttam Chand Gera expired on 29.04.1960
leaving behind a Will dt 27.04.1960 thereby bequeathing
the suit property in favour of defendant no. 1 and his father
Sh. Ram Kishan Gera in equal shares.
After the death of Uttam Chand Gera, an oral family
settlement was arrived at and it was decided that suit
property would go to defendant no. 1 and property bearing
no. C-IV/148, Dayanand Colony, Delhi would go to Ram
Kishan Gera. The family settlement was duly acted upon
and accordingly defendant no. 1 and his family continued
to reside in suit property and Ram Kishan Gera with his
family was in possession of properties bearing no. C-
IV/147 and C-IV/148, Dayanand Colony, Delhi.
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It is averred that an agreement to sell dt 07.04.1969
qua property bearing no. C-IV/148, Dayanand Colony,
Delhi was entered into by defendant no.1 with one sh. Om
Prakash. The said person filed a suit no. 111/1970 for
specific performance of the said agreement to sell which
was decreed in his favour vide judgment and decree dt
24.02.1972. Appeal against the said judgment bearing
RFA No. 217/1972 was also filed. The said appeal was
dismissed vide judgment dt 18.04.1995. An appeal against
the said judgment dt 18.04.1995 was also filed before
Hon’ble Supreme Court bearing CA No. 7499 of 1996,
wherein vide order dt 15.04.1996, the specific performance
of the agreement in question was declined subject to the
condition that property bearing no. C-IV/148, Dayanand
Colony, Delhi would not be sold for a period of 5 years
and further a sum of Rs. 10 lacs would be paid to Sh. Om
Prakash. The cost of entire litigation was borne by Sh.
Ram Kishan Gera and even Rs. 10 lacs was paid to Om
Prakash by Sh. Kundan Lal Gera out of his own funds in
the year 1996. The defendant no.1 never attended the court
proceedings.
In the year 1978, in consonance with the family
settlement, an agreement dt 21.09.1978 was drawn
between the defendant no.1 and Sh. Ram Kishan Gera,
whereby it was agreed between the parties that Sh. Ram
Kishan Gera has relinquished his half share in the suit
property in consideration of property bearing no. C-
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IV/148, Dayanand Colony, New Delhi. It was also stated
that Sh. Ram Kishan Gera had executed a separate
relinquishment deed. It was clearly stated that Sh. Kanshi
Ram Gera had no right in the Dayanand colony property
and Sh. Ram Kishan Gera had no right in the suit property.
However, at the time of presentation of the said agreement
for registration, the defendant no.1 did not join the said
process and accordingly, the agreement could not be
formally registered.
In the year 1978, defendant no.1 turned dishonest and
instituted a Civil Suit bearing No. 40/1978 in District
Courts Delhi qua suit property i.e. 13, Krishna Market,
Kalkaji, New Delhi against Uttam Chand Gera who had
already expired on 29.04.1960. Defendant no. 1
fraudulently filed this case against his dead father despite
knowing the fact that his father had already expired. He
also compromised the case with his own dead father and
obtained a fraudulent compromise decree dt 01.05.1978
causing some person to impersonate as Sh. Uttam Chand
Gera and secured sole ownership qua property no. 13,
Krishna Market, Kalkaji, New Delhi. On the basis of the
said decree, defendant no.1 got his name mutated in the
records of L & DO as the sole owner of this property
without disclosing this fact to his own brother Ram Kishan
Gera. Thereafter he entered into an agreement with one
Shanta Devi for the purposes of selling the suit property.
Two agreement to sell dt 04.10.1987 and 08.03.1988 were
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entered into between Kanshi Ram Gera/defendant no. 1
and said Smt. Shanta Devi.
The defendant no. 1 also filed a suit bearing no.
622/97 claiming rights in property no. C-IV/148,
Dayanand Colony, New Delhi. The said suit was filed
after the payment of Rs. 10 lacs was made to Om Prakash
in pursuance of order of Hon’ble Supreme Court. In the
suit, it was claimed by defendant no.1 that Rs. 10 lacs was
paid by him and he also refuted the agreement dt
21.09.1978. Vide judgment dt 11.05.2013, passed by Ld.
Predecessor of this court Sh. Kundan Lal Gera was held to
be the owner of the said property.
On 07.12.2002, Sh. Kundan Lal Gera came to know
about the selling of the suit property by Kanshi Ram to
Shanta Devi and the suit pertaining to the same pending
between the parties. It also came to his knowledge that
possession of the suit property is also with L.Rs of Shanta
Devi. He thereafter filed an application for his
impleadment in the said suit. The plaintiff also made
inquires in the District Court about the case file of the suit
filed in the year 1978 by defendant no. 1 against Uttam
Chand but it came to his knowledge that the records were
destroyed in fire. On making further inquires in the L&DO
Office, he was able to obtain a photocopy of the decree dt
01.05.1978 of suit no. 40/1978. It is submitted that the
photocopy of the same was obtained from L&DO vide
letter dt 17.05.2005.
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There was another suit filed titled as Kanshi Ram Vs.
Shanta Devi filed by Sh. Kanshi Ram Gera with respect to
the suit property for recovery of possession and mesne
profits. However, the same was dismissed in default due
to non-appearance of Sh. Kanshi Ram, who was the
plaintiff in the said case.
Sh. Ram Kishan Gera expired on 29.07.2005 leaving
behind a registered Will dt 29.07.2005 bequeathing his half
share in the suit property in favour of Sh. Kundan Lal
Gera. Hence the present suit is filed praying for the
following reliefs:
A). A decree of declaration declaring the
judgment and decree dt 01.05.1978 as null and void and
for cancellation of the same.
B). A decree thereby declaring the mutation in
L&DO, showing the defendant no. 1 as the sole owner of
the suit property being vitiated by fraud and thus being
null and void ab-initio and for cancellation of the said
mutation from the records of L&DO.
C). A decree thereby declaring the agreements
dated 04.10.1987 and 08.03.1988 executed by the
defendant no.1 in favour of Smt. Shanta Devi as being
executed without authority and being null and void ab-
initio and for cancellation of the said documents.
D). A decree thereby declaring the plaintiff as
owner of half share in suit property.
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E). A decree of Partition of the suit property by
metes and bounds and for grant of possession of half share
in the said property to the plaintiff.
F). A decree of declaration in favour of plaintiff
and against the defendants thereby directing the defendants
to pay mesne profits @ 20,000/- per month to the plaintiff.
G). A decree of injunction thereby restraining the
defendants from creating any third party rights, selling,
alienating or parting with possession qua suit property.
9. W.S OF DEFENDANT NO. 1/KANSHI RAM GERA.
As per the W.S, it is the case of defendant no. 1 that
their father Sh. Uttam Chand Gera died on 29.04.1960
leaving behind a Will dt 17.04.1960 bequeathing his two
properties i.e property of Krishna Market i.e. the suit
property and another property bearing no G-72,
Govindpuri, Kalkaji, New Delhi in favour of Ram Kishan
and Kanshi Ram Jointly and equally. Subsequent to the
death of Sh. Uttam Chand Gera an oral family settlement
took place between Ram Kishan and Kanshi Ram and as
per the said oral settlement, Govindpuri property came to
the share of Ram Kishan Gera and the Krishna Market
property came to the share of Kanshi Ram Gera. Kanshi
Ram Gera also paid some cash to Ram Kishan Gera being
the difference in market value of the two properties.
Ram Kishan Gera was the eldest brother and Kanshi
Ram Gera was the youngest of the three brothers and was
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an illiterate, hence he was fully dependent upon Ram
Kishan for all property matters. Ram Kishan Gera sold his
Govind Puri property to his younger brother Late Sh. Tara
Chand/his son Bansi Lal. For the purpose of mutation in
the name of defendant no.1 qua Krishna Market property,
Ram Kishan Gera filed a suit for declaration and obtained
a declaratory decree. Kanshi Ram never signed any plaint
or any other document for the said suit. It was Ram
Kishan who took all steps to get the said property mutated
in the name of Kanshi Ram in the records of L&DO.
With the knowledge of Sh. Ram Kishan Gera,
defendant no. 1 entered into two agreements to sell dt
04.10.1987 and 08.03.1988 with late Smt. Shanta Devi
regarding property no. 13, Krishna Market, Kalkaji, New
Delhi for a total sale consideration of Rs. 6,50,000/-. The
legal physical possession was also handed over by Kanshi
Ram Gera to Shanta Devi. Against the said sale
consideration, Shanta Devi made a part payment of Rs.
3,75,000/- and she never paid the balance consideration.
Rather Shanta Devi filed a false suit for specific
performance before Hon. High Court of Delhi thereby
claiming that she had paid the entire sale consideration.
Kanshi Ram Gera contested the said suit and also filed a
suit for recovery of possession and recovery of mesne
profits against Shanta Devi. Since in suit bearing no.
622/1997, it is the case of defendant no.1 that there was no
agreement dt 21.09.1978 between Sh. Ram Kishan Gera
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and defendant no.1 that the suit property should belong to
defendant no.1 and property bearing no. C-148, Dayanad
Colony should belong to Sh. Ram Kishan Gera.
It is averred that the present suit is merely a counter
blast of the suit bearing no. CS DJ 622/1997 filed by
defendant no.1 against late Sh. Ram Kishan Gera and Sh.
Kundan Lal Gera with respect to property no. C-IV/148,
Dayanand Colony, Delhi, filed with a view to pressurize
defendant no.1 to drop the proceedings in the said suit.
Defendant no.1 entered into an Agreement to Sell dt
16.07.1996 with the plaintiff whereby the plaintiff had agreed
to purchase the property no. C-IV/148, Dayanand Colony,
Delhi for consideration of Rs. 30 lacs inclusive of Rs. 10 lacs
paid by Sh. Kundan Lal Gera on behalf of defendant no. 1 to
Sh. Om Prakash in pursuance of order of Hon’ble Supreme
Court. However, agreement fell through and Sh. Ram Kishan
Gera and Sh. Kundan Lal Gera continued in possession of the
property no. C-IV/148, Dayanand Colony, Delhi and did not
vacate the same, even though, Late sh. Ram Kishan Gera was
acting in the capacity of a caretaker of Dayanand Colony
property. The present suit is deliberately filed after death of
Sh. Ram Kishan Gera being aware that no criminal
proceedings can be initiated against a dead person.
It is averred that Sh. Kundan Lal Gera has falsely
claimed that the Dayanand Colony property was the subject
matter of the oral family settlement between the parties
whereas the subject matter of the said settlement was the
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Govind Puri property taking advantage of the fact that there is
no record of oral family settlement. There was no family
arrangement with respect to property no. C-IV/148, Dayanand
Colony, Delhi.
Kanshi Ram obtained the exclusive title of suit
property by way of partition under the oral family
settlement and not by virtue of the decree of the Civil
Court which was manipulated by Late Sh. Ram Kishan
Gera and no fraud as alleged is played by the defendant no.
1. The suit property was in possession of defendant no.1 as
owner thereof. Late Sh. Ram Kishan Gera and Sh. Kundan
Lal Gera knew throughout about the agreements to sell
with Smt. Shanta Devi and the transfer of possession of
the property to Smt. Shanta Devi since 1988.
The Sh. Kundan Lal Gera had contested the litigation
qua Dayanand Colony property on behalf of defendant
no.1 as a pairokar and not as the owner of the suit property.
Defendant no.1 had executed a power of attorney in favour
of the plaintiff in the said property. Litigation expenses for
the said litigation was borne by defendant no.1, though, the
same of Rs. 10 lacs was paid to Om Prakash by Sh.
Kundan Lal Gera with the consent of defendant no. 1 in
view of the agreement between the plaintiff and defendant
no.1 for sale of Dayanand Colony property, which was also
reduced in writing vide agreement dt 16.07.1996. The said
agreement was not acted upon as some portion was
unauthorisedly inserted in the said agreement by Sh.
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Kundan Lal Gera.
It is submitted that the oral family settlement of
partition was acted upon by both the parties and it was also
reaffirmed by both the parties by their conduct during the
years 1978 to 1980 also. Defendant no. 1 has categorically
denied the agreement dt 21.09.1978.
10. W.S ON BEHALF OF DEFENDANTS NO. 2 TO 4
(L.RS OF SMT. SHANTA DEVI)
Defendant no.2 to 4 filed a joint W.S raising various
preliminary objections viz., that the suit is barred by
Limitation, the suit is bad for mis-joinder of parties, non-
payment of proper court fee and absence of cause of
action and further stating as follows:
Smt. Shanta Devi was originally a tenant of the
shop in front portion of property no. 13, Krishna Market,
Kalkaji, New Delhi @ Rs. 400/- p.m vide lease deed dt
24.03.1980. The rent was received by Kanshi Ram
/defendant no. 1 and receipt was issued by him in his own
name. Sh. Ram Kishan Gera was aware of this fact
regarding letting out the suit property as he regularly used
to visit the shop of Shanta Devi for getting his spectacles
repaired. Hence he made the answering defendants believe
that the defendant no.1 alone was the owner of this
property. Hence she agreed to purchase the suit property
for Rs. 6.50 lacs and an agreement to sell dt 04.10.1987
was executed and Rs. 6.25 lacs were paid to defendant no.
1 under the agreement from time to time against due
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24receipts issued by defendant no. 1. The balance sale
consideration was to be paid at the time of registration of
sale deed.
After execution of agreement to sell dt 04.10.1987,
defendant no. 1 approached Smt. Shanta Devi to execute
another agreement for a sale consideration of Rs. 4 lacs
instead of agreed sale consideration of Rs. 6.5 lacs as the
previous agreement dt 04.10.1987 regarding the sale
consideration of Rs. 6.50 lacs would burden him with huge
tax liability. Since Smt. Shanta Devi had already paid
consideration amount, she agreed to execute fresh
agreement, however, it was an understanding between the
parties that the original agreement dt 04.10.1987 would be
the real agreement between the parties. Thus fresh
agreement dt 08.03.1988 was executed between Smt.
Shanta Devi and defendant no.1 where the sale
consideration was shown as Rs. 4 lacs. After payment of
the agreed consideration amount, possession of the entire
suit property i.e. back side of the ground floor, (possession
of front portion was already with the answering
defendants), First floor and Second Floor were also handed
over to Shanta Devi towards part performance of the
agreement to sell. When this deal was finalized. Sh. Ram
Kishan Gera was also present there and he continued to
visit the shop of Smt. Shanta Devi even after execution of
these documents.
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Despite that Sh. Ram Kishan Gera never objected to
the same nor informed Smt. Shanta Devi about his joint
ownership in the property. Sh. Ram Kishan Gera was even
informed that defendant no.1 is not honoring the
Agreement to Sell and is not executing the sale deed and
was also requested to persuade him to honour its
commitment to avoid any litigation.
Even after execution of agreement to sell and
receiving of sale consideration, as the defendant no. 1 was
not coming forward to execute the sale deed in favour of
Shanta Devi, hence she was constrained to file a suit for
specific performance bearing no. 2002/1989 in Hon’ble
High Court of Delhi. In the said suit, defendant no.1 has
denied receiving of sale consideration of Rs. 6.25 Lacs
with malafide intentions in order to extort more money
from her. During one of his visit at shop by Ram Kishan,
he was apprised of filing of the suit by Shanta Devi
herself.
It is averred that Sh. Kundan Lal Gera admits that the
suit property had fallen to the share of defendant no.1 in
the oral family settlement between the parties, however,
has filed the present suit to settle personal scores with
defendant no.1 and to compel him to give up his claim in
the property with respect to which suit no. 622/1997 was
filed. It is averred that the present suit is barred by
estopple, waiver, acquiesce and is also barred by limitation
as the defendant no.2 to 4 have perfected their titled by
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adverse possession being in continuous possession of the
suit property for more than 18 years, adverse to the right,
title and interest of Sh. Ram Kishan Gera. Thus the
Agreement to Sell entered into between defendant no.1 and
Smt. Shanta Devi is perfectly legal and binding upon the
parties.
11. REPLICATION TO THE W.S OF DEFENDANT NO.1
Sh. Kundan Lal Gera filed his replication denying
the averments in the W/S and reiterated the contents of the
plaint. It is stated that Sh. Tara Chand and his family had
resided in the Govindpuri property after the death of Sh.
Uttam Chand Gera and he being the youngest brother of
Sh. Ram Kishan Gera, no right with respect to the said
property was enforced against him by his father.
12.REPLICATION TO THE W.S OF DEFENDANT NO.2
TO 4
In the replication, the plaintiff has denied the
averments made in the W.S and reiterated the contents of
the plaint.
13.ISSUES:
Following issues were framed in First suit i.e. Shanta
Devi case vide order dated 07.11.1996:-
i). Whether in pursuance of the agreement to sell
between the parties dt 04.10.1987, the defendant failed to
perform his part of the agreement ?
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ii). Whether the defendants executed a general attorney
and if so, its effect ?
iii). Whether plaintiff is entitled for the relief claim in
the suit ?
iv). Relief.
Additional issues were framed in the first suit vide
order dt 23.04.2016:
3A). Whether the agreement to Sell dt 04.10.1987 is in
contravention of the terms and conditions of the registered
perpetual lease deed dt 29.08.1959 in respect of the suit
property ? OPD3
3B). Whether the suit is bad for non-joinder of necessary
party i.e. Municipal Corporation of Delhi ? OPD
3C). Whether the agreement to sell dt 04.10.1987
executed by defendant no.1 in favour of plaintiff is illegal
and whether defendant no.1 is not entitled to enter into any
agreement to sell in respect of suit property described as
proper no. 13, Krishna Market, Kalkaji, New Delhi ?
OPD 2.
The following issues were framed in the second suit
vide order dt 19.08.2013:
1. Whether the suit is barred by limitation? OPD
2. Whether the suit is bad for non-joinder of the parties?
OPD
3. Whether the plaintiff is entitled to a decree of
declaration that the judgment and decree dated 1 st MayCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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to be cancelled? OPD
4. Whether the plaintiff is entitled to a decree of
declaration that the mutation on the basis of the judgment
and decree dated 1st May 1978 in respect of the property at
13, Krishna Market, Kalkaji, New Delhi in favour of
Defendant No. 1 is null and void being initiated by fraud
and therefore, is liable to be cancelled? OPP
5. Whether the plaintiff is entitled to a decree of
declaration as regards the consequential acts including the
agreements dated 4th October 1987 and 8th March 1988
executed by Defendant No. 1 in favour of Mrs. Shanta
Devi is null and void? OPP
6. Whether the plaintiff is entitled to a decree of
declaration that he is the owner of the half share in
property No. 13, Krishna Market, Kalkaji, New Delhi –
110019 ? OPP
7. Where there is an oral family settlement in relation to
the property at 13, Krishna Market, Kalkaji, New Delhi
and C-IV/147, Dayanand Colony, Lajpat Nagar, New
Delhi? OPP
8. Whether there is an oral family settlement relating to the
property at G-72, (Old No. 1623), Govindpuri, Kalkaji,
New Delhi? OPD No. 1
9. Whether the plaintiff is entitled to mesne profits as
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10. Whether the Plaintiff is entitled to permanent
injunction as prayed for? OPP
11. Relief
14. EVIDENCE LED BY SMT. SHANTA DEVI
PW1-Sh. Jog Dhian, who of husband of Late Smt.
Shanta Devi tendered his evidence by way of affidavit
Ex.PW1/A and exhibited the following documents on
record:
1). Agreement to Sell dt 04.10.1987 Ex.PW1/1
2). Agreement to Sell dt 08.03.1988 Ex.PW1/2
3). Will dt 08.03.1988 Ex.PW1/3
4). GPA dt 08.03.1988 Ex.PW1/4
5). Affidavit dt 08.03.1988 of S.K.Gera Ex.PW1/5
6). Affidavit dt 08.03.1988 of A.K.Gera Ex.PW1/6
7). Affidavit of Kanshi Ram Ex.PW1/7
8). Receipt dt 08.03.1988 Ex.PW1/8
9). Form dt 07.03.1988 Ex.PW1/9
10). Acknowledgment receipt Ex.PW1/10
11). Letter from L&DO Ex.PW1/11
12). Copy of Legal notice dt 13.07.1988 Ex.PW1/12
(Mark A)
13. Copy of Legal notice dt 04.07.1988 Ex.PW1/13
(Mark B)
14. Copy of Legal notice dt 15.09.1988 Ex.PW1/14
(Mark C)
15. Copy of Legal notice dt 03.10.1988 Ex.PW1/15
(Mark D)
16. Certified Copy of Statement
of S.K. Gera Ex.PW1/16
17. Certified Copy of Statement
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18. Certified Copy of Statement
of Basant Raj Ex.PW1/18
19. Receipt dt 08.03.1988 Ex.PW1/19.
15. No evidence was led on behalf of defendant no. 1-
Kanshi Ram Gera. He did not step into the witness box nor
led any other evidence in support of his case.
16. EVIDENCE BY SH. KUNDAN LAL GERA
Defendant in support of his case examined Sh. Rakesh
Sharma/ Superintendent in L & DO Office, Nirman Bhawan
as DW1, who deposed that the entire records pertaining to
Shop No. 13, Krishna Market, Kalkaji, New Delhi has been
transferred to Municipal Corporation of Delhi and that he had
brought the attested copy of the document (2 pages)
pertaining to the transfer of the records to MCD. The same is
exhibited as Ex. DW1/1.
Sh. Kundan Lal Gera, examined himself as DW2.
He tendered his evidence by way of affidavit Ex.DW2/A
and relied upon the following documents.
Sr. Documents Exhibited No.
1. Will dated 27.04.1960 in Urdu along Mark A
with its translation in English
2. Order of the Supreme Court dated D1 (already
15.04.1996 exhibited)
3. Payment receipt dated 12.12.1992 of Already Ex. D2
Rs. 500/- deposited with Indian
Counsel of Legal Aid
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4. Original receipt of registration form Mark B (Now Ex.
no. 2 in respect of delivery of an DW2/1)
agreement issued by Sub Registrar
dated 10.01.1979
5. Original receipt of registration form Mark C (Now
no. 2 in respect of delivery of an Ex.DW2/2)
GPA issued by Sub-Registrar dated
10.01.1979
All the aforesaid documents are in
case CS OS 7560/16.
6. Copy of the agreement dated Mark D
21.09.1978 with fair typed copy
7. Copy of the GPA dated 21.09.1978 Mark E
with fair typed copy
All the aforesaid documents are in
case CS OS 7815/16.
8. Original letter dated 13.03.1979 Mark F (now Ex.
issued by office of Collectors DW2/3)
Stamps
9. Photocopy of the pay order no. Mark G
131132 dated 08.07.1996
10. Letter dated 11.07.1996 written by Mark H
Sh. Om Prakash Jawal to Sh. Kashi
Ram
11. Two Original envelops in the name Mark I (now Ex.
of Sh. Kashi Ram in respect of the DW2/4, colly)
letter dated 11.07.1996 (by way of
speed post and registered AD)
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All the aforesaid documents are in
case CS OS 7560/16.
12. Copy of letter dated 13.07.1996 filed Mark J
in CS No. 385/2016
13. Original Postal receipts of the letter Ex. DW2/5 (Colly)
dated 13.07.1996 (colly) filed in CS
No.385/2016 pasted two postal
receipts
14. Copy of the letter dated 19.09.1996 Mark L
issued by ANZ Grindlays Bank
(filed in Suit No.131 of 2016)
15. Original letter dated 12.09.1997 of Ex. DW2/6
ANZ Grindlays Bank to Sh. K.L.
Gera (filed in CS OS 385 of 2016)
16. Copy of registered will dated Mark N
14.03.2005 of late Sh. Ram Kishan
Gera (filed in suit no. 131 of 2016)
17. Copy of Lease Deed dated Mark O (though
29.08.1959 Mark A in para 34 of
affidavit)
18. Photocopy of Will dated 27.04.1960 DW2/7 (colly)
in Urdu Language (which has been (OSR)
filed today) along with translated
copy in English already on record-
19. Photocopy of death certificate of Mr. Mark P (though Mark
Uttam Chand Gera C in para 34 of the
affidavit)
20. Photocopy along with true typed Mark Q (though
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copy of the plaint dated 20.01.1978 Mark D in para 34 of
in suit no. 40 of 1978 the affidavit) Now
Ex.DW2/14
21. Photocopy along with true typed Mark R (though
copy of the order dated 01.05.1978 Mark E in para 34 of
in suit no. 40 of 1978 the affidavit) Now
Ex.DW2/15
22. Photocopy along with true typed Mark S (though
copy of the decree sheet dated Mark F in para 34 of
01.05.1978 in suit no. 40 of 1978 the affidavit) Now
Ex.DW2/16
23. Photocopy of letter dated Mark T (though
22.02.1980 issued by L&DO Mark G in para 34 of
the affidavit) Now
Ex.DW2/13
24. Photocopy of letter dated Mark U (though
16.10.1980 issued by L&DO along Mark H in para 34 of
with true typed copy the affidavit) Now
Ex.DW2/12-A
25. Original order dated 12.01.1989 Ex.DW2/8 (Though
issued by L&DO Mark I in para 34 of
the affidavit)
26. Certified copy of the Will dated Ex.DW2/9 (Though
14.03.2005 filed today of which Mark K in para 34 of
photocopy is already on record the affidavit)
27. Photocopy of letter dated Mark V (Though
17.05.2005 issued by L&DO Mark L in para 34 of
the affidavit). Now
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Ex.DW2/12
28. Certified copy of death certificate of Ex.DW2/10 (Though
Sh. Ram Kishan filed today Mark M in para 34 of
photocopy of which is already on the affidavit).
record.
29. Certified copy of order dated Ex. DW2/11 (Though
18.07.2007 passed in Suit no. 72 of Mark N in para 34 of
2005 filed today. the affidavit)
30. Will dated 27.04.1960 of Sh. Uttam Mark A (Para 39)
Chand Already Ex. DW2/7
on 26.07.2017 at Sr.
No. 18
31. Photocopy of Death certificate of Mark B (Para 39)
Sh. Uttam Chand Already Marked as P
on 26.07.2017 at Sr.
No. 19
32. Photocopy of plaint in suit no. Mark C (Para 39)
40/1978 dated 20.01.1978 Already Marked as Q
on 26.07.2017 at Sr.
No. 20
33. Photocopy of Order dated Mark D (Para 39)
01.05.1978 in suit no. 40/1978 Already Marked as R
on 26.07.2017 at Sr.
No. 21
34. Photocopy of Decree dated Mark E (Para 39)
01.05.1978 in suit no. 40/1978 Already Marked as S
on 26.07.2017 at Sr.
No. 20
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35. Photocopy of Agreement dated Mark F (Para 39)
21.09.1978 Already Marked as
Mark D on
08.02.2017 at Sr. No.
6
36. Photocopy of Registration Receipt Mark G (Para 39)
dated 10.01.1979 Already Ex. As Ex.
DW2/1 On
08.02.2017 at Sr. No.
4.
37. Photocopy of GPA dated 21.09.1978 Mark H (Para 39)
Already Marked as
Mark E on
08.02.2017 at Sr. No.
7
38. Photocopy of GPA receipt dated Mark I (Para 39)
10.01.1979 Already Exhibited as
Ex. DW2/2 on
08.02.2017 at Sr. No.
5
39. Photocopy of Cancellation of Power Mark W (though
of Attorney dated 12.01.1979 Mark J in Para 39 of
alongwith Fair typed copy the affidavit)
40. Photocopy of Notice dated Mark X (though
10.07.1979 along with fair typed Mark K in para 39 of
copy the affidavit)
41. Photocopy of Letter dated Mark L (para 39)
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22.02.1980 issued by L&DO Already Marked as
Mark T on
26.07.2017 at Sr. No.
23
42. Photocopy of Letter dated Mark M (para 39)
16.10.1980 issued by L&DO Already Marked as
Mark U on
26.07.2017 at Sr. No.
24
43. Photocopy of Agreement to Sell Mark Y (Though
dated 04.10.1987 Mark N in Para 39 of
the affidavit)
44. Photocopy of Agreement to Sell Mark Z (Though
dated 08.03.1988 Mark O in Para 39 of
the affidavit)
45. Photocopy of Order/ judgment dated Mark P (Para 39)
08.07.1996 Already Ex. As Ex.
No. D1 at the time of
Admission/ Denial at
Sr. No. 2
46. Photocopy of Pay Order dated Mark Q (Para 39)
08.07.1996 Already marked as
Mark G on
08.02.2017 at Sr. No.
9
47. Original Hand Written Agreement Ex. DW2/12
dated 16.07.1996 in Case No.
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7560/2016
48. Photocopy of Letter dated Mark S (Para 39)
19.09.1996 issued by ANZ Already Marked as
Grindlays Bank Mark L on
15.03.2017 at Sr. No.
14
49. Photocopy of Order dated Mark Z-1 (Though
18.10.1996 with statement Mark T in Para 39 of
the affidavit)
50. Photocopy of Replication dated Though Mark U in
03.10.1998 Para 39 of the
affidavit, is already
Part of Suit Record
51. Photocopy of Will dated 14.03.2005 Mark V (Para 39)
of Sh. Ram Kishan Already Ex. As Ex.
No. DW2/9 on
26.07.2017 at Sr. No.
26
52. Photocopy of Letter dated Mark W (Para 39)
17.05.2005 issued by L&DO Already Marked as
Mark V on
26.07.2017 at Sr. No.
27
53. Photocopy of Death Certificate of Mark X (Para 39)
Sh. Ram Kishan Gera Already Ex. As Ex.
DW2/10 on
26.07.2017 at Sr. No.
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28
Defendant in support of his case examined Sh. J.C.
Mendiratta as DW3. He tendered his evidence by way of
affidavit Ex.DW3/A. The witness identified the thumb
impression of testator Shri Ram Kishan Gera at Point A on 1st
page and as well as on second page at 2 places and on the
reverse of the will before the sub registrar at 2 places on the
document Ex. DW2/9. He further identified his signature on
the Will at point B and the signatures of Shri Amit Garg at
Point C and his own thumb impression on the reverse of the
will at point D and that of Shri Amit Garg at point E, before
Sub registrar.
Defendant in support of his case also examined Sh. S.K.
Sehgal, Asst. Section Officer from L&DO as DW-4, who had
brought the summoned record. DW4 deposed that previously
the land owning agency was L&DO and the file was being
maintained with the L&DO and vide notification in the year
2006, the record in respect of the property i.e. Shop no: 13,
Krishna Market, Kalkaji, New Delhi, stood transferred to the
estate. department of SDMC. In the property file the
department maintains copies of lease deed, conveyance deed,
correspondence, mutations, transfers, sale permissions, gift
permissions. DW4 had brought the original property file of
Shop no: 13, Krishna Market, Kalkaji, New Delhi, containing
the copy of the lease deed dated 29.08.1969, copy of which is
already on record as Ex.DW2/P1, the letter dated 08.01.1980
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photocopy of which is now Ex. DW4/1. He had also brought
office copy of letter dated 22.02.1980 addressed to Shri
Kanshi Ram Gera copy of which is already Ex. DW2/13 and
another letter dated 16.10.1980 copy of which is already on
record as Ex. DW2/12. He had also brought the office copy of
letter dated 12.01.1989 of which the copy is already on record
as Ex. DW2/8, the documents supplied by the applicant along
with application for mutation dated 08.01.1980 i.e. copy of
decree dated 01.05.1978 in CS No: 40/1978, copy of lease
deed dated 29.08.1958, letter dated 13.03.1980, the photocopy
of which is Ex. DW4/2, vide which the certified copy of
decree sheet passed in suit no: 40/1978 dated 01.05.1978,
certified copy of statement of Sh. Kanshi Ram, plaintiff dated
01.05.1978, were enclosed.
DW4/Sh. S.K Sehgal was called for re-examination on
31.05.2019. He brought the relevant records as summoned by
the Court and by exhibited the lease deed dt 29.08.1969 as Ex.
DW4/3.
17. ARGUMENTS OF LD. COUNSEL FOR KUNDAN LAL
GERA- SH. J.C MAHINDROO AND SH. JASMEET
SINGH
It is argued that the compromise deed dt 01.05.1978
passed in suit no. 40/1978 had been fraudulently obtained by
Kanshi Ram Gera by instituting a suit against his father Sh.
Uttam Chand Gera who had already expired in 1960. It is
further argued that since the suit was filed against a dead
person and thereafter a compromise was recorded by
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impersonating some other person as Sh. Uttam Chand Gera,
the decree is liable to the declared as null and void. It is
further argued that in the said suit Kanshi Ram Gera even
made some other person impersonate Sh. Ram Kishan Gera
and his signatures were obtained as a witness before the Sub
Registrar. It is argued that the said fact would be clear from
the very perusal that the signature of Sh. Ram Kishan Gera on
his application u/o. 1 rule 10 CPC filed in the suit of Smt.
Shanta Devi vs. Kanshi Ram Gera which are totally
different from the signatures on the registered compromise
deed. It is argued that the knowledge of the said decree
was obtained by Kundan Lal Gera on 17.05.2005 when a
letter in this regard was received from L&DO which is
Ex.DW2/17. It is submitted that Kundan Lal Gera though
came to know about the same in the year 2002-2003,
however, he was not able to obtain a copy from the District
Courts of Tis Hazari, where the said decree was passed, as
the record was destroyed in fire, which is evident from
Ex.DW2/P6. It is argued that unless and until Kundan Lal
Gera was able to procure a copy of the fraudulent decree
he could not have filed any suit for cancellation of the
same and thus upon obtaining a copy of the same, the
present suit was filed. It is further argued that the Kanshi
Ram Gera has not led any evidence and even did not step into
the witness box and, therefore, has failed to show that he had
any knowledge of the decree at any time prior to 17.05.2005.
It is further argued that since the signatures of Sh. Ram
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Kishan Gera were obtained before Sub Registrar by
impersonating him, knowledge cannot be imputed from the
date of registration of the decree. It is further argued that even
otherwise, Smt. Shanta Devi has not pleaded the same in
her case and, therefore, cannot step into the shoes of
Kanshi Ram Gera to argue on his behalf.
The counsel further argued that though the suit is not
barred by limitation due to lack of knowledge of decree yet
as per the judgments passed by Hon’ble Supreme Court a
judgment and decree obtained by fraud is nonest and
nullity and there is no limitation for the purposes of getting
a fraudulent decree declared as null and void. In support
of his arguments, ld. Counsel has placed reliance upon the
judgment in AV Papayya Sastry & Ors-SCC OnLine SC
317, Ram Preeti Yadav vs. U.P. Board of High School &
Intermediate Education & Ors (2003) 8 SCC 311 and
S.P. Chengalvarya Naidu (dead) by LRs v. Jagannath
(dead) by LRs & Ors. (1994) 1 SCC 1.
It was further argued that since the compromise
decree dt 01.05.1978 has been obtained by fraud, any
action taken on the basis of such a decree is also null and
void. It is submitted that since the mutation of the suit
property was carried out by L&DO on the basis of
fraudulent decree dt 01.05.1978 the same is liable to be
declared as null and void. It is further argued that in
consequence of the decree dt 01.05.1978, the mutation in
the record of L&DO being null and void, the alleged
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agreement to sell dt 04.10.1987 and 08.03.1988 executed
by Kanshi Ram Gera with Smt. Shanta Devi were also
illegal, nonest and vitiated by fraud.
It is argued that the said Agreements to Sell clearly
mention that Sh. Kanshi Ram Gera is absolute owner of
the property on the basis of the lease agreement and the
conveyance deed dt 29.08.1968 and the very perusal of the
said lease deed and conveyance deed shows that the same
are in the name of Uttam Chand Gera, therefore, Smt.
Shanta Devi could not be said to have acted bonafide and
with due diligence. It was argued that since the Will of
Uttam Chand Gera Ex.DW2/7 has been proved and since
as per the said Will, both Ram Kishan Gera and Kanshi
Ram Gera were entitled to half share in the suit property,
Kanshi Ram Gera had no right to sell the said property
without the consent of Ram Kishan Gera, thus the above
mentioned agreements are liable to be declared as null and
void and Sh. Kundan Lal Gera is liable to be declared
entitled to half share in the suit property on the basis of
Ex.DW2/7 as well as on the basis of Ex.DW2/9 i.e. the
Will of Sh. Ram Kishan Gera which has been duly proved
by DW3-Sh. J.C. Mendiratta, who was the attesting
witness to the said Will. It was argued that a perusal of
cross-examination of Sh. Jog Dhian conducted on
02.05.2018, 18.05.2018 and 04.06.2018 would clearly
show that Smt. Shanta Devi was well aware of the
ownership rights of Ram Kishan Gera in the suit property.
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It is further submitted that it has been admitted in the cross-
examination that the copy of the Will and mutation was
provided to him. It is further argued that even if it is believed
that Smt. Shanta Devi was not provided with any
documents pertaining to the suit property at the time of
first agreement to sell as alleged, then it can be safely
presumed that Smt. Shanta Devi did not act with due
diligence.
It is further argued that since it has been proved on
record that Sh. Kundal Lal Gera is entitled to half share in
the suit property, he is also entitled to mesne profits at the
rate prevailing in the market as the amount of Rs. 20,000/-
was claimed in the year 2006 when the suit was filed and
now there is substantial increase in the rate of rent.
It is argued that it has already been proved that the
Agreements dt 04.10.1987 and 08.03.1988 are null and
void and, therefore, the suit for specific performance filed
by Smt. Shanta Devi is liable to be dismissed. It is further
argued that even otherwise, Smt. Shanta Devi in her suit
for specific performance has sought specific performance
of the agreement dt 04.10.1988 whereas there is no such
agreement in existence and the only agreement in
existence is 04.10.1987. It is argued that Smt. Shanta
Devi has miserably failed to prove her readiness and
willingness to make the payment of the remaining sale
consideration and, therefore, the suit for specific
performance is liable to be dismissed on this ground alone.
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In support of his case, Ld. Counsel for plaintiff has placed
reliance upon the judgment in – R. Shama Naik Vs. G.
Srinivasiah SLP (Civil) No. 13933 of 2021 SCC. It was
further argued that Smt. Shanta Devi has not sought any
declaratory relief to declare the termination of Agreements
to Sell as bad in law despite the fact that the Agreement to
Sell was repudiated by Kanshi Ram Gera vide his notice dt
26.07.1988 and had also withdrawn GPA Ex.PW1/4
executed in favour of Sh. Jog Dhian, husband of deceased
Smt. Shanta Devi.
It is argued that even vide notice dt 03.10.1988-
Ex.PW1/5, Kanshi Ram had repudiated the agreement dt
08.03.1988, alleging that the same was got executed
through fraud and undue influence exercised upon Kanshi
Ram Gera. It is argued that in the absence of relief of
declaration being claimed in this regard, the suit of Smt.
Shanta Devi is liable to be dismissed. In this regard, Ld.
Counsel has placed reliance upon the judgment in I.S.
Sikandar (dead) by L.Rs vs. K. Subramani & Ors,
(2013) 15 SCC 27.
It is further argued that Smt. Shanta Devi has
travelled beyond her pleadings and evidence led in the
matter by alleging that Ram Kishan Gera had signed as a
witness at the time of registration before the Sub-Registrar on
21.09.1978. However, Smt. Shanta Devi has not proved on
record that Ram Kishan Gera had visited the office of Sub-
Registrar on the said date. In support of his contentions,
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Ld. Counsel has placed reliance upon judgment in Manjit
Singh & Anr. vs. Darshana Devi & Ors. 2024 SCC
OnLine SC 3431 and Ashok Bhatia & Ors. vs. Smt.
Ratni Devi & Ors., High Court of Jharkhand, Ranchi
decided on 3 August, 2011.
It is argued that defendant Kanshi Ram Gera and his
L.Rs have not stepped into the witness box and have not
led any evidence in support of their case and, therefore,
even Smt. Shanta Devi cannot be allowed to argue her
case on the basis of the allegations leveled by Kanshi Ram
Gera in his pleadings as the same are not pleaded by her in
her own case and even no replication was filed by Smt.
Shanta Devi to the W.S filed by Kundan Lal Gera in the
suit for specific performance filed by her. In support of his
contentions, Ld. Counsel has placed reliance upon
Premlal & Ors. v. Kunti Bai & Anr. 2019 SCC OnLine
Chh 107.
It is further argued that the suit property is a lease hold
property and as per clause ‘c’ of the lease deed, lessee can
transfer the property only after obtaining permission from the
lessor and on payment of unearned increment. It is submitted
that since the permission itself was rejected by the Office of
L&DO, the alleged agreement dt 04.10.1987 was in
contravention of the lease deed in respect of the suit property.
It is further argued that the specific performance suit filed by
Smt. Shanta Devi is liable to be dismissed for non-
impleadment of necessary party i.e. MCD. It is further argued
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that during the course of proceedings, it was submitted by
L&DO that the records pertaining to the suit property have
been transferred to MCD on as is where is basis pursuant to
the notification dt 24.03.2006 published in the Gazette of
India. It is further submitted that MCD is not under control of
the records of the suit property, which is a necessary party.
18. ARGUMENTS BY LD. COUNSEL FOR SMT. SHANTA
DEVI- SH. ANIL VERMA AND MS. ASHU RANI.
It is argued by Ld. Counsels that inadvertently in the
prayer clause of the suit, the date of the agreement has
been mentioned as 04.10.1988 instead of 04.10.1987 and
this was clarified in para 5 of the evidence
affidavit/examination-in-chief of PW1-Sh. Jog Dhian. It is
further submitted that no objection was ever raised in this
regard by the parties nor any question was put to the witness.
It is submitted that the mistake in mentioning the date was
merely a typographical error which remained un-noticed even
while framing of issues. It is further argued that in the entire
pleadings of the case, the date of the agreement is mentioned
as 04.10.1987. The counsel further argued that even the entire
cross-examination of the witness appearing on behalf of Smt.
Shanta Devi, the only agreement that was referred to by the
counsel for the opposite side was 04.10.1987.
As to the objection of readiness and willingness, it is
argued that the plaintiff in para 18 of his plaint has clearly
stated that the plaintiff is ready and willing to perform the
obligation of her part and in fact in para 7, it has been averred
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that repeated requests were made to defendant no.1 to obtain
sale permission as well as income tax clearance certificate. It
is further submitted that as also stated in para 14 to 16 of the
affidavit of evidence, the plaintiff had already paid the entire
amount of sale consideration except Rs. 25,000/- which was
as per the agreement only to be paid upon the execution of the
sale deed and that Kanshi Ram had failed to obtain sale
permission as well as income tax clearance certificate due to
which even the legal notice dt 13.07.1988 was issued to him
and even further notice dt 15.09.1988 was issued after
receiving the reply of Kanshi Ram to the previous notice
which shows readiness and willingness of Smt. Shanta Devi
to perform the agreement.
It is argued that no question was put to PW1 as to his
readiness and willingness to perform the contract or to show
that Smt. Shanta Devi did not have sufficient funds to pay
the remaining sale consideration. It is further submitted that
the legal notice dt 04.07.1988 issued on behalf of Sh.
Kanshi Ram Gera which was received after issuance of
notice dt 13.07.1988 by the plaintiff was ante dated notice
which was clearly averred in the pleadings and no question
whatsoever was put to the witness in this regard. It is
further argued that the amendment in Section 16 of
Specific Relief Act, 1963 does not apply retrospectively.
It is further argued that Sh. Kanshi Ram Gera did not
lead any evidence and even no question was put to the
witness in the cross-examination regarding the allegations
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of non-payment of Rs. 6.25 lacs and, therefore, the
submission of Smt. Shanta Devi in this regard stands
admitted. It is further submitted that in a similar factual
situation it was held by Hon’ble Supreme Court in
Gaddipati Divija & Anr. v. Pathuri Samrajyam & Ors-JT
2023 (4) SC 281, that there was no question of payment of
balance consideration amount unless the agreed acts are
performed by the vendor and it would be impossible to get the
sale deed executed unless such acts are performed. It was
argued that the judgment in M/s. Siddamsetty Infra Projects
Pvt. Ltd. V Katta Sujatha Reddy – 2024 (13) SCALE 844
was distinguished while deciding the said judgment. In
support of his contentions, he has relied upon the judgment
in P. Daivasigamani vs. S. Sambandan (2022) 14 SCC
793, M/s. Siddamsetty Infra Projects Pvt. Ltd. V Katta
Sujatha Reddy – 2024 (13) SCALE 844, Babasaheb
Dhondiba Kute v. Radhu Vithoba Barde (2024) 4 SCC
310.
It is further argued that Sh. Kundan Lal Gera as well
as Sh. Kanshi Ram Gera in their respective pleadings have
admitted the fact that a family settlement was arrived at
between Sh. Kanshi Ram Gera and Sh. Ram Kishan Gera
whereby Sh. Ram Kishan Gera had given up his rights in
the suit property. It is further submitted that the Ld.
Predecessor of this Court had even held in the judgment dt
11.05.2023 passed in case Sh. Kanshi Ram Gera vs. Kundan
Lal Gera and Ors that the family settlement was not only
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arrived at between the parties but was even acted upon and
to his knowledge, no appeal has been filed against the
same and, therefore, in view of the above, it is clear that a
family settlement was arrived at between Sh. Kanshi Ram
Gera and Sh. Ram Kishan Gera as per which the suit
property had fallen in the share of Sh. Kanshi Ram Gera
and, therefore, agreement dt 04.10.1987 was validly
executed with Smt. Shanta Devi.
It is further argued that the judgment and decree dt
01.05.1978 was registered before the Sub Registrar and Sh.
Ram Kishan Gera had appeared as a witness before the Sub-
Registrar on 21.09.1978. It is further submitted that though
Sh. Kundan Lal Gera disputes the signatures of his father yet
he did not lead any evidence to show that the signatures of his
father were forged and fabricated. It is submitted that if it is
presumed that the document is forged and fabricated, the
burden of proof lies upon him to prove the same by
examining a handwriting expert or by any other means. In
support of his contentions, Ld. Counsel had relied upon the
judgment in Anil Rishi v. Gurbaksh Singh (2006) 5 SCC
558 and Ramawtaar Goenka v. Bajrang Lohiya & Anr.
2022 SCC OnLine Chh 802.
It is further argued that it is clear from the reading of the
legal notice dt 13.07.1988 issued on behalf of Smt. Shanta
Devi, notice dt 26.07.1988 issued by Sh. Kanshi Ram Gera,
notice dt 15.09.1988 issued by Smt. Shanta Devi and reply
dt 03.10.1988 issued by Sh. Kanshi Ram Gera, that
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obtaining of the sale permission and income tax clearance
was a condition precedent to be performed by Sh. Kanshi
Ram Gera before the execution of the sale deed. It is
submitted that it would be clear from Ex.PW1/11 i.e. the
letter dt 12.01.1989 issued by L&DO that certain
compliance were to be done by Sh. Kanshi Ram Gera
which he failed to carryout due to which the contract could
not be performed and malafidely he started raising
objection to the Agreement to Sell by alleging coercion,
pressure etc.
It is further clear from Ex.PW1/9 i.e. the letter dt
07.03.1988 vide which Sh. Kanshi Ram Gera applied to
the Income Tax Department for clearance certificate
wherein he mentioned the name of the purchaser as Smt.
Shanta Devi and stated the sale consideration as Rs. 4 lacs
and the acknowledgment slip of the said form Ex.PW1/10,
that Sh. Kanshi Ram Gera had executed a subsequent
agreement dt 08.03.1988 with Smt. Shanta Devi for the
purposes of saving income tax.
It is further argued that since Sh. Kanshi Ram Gera
had himself applied for requisite permission, no further
acts were required to be done on behalf of Smt. Shanta
Devi and even the notice dt 26.07.1988 revoking the
Power of Attorney in favour of Sh. Jog Dhian had no
consequence as the steps were already taken by Sh. Kanshi
Ram Gera. It is argued that from the evidence on record, it
is clear that Sh. Kanshi Ram Gera raised frivolous
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objections to the agreement to sell as he had become aware
that the permission can be granted by L&DO only after he
makes the required payment to the department and
demolishes the unauthorised construction.
As to the issue of limitation, it is argued that
application u/o. 1 Rule 10 CPC was filed on behalf of Sh.
Ram Kishan Gera on 10.12.2002 for his impleadment in
the suit for specific performance. It is submitted that from
the contents of the said application, it is clear that Sh. Ram
Kishan Gera was aware of the existence of the agreement
dt 04.10.1987 from even prior to the date of filing of the
application, however, suit for declaration of the agreement
as null and void was only filed in the month of March,
2006 i.e. beyond the period of three years from the date of
knowledge and, therefore, the said averment of Sh.
Kundan Lal Gera is time barred. It is further argued that
even the decree dt 01.05.1978 was within the knowledge
of Sh. Ram Kishan as he had signed as a witness at the time
of registration of the said decree before the Sub-Registrar on
21.09.1978.
However, despite being aware of the same, a suit was
filed only in the year 2006 i.e. almost after 28 years of the
passing of the decree dt 01.05.1978 and, therefore, the relief
of declaration qua the said decree being null and void, is
barred by limitation. It is further argued that Sh. Kundan Lal
Gera had filed a letter dt 22.08.1980-Ex.DW2/13, issued by
L&DO office to Sh. Kanshi Ram Gera demanding the
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document for the purposes of mutation of the suit property in
his name. It is submitted that the said letter clearly demanded
compromise decree dt 01.05.1978. Therefore, it is submitted
that since the said letter was in possession of Sh. Kundan Lal
Gera, it is presumed that the fact of mutation of the suit
property in the name of Sh. Kanshi Ram Gera was also in the
knowledge of Sh. Kundan Lal Gera from the date of mutation
itself and even the fact of compromise decree was also within
his knowledge from at least the date of the said letter.
19. ARGUMENTS BY COUNSEL FOR SH. KANSHI
RAM GERA-SH. AJAY FATYAL
It is argued that the Counsel for Smt. Shanta Devi has
relied upon a receipt dt 08.03.1988 qua the cash payment
of Rs. 2.5 lacs Ex.PW1/8. However, the payment of the
said amount is disputed by Sh. Kanshi Ram Gera and,
therefore, it was for Smt. Shanta Devi to prove the receipt
of the said amount. It is argued that PW1-Sh. Jog Dhian in
his affidavit of evidence relied upon the said receipt but
mentions only about the signatures of the witness-Sh.
Ramaji Bawa and Sh. B.K. Malik but did not state
anything amount the signatures of Sh. Kanshi Ram Gera.
It was submitted that in his evidence affidavit Sh. Jog
Dhian stated that both the said witnesses have expired.
However, no evidence was led to prove the demise of the
said witnesses and in fact, the said witnesses were
mentioned in the list of witnesses filed by Smt. Shanta
Devi on 07.03.2018. Further, Smt. Shanta Devi also relied
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upon the testimony of the son of Sh. Sh. Kanshi Ram Gera
recorded in suit no. 1666/89 titled as Sh. Kanshi Ram Gera
vs. Smt. Shanta Devi marked as Ex.PW1/16. In the said
statement, it was clearly stated by son of Sh. Kanshi Ram
Gera that the balance amount of Rs. 2.75 lacs was not paid
by Smt. Shanta Devi and that the said receipt also does not
bear the signatures of his father and, therefore, the said
receipt and the factum of payment remained unproved.
It is further argued that notice dt 04.07.1988
Ex.PW1/13 has also been exhibited by PW1 during his
examination-in-chief in which it was clearly stated by Sh.
Kanshi Ram Gera that only a sum of Rs. 3.75 lacs has been
received under the agreement dt 04.10.1987 and Rs. 2.75
lacs is still remaining due. The said notice was not replied
by Smt. Shanta Devi and, therefore, adverse presumption
is required to be drawn against her.
It is further submitted that as per the case of Smt. Shanta
Devi herself, an amount of Rs. 25000/- was still remaining
due, however, admittedly, the said amount was never offered
nor deposited with the court and the non-payment of the
amount hold a significant weightage in assessing her readiness
and willingness to perform her obligations under the contract.
It is further argued that the actual agreement between the
parties was the agreement dt 04.10.1987 and the agreement dt
08.03.1988 was obtained by misrepresentation. It is submitted
that from the cross-examination of PW1-Sh. Jog Dhian dt
22.03.2018, it would be clear that as per the agreement
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between the parties, the real agreement was the agreement dt
04.10.1987. The counsel further argued that from the cross-
examination of the said date it is also clear that PW1 admitted
that after the payment of Rs. 1.5 lacs on 30.10.1987 in
pursuant to the agreement dt 04.10.1987, the balance amount
of Rs. 4.5 lacs remains to be paid which were not paid by
31.12.1987 as per the agreement. It is further argued that it
was admitted by PW1 in his cross-examination of the same
date that it was nowhere stated in the agreement dt 04.10.1987
that the payment of Rs. 25,000/- was to be paid after getting
the sale permission and income tax clearance certificate,
however, it was stated by him that it was orally agreed, which
was recorded in the later agreement dt 08.03.1988. It is
submitted that it was further admitted in cross-examination dt
13.04.2018 that the real agreement was the agreement dt
04.10.1987 and none of the terms and conditions of the
agreement dt 08.03.1988 were applicable and thus from the
above cross-examination, it is clear that the payment of Rs.
25000/- was not made and the same constitutes a violation of
agreement dt 04.10.1987. It is further submitted that from a
perusal of the cross-examination of PW1 conducted on
13.04.2018, it is also clear that GPA dt 08.03.1988-Ex.PW1/4,
authorised Sh. Jog Dhian to obtain sale permission as well as
clearance certificate and, therefore, it was Sh. Jog Dhian, who
was under obligation to obtain requisite permission and not
Sh. Kanshi Ram Gera and, therefore, it does not lie in the
mouth of Smt. Shanta Devi to now aver that Sh. Kanshi
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Ram Gera has filed to perform the condition precedent. It
is submitted that in the said part of cross-examination, it
was averred by Sh. Jog Dhian that he did not take steps
because the GPA was not registered, however, as per the
law of Registration, no registration was required for such a
GPA and this it is clear that this was a mere tactic to
withhold the payment of Rs. 2.75 lacs as the possession
was already handed over to him. Thus it is submitted that
from the above, it is clear that it was Smt. Shanta Devi
who was neither willing nor ready to perform her part of
the contract.
It is further argued that no permission have been
obtained from L&DO and even the MCD and, therefore,
specific performance, cannot be granted. It is submitted
that in all this while, the market rate of the property has
increased many folds and, therefore, to ask Sh. Kanshi
Ram Gera to accept the amount which was agreed several
years ago, would amount to putting him in extreme
financial losses and thus it would not be equitable to grant
specific performance of contract in favour of Smt. Shanta
Devi.
It is further argued that Smt. Shanta Devi has failed
to performed her part of obligation which has relieved Sh.
Kanshi Ram Gera of his duty to perform his part of
contract, u/s. 54 of Indian Contract Act. It is submitted
that it has been admitted by Smt. Shanta Devi that the
balance consideration of Rs. 2.75 lacs was not paid to Sh.
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Kanshi Ram Gera which thus relieves him of his duty to
perform the contract.
Lastly, it is argued that counsel for Smt. Shanta Devi
has not sought any relief of compensation in the plaint and,
therefore, she is not even entitled to the same in view of
section 21 (v) of Specific Relief Act, 1963. In support of
his contentions, Ld. Counsel has placed reliance upon
Universal Petro Chemicals Ltd. vs B.P. PLC & Others
decided on 18 February, 2022.
It is argued that it is evident from cross-examination
of Sh. Kundan Lal Gera that he had knowledge of the
decree dt 01.05.1978 from the date of passing of the same
and not as alleged in para 13 of his plaint. It is submitted
that in para 13 of the plaint, it was averred by Sh. Kundan
Lal Gera that he came to know about the existence of the
decree dt 01.05.1978 only in December, 2002 when he
visited the Hon’ble High Court of Delhi regarding Sh.
Kanshi Ram Gera suit, however, he contradicted the said
averment in his cross-examination as well as the
documents exhibited by him in his evidence. It is further
submitted that Sh. Kundan Lal Gera had filed the certified
copies of his application which he had submitted to obtain
the certified copy of the judgment and decree dt
01.05.1978, which was exhibited as Ex.DW2/P6. It is
further argued that the said application was returned to Sh.
Kundan Lal Gera on 17.11.2002 which shows that even
prior to December, 2002, he had knowledge of the said
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decree which led him to file the application for his
certified copy. It is submitted that in cross-examination dt
06.09.2017, Sh. Kundan Lal Gera had stated that he came
to know about the decree in 2005 when he had gone to the
office of L&DO to find out how the suit property was
mutated in the name of Sh. Kanshi Ram Gera. It is further
submitted that Sh. Kundan Lal Gera had also filed various
other documents relating to suit property, suit no. 40/1978
and the decree obtained in said suit such as, certified copy
of the decree registered with the Sub Registrar-
Ex.DW2/17, Certified copy of the plaint filed in the said
suit Ex.DW2/14, Certified copy of the order dt 01.05.1978
passed in the said suit Ex.DW2/15, Letter dt 22.02.1980 of
L&DO addressed to Sh. Kanshi Ram Gera requiring him
to file certain documents for the purposes of permission to
sell Ex.DW2/13, certified copy of the statement of Sh.
Kanshi Ram Gera recorded in suit no. 40/78 Ex.DW2/17
and also original letter dt 12.01.1989 of L&DO addressed
to Sh. Kanshi Ram Gera declining the sale permission
Ex.DW2/8, however, has failed to explain as to how he
came in possession of these documents. It is further
submitted that as per the case of Sh. Kundan Lal Gera,
L&DO vide its letter dt 17.05.2005 only, had supplied
certified copy of the decree dt 01.05.1978 and mutation
letter dt 16.10.1988 only. There is no averment that any
other document as stated above were also provided to him
by L&DO and even no evidence has been led in this
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regard. It is argued that Sh. Kundan Lal Gera has
contradicted himself regarding the date of knowledge of
the decree dt 01.05.1978, by filing these documents. It is
further submitted that since as per the cover letter dt
17.05.2005 Ex.DW2/12, only above mentioned two
documents were supplied, a presumption is raised u/s.
114(e) of Indian Evidence Act, 1872 that only these
documents and none others were supplied. It is further
submitted that even questions were put to Sh. Kundan Lal
Gera regarding the possession of these documents by him
in the cross-examination, however, evasive answers were
given to the questions put to him and no specific reply
came forward. It is further submitted that in the cross-
examination dt 06.09.2017, it was admitted by Sh. Kundan
Lal Gera that the certified copy of the decree dt 01.05.1978
Ex.DW2/16 was not received with the copy of the letter of
the L&DO-Ex.DW2/12. It is submitted that even in the
cross-examination dt 06.09.2017 it was admitted by Sh.
Kundan Lal Gera that the certified copy of the plaint filed
in the suit no. 40/1978-Ex.DW2/14, contained his
signatures attesting as a true copy and no explanation was
given as to how he came in possession of the same despite
question being put to him. It is further submitted that in the
cross-examination dt 06.09.2017, it was admitted that
L&DO has not forwarded any copy of the letter
Ex.DW2/13 to him. It is further submitted that as to the
letter dt 12.01.1989 -Ex.DW2/8, addressed by L&DO to
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Sh. Kanshi Ram Gera declining the sale permission
Ex.DW2/8, contradictory statements were given by the
witness in his cross-examination dt 06.09.2017 and
27.09.2017. On one hand, it was stated that the said letter
was not filed by him and on the other hand, it was stated
that the same was filed by him as it was received from
L&DO. As to Ex.DW2/17, i.e. statement of Sh. Kanshi
Ram Gera recorded in suit no. 40/1978, which was filed by
Sh. Kundan Lal Gera during his cross-examination, there
is no explanation as to how did he come in possession of
the same.
It is further submitted that it was also admitted in the
cross-examination dt 06.09.2017 that Sh. Ram Kishan Gera
was maintaining the file of the suit property which
probably explains how the above mentioned documents
came in possession of Sh. Kundan Lal Gera. It is further
submitted that the above explains that Sh. Kundan Lal Gera
had knowledge of the fraudulent decree since the date of
passing thereof and wrongful submissions and averments
have been made in pleadings and the evidence to conceal
the date of knowledge of the said decree to obtain the
benefit of limitation and also to cleverly evade any
criminal proceedings which could possibly have been
launched against Sh. Ram Kishan Gera, had he been alive
and hence the suit was filed after the death of Sh. Ram
Kishan Gera.
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As to the issue of limitation in the suit of Sh. Kundan
Lal Gera, it is submitted that in the cross-examination of
Sh. Kundan Lal Gera dt 14.10.2017, it was stated by Sh.
Kundan Lal Gera that he came to know about the decree dt
01.01.1978 from the letter to L&DO dt 17.05.2005 and the
document mark ‘S'(Ex.DW2/16) was not the document
given by him to his counsel. Further, on the said date, he
had also filed a letter dt 17.05.2005 along-with enclosures
received with the said letter which was Ex.PW2/17. It is
submitted that one of the photocopy of the said exhibit was
the registration which contained signatures of Sh. Ram
Kishan Gera which are similar to the signatures appended
on the W/S filed in the suit of Sh. Kanshi Ram Gera vs.
Sh. Ram Kishan Gera.
It is submitted that there is nothing on record to
suggest that the registration was not in conformity with the
provisions of law and even a presumption is required to be
drawn under the Evidence Act regarding genuineness of
the said documents and no evidence whatsoever has been
produced by Sh. Kundan Lal Gera to dispute veracity of
registration as well as to disprove the signatures of Sh.
Ram Kishan Gera. It is further argued that the document
Ex.DW2/17 has been produced by Sh. Kundan Lal Gera
himself and, therefore, in view of the judgment in Vijay
Rai vs. Anil Rai, Sh. Kanshi Ram Gera can rely on the said
documents and it can be presumed that Sh. Kundan Lal
Gera had knowledge of the passing of the decree dt
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01.05.1978 from the said date itself.
It is further submitted that in para 24 of the affidavit of
evidence of Jog Dhian, it was stated by the witness that as per
the family settlement, a partition decree dt 01.05.1978 was
passed in suit no. 40/1978 wherein Ram Kishan Gera had
signed as a witness at the time of registration before the Sub-
Registrar on 21.09.1978. However, no cross-examination
whatsoever was conducted by Sh. Kundan Lal Gera on the
said statement made in examination-in-chief and thus the
factum of Sh. Ram Kishan Gera being a witness stands
admitted. In this regard, Ld. Counsel has placed reliance
upon the judgment in Rakesh Kumar Vs. State – 163 (2209)
DLT 658 (DB).
It is submitted that thus it is clear that Sh. Ram Kishan
Gera was directly involved in obtaining a decree dt
01.05.1978 and also its registration and subsequent
mutation in the name of Sh. Kanshi Ram Gera and,
therefore, no fraud as alleged was committed against Sh.
Ram Kishan Gera.
It is further submitted that Sh. Ram Kishan Gera has
claimed declaration of alleged frivolous decree as null and
void on the ground of fraud, however, it is a settled law
that a person who has not suffered any injury or damage as
a result of fraud, has no locus-standi and is also not
entitled to any relief on account of such fraud. It is
submitted that as per Sh. Kundan Lal Gera himself, the suit
property fell to the share of Sh. Kanshi Ram Gera by virtue
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of family settlement arrived at between the parties and,
therefore, he had no cause of action to file the present suit
claiming the relief pertaining to the suit property. It is
further submitted that even otherwise, it has been
established on record that Sh. Ram Kishan Gera was
himself privy to the procurement of the alleged fraudulent
decree and further the plaintiff has failed to prove that the
decree was fraudulently obtained or that he had suffered
any injury on account of the decree. Thus in view of the
said reasons, no relief as claimed can be granted to Sh.
Kundan Lal Gera.
20. For the purposes of convenience, issues in the second suit
are decided first.
21. ISSUE-WISE FINDINGS IN THE SECOND SUIT
The issues shall be decided in the following order:
Issue no. 1: Whether the suit is barred by
limitation? OPD
21.1). It is the case of defendants that the suit of the
plaintiff is barred by limitation as the plaintiff had
knowledge of the alleged fraudulent decree dt 01.05.1978
since the date of passing of the decree, as his father Sh.
Ram Kishan Gera had appeared as a witness before the Sub-
Registrar on 21.09.1978. The defendants have relied upon
several documents and have argued at length in this regard.
It is pertinent to note that defendant no.1 has not
denied the filing of the suit in his pleadings but has merely
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stated that no documents were signed by him. The
pleadings of defendant no.1 clearly show that he was in
knowledge of the filing of the suit and the said decree. No
evidence is led to show that he did not sign the pleadings
in the said suit and, therefore, it is presumed that the said
suit was filed by him or at least he was actively involved in
obtaining the said decree. Even if it is presumed that he
did not sign and all the acts were done by Sh. Ram Kishan
Gera, still it is clear from the record that he never objected
to same dispute being aware of the filing of the suit and the
decree and in fact provided the said decree to L&DO for
the purposes of mutation. Thus it leads to no other
conclusion than that defendant no.1 was involved in
obtaining the decree by fraud.
21.2). From the material available on record i.e. the
registered compromise decree dt 01.05.1978, it is also
clear that Sh. Ram Kishan Gera had signed as a witness at
the time of registration of the decree dt 01.05.1978. Since
it is a registered document duly stamped by Registrar, a
presumption arises that it was so signed. The burden to
disprove the same was on Sh. Kundan Lal Gera which was
never discharged. Thus it is clear that both Sh. Kanshi
Ram Gera and Sh. Ram Kishan Gera colluded and played
fraud upon the court to obtain the decree dt 01.05.1978.
21.3). It was held in AV Papayya Sastry & Ors.
(2007) 4 SCC 221, wherein it was held by Hon’ble
supreme Court as under:
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64“21. Now, it is well settled principle of law that if any
judgment or order is obtained by fraud, it cannot be said to
be a judgment or order in law. Before three centuries, Chief
Justice Edward Coke proclaimed;
“Fraud avoids all judicial acts, ecclesiastical or temporal”.
22. It is thus settled proposition of law that a judgment,
decree or order obtained by playing fraud on the Court,
Tribunal or Authority is a nullity and non est in the eye of
law. Such a judgment, decree or order by the first Court or
by the final Court has to be treated as nullity by every Court,
superior or inferior. It can be challenged in any Court, at
any time, in appeal, revision, writ or even in collateral
proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley,
Lord Denning observed: (All ER p. 345 C)
“No judgment of a court, no order of a Minister, can be
allowed to stand, if it has been obtained by fraud.”
24. In Duchess of Kingstone, Smith’s Leading Cases,
13th Edn., p.644, explaining the nature of fraud, de Grey,
C.J. stated that though a judgment would be res judicata and
not impeachable from within, it might be impeachable from
without. In other words, though it is not permissible to show
that the court was ‘mistaken’, it might be shown that it was
‘misled’. There is an essential distinction between mistake
and trickery. The clear implication of the distinction is that
an action to set aside a judgment cannot be brought on the
ground that it has been decided wrongly, namely, that on the
merits, the decision was one which should not have been
rendered, but it can be set aside, if the court was imposed
upon or tricked into giving the judgment.
25. It has been said; Fraud and justice never dwell
together (fraus et jus nunquam cohabitant); or fraud and
deceit ought to benefit none (fraus et dolus nemini
patrocinari debent).
26. Fraud may be defined as an act of deliberate
deception with the design of securing some unfair or
undeserved benefit by taking undue advantage of another. In
fraud one gains at the loss of another. Even most solemn
proceedings stand vitiated if they are actuated by fraud.
Fraud is thus an extrinsic collateral act which vitiates all
judicial acts, whether in rem or in personam. The principle
of ‘finality of litigation’ cannot be stretched to the extent of
an absurdity that it can be utilized as an engine of
oppression by dishonest and fraudulent litigants.
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65
21.4). In S.P. Chengalvarya Naidu (dead) by LRs
v. Jagannath (dead) by LRs & Ors. (1994) 1 SCC 1, it
was held by Hon’ble Supreme Court:
“4. The High Court reversed the findings of the trial
court on the following reasonings:
……The High Court further held as under: –
“From this decision it follows that except
proceedings for probate and other proceedings where a duty is
cast upon a party litigant to disclose all the facts, in all other
cases, there is no legal duty cast upon the plaintiff to come to
Court with a true case and prove it by true evidence. It would cut
at the root of the fundamental principle of law of finality of
litigation enunciated in the maxim ‘interest republican sit finis
litium’ if it should be held that a judgment obtained by a plaintiff
in a false case, false to his knowledge, could be set aside on the
ground of fraud, in a subsequent litigation.” ………..
5. The High Court, in our view, fell into patent error. The short
question before the High Court was whether in the facts and
circumstances of this case, Jagannath obtained the preliminary
decree by playing fraud on the court. The High Court, however,
went haywire and made observations which are wholly perverse.
We do not agree with the High Court that “there is no legal duty
cast upon the plaintiff to come to court with a true case and
prove it by true evidence”. The principle of “finality of litigation”
cannot be pressed to the extent of such an absurdity that it
becomes an engine of fraud in the hands of dishonest litigants.
The courts of law are meant for imparting justice between the
parties. One who comes to the court, must come with clean-
hands. We are constrained to say that more often than not,
process of the court is being abused. Property-grabbers, tax-
evaders, bank-loan-dodgers and other unscrupulous persons
from all walks of life find the court – process a convenient lever
to retain the illegal-gains indefinitely. We have no hesitation to
say that a person, who’s case is based on falsehood, has no right
to approach the court. He can be summarily thrown out at any
stage of the litigation.
21.5). Further in the judgment titled as Md. Moorul
Hoda vs. Bibi Raifunnisa and Ors- SLP (C) NO. 25847
of 1995, MANU/SC/1414/1996, it was held that Article
59 of Limitation Act, 1963 applies only when the personCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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66affected is a party to the decree.
21.6). Since both the parties have colluded to obtain
a decree by fraud and since it is a fraud played upon the
court, in the considered opinion of this court, formulated
on the basis of the above cited judgments, there can be no
limitation period for declaring such a judgment and decree
as fraudulent. It may be noted here that the law of
limitation is applicable when one party is defrauded by the
other, however, in the peculiar facts of the present case,
where both the parties have colluded to play a fraud upon
the court, the law of limitation would have no applicability.
A court of law cannot be a mute spectator to such a fraud.
Even otherwise, it is a settled law that such a judgment is
nonest and nullity and has to be treated as such. If the
decree is not declared as null and void, the same would
tantamount to imparting finality to a decree obtained by
practicing fraud upon the Courts of Law.
21.7). In view of the above settled law, this court
does not deem it necessary to discuss and delve into issue
of the date of knowledge of the plaintiff of the alleged
fraudulent decree. The issue is decided accordingly.
Issue no. 2: Whether the suit is bad for non-
joinder of the parties? OPD
21.8). No arguments were addressed by the parties
on this issue. However, in para 18 of the W.S of defendant
no.1, the ground of non joinder of necessary parties has
been taken with respect to the claim of Dayanand colony
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67property. However, the same appears to be a typographical
error. In the said para, it has been stated that the plaintiff
relies upon the Will executed by Sh. Ram Kishan Gera
which is disputed by the defendant and, therefore, the
brothers and sisters of the plaintiff are necessary parties to
the present suit. However, in the considered opinion of
this court, the brothers and sisters are not the necessary
parties to the present suit as the primary issue before this
court would be to decide if Sh. Ram Kishan Gera was the
owner of one half share in the suit property. Once it would
have been held that he was the owner of one half share of
the suit property, it would then be a dispute intersay
between the LRs of Sh. Ram Kishan Gera, who would
have appropriate legal remedies to avail. The issue is
accordingly decided.
Issue no.3: Whether the plaintiff is entitled to a
decree of declaration that the judgment and decree
dated 1st May 1978 in Suit No. 47 of 1978 is null and
void and is liable to be cancelled? OPD
21.9). It is not disputed by the parties that Sh. Uttam
Chand Gera died on 29.04.1960, the death certificate of
Sh. Uttam Chand Gera is Mark P, which has not been
denied by any of the parties. It is also clear and is not
disputed that a suit for declaration against Sh. Uttam
Chand Gera was filed in the year 1978 i.e. almost after 18
years of the death of Sh. Uttam Chand Gera. A perusal of
Ex.DW2/14, Ex.DW2/15 and Ex.DW1/16 would showCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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68that the suit was disposed off after recording the statements
of the parties and since sh. Uttam Chand Gera was not
alive on that day, his statement could not have been
recorded and thus it is clear that some person had
impersonated Sh. Uttam Chand Gera and executed the
settlement with Sh. Kanshi Ram Gera.
21.10). In the discussion in issue no.1 above, it
has been held that the decree has been obtained by Sh.
Kanshi Ram Gera and Sh. Ram Kishan Gera by colluding
with each other by practicing fraud upon the court. It is
also pertinent to note that irrespective of the fact as to
whether the decree was obtained by Sh. Kanshi Ram Gera
or Sh. Ram Kishan Gera, the said decree is a result of
fraud played upon the court.
21.11). It is thus held that a fraud was played upon
the court in obtaining a compromise decree dt 01.05.1978.
It has also been discussed above that a judgment obtained
by fraud is nonest and nullity in the eyes of law and,
therefore, the same is liable to be declared as null and void
and is liable to be cancelled. The issue is accordingly
decided.
Issue no. 7 : Where there is an oral family
settlement in relation to the property at 13, Krishna
Market, Kalkaji, New Delhi and C-IV/147, Dayanand
Colony, Lajpat Nagar, New Delhi? OPP
ANDCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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69Issue no. 8. Whether there is an oral family
settlement relating to the property at G-72, (Old No.
1623), Govindpuri, Kalkaji, New Delhi? OPD No. 1
21.12). It is the case of Sh. Kundan Lal Gera that a
family settlement was arrived at between Sh. Kanshi Ram
Gera and Sh. Ram Kishan Gera after the death of Sh.
Uttam Chand Gera whereby it was agreed that the suit
property would go in the name of Sh. Kanshi Ram Gera
and Dayanand colony Property would fall in the share of
Sh. Ram Kishan Gera. It has been averred that the said
Family Settlement was duly acted upon and accordingly
Sh. Ram Kishan Gera and his family continued to be in
possession of Dayanand Colony Property and Sh. Kanshi
Ram Gera continued to be in possession of the suit
property. It has also been averred that in view of the family
settlement, the plaintiff and his father did not cause any
interference in the use and occupation of the suit property
by sh. Kanshi Ram Gera. It has also been averred that a
written agreement was later recorded in this regard,
however, the same was not registered due to non-co-
operation of defendant no.1. Relevant part of the plaint is
reproduced hereunder:
” 4. That Shri Uttam Chand Gera expired on
29.4.1960 leaving behind a duly executed and
registered will dated 27.4.1960 thereby
bequeathing the property No.13, Krishna
Market, Kalkaji, New Delhi in favour of the
defendant No.1 and the father of the plaintiff
Shri Ram Kishan Gera in equal shares.
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70
5. That after the death of Shri Uttam Chand
Gera, even though Shri Ram Kishan Gera had
equal share in the Property No.13, Krishna
Market, Kalkaji, New Delhi there was a family
settlement and it was decided that premises
No.13, Krishna Market, Kalkaji, New Delhi
would go to the defendant No.1 and property
No. C-IV/148, Dayanand Colony, Delhi, would
go to Shri Ram Kishan Gera. The family settle-
ment was duly acted upon and accordingly the
defendant No.1 and his family continued to re-
side in and use the premises No.13, Krishna
Market, Kalkaji, New Delhi and Shri Ram Kis-
han Gera with his family including the plaintiff
were in possession, use and occupation of
properties No.C-IV/147, Dayanand Colony,
Delhi and C-IV/148, Dayanand Colony, Delhi.
6. That since there was a family settlement that
property No.13, Krishna Market, Kalkaji, New
Delhi would fall to the share of the defendant
No.1 and property No.C-IV/148,
Dayanand Colony, Delhi would belong to Shri
Ram Kishan Gera, no interference was caused
by the plaintiff and his father in the use and
occupation of property No.13, Krishna Market,
Kalkaji, New Delhi by the defendant No.1.
There was an understanding amongst the
family members that the property No.C-IV/148,
Dayanand Colony, Delhi would ultimately go
to the plaintiff herein.
7. ………In the year 1978, in consonance with
the family settlement, an agreement dated
21.9.1978 was drawn up between the defen-
dant No.1 and Shri Ram Kishan Gera wherein
the facts relating to the litigation qua property
No. C-IV/148, Dayanand Colony, Delhi were
recorded………..
8……….. It is respectfully submitted that the en-
tire cost for pursuing the said litigation right
from the trial court upto the Supreme Court
was borne by the plaintiff and his father and
that the sum of Rs.10,00,000/(Rs.Ten Lacs
Only) was paid to Shri Om Prakash by the
plaintiff herein out of his own funds in the yearCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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711996 after the order dated 15.4.1996 passed by
the Hon’ble Supreme Court. At no point of time
did the defendant No.1 either attend to the
court proceedings or incurred expense qua the
litigation nor did he pay the said sum of RS.10
lacs from his funds. Said conduct of the defen-
dant No.1 coupled with the fact that the pos-
session of property No.C-IV/148, Dayanand
Colony, Delhi has always been with the plain-
tiff and his father are ample proof of the fact
that it was the family settlement that property
No.C-IV/148, Dayanand Colony would belong
to the plaintiff and his father and property
No.13, Krishna Market, Kalkaji would belong
to the defendant No.1 ……….
16…………. That the position that emerges is as
under :-
d) That the defendant No.1 turned dishonest
and fraudulently instituted a suit No.40/1978
against Shri Uttam Chand in the year 1978
and obtained a decree against a dead person
since Shri Uttam Chand had expired way back
on 29.4.1960.
g) Shri Ram Kishan Gera and the plaintiff
herein were unaware of said facts and even
otherwise did not interfere qua property
No.13,Krishna Market, Kalkaji, New Delhi
since as per agreement said property was to go
to the defendant No.1………..”
21.13). Sh. Kanshi Ram Gera in his written statement has
also mentioned about family arrangement between the parties which
is as follows:
“5. That some time after death of Shri Uttam
Chand, an oral family settlement of partition
took place between late Ram Kishan and de-
fendant Kanshi Ram. Under this oral family
settlement, Govindpuri property came to be-
long exclusively to late Ram Kishan and the
Krishna Market property came to belong to de-
fendant Kanshi Ram. Kanshi Ram also paid
some cash to late Ram Kishan being the differ-
ence in market prices of these properties underCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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72this family settlement, as while Krishna Market
property measured about 87 sq. Yards, the
Govindpuri property measured about 1400 sq.-
Yards.
8………… That as above said, the defendant
Kanshi Ram became absolute owner of the
Krishna Market property under the aforesaid
oral family settlement of partition between late
Ram Kishan and the defendant Kanshi Ram
and late Ram Kishan further got the name of
defendant Kanshi Ram mutated in the records
of L&DO by taking recourse to obtaining a
declaratory decree through court. With the
knowledge of late Ram Kishan, defendant Kan-
shi Ram entered into agreements to sell dated
4.10.1987 and 8.3.1988 to sell Krishna Market
property to Smt. Shanta Devi for a total con-
sideration of Rs. 6,50,000/-. The legal physical
possession was also handed over by defendant
Kanshi Ram to Smt. Shanta Devi under the
said agreements to sell………..
9………… That as to why the present plaintiff
Kundan Lal Gera, has filed the present suit
casting cloud on the family settlement of parti-
tion which took place more than 3 decades
ago and which according to plaintiff himself
had all alone been acted upon, will be clear
from the facts state hereinafter…………
13. That, however, after the death of Ram Kis-
han Gera which took place on 29.7.2005, the
plaintiff Kundan Lal Gera filed the present suit
bearing CS (OS) No. 432/2006 casting doubt
on the family settlement under which the
Krishna Market property had come exclusively
to the share of Kanshi Ram. Since it was an
oral family settlement of which there was no
record, the plaintiff Kundan Lal Gera has
falsely claimed that it was the Dayanand
Colony property which was agreed to be
handed over to late Ram Kishan instead of the
Govindpuri property which, in fact had fallen
to the share of late Ram Kishan under the fam-
ily settlement. Obviously, he has filed this suit
now after the life time of Ram Kishan Gera, se-
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73cure in the knowledge that even if the true facts
about obtaining of the decree by Late Ram Kis-
han come to light, he being no more alive, no
criminal proceedings can be initiated against
the dead person.
14. That the exclusive title to the Krishna Mar-
ket property was obtained by defendant Kanshi
Ram, way of partition under the oral family
settlement and not by virtue of the decree of the
Civil Court which was manipulated by late
Ram Kishan in order to get the said property
mutated in favour of the answering defendant.
Obtaining of the said decree was exclusively
the doing of late Ram Kishan.
16………… Late Ram Kishan and also the
present plaintiff Kundan Lal Gera knew
throughout about the said agreements to sell
and the transfer of possession of the property
to Smt. Shanta Devi since 1988. It is too late
in the day now for the plaintiff Kundan Lal
Gera to cast cloud on the aforesaid oral family
settlement and which according to the plaintiff
himself had fully been acted upon under which
the Krishna Market property came to belong
exclusively to the defendant Kanshi
Ram………”
21.14). Thus, in the W.S filed by Sh. Kanshi Ram
Gera, he has also relied upon a family arrangement and has
averred that the same was acted upon, however, it has been
averred that as per the family arrangement, the suit
property fell into the share of Sh. Kanshi Ram Gera and
another property at Govind Puri, which was also the
subject matter of the Will executed by Sh. Uttam Chand
Gera before his death, fell in the share of Sh. Ram Kishan
Gera which he had subsequently sold to his brother Late
Sh. Tara Chand. It has also been averred that for the
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purposes of mutation of the suit property in the name of sh.
Kanshi Ram Gera, Sh. Ram Kishan Gera filed a suit for
declaration and obtained a declaratory decree. It has been
further averred that Sh. Kanshi Ram Gera obtained
exclusive titled over the suit property by way of partition
under the oral family settlement and not by virtue of the
decree by civil court which was fraudulently obtained by
Sh. Ram Kishan Gera. It has been stated that the suit
property was in possession of defendant no.1 as an owner
thereof. It has further been averred that the oral family
settlement of partition was acted upon by both the parties
and was re-affirmed by their conduct in 1978-1980. The
relevant part of the W.S is reproduced hereunder.
“4……… This oral family settlement of partition was acted
upon by both the parties and it was also reaffirmed by both
the parties by their conduct during the years 1978 to 1980
also…..”
21.15). A perusal of the above extract of pleadings
would show that some family settlement has been arrived
at between the parties. Though both the parties pleaded
different oral family settlements, yet both the parties
agreed and stated that the suit property as per the family
settlement had fallen to the share of defendant no.1. Both
the parties aver that the settlement has been acted upon. It
is also not in dispute and in fact has been admitted by Sh.
Kundal Lal Gera that Sh. Kanshi Ram Gera continued in
possession of the suit property by virtue of the family
settlement and no interference was caused by him. In view
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of the same, the family settlement with respect to the suit
property can be inferred from the pleadings and conduct of
the parties. From the pleadings of the parties, it is also
clear that Sh. Kanshi Ram Gera had been in possession of
the suit property since even before the date of the oral
family settlement.
21.16). As regards the family settlement with respect
to the Dayanand Colony property, it has also been shown
that Sh. Ram Kishan Gera has been in possession of the
property bearing no. C-4/148, Dayanand Colony, Lajpat
Nagar, New Delhi since the date of its purchase and further
continued in its possession after the family settlement and
even uptil after the decision of the suit filed by Sh. Om
Prakash against Sh. Kanshi Ram Gera. For the first time, a
right in the said property was claimed by sh. Kanshi Ram
Gera by filing a suit bearing no. 622/1997 for recovery of
possession. Thus from the said facts, it is clear that the
parties continued to be in possession of the above
mentioned properties only in view of the family
arrangement between them which indicates that the family
settlement arrived at between the parties related to the
Dayanand Colony property and the suit property. No
evidence whatsoever has been led with respect to the
Govind Puri property being a part of oral family settlement
and merely averments have been made in this regard. The
defendant no.1 never entered the witness box nor led any
other evidence to prove his contentions. Thus the only
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family arrangement that can be deduced from the
pleadings, evidence and conduct of the parties is the family
arrangement with respect to the suit property and
Dayanand Colony property.
21.17). The Hon’ble Supreme Court and the Hon’ble
High Courts have time and again stressed the need of
giving effect to a family settlement and have given a wide
interpretation to the word family settlement. It has been
held by the courts in various authorities that the court
should lean strongly in favour of family arrangement
which is entered by family members to bring about
harmony in a family and do justice to its various members
and avoid in anticipation future disputes which may ruin
them all. The courts should take liberal and broad view of
the validity of the family settlement and try to uphold it
and maintain it, the idea being that if a matter has been
settled by the consent of parties the same should be given
finality and chances of any future litigation should be
avoided.
21.18). It has also been held in various judgments that
a family arrangement can be inferred from long course of
dealings between the parties.
21.19). It would also be appropriate to refer to the
judgment in Kale And Others Versus Deputy Director
Of Consolidation And Others -1976 (3) SCC 119,
wherein it was held by Hon’ble Supreme Court of India as
follows:
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77“10. In other words to put the binding effect and the essentials
of a family settlement in a concretised form, the matter may be
reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to
resolve family disputes and rival claims by a fair and equitable
division or allotment of properties between the various members
of the family;
(2) The said settlement must be voluntary and should not be
induced by fraud, coercion or undue influence:
(3) The family arrangement may be even oral in which case no
registration is necessary; (4) It is well-settled that registration
would be necessary only if the terms of the family arrangement
are reduced into writing. Here also, a distinction should be made
between a document containing the terms and recitals of a
family arrangement made under the document and a mere
memorandum pre pared after the family arrangement had
already been made either for the purpose of the record or for in
formation of the court for making necessary mutation. In such a
case the memorandum itself does not create or extinguish any
rights in immovable properties and therefore does not fall within
the mischief of S.17(2) of the Registration Act and is, therefore,
not compulsorily registrable;
(5) The members who may be parties to the family arrangement
must have some antecedent title, claim or interest even a
possible claim in the property ‘It which is acknowledged by the
parties to the settlement. Even if one of the parties to the
settlement has no title but under the arrangement the other party
relinquishes all its claims or titles in favour of such a person and
acknowledges him to be the sole 9 owner, then the antecedent
title must be assumed and the family arrangement will be upheld
and the Courts will find no difficulty in giving assent to the
same;
(6) Even if bona fide disputes, present or possible, which may
not involve legal claims are settled by a bona fide family
arrangement which is fair and equitable the family arrangement
is final and binding on the parties to the settlement.”
In view of the above, issued no. 7 & 8 are decided in
favour of Sh. Kundan Lal Gera and against defendant
no. 1.
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Issue no. 6: Whether the plaintiff is entitled to a
decree of declaration that he is the owner of the half
share in property No. 13, Krishna Market, Kalkaji,
New Delhi – 110019 ? OPP
21.20). In view of the decision in issue no. 7 & 8, the
present issue is decided against Sh. Kundan Lal Gera and
in favour of defendant no. 1.
Issue no. 9 : Whether the plaintiff is entitled to
mesne profits as prayed for? OPP
AND
Issue no.10: Whether the Plaintiff is entitled to
permanent injunction as prayed for? OPP
21.21). In view of the decision in issue no. 6, 7
& 8, the present issues are decided against Sh. Kundan Lal
Gera.
Issue no.4: Whether the plaintiff is entitled to a
decree of declaration that the mutation on the basis of
the judgment and decree dated 1 st May 1978 in respect
of the property at 13, Krishna Market, Kalkaji, New
Delhi in favour of Defendant No. 1 is null and void
being initiated by fraud and therefore, is liable to be
cancelled? OPP
21.22). All the acts done on the basis of fraudulent
decree stands vitiated. However, in the instant case in issue
no. 6,7 and 8, it has been held that by virtue of oral family
settlement, Sh. Kanshi Ram Gera is the owner of the suit
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property and, therefore, whether or not, the mutation has
been obtained on the basis of the fraudulent decree,
mutation would stand valid as Sh. Kanshi Ram Gera is the
owner of the suit property and the mutation can be in the
name of none other than Sh. Kanshi Ram Gera. The issue
is accordingly decided in the negative.
Issue no. 5: Whether the plaintiff is entitled to a
decree of declaration as regards the consequential acts
including the agreements dated 4th October 1987 and 8th
March 1988 executed by Defendant No. 1 in favour of
Mrs. Shanta Devi is null and void? OPP
21.23). The Agreements dt 04.10.1987 and
08.03.1988 cannot be declared as null and void terming
them as consequential acts to the obtainment of fraudulent
decree dt 01.05.1978 and the mutation in the name of
L&DO. To declare the said agreements are null and void
at the instance of a person who is not an executant/party to
the agreement, the requirement of section 34 of Specific
Relief Act are to be complied with. As per section 34, a
suit for declaration can lie when any right of the person
approaching the court is affected by such document. In the
present case, it has already been held in issue no. 6,7 & 8
that Sh. Kanshi Ram Gera is the owner of the suit property
by virtue of the family settlement between him and his
brother Sh. Ram Kishan Gera, therefore, Sh. Kundan Lal
Gera is not entitled to declaration of the agreements to sell
as null and void as no right of his is affected by the said
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agreements. Further, neither Sh. Kanshi Ram Gera nor Sh.
Shanta Devi have pleaded any grounds which would
render the agreements as null and void. It is the case of
Sh. Kanshi Ram Gera that he is the owner of the suit
property by virtue of the family settlement and not by
virtue of the fraudulent decree or the mutation in the
L&DO Records. On the other hand, it is not the case of
Smt. Shanta Devi that she was induced to believe that Sh.
Kanshi Ram Gera is the owner of the suit property on the
basis of lease deed and conveyance deed dt 29.08.1968 as
mentioned in agreement to sell dt 04.10.1987 or that he
was the owner by virtue of mutation in L&DO vide letter
dt 16.10.1980, as mentioned in Agreement to Sell dt
08.03.1988. In fact, it is the case of Smt. Shanta Devi that
a part of the suit property was in her possession as a tenant
with respect to which a lease deed dt 24.03.1980 was also
executed between her and Sh. Kanshi Ram Gera, who also
used to collect the rent for the same. It is her case that
Sh.Ram Kishan Gera was all along aware of the said facts
and never interfered in this regard. It is also been averred
that Sh. Ram Kishan Gera was also made aware of the
facts of sale of the suit property by Sh. Kanshi Ram Gera.
These averments of Smt. Shanta Devi are corroborated by
the pleadings of Sh. Kundan Lal Gera himself wherein it
has been pleaded that by virtue of family settlement the
suit property belonged to Sh. Kanshi Ram Gera and his
ownership and possession was never interfered with by
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him in view of the family settlement. Thus on a
preponderance of probability it is proved that Smt. Shanta
Devi believed Sh. Kanshi Ram Gera to be owner of the
suit property due to the conduct of Sh. Kundan Lal Gera
and his father Sh. Ram Kishan Gera which was further
strengthened by the mutation in the records of the L&DO.
21.24). It is also pertinent to note that a reading of the
prayer clause (e) shows that declaration has been sought on
the ground that Sh. Kanshi Ram Gera was not authorised
to enter into the Agreement to Sell with Smt. Shanta Devi.
However, it has already been held above in issue no. 6, 7
& 8 that Sh. Kanshi Ram Gera was the owner of the suit
property and thus it is clear that he had the right to enter
into Agreement to Sell for sale of the same.
In view of the above, the present issue is decided in
the negative.
21.25). RELIEF: In view of the findings on the
above issues, the Second Suit is partly decreed. Decree
sheet be drawn accordingly.
A copy of the decree be sent to concerned Registrar
where the decree dt 01.05.1978 has been registered for
necessary information and action.
22. ISSUE-WISE FINDINGS IN THE FIRST SUIT
FRAMED VIDE ORDER 23.04.2016.
3A). Whether the agreement to Sell dt 04.10.1987 is in
contravention of the terms and conditions of the
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registered perpetual lease deed dt 29.08.1959 in respect
of the suit property ? OPD3
22.1) No arguments were addressed by the parties
on this issue. However, this court has perused the lease
deed dt 29.08.1959-Mark O as well as Agreement to Sell
dt 04.10.1987 Ex.PW1/1. As per clause (b) of the said
lease deed, the property in question could have been sold
only after obtaining permission from L&DO, in writing.
However, the agreement to sell is not the sale of the
property but only an agreement to sell the property on
certain terms and conditions. Further, the agreement dt
04.10.1987 clearly requires the lessor/vendor to obtain
permission to sell the property from L&DO, before
execution of the sale deed and, therefore, it cannot be said
that the agreement to sell was in contravention of the terms
and conditions of the said registered lease deed.
The issue is accordingly decided in favour of plaintiff
and against defendant no.3.
3B). Whether the suit is bad for non-joinder of
necessary party i.e. Municipal Corporation of Delhi ?
OPD
22.2) Even though the records of the property have
been transferred to MCD, yet in the considered opinion of
this Court, MCD was not a necessary party in the suit filed
by Smt. Shanta Devi as the suit is only for Specific
Performance of the agreed terms and conditions contained
in the Agreement to Sell dt 04.10.1987-Ex.PW1/1. In
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case, the suit of Smt. Shanta Devi is decreed and Sh.
Kanshi Ram Gera is directed to execute the sale deed, still
he can be directed to obtain requisite permission from the
MCD for the purposes of sale of the suit property. No
obstruction can be created by MCD in the execution of the
decree in case the suit is decreed and effective decree can
still be passed in the absence of MCD being arrayed as a
party.
In view of the above, the issue is accordingly decided
in negative.
3C). Whether the agreement to sell dt 04.10.1987
executed by defendant no.1 in favour of plaintiff is
illegal and whether defendant no.1 is not entitled to
enter into any agreement to sell in respect of suit
property described as proper no. 13, Krishna Market,
Kalkaji, New Delhi ?
22.3) In view of the discussion in issue no. 6, 7 & 8
in the second suit, the present issue is decided in the
negative.
Issue-wise findings in the First Suit framed vide order
dt 07.11.1996:
Issue no.(i): Whether in pursuance of the
agreement to sell between the parties dt 04.10.1987, the
defendant failed to perform his part of the agreement ?
22.4) It is the case of Smt. Shanta Devi that she
had paid an amount of Rs. 6.25 lacs in pursuance of theCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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84Agreement to Sell dt 04.10.1989 and only an amount of
Rs. 25,000/- was remaining to be paid towards the sale
consideration and the same was only to be paid at the time
of registration of the sale deed and, therefore, Smt. Shanta
Devi has fulfilled her obligation under the contract. It was
argued that it was the defendant who failed to obtain
permission for sale of the property from L&DO and
clearance certificate from Income Tax Department and
consequently defaulted in performing his part of obligation
under the contract. In support of her case, Smt. Shanta
Devi has relied upon a receipt dt 08.03.1988 Ex.PW1/8,
however, an objection was raised to the exhibition of the
said documents on the ground that it is forged. It was
argued on behalf of Sh. Kanshi Ram Gera that only the
payment of Rs. 3.75 lacs was made, however, the payment
of cash of Rs.2.50 lacs, as shown in the receipt was not
proved. It was argued that even Rs. 25,000/- was not paid
on 31.12.1987 as agreed in agreement dt 04.10.1987. It
was also argued that since GPA was executed in favour of
Sh. Jog Dhian, it was him who had to obtain the requisite
permission.
22.5) As per both the parties, the real agreement
between the parties was dated 04.10.1987. A perusal of the
said exhibit PW1/1 shows that payment of Rs. 6 lacs was
to be paid by 31.12.1987. Relevant clause states as
follows:
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85“And whereas out of the aforesaid total sale consideration
of Rs. 6,50,500/- the first party has received a sum of Rs.
10,000/- in cash and Rs 40,000/- vide cheque no. 769506 dt
04.10.1987 of State Bank of India, Jangpura Branch, New
Delhi-14 and the receipt of the said amount is hereby admits
and acknowledged by the first party and the balance sum of
Rs. 6,00,000/- shall be received by the first party from the
second party on or before 31st December, 1987 getting the sale
permission and Income Tax Clearance Certificate.”
22.6). On reading of the above clause, it appears that
the some words are missing after the date 31.12.1987. To
ascertain the true intention of the parties, the said clause is
required to be interpreted and constructed. On reading of
the entire agreement the only conclusion that can be drawn
is that the said payment was payable after Sh. Kanshi Ram
Gera had obtained the permission for sale of the property
from L&DO and clearance certificate from Income Tax
Department. Admittedly, the amount of Rs. 3.75 lacs was
paid. As regards the remaining sale consideration of Rs.
2.75 lacs, an original receipt of Rs. 6.25 lacs showing
payment of Rs. 2.50 lacs in cash Ex.PW1/8 is on record.
22.7). In the cross-examination, a specific question
was put to PW1 that he did not have the funds to make the
payment of balance sale consideration, which was
categorically denied. It was also denied that the payment
of Rs. 2.5 lacs was not made. Apart from this, no question
whatsoever was put to the witness qua the payment of Rs.
2.5 lacs in cash. No cross-examination whatsoever was
conducted qua the receipt Ex.PW1/8 except one question
as under:
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86“Q.30. I put it to you that the documents Ex.PW1/2
to Ex.PW1/8 and Ex.PW1/19 are forged and
fabricated ?
A. It is incorrect." 22.8). Since the question was categorically denied
by the witness, the burden to prove the forgery was upon
Sh. Kanshi Ram Gera, which was never discharged. No
evidence was led to prove that receipt Ex.PW1/8 was
forged.
22.9). Also, the defendant Kanshi Ram Gera has not
entered into the witness box and has not led any evidence
in support of his case. Thus an adverse presumption is
required to be drawn against Kanshi Ram Gera u/s. 114 of
Indian Evidence Act, 1872 (Section 119 of BSA). Further
this court has also compared the signatures of Sh. Kanshi
Ram Gera appearing on the agreements to sell (admitted
documents) with the signatures on the receipt Ex.PW1/8
which appear to be matching. Thus in the considered
opinion of this court, there remains no doubt that the
receipt dt 08.03.1988 was executed by Sh. Kanshi Ram
Gera and an amount of Rs. 6.25 lacs was paid to him by
the plaintiff.
22.10). Further, as regard the averment that as per the
agreement dt 04.10.1987 Ex.PW1/1, the remaining amount
of Rs. 6 lacs was only to be paid by 31.12.1987, it is
pertinent to state that there is nothing on record to show
that time was the essence of the contract. Even after the
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87execution of the agreement dt 04.10.1987, the defendant
no.1 has accepted further payments without objection.
Even legal notices were issued by defendant no.1
demanding Rs. 2.75 lacs. Also admittedly, the parties
executed the Agreement to Sell dt 08.03.1988. Though it
has been averred that it was got executed by
misrepresentation, yet the allegation remained unproved as
Kanshi Ram Gera never led any evidence in support of his
case. Further as per the said agreement, the remaining Rs.
25,000/- was to be paid after execution of the sale deed.
Even though the said agreement is denied by the defendant
no.1, yet it can be looked into for this limited purpose that
parties agreed as above qua remaining consideration. Thus
it is clear that plaintiff paid Rs. 6.25 lacs in pursuance of
Agreement to Sell dt 04.10.1987 and Rs. 25,000/- was to
be paid at the time of execution of the sale deed and thus
plaintiff had performed her part under the Agreement to
Sell and the question of the remaining payment of Rs.
25,000/- would arise only once the defendant no.1 had
obtained the requisite permissions and executed the sale
deed.
22.11). Ex.PW1/9 which is Form 34-A u/s. 230-A(i)
of Income Tax Act, 1961 shows that Sh. Kanshi Ram Gera
had applied for obtaining permission for sale of the
property from L&DO and clearance certificate from
Income Tax Department and stated therein that the suit
property has been agreed to be sold to Smt. Shanta Devi
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for Rs. 4 lacs. The acknowledgment receipt of the said
form is Ex.PW1/10, issued by Income Tax Department,
which is duly signed and stamped by concerned Officer.
Thus a presumption arises u/s. 79 of Indian Evidence Act,
1872 (section 78 of BSA, 2023) as to its genuineness. The
said presumption has not been rebutted by Sh. Kanshi Ram
Gera. Thus Ex.PW1/9 and Ex.PW1/10 stands proved.
22.12). Smt. Shanta Devi has also relied upon a letter
dt 12.01.1989 of the L&DO Ex.PW1/11 addressed to Sh.
Kanshi Ram Gera regarding his request for sale permission
of the suit property. As per the said letter, Sh. Kanshi Ram
Gera was directed to remove the unauthorized construction
or to get it regularized on payment of certain charges. The
said document has been proved by DW4 exhibiting the
same as Ex.DW2/8. Thus it is clear that Sh. Kanshi Ram
Gera had applied for requisite permission, however, had
not complied with the requirement as listed in Ex.PW1/11
and has thus clearly failed to perform his part of the
agreement.
22.13). As regards the execution of the GPA in favour
of Sh. Jog Dhian, this court finds merits in the contention
of the counsel for plaintiff that since the permissions were
applied by Sh. Jog Dhian himself, there was no occasion
for exercising the rights under the GPA. Later the GPA
was revoked vide reply notice dt 26.07.1988 only
whereafter the letter dt 12.01.1989 was received from
L&DO requiring defendant no.1 to regularize the breaches
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and thus, the plaintiff could not have acted under the GPA.
This issue is accordingly decided in favour of Smt.
Shanta Devi and against defendant no.1.
Issue no.2: Whether the defendants executed a
general attorney and if so, its effect ?
22.14). Smt. Shanta Devi has relied upon GPA dt
08.03.1988 Ex.PW1/4 in her evidence stating that the same
was executed along-with agreement dt 08.03.1988.
However, an objection was raised to the exhibition of the
said documents on the ground of lack of knowledge of
legal mode of proof and being forged. However, in the
cross-examination dt 13.04.2018, Ld. Counsel for L.Rs of
Sh. Kanshi Ram Gera has placed heavy reliance upon the
said GPA and has even put specific quation to PW1 qua
said GPA to suggest that PW1 was himself authorised to
obtain clearance from Income Tax Department and sale
permission from L&DO. A question was also put that for
obtaining sale permissions, the registration of the said GPA
was not at all required. Also vide legal notice dt
26.07.1988, the defendant no.1 has revoked the said GPA.
Thus clearly Ex.PW1/4 stands admitted by the L.Rs of Sh.
Kanshi Ram Gera and it is clear that the said GPA was
executed by Sh. Kanshi Ram Gera in favour of PW1-Jog
Dhian.
Issue no. 3: Whether plaintiff is entitled for the
relief claim in the suit ?
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90
22.15). In the present suit the plaintiff claims the
specific performance of the agreement dt 04.10.1987
executed with Sh. Kanshi Ram Gera with respect to the
suit property. It has emerged that there was a subsequent
agreement entered into between the parties with respect to
the said suit property dt 08.03.1988. However, admittedly
none of the parties intended to act upon the said agreement
and it was merely a sham document created for the
purposes of avoiding payment of proper tax to the
authorities.
22.16). It has already been held in issue no. (i) above
that the plaintiff had paid Rs. 6.25 lacs to defendant no.1
and only Rs. 25,000/- was remaining to be paid, which was
to be paid at the time of execution of the sale deed, post
the grant of permission by L&DO to sell the suit property
and certificate from the IT Department. It has also been
held that the plaintiff had performed her part of the
contract and it is defendant no.1 who defaulted in
performing his obligations under the contract.
22.17). It has also been discussed above that the time
was not the essence of the contract.
22.18). As regards the payment of the remaining sale
consideration of Rs. 25,000/- it has been averred in the
plaint that the plaintiff was ready and willing to pay the
same. The cross-examination of PW1 is totally silent on
this aspect of readiness and willingness of the plaintiff to
pay the same except one question put to the witness as
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under:
“Q29. I put it to you that Smt. Shanta Devi and her legal
heirs were in the absolute possession of the property bearing
no. 13, Krishna Market, Kalkaji, New Delhi and using the
same for their business and for that reason since you were
not to gain anything more from pursuing the sale agreement
any further, you neither paid Rs. 2.50 lacs or another sum of
Rs. 25,000/- to Sh. Kanshi Ram nor had any intention to
pay the same to him ?
A. It is incorrect." 22.19). Even the above question does not suggest the
absence of readiness to pay. Further, since the question
was categorically denied by the witness, the burden to
prove the unwillingness to pay Rs. 25,000/- was upon Sh.
Kanshi Ram Gera which was never discharged. Thus,
clearly, the readiness and willingness of the plaintiff
(specifically averred in the plaint) to pay the remaining
sale consideration of Rs. 25,000/- remained unchallenged.
Further, the willingness of the plaintiff is shown from the
fact that almost 96% of the sale consideration is paid and
even the payment of Rs. 1.50 lacs was made before the
agreed date of 31.12.1987. The plaintiff has also promptly
issued legal notices to Sh. Kanshi Ram Gera to perform the
agreement to sell and has also filed the suit promptly and
without any delay, which itself disproves the allegations in
the above question. From the above it is clear that the
plaintiff was ready and willing to perform his part of the
contract at all times.
22.20). It is pertinent to mention here that no specific
issue with regard to the readiness and willingness of theCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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92plaintiff was framed in the suit, however, both the parties
have addressed lengthy arguments on the said aspect and
even the questions as discussed above have been put in the
cross-examination and thus no prejudice is caused to the
parties by non-framing of the said issue.
22.21). Further as regards the contention that the
payment was to be made by 31.12.1987 holds no weight as
there is nothing on record to show that time was essence of
the contract. The defendant no. 1 has accepted the
payments of sale consideration even after the said date
without any objection. Further the said amount has been
demanded in the legal notice issued by the defendant no.1.
There is nothing on record to show that the remaining
payment was insisted upon by the defendant Sh. Kanshi
Ram Gera at any time before the service of the legal notice
dt 04.07.1988. It has also been discussed above that from
a reading of the agreement dt 04.10.1987, the only
conclusion that can be drawn is that it was agreed between
the parties that the obtaining of the sale permission and the
Income Tax Clearance certificate was a condition
precedent to the payment of the remaining sale
consideration by the plaintiff. Until and unless the
permission was obtained, there arose no question of
making payment of the remaining sale consideration of Rs
25,000/-.
22.22). In this regard, it would be appropriate to refer
to the judgment in Gaddipati Divija & Anr. v. PathuriCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
CS DJ NO. 9579/2016 – Shanta Devi vs. Kanshi Ram and ors
93Samrajyam & Ors-JT 2023 (4) SC 281 wherein it was held
as under:
“In the present case, the High Court while discussing
Section 16 (c) of the Specific Relief Act, 1963
(hereinafter referred to as ‘Act’), observed that it is
necessary for the Plaintiff to perform his part of the
contract from the date of contract till the date of
hearing. The High Court also stated that it is fairly
well settled that mere stipulation of time would not
make time the essence of the contract and in case of
sale of immovable property normally the time may not
be essence of the contract. It was also stated that the
explanation to Section 16 (c) of the Act provides that
there must be pleading by the Plaintiff that he was
always ready and willing to perform his part of
contract. The High Court then noted that a specific
plea was taken by the Plaintiff in her plaint that she
was ready and willing to perform her part of the
contract. Moreover, PW1 (Plaintiff’s husband who
testified on her behalf) categorically stated that he and
7 AIR 1928 PC 208 the Plaintiff were ever ready to
perform their part of contract with regard to the
payment of the balance sale consideration, but the
Defendants failed to perform their part of the
obligations. At this juncture, the High Court took note
of a very crucial fact that the aforementioned part of
the evidence (with regard to the Plaintiff’s readiness
and willingness) was not challenged by the counsel
appearing for Defendant No.s 1 to 3 in the Trial Court,
and when a fact has been stated by witness and the
same has not been challenged, it can be said that such
a fact is admitted. PW2 (scribe of the sale agreement)
categorically stated that it was agreed that the extent of
land would be measured for the purpose of calculation
at the time of the execution of the sale deed. Therefore,
it was observed that the recitals in the sale agreement
coupled with the evidence of PW1 and PW2 shows that
the extent of land has to be measured within three
months, and unless the land is measured and
demarcated, it would be impossible for the Plaintiff to
get a sale deed executed, and as such, the question of
paying the balance sale consideration does not arise.
The High Court was of the view that the obligation with
regard to the demarcation of the property was not
performed by either the deceased G. Venugopala RaoCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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94or his legal heirs (Defendants in the suit, including the
Appellants herein) thereafter, while the Plaintiff had
established that she was always ready and willing to
perform her part of contract by paying the balance sale
consideration which is the primary requirement as
per Section 16 (c) of the Act. It was held that these
aspects were not considered by the Trial Court and
there was no appreciation of evidence with reference
to Section 16 (c) of the Act.
27. xxx
28. xxx
29. In our view, the High Court has rightly held
that the deceased G. Venugopala Rao or his legal heirs
(Defendants in the suit, including the Appellants
herein) failed to perform their obligation with regard to
the demarcation of the property, while the Plaintiff had
established that she was always ready and willing to
perform her part of contract by paying the balance sale
consideration which is the primary requirement as
per Section 16 (c) of the Act.
30. In light of the aforementioned Aniglase
Yohannan judgment (supra), and as held by the High
Court, the primary requirement to seek relief
under Section 16 (c) of the Act is that the Plaintiff was
ever ready and willing to perform his part of the
contract. It is clear from the facts of the case at hand
that the Plaintiff (Respondent No. 1 herein) was ever
ready and willing to pay the balance sale
consideration. In the sale agreement, it was clearly
mentioned that within three months the deceased G.
Venugopala Rao will get the suit schedule property
measured and demarcated and the Plaintiff
(Respondent No. 1 herein) shall pay the balance sale
consideration. It appears that, at first, the deceased G.
Venugopala Rao while agreeing to sell 90 cents of land,
concealed that he is the owner of only 50 cents of the
land. Subsequently, he failed to measure and demarcate
the land. On the other hand, the Plaintiff (Respondent
No. 1 herein), from the outset, has been clear and
blemishless in his conduct. She had paid the advance
sale consideration of Rs. 4,00,000/-. When the
deceased G. Venugopala Rao failed to measure and
demarcate the land, the question of the Plaintiff
(Respondent No. 1 herein) paying the balance sale
consideration does not arise. However, even then theCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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95averments of the Plaintiff, her conduct and the
testimony of her husband show that the Plaintiff, since
the signing of the sale agreement, was ever ready and
willing to pay the balance consideration.
31. The appellants have contended that respondent
no.1(plaintiff) was not having sufficient funds to pay
the balance sale consideration. On the other hand, as
noted above, respondent no.1 has been ever ready and
willing to pay the balance sale consideration…….
Therefore, even if the aforesaid contentions of the
appellants herein was to be considered, the same does
not have any substance, as the plaintiff has successfully
established her readiness and willingness to perform
her part of the contract by paying balance sale
consideration.
32. xxx
33. xxx
34. ……… However, what is to be seen in the present
case, is that the sale agreement dt 14.08.2002
stipulated that the vendor (deceased G. Venogopala
Rao) was required to get the land measured and
demarcated within three months, following which, the
purchaser (respondent no.1 herein/plaintiff) was
required to pay the balance sale consideration. So, it
can be clearly observed that the performance of the
purchasers obligation to pay the balance sale
consideration within three months is dependent upon
the fulfillment of the vendors obligation to get the land
measured and demarcated within three months.
35. Therefore, it can be deduced that unless the
vendor got the subject land measured and demarcated
within three months, it would be impossible for the
purchaser (Respondent No. 1 herein/Plaintiff) to get a
sale deed executed, and as such, the question of paying
the balance sale consideration does not arise. This was
also observed by the High Court while placing reliance
on the recitals in the sale agreement coupled with the
evidence of PW1 and PW2. Moreover, as has been held
above, it is clear that the vendor (deceased G.
Venugopala Rao) failed to perform his part of the
obligations by getting the subject land measured and
demarcated, while the purchaser (Respondent No. 1
herein/Plaintiff) was ever ready and willing to pay the
balance consideration. As such, when specificCS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
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96performance of the terms of the contract has not been
done, the question of time being the essence does not
arise. In this way, the facts of the present case are
distinguishable from that of Siddamsetty (supra), and
the Appellants herein cannot claim that time was of the
essence of the contract.
22.23). In M/s. Siddamsetty Infra Projects Pvt. Ltd. V Katta
Sujatha Reddy – 2024 (13) SCALE 844, it was held by
Hon’ble Supreme Court as under:
“39. In the appeal, the High Court categorically noted that
the above finding of the trial court was not challenged:
“40. It is also pertinent to note about categorical
admission by the defendants 6 & 8 that they have not
obtained certificates and documents for completing the sale
transaction. But the defendants 6 & 8 pleaded that they have
obtained necessary documents both in the written statements
and also in the evidence. In the cross-examination that
version of D.W.1 is dismantled and trial Court also comes to
the conclusion that the defendants without obtaining
documents and certificates simply pleaded that they are ready
with the certificates. However, that finding is not attacked in
this appeal, which goes to show that the defendants are at
fault in not obtaining certificates for fulfilling their part of the
contract, though, the plaintiff paid 90% of the sale
consideration requesting the defendants 6 & 8 to receive
balance sale consideration.”
(emphasis supplied)
40. The judgment of this Court in paragraph 67 only
refers to the deposition of DW-1 without referring to her
cross-examination or the fact that the respondents did not
challenge the finding of the Trial Court on this aspect. This is
another error apparent on the face of the record. PART F
Page 31 of 38
41. Having held that the basis of the reasoning of this
Court on whether the petitioner was willing to perform the
contract has an error apparent on the face of the record, we
are required to decide the issue of whether the petitioner was
ready and willing to perform the contract. We are of the
considered opinion that the petitioner was ready and willing
to perform the contract in terms of Section 16(c) of the
Specific Relief Act. The first agreement to sell noted that the
purchaser paid a sum of Rs.11,30,00 as earnest money.
Subsequently, the petitioner paid Rs. 13,00,000 on the same
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97
day by cheque and paid another Rs. 5,00,000 by Demand
Draft on 9 April 1997. If the petitioner was unwilling to
perform the contract, he would not have paid nearly 75
percent of the sale consideration. Thus, the petitioner with the
payment of the additional sum above the earnest money, has
proved his readiness and willingness to perform the contract.
Further, this aspect must be analysed in the backdrop of the
explanation to Section 16(c) of the Specific Relief Act which
states that if the contract involves the payment of money, it is
not necessary that the plaintiff actually tenders the money. It
cannot be concluded that the petitioner was not ready or
willing to perform his part of the contract merely because the
balance sale consideration was due to be paid.
42. … we are of the considered opinion that this is a fit case
for this Court to exercise its discretion to direct specific
performance”.
22.24). Further, the plaintiff has already made the
payment of around 96% of the total sale consideration and a
meager amount of Rs. 25,000/- remained to be paid which
was also payable only upon the pre-conditions being
performed by Sh. Kanshi Ram Gera. The 96% of the sale
consideration has been paid even before the conditions have
been performed by Kanshi Ram and even before the exchange
of legal notices between the parties which shows the
genuineness and bonafides of the plaintiff. The possession of
the suit property is admittedly with the plaintiff. It has already
been noted above that it is the defendant who has failed to
perform his obligation under the contract which is also
evident from the legal notice dt 26.07.1988 wherein it has
been clearly stated that he has not been able to obtain the
requisite permissions. As per the letter of the L&DO dt
12.01.1989 Ex.PW1/11, Sh. Kanshi Ram Gera was called
upon to demolish the unauthorized construction or to pay the
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regularization charges and thus it is clear that obtaining the
requisite permission only required some acts to be done which
were not beyond the control of Sh. Kanshi Ram Gera.
22.25). From the material available on record, it appears
that Sh. Kanshi Ram Gera turned greedy as despite receiving
the sale consideration of Rs. 6.25 lacs, the plaintiff was
dishonestly called upon to pay Rs. 2.75 lacs .
22.26). As far as the contention of Sh. Kundan Lal Gera
that the performance of non existent agreement dt 04.10.88
has been claimed and that the plaintiff has not acted bonafide
are baseless. It has been clarified in the evidence of PW1 that
the same was only a typographical error and the agreement dt
04.10.1987 is sought to be enforced. This would also be the
only logical conclusion on a readying of the pleadings and
evidence in the matter. It has also been discussed in the
foregoing part of this judgment that the mere fact the plaintiff
did not inquire about the title of Sh. Kanshi Ram Gera would
have no effect as Sh. Kanshi Ram Gera was the owner of suit
property by virtue of family settlement and even the conduct
of Sh. Ram Kishan Gera had made the plaintiff believe that
Sh. Kanshi Ram Gera was the owner of the suit property.
22.27). Thus in the totality of circumstances the plaintiff
is entitled to specific performance of the contract dt
04.10.1987.
22.28). The delay in execution of the contract is merely
because of the failure /default of Sh. Kanshi Ram Gera to
perform his obligations. In the circumstances and considering
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that 96% of payment of sale consideration has been enjoyed
by defendant no.1 since 1988, it would neither be inequitable
nor a hardship on defendant no.1 if specific performance of
contract is granted. However, in the interest of justice, it
would be equitable to direct the plaintiff to pay an amount of
Rs. 2.50 lacs in addition to the remaining sale consideration,
to the LRs of Sh. Kanshi Ram Gera. The L.Rs Sh. Kanshi
Ram Gera shall apply for the requisite permissions for the
purposes of executing the sale deed within a month. However,
it is made clear that any regularization charges payable for the
permission shall be paid by the plaintiff as the plaintiff has
been in possession of the suit property since 1988. On
obtaining the requisite permission, the parties shall execute a
registered sale deed in favour of the plaintiff and remaining
sale consideration as well as the additional payment of Rs.
2.50 lacs, as directed above, shall be paid to the LRs of Sh.
Kanshi Ram Gera at the time of execution of the same.
22.29). Relief: In view of the findings on the
above issues, the suit of the plaintiff – Smt. Shanta Devi is
decreed. Decree sheet be prepared accordingly.
Both the files be consigned to Record Room.
Digitally signed
by GUNJAN
GUNJAN GUPTA
GUPTA Date:
2025.03.29
Announced in the open court 20:06:51 +0530on 29.03.2025 (GUNJAN GUPTA)
DISTRICT JUDGE-04
SOUTH EAST DISTRICT,
SAKET COURTS,
NEW DELHICS DJ NO. 7815/2016 – Kundal Lal Gera vs. Kanshi Ram Gera and Ors
CS DJ NO. 9579/2016 – Shanta Devi vs. Kanshi Ram and ors