Anand J. Datwani v. Geeti Bhagat Datwani & Ors.

1. l'his is an upprr d by Defendant No.l --xi seeking rejection of the plaint.

2. The above suit has been filed by Mr. Anand Datwani against his wife, \4rs. Geeti Bhagat Datwani and her parents, Mr. Manmohan Bhagat and Mrs. Surnohini Bhagat, Defendants 2 and 3 for partition, declaration a1d permanent injunction.lhe Plaintiff seeks partitioning of the properly, including the land and building, at 32, Shivji Marg, Westend Greens, CS (os) No.758 of 2008 2013:DHC:8460 ln J" Rangpuri, New Delhi ('the suit properry ') in equal shares between the Plaintiff and Defendant No.l and a declaration that the undertaking given by him on 29th April 2004 is null and void. The Plaintiff also seeks a permanent injunction to restrain the Defendants fi'om dealing with the suit propefty.

3. The Plaintiff and Defendant No.l were married on 13th October. Igg[4]. A daughter and a son were bom on 4th August 1996 and 20h Decembe r 1999 residential unitdiworila be greed rn?Bl*q independent the entire 'farrfi land' would units to be built thereon. In o g to the Plaintiff, it was agreed that he and Defendant No.1 would enjoy owners, having equal right, titie and interest. the said properly as joint

4. It is stated in para.[4] of the plaint that pursuant to the aforementioned agreement, the terms mutually agreed upon between the parties were recorded in a 'Development Agreement' ('DA') executed by the Plaintiff cs (os) No. 758 of 2oo[8] ?\) endorsed and and Defendant No.l "in the year 1996 which was duly witnessed by the Defendants 2 and 3."

5. Significantly, neither is the date of the DA mentioned nor is a copy thereof been placed on record by the Plaintiff. Flowever, it is the Plaintiff s case that the parties acted upon the said DA. He also states that "being a dutiful husband and son-in-law in good faith, even though the defendants 2 and 3 had no right, title or clairn in the suit propefty", he agreed to the ld;""€v$tt" Defendants 2 walk away n'o-Th" -u1ffi suggestion of Defendant Noi{tt-4t*-th ir?*r.-Wj,r.d. frorn the second re si denti al unit. ""rou'dft*ffii84#fr ll'o{fl ffi #h"o s i dered as p arr or, ittr."h,M.** f;ffK*, -,.,,$fu'\._--^-_^-'. the Defendant's rndrfi.tihrr. and 3 titl Decemd;ffi. &.'f, ""r,,'ro"""u-*ff w -*\

6. over time, foisputes and dif${{{ry,d}Fose between the ptaintin ana D e ren d ant No. t$Lt;" p t ainffi 'ffiltfutl$-.-1 f D e rendant No;lr'r" at en e d to walk away fi'om tn. -u.tffib-*fi-{turtLit"$vJ,ffiniage,iiTe was coerced intosigninsanr*hffi raingtohim, Defendant No.l had epPlaintiff that the said undertaking had no legal effect purpose. The Plaintiff has himself produced a copy of the said undeftaking, which is in the form of an indenture on a stamp paper of Rs.100. It states that Defendant No.l "is the sole and exclusive owner of prernises bearing No.32, Shivji Marg, westend Greens II, Rangpuri, New Delhi-l10037. She acquired lands in 1989 vide three Sale Deeds all duly registered with the Rangpuri alias Malikpur Kohi, Tehsil Metu'auli in the Union Temitorry of cS (os) No. 758 of 2008 \t Delhi, bearing I(hasra Nos. 727 (4-16),728 (2-19), 73r (0-6),733 (0-9), 737 (0-7),738 (3-8) executed by the erstwhile owner Sangeeta Gupta, wife of Rajiv Gupta rlo 19, Banarsi Dass Estate, Delhi through her attorney Shri Rajiv Gupta in favour of Miss Geeti Bhagat. She thereafter obtained the requisite sanction in July 1990 and with her parents started construction of a house thereon and completed the same in July lgg[3].,'

7. Paras 2,[3] and,[4] ofthe said indenture dated 29h April 2004read as under: "2.'rhatl solemnly "JFrfir*ffi-mfiaN.hav. rr right.t., th. said property belgngngfr-o!ffi#ird,igt 4tsr*lt G rights of owneiship to us.'4 Ip;,{ sEiti -o.tt*un. und r o 6h.hb*n propertTes and ownership to rls.{ I gtf. seil i poggae.e;d; " dfrr,he*&.prop ertTe s and ilT::,*.T,fmkm*Laq, i - T*$*u**;;' -;; invotve,'ni$Hiffi n"r,"r*tr?'#ro.. '-ffi#1?l*tanst'whichmav ffi""''l#"# 'ffiq,W*h"";'f8d;'gtthoutanv:' {" Y'ttrffi$fl $

3. I declQre that any.*pga4ffi$r", I have ir,rurr$a during {T,. t-l renovallonsi or may I ':il:1i:1Hi,f,:affi.Wffii- fifi He;[:.r;ff:rni: craim.then'&n64y$ffi'tdid&'iH.ff i;ifr a{plift-y"rf;;.i,air,. nor claim anv 4.rhatr hereby ""Jffi#ffi or my wire filing W.,-,*,* therefrom legal proceedings for judicial separation or divorce I will shift out o[1] the premises fofthwith and make no claims thereon in the event of my wife's demise, I would neither claim nor occupy the said ' premises beyond a period of 3 months.,,

8. In the plaint, it is stated that a petition was filed by Defendant No.l against the Plaintiff on 10'h Octob er 2007 under Section 12 ofProtection of Women fi'om Domestic violence Act 2005 (,pwDVA,). The learned Metropolitan Magistrate ('MM'), by an order dated 3'd November 2007, CS (OS) No.758 of 2008 !(,) decided that the dispute relating to the suit property could be decided in a civil court and not under the PWDVA. The Plaintiff, however, states that he was shocked td know that Defendant No.1 produced a copy of the afbrementioned undertaking in the said proceedings. It is stated that, on 10tl' October 2007, the learned MM passed interim orders in the proceedings under the PWDVA and restricted the Plaintiff from entering into any portion of 1, Tees January Lane, New Delhi where Defendants 2 and 3 were residing and fiom taking custody of his children fi'om Defendant No.l or taking them out of the.$er"ffirip orders were passed by talflng them out of the said.Br€ii'riSes.*Eurthei"-irfteri.m*orders were passed by the rearned MM on psffitffil+8&8; fttdse-il'&e,or counser ror the p I a inti rr th at i r tn. df,inhff,,'-{c"d-ffif#';; kK[5].; ":; "; " rx,nr r, r, f"tlffi*':'ffi - u"#:\esia, he wourd have a right.;,pi.ff -utriffi *o"la'ii$"t-rnunicate, in any mann.r, *$L ffir"r'au.,t "effi#ffier desirin-% 4 so and witl rnove himsertQ a parricul* p"rtiTdmt}; to hirn $ s Tn narc r. 5,*^ ^,,,,*d[3],ffi.fu^^#*:, ^^.-f, -1-,.r, a,, e In parc25 "f'*"P3qfutjeffi*$8-#krqyti,u night or 12" october2007,n.Br'Sfr6*i"b"d;ffirss,itrr4'.rfffidr#rpersons,came to the house at 32,*t J;.;. house "and took illegal possessi personal ef"fects and other important documents of the Plaintiff including the originals of the agreernent entered into between the Plaintiff and the Defendant No.1.,, FIe states that an application to this effect was filed by Mr. Rattan Datwani in Police Station (PS), Vasant Kunj. The Plaintiff clairns that on his retum from Bali, Indonesia, he found that thc documents, including the DA signed between the parties, were missing. He states that he filed a complaint on 22nd October 2007 with the local police. Thereafter, he filed an application cs (os) No. 758 of 2oo? under Section 156 (3) Code of Criminal Procedure, 1973 (Cr PC) before the learned MM for registration of a First Information Report (FIR).

10. In the proceedings under the PWDVA, the learned MM, by an order dated 3'd November 2007, directed the Plaintiff to remove himself from the matrimonial house within seven days and restrained him from meeting the children, except in Court, on 2nd Sundays of each month, in the presence of the Duty Magistrate. The appeal against the said order was allowed by the fendants in Codit. Defendant claim of the 6t have any right, by Defendant No.l from her own funds in 1989.'fiV6=ry'ezm to her marriage with the Plaintiff in 1994. The suit property was registered in her name in 1989 itself. The plans for construction of the suit property were submitted to the Municipal Corporation of Delhi ('MCD') and sanctioned in 1990. The completion certificate was applied for on 28th July Igg[3], prior to the marriage of the Plaintiff with Defendant No.1. The Plaintiff had no role in the acquisition of the suit property. Defendants 2 and 3 had advanced a sum of Rs. 1,20,00,000 to Defendant No.1 for renovation of the property and this Plaintiff *u, futr&t ffi 'q;:q Plaintiff was false.'It."Wfs*tAt'ed- that the P lairitifl title or claim in rL^ ":;'K"mffiffiffi'-' me sulrpqis##5v*ij[3] cs (os) No. 758 of 2008 q) L/ was reflected in their Income Tax ('IT') Returns and bank details. Defendant No.1 denied that there was any DA, 4s alleged by the Plaintiff. If it conferred any title on the Plaintiff as alleged by him, it was required to be compulsorily registered under the Registration Act, 1908 as, admittedly, the propefty was wotth more than hundred rupees. Further, for the alleged DA to be valid as per the law prevalent in 1996, it required permission under Section 269 UC of the I'I Act, 1961 under Form-37(I). The Plaintiff made no mention of the alleged DA before any statutory or other authority. Piaintiffwasd&cffit.rr'.rrui{t*-ff*ffiishcitizen.Tt'.6cquisitionof { -,__. _ r if,llffi*'$}?. ----,.---. ^* regulated under S{ction 6 (3XD ffi::::il;l;.#* exis'1en'lDAwas re'h at the.W k. puia by the or the ro..ign fu"rnung. **ud,fig'h,,t&-?:einua'), r ssefrhere was a L^- ^-.,^^ -1,. h.,L.qi..S-\{*;l*,9''H:;^,, {T ffi::"#il$ otseekreriefs

13. In additionto the "o""Jfttffi 2tlunder ordervrr Rule 11 CPC, Defendant No.l states that the suit is also baned by limitation. Under A,rticle 54 of the Schedule to the Lirnitation Act ('LA') 1963, a suit for specific perfonnance had to be filed within the period of three years fiorn the date fixed for perfonnance. In any event, as far as the relief of declaration of invalidity of the undertaking dated 29th April 2004 is concerned, under Article 58 of Schedule to the LA it had to be sought not later than three years thereafter. Reliance is placed on the decision in Asltish CS (os) No. 758 of 2008 \r Kumar Hazara v. Rubi Psrk Cooperative Society AIR 1997 SC 2724.Itis stated that even if the issue of lirnitation was not pleaded, the suit wass liable to be dismissed as explained tn Ashok Khurnno v. Steelman Industries AIR 2000 Delhi 336 (DB) and Rajkishore Mohanty v. Kangali Moharan AIR 1972 Ori. 119 (FB).Under Order VI Rule 4 CPC, the Plaintiff had to give exact details and particulars including the 'date and circumstances' as regards the plea of coercion and undue influence relating to the undertaking dated 29th April 2004. Defendant No.1 contends that the. SBI 20QI;$):,SCC 449 and ?*. _ $* 1994,SC 853 to fontend that if

14. Learned counse to the present applicatidfirdl.isitEtFditbat{I#'Nb/W95 of 2008 filed by the *M-gf Plaintiff under Order VI Rule -i?Ygpgs66lffi amendment of the plaint to incorporate relief of specific performance was yet to be allowed. It is stated that for the purposes of Order VII Rule 1 1 CPC, the Court can only consider the plaint and accept as cotrect the averments made therein. In other words, the Court cannot exarnine the written statement to determine if the plaint discloses a cause of action. It is stated that the construction raised in 1993 on the suit property was a bare shell and did not have the plaster, plumbing or electricity and was only to the extent of 1500 sq. ft. It is submitted that it CS (OS) No.758 of 2008 *.: q[1] it relevant materiZrls, the Court g ft rY -rfr,iF vl is only after the erstwhile structure was demolished, that a fresh foundation was iaid and the two residential units were constructed pursuant to the DA.

15. As regards the complaint filed by the Plaintiff against the Defendants alleging thcft of the documents including the DA, it is stated that the learned MM has by his order dated 21't November 2012 summoned Defendant No.1. It is stated that the Plaintiff was in possession of the suit property till the interirn order was passed by the learned MM in pwDVA proceedings. It Owners & Parties, V, 3 SCC 100 to urge that the plaint could not be G.;d"rca*ir asis of allegations made by Defendant No.l in her wlitten statement or in the application under Order VII Rule 11 CPC. The Courl had to examine whether the plaint discloses a cause of action and in doing so had to proceed on the basis that the averments in the plaint were correct.

17. The question that arises in the present case is whether the plaint, in fact, discloses a cause of action vis-d-vis the reliefs sought by the Plaintiff. The subrnitted that Defendant No.1 * ^------,, fi - -rL - 12 of PWDVA 6n 24h Septcrnbdi: 'A,go {f;. 1 6. counser ror,,}hrffi#r: cS (OS) No. 758 of 2008 )o entire suit revolves around the DA. While it is correct that pursuant to the complaint nhd by the Plainitff under Section 156(3) Cr PC alleging that the DA was stolen by Defendant No.l, the 1earned MM has summoned Defendant No. 1, that by itself is not determinative of the existence of the DA in the first place. There is no specific reference in the said complaint about the allegedly missing DA. It only generally refers to the documents missing. Significantly, even in the complaint made to the police on 22nd October 2007 the Plaintiff makes no mention of the DA. In para 13 of the {; les' and seeks thii help of the

18. In the order dated 21" November zorz passed by the learned MM, reference has been made to para 11 of reply filed by Defendant No.1 admitting that "she is in the possession of the clothing and shoes" and that she wanted to hand over the salne "to the Cornplainant." The learned MM proceeded to hold that since Defendant No.1 had made an admission to the above effect, and since it had been removed from the room assigned to the Plaintiff, a criminal offence was prima facte committed and, therefore, complaint, he state. tnut,.4.*"r'ffir B?il\,4nd found that,.all my documents, cash "rd i.d;.ffi1*ffi' %rffiffi".,.hnrr, m i ssin s wh i ch CS (oS) No.758 of 2008 summons was issued to only Defendant No.1 under Sections 37gl4Il IpC. The above order makes no reference to any.admission by Defendant No.l to removing the DA.