Full Text
HIGH COURT OF DELHI
Date of Decision: 29th July, 2019
SH RAJINDER KUMAR KAPUR & ANR. .....Plaintiffs
Through: Mr. Rajiv B. Samiyar, Advocate (M:9811343911)
Through: Mr. Ravi Sikri, Senior Advocate with
Mr. Rajbir Singh and Mr. Deepank, Advocates for D-1.(M:9717394060)
JUDGMENT
1. This is an application under Order VII Rule 11 CPC filed by Defendant No. 1 seeking rejection of the plaint on two grounds - that the suit lacks cause of action and that the suit is time barred.
2. Late Shri Kundan Lal Kapur had three sons and four daughters. The Plaintiff is one of the grandsons of deceased Shri Kundal Lal Kapur. The three sons of the deceased are Late Shri Shiv Kumar Kapur, Mr. B. C. Kapur and Mr. M. M. L. Kapur – Defendant No.1. Shri Kundan Lal Kapur passed away on 14th September, 1971. Mrs. Vidhya Wati, - wife of Late Shri Kundan Lal Kapur died on 26th June, 1978. The Plaintiff is the son of Late Shri Shiv Kumar Kapur, who passed away on 6th January, 1984.
3. The Plaintiff being one of the grandsons, seeks partition and possession of the property bearing No. J-38, Rajouri Garden, New Delhi 2019:DHC:3686 (hereinafter the „suit property‟). The suit property is in occupation and possession of Defendant No.1. It was mutated in favour of Defendant No.1 after execution of three General Power of Attorneys („GPAs‟), which were given in favour of Defendant No.1’s wife namely Smt. Kamla Kapur. Thereafter, Smt. Kamla Kapur executed a relinquishment deed on 19th August, 1979 in favour of her husband – M.M.L Kapur – Defendant No.1 herein. This relinquishment deed was executed on the strength of GPAs, which were executed by all the daughters and sons of late Shri Kundan Lal Kapur. The GPAs and relinquishment deed have been placed on record. Since then, Defendant No.1 has got the property mutated in his own name and has been in exclusive enjoyment and possession of the suit property. On the basis of the relinquishment deed and GPAs executed by all his siblings, Defendant No.1 claims that the suit itself is not maintainable as the Plaintiff’s father during his lifetime had given up all the rights in the suit property. Accordingly, the case of Defendant No.1 is that the suit has been filed more than 36 years after the registration of the relinquishment deed in favour of Defendant No.1 and that the said relinquishment deed had been executed after proper deliberations were held with all the family members. The Plaintiff’s father had executed a GPA in favour of his Bhabhi, which was thereafter relinquished in favour of Defendant no.1, during his lifetime itself, he had no right in the suit property. Thus the suit itself is not maintainable and no trial would be required.
4. On behalf of Defendant No.1, Mr. Ravi Sikri, ld. Senior Counsel has made his submissions and has relied upon various authorities to submit the proposition that once there is a registered Power of Attorney and the documents are all registered, the same cannot be questioned, inasmuch as registered documents have enormous sanctity in law. Further, he submits that the suit having been filed about 36 years after the relinquishment deed, would be utterly barred by limitation and such a plea would itself be entertainable under Order VII Rule 11 CPC. The fact that Defendant No.1 has been in exclusive enjoyment and possession of the suit property is evident from the fact that the first and second floors of the property have been constructed after proper approval obtained through the building plans. The valuation report has also been obtained for income tax purposes and the property is being reflected in the income tax returns of Defendant No.1. It is further submitted that Defendant No.1 has also been paying house tax and other charges/taxes in respect of the suit property. The Plaintiff does not have any legal or valid right. Ld. counsel for the Defendants further submits that GPAs have not been challenged and that only the relinquishment deed has been challenged, thus, there is no need for trial in this matter.
5. On the other hand, ld. counsel for the Plaintiff submits that his case in the plaint is that the GPA has not been executed by his father and neither has the relinquishment deed been executed by him. The suit ought to proceed to trial as he would like to prove in the trial that the said GPA has not been executed by his father. The plea is contained in paragraph 16 of the plaint. It is further submitted by learned counsel for Plaintiff that one of the other brothers i.e. his uncle - Mr. B. C. Kapur had written an email on 5th March, 2015, which reads as under: “ Date: Thu, Mar 5, 2015 at 3:34 PM The persons who are asking for their share tell them to get the shops cleared we need 10 c. Let us first share that when we dispose hose we shall share every thing. Of course we will have to minus what ever extra help was given to some of them. Thanks. Bckapur ”
6. According to him, the email shows that the family had agreed to give some share to the Plaintiff. Further, Ld. counsel for the Plaintiff submits that the question of limitation is a mixed question of fact and law. He relies upon Brigadier (Retd.) Shyam Prasad vs. Dayawati and Others, 2010 (114) DRJ 745 and Balasaria Construction (P) Ltd. vs. Hanuman Seva Trust and Others, (2006) 5 SCC 658 in support of his contention.
7. The Court has heard ld. counsels for both the parties. The Court has also perused the GPAs and the relinquishment deed, which were executed. A perusal of the GPAs shows clearly that the same were duly executed and even registered on different dates. The first GPA is dated 1st June, 1979 and has been executed by Mr. B. C. Kapur, Smt. Rani Chawla and Smt. Vinod Bala in favour of Smt. Kamla Kapur. A similar GPA has been executed by Smt. Raj Dulari and Smt. Sneh Bala on 15th June, 1979 and the same is also registered. A third GPA was executed by late Shri Shiv Kumar Kapur on 20th June, 1979. All the GPAs nominated Mrs. Kamla Kapur to be the power of attorney holder. On the strength of these GPAs, Mrs. Kamla Kapur executed a relinquishment deed on 19th August, 1979 in favour of her husband – Mr. M. M. L. Kapur, who is Defendant No.1. A perusal of the GPAs and relinquishment deed shows that the same are duly registered with the relevant authorities. The documents are registered under Section 17 of the Registration Act, 1908, the said GPAs and relinquishment deeds do not require to be proved by an attesting witness as is evident from Section 68 of the Indian Evidence Act, 1872. Section 68 reads as under: -
8. Thus, under the provisions of the Registration Act read with the provisions of the Indian Evidence Act, registered documents ought to be read in evidence. The same carry a sanctity in law and are presumed to have been executed. Paragraph 16 in the plaint wherein the Plaintiff pleads that the signatures do not belong to his father reads as under:
9. The fact that these documents were executed way back in 1979, i.e. almost 40 years ago and 36 years by the time the suit was filed, itself shows that they have enormous sanctity especially in view of Section 90 of the Indian Evidence Act, 1872. Section 90 reads as under:-
From the above provision it is clear that under Section 90 if a document is more than thirty years old, a presumption attaches to such documents and the signatures contained therein that they belong to whoever is shown to have signed the same. In Mahesh Chander Ahuja vs. Tilak Raj Ahuja, 2018 (168) DRJ 492 this Court has held as under:
10. Reliance is placed by ld. counsel for the Defendant on various judgments of the Supreme Court and other Courts. These judgments clearly show that the question as to whether the Power of Attorney, once registered, can be gone into or not, is to be considered at the stage of the application under Order VII Rule 11 CPC. The judgment in National and Grindlays Bank Ltd. vs. M/s. World Science News & Ors., ILR (1976) I Del 559, elucidates that a presumption arises as to the validity and authenticity of a document once it is attested. The relevant portion of the said judgment reads as under: -
11. Scope of Order VII Rule 11 CPC has been clearly set out by the Supreme Court in Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137. The relevant portion reads as under:-
12. Since the GPAs and the relinquishment deed are all registered documents, the same are presumed to be valid and legal.
13. The further argument of the Plaintiff is that the question of limitation is a mixed question of fact and law. This proposition is not an absolute proposition, inasmuch as limitation, when it is evident on the facts, does not become a mixed question, in all circumstances. It is only if evidence is required to decide the question of limitation, that it becomes a mixed question of fact and law. In the present case, the ownership of the suit property by the late grandfather is not disputed. The execution of the GPAs has been clearly established on record and the same are registered. The Plaintiff and his father, during his lifetime, have never enjoyed any rights in the suit property after the execution of the registered GPAs and the registered relinquishment deed. These facts not being in dispute, the question of limitation does not remain a mixed question of fact and law. In view of the long delay in the filing of the present suit, it is held to be barred by limitation as the Plaintiff had knowledge of the fact that Defendant No.1 claims exclusive rights in the suit property for several years and in fact for the last several decades. There is no reason why a challenge could not have been raised earlier. There has to be a finality to such documents once they are executed and registered, failing which, parties would be litigating forever. The documents placed on record clearly show that the Plaintiff does not have any case and does not have even a feeble challenge to any of the documents. Under these circumstances, the application under Order VII Rule 11 CPC is allowed and the suit is rejected for lack of a cause of action and for being barred by limitation.
14. Since the Plaintiff is the nephew of Defendant No.1, the Court had asked the parties to take instructions, if there was any amicable resolution possible. The counsels have reverted and Defendant No.1 has submitted that at this stage, he does not have any intention to sell the suit property. However, at the request of the Ld. Counsel for the Plaintiff, this Court would like to add that, if at any stage, the suit property is likely to be sold by Defendant No.1, out of goodwill, love and affection, if he wishes to part with any part of the sale consideration in favour of his nephew, the same is left to him completely. No orders can be passed in respect of the same. All pending I.As. also stand disposed of.
PRATHIBA M. SINGH, JUDGE JULY 29, 2019/dk/dj