Sudesh Bala & Ors. v. Vinod Kumar & Ors.

1. The five plaintiffs namely (i) Smt. Sudesh Bala; (ii) Smt. Aadesh;

(iii) Smt. Suresh; (iv) Smt. Minakshi; and, (v) Smt. Kamal have instituted the present suit for (a) declaration of the Sale Deed dated 15th September, 2004 executed by defendant No.1 in favour of the defendant No.2 in respect of 1/16th share in Khasra No.58 (1-18) and 78/11 (2-0) situated in Extended Laldora of Village Samalkha, Delhi to be null and void and not binding on the plaintiffs; (b) declaration that the Gift Deed dated 10th November, 2006 executed by defendant No.2 in favour of the defendant No.1 in respect of 1/16th Laldora of Village Samalkha, Delhi is null and void and not binding on the plaintiffs; (c) declaration of the Sale Deed dated 14th February, 2006 executed by defendant No.1 in favour of the defendant No.3 in respect of 1/16th Laldora of Village Samalkha, Delhi to be null and void and not binding on the plaintiffs; (d) declaration of the Sale Deed dated 5th May, 2009 executed by defendant No.1 in favour of the defendant No.2 with respect to built up property measuring 70 sq. yds. i.e. 6/40 share in Khasra No.78/13/2 min (0- 2018:DHC:6868

7) and 78/16 (1-9) situated in Extended Laldora of Village Samalkha, Delhi as null and void and not binding on the plaintiffs; (e) declaration of the Sale Deed dated 5th May, 2009 executed by defendant No.1 in favour of the defendant No.2 in respect of built-up property measuring 200 sq. yds. i.e. 6/40 share in Khasra No.78/13/2 min (0-7) and 78/16 (1-9) situated in extended Laldora of Village Samalkha, Delhi as null and void and not binding on the plaintiffs; (f) partition of properties shown in red colour in the site plan Annexure A, B & C to the plaint; and, (g) permanent injunction restraining the defendants from dealing with the properties.

2. The suit was entertained and vide ex-parte ad-interim order dated 23rd December, 2016, the defendants restrained from creating any third party interest in the properties. The defendants failed to appear inspite of service and their right to file written statement was closed vide order dated 5th May, 2017 and vide order dated 4th July, 2017, the defendants were proceeded against ex-parte and the plaintiffs relegated to leading ex-parte evidence and the ex-parte ad-interim order made absolute till the decision of the suit.

3. The plaintiffs, in their ex-parte evidence, besides examining plaintiff No.2 Smt. Aadesh, have examined Naresh, native of Village Samalkha and known to the plaintiffs as PW-2, UDC from the office of Sub-Registrar, Kapashera as PW-3 and an Assistant from National Institute of Open Schooling as PW-4 and closed their ex-parte evidence.

4. It is the case of the plaintiffs in the plaint, (i) that the five plaintiffs are the sisters of the defendant No.1; (ii) that the defendant No.2 Smt. Leela Wati is the wife of defendant No.1 and defendant No.3 Nitin Kumar is the son of defendants No.1&2; (iii) that the defendant No.4 Smt. Chameli Devi is the mother of the plaintiffs and defendant No.1; (iv) that the father of the plaintiffs and the defendant No.1 was the owner of (a) built up house measuring 476 sq. yds. situated in Laldora Abadi Village Samalkha, Delhi; (b) built up house measuring 88 sq. yds. situated in Laldora Abadi of Village Samalkha, Delhi; and, (c) built up house measuring 35 sq. yds. situated in Laldora Abadi of Village Samalkha, Delhi; (v) that the father of the plaintiffs and defendant No.1 died on 2nd January, 1990 and his estate was inherited by the plaintiffs, defendant No.1 and defendant No.4 in equal shares; (vi) that the defendant No.1, in April, 2013, in settlement of the share of the plaintiffs in the father‟s estate, gave a built-up house measuring 88 sq. yds. to the plaintiffs with promise to give other properties also to the plaintiffs; (vii) that the defendant No.1 has however thereafter not given any other property to the plaintiffs; (viii) that in October 2016, defendant No.3 disputed any claim of the plaintiffs in the properties and disclosed about the sale deeds, gift deeds aforesaid executed by the defendants inter se; (ix) that the sale deeds are a nullity as the same have been executed, without any sale consideration because the defendant No.2 is a house wife and even otherwise there is no question of sale transaction between husband and wife; (x) that at the time of the sale deed in favour of the defendant No.3, the defendant No.3 was a minor and could not have been possessed of sale consideration stated to be paid under the sale deed in his favour; (xi) even otherwise, once the defendant No.1 had executed sale deed, he could not have again executed another sale deed with respect to the same property; (xii) that the defendant No.1 even otherwise was not entitled to execute sale deed of more than 1/7th share in the property which alone was owned by him in the estate of the father; and, (xiii) that the plaintiffs, in December, 2016 again requested the defendants for their share but were refused.

5. The plaintiff no.1 appearing as PW-1, in her affidavit by way of examination-in-chief has merely reiterated the contents of the plaint and not otherwise proved any of the averments in the plaint. PW-2 Naresh in his affidavit by way of examination-in-chief though has stated that the father of the five plaintiffs and the defendant no.1, and who was the husband of the defendant no.4, was the owner of the properties mentioned in the plaint and that he died leaving the five plaintiffs, defendant no.1 and defendant no.4 as his heirs, has also not otherwise proved either of the said averments. PW-3 brought the Sale Deeds/Gift Deeds qua which reliefs of declaration have been claimed and certified copies of which were tendered by the PW-1 in evidence. PW-4 produced the mark sheet of Secondary School Examination taken by the defendant no.3, to prove the date of birth of defendant no.3.

6. The counsel for the plaintiffs has merely repeated the facts stated in the plaint and not urged any other argument.

7. I have considered, whether to, on the basis of unrebutted statements by way of examination-in-chief of the plaintiff no.1 appearing as PW-1, grant the reliefs claimed in the suit and find myself unable to do so for the following reasons:-

Sale Deeds/Gift Deeds inter se qua which the relief of declaration as null and void is claimed. Each of the said documents proved as Ex.PW-1 to Ex.PW-1/7, in the recitals thereto records that the transferor, whether as seller or donor was the sole absolute and exclusive owner in possession of the properties subject matter thereof and the said property stood mutated in the name of the transferor in the revenue records as owner and the property under transfer was the self acquired property of the transferor and the transferor had full right to transfer the same.

I. The other grounds impugning the Sale Deeds and Gift Deeds inter se defendants, save ground of the defendant no.1 being not the sole owner thereof, are no grounds in law. The plaintiffs as third parties to the Sale Deed, cannot challenge the Sale Deed on the ground of the same being without any consideration. Reference in this regard may be made to Muddasani Venkata Narasaiah Vs. Muddasani Sarojana (2016) 12 SCC 288. The Sale Deeds record payment of sale consideration by the transferee and receipt thereof by the transferor and the plaintiffs have no locus to aver that the Sale Deeds are without sale consideration. The reason given for the Sale Deeds being without consideration i.e. that the defendant no.2 or defendant no.3 having no source of income is also no ground in law. The notion held by the plaintiffs of sale to minor being not possible is also unsustainable in law. Similarly, the plaintiffs have a misconceived notion that there can be no sale transaction between husband and wife.

8. The plaintiffs having failed to prove their case, the suit is dismissed. However, no costs.

RAJIV SAHAI ENDLAW, J. OCTOBER 23, 2018 bs /pp..