"REPORTABLE" * HIGH COURT OF DELHI AT NEW DELHI + [CASE NUMBER] Date of decision : 07.11.2008 # MEENU BHAR PLAINTIFF ! Through : Mr. [ENTITY], Advocate Versus $ RENU KHOSLA & ANR. DEFENDANTS ^ Through : Mr. [ENTITY], Advocate. % CORAM: HON'BLE MS. JUSTICE [ENTITY] (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes JUDGMENT
[ENTITY], J.
I firstly, proceed with to decide IA No.12[SECTION]5/2006 under [SECTION] ([ACT] (hereinafter referred to as [ACT]) as it has the bearing on the decision of the main suit.
IA No. 12[SECTION]5/2006 (Under [SECTION] [ACT]) Defendants have filed this application under [SECTION] [SECTION] [ACT] for framing of preliminary issue as proposed Issue No.1. Since the said issue is a pure question of law and needs no evidence. No reply to this application has been filed by the plaintiff and only oral submissions have been made. After considering pleadings of the parties and submissions made at the Bar, this application is allowed and following preliminary issue is framed for trial.
Issue No.1: "Whether the plaint discloses any cause of action against the defendants and if not, whether the suit as filed is maintainable against the defendants?"
This application stands disposed of accordingly.
1. Plaintiff [ENTITY] has filed the present suit against defendants [ENTITY] and [ENTITY] for declaration, cancellation and permanent injunction claiming following reliefs:-
(a) Cancellation, canceling the registered Sale Deed dated 30.7.2004, registered with the Sub-Registrar, Mehrauli, Delhi vide Document No.9563 at additional Book No.1, Volume No.4199 on pages 57-64 executed by Defendant No.1 in favour of Defendant No.2;
(b) Declaration, declaring the Sale Deed dated 30.7.2004 registered with the Sub-Registrar, Mehrauli, Delhi vide Document No.9563 at additional Book No.1, Volume No.4199 on pages 57-64 executed by Defendant No.1 in favour of Defendant No.2 as null and void and void ab initio;
(c) Permanent injunction restraining the Defendant No.2 from entering into or taking possession and/or remaining in possession or enjoyment in the suit premises situated at J- 29, Lajpat Nagar III, New Delhi-110 024;
(d) Permanent injunction restraining the Defendants from demolishing/ renovating/ constructing/altering the whole or any portion of the suit premises situated on J-29, Lajpat Nagar III, New Delhi-110 024;
(e) Permanent injunction restraining the Defendants from transferring, alienating, encumbering, selling, or parting with possession or dealing with the suit premises in any manner.
2. Briefly narrated the case of the Plaintiff is that Late Shri [ENTITY], father of the Plaintiff and Defendant No.1 had purchased property No. J-29, Lajpat Nagar-III, New Delhi, measuring 253.6 Sq.Yds., from Smt. [ENTITY] vide registered Sale Deed dated 26.03.1958. After purchase of the property Shri [ENTITY] used the said property as residence for himself, his wife and other family members. Shri [ENTITY] got the said property freehold vide Conveyance Deed dated 26.05.1996. Plaintiff got married whereas defendant No.1; her real sister, continued to live with her father Shri [ENTITY] in the suit property. Shri [ENTITY] during his lifetime gifted 60% of his land and part of the ground floor built-up portion alongwith complete first floor and second floor together with the staircase (with reasonable right of way to Donor) of the said house vide Gift Deed dated 20.06.1998 as described in the schedule attached to the Gift Deed.
3. On the same day, namely, on 20.06.1998 Shri [ENTITY] executed a registered Will in respect of remaining portion of his property bequeathing the same in favour of defendant No.1. Plaintiff and defendant No.1 being the only legal heirs of Shri [ENTITY] were named as beneficiaries in the said Will of all the moveable and immovable assets left behind by deceased Shri [ENTITY] including the property in question. Shri [ENTITY] expired on 12.05.2002.
4. In the plaint it is averred that Plaintiff and defendant No.1 continued to live in the suit property as a dwelling unit belonging to undivided family though they were occupying separate portions and had a separate mess. Plaintiffs husband is a Barrister at Law and is practicing in Malaysia and when she flew from Malaysia to India, she found out that Defendant No.1 had sold the suit property vide registered Sale Deed dated 30.07.2004, hence she filed the present suit.
5. Defendants have contested the suit of the plaintiff contending inter alia that the plaint does not disclose any cause of action as the plaintiff has filed the present suit for cancellation of Sale Deed dated 30.07.2004, declaration and permanent injunction and such a suit must satisfy the ingredients of [SECTION] and [SECTION] of the [ACT] which she has failed to comply with in the present suit. Plaintiff and Defendant No.1 became owners of two distinct portions of the house by virtue of the Gift Deed and the Will executed by Shri [ENTITY] and therefore, defendant No.1 had absolute right to sell her portion of the property alongwith all attached easements appurtenant thereto and common right of usage of passage, staircase, etc. which she sold to Defendant No.2 vide Sale Deed dated 30.07.2004. Plaintiff has not made any averments to constitute a cause of action against Defendant No.1 to show that she was not entitled to induct any stranger in the property and that she had no right or power to sell her share and by selling her share of the property she committed breach of right of privacy of the plaintiff. Plaintiff and defendant No.1 are not members of the same family as Plaintiff was married and had gone to another family and she could not enforce any law of pre-emption against defendant No.1. Plaintiff after her marriage resided with her husband at Malaysia and therefore defendant No.1 could not have committed any breach of her right of privacy by sale of the property to defendant No.2, a stranger and therefore the sale of the property by defendant No.1 to defendant No.2 of her share in the suit premises was legal and valid. Defendant No.2 had no intention to initiate any commercial activity, which he could do only after taking due permission from the authorities and the alleged apprehension of the plaintiff cannot be made a ground to challenge the sale deed and therefore the suit deserves dismissal with costs.
6. Plaintiff filed her replication to the written statement wherein she reasserted her stand taken in the plaint and refuted the averments of the defendants as raised in the written statement.
7. On the pleadings of the parties following preliminary issue has been famed for trial:-
Issue:-
"1. Whether the plaint discloses any cause of action against the defendants and if not, whether the suit as filed is maintainable against the defendants?"
8. I have heard Mr. [ENTITY], Advocate for the Plaintiff, Mr. [ENTITY], Advocate for defendants and have carefully perused the record.
9. It is submitted by the learned counsel for the plaintiff that Sale Deed dated 30.07.2004 executed by defendant No.1 is neither valid nor is binding upon the plaintiff as by virtue of the said Sale Deed defendant No.1 has transferred certain rights in respect of certain portions of the suit property which was neither vested in her name nor she had authority on the same and it was a common area to be used by the Plaintiff as well as by defendant No.1 and that under the circumstances, Plaintiff had reasonable apprehension that the said property allegedly purchased by defendant No.2 would be used for commercial purpose and the use of the property for such commercial activities is neither permissible nor sanctioned under the Zonal Plan or Master Plan of Delhi and such user, if any, would be in utter violation of Municipal bye laws. It is further submitted that intended remodeling of the premises by defendant No.2 would be harmful to both life and property of the Plaintiff and her family members as the suit premises is a dwelling house belonging to undivided family and defendant No.1 had no right, power or authority to sell her share and that Plaintiff was entitled to purchase the share of defendant No.1. It is also argued that defendant No.2 had no power or authority to induct any stranger in the property as Plaintiff could not be made to live with stranger in the suit property as she was entitled to use and occupy the joint portion of the property.
10. Mr. [ENTITY], learned counsel for the defendants has submitted that the suit as filed by the plaintiff for cancellation of Sale Deed, declaration and permanent injunction does not embed [SECTION], [SECTION] and [SECTION] of the [ACT] (hereinafter referred to as Act). It is further submitted that Plaintiff and defendant No.1 became owners of distinct portions of the house as Plaintiff became owner of portion of the house by virtue of a registered Gift Deed dated 20.6.1998, whereas defendant No.1 got remaining portion of the property by virtue of a Will executed by her father on 20.6.1998 upon the death of her father Shri [ENTITY] on 12.5.2002 and therefore defendant No.1 had exclusive right in the property which she legally sold in favour of defendant No.2 on 30.7.2004. It is further argued that Plaintiff has based her claim on the law of right of pre-emption assuming that she and defendant No.1 are members of joint family and co- owners of the suit property, since plaintiff and defendant No.1 were the owners of distinct and delineated parts of the same property, they could not be considered as members of the same family as Plaintiff after marriage had gone to another family and also there was no law of pre-emption in force at the time of the execution of the impugned Sale Deed. Learned counsel for defendants has further submitted that defendant No.2 had no intention to use the suit property for commercial purposes in violation of any laws in force and right of privacy of plaintiff was not breached in any manner and therefore, the suit of the plaintiff does not disclose any cause of action against the defendants and it is liable to be dismissed as not maintainable.
11. The admitted facts of the case are:-
(a) Shri [ENTITY] had acquired a residential house bearing No.J-29, Lajpat Nagar-III, New Delhi on 26.03.1958 which he purchased from Smt. [ENTITY] vide Sale Deed dated 26.03.1958.
(b) Shri [ENTITY] wife expired on 24.04.1996 during his lifetime.
(c) Plaintiff and defendant No.1 are the daughters of Shri [ENTITY]. Plainitiff was married by [ENTITY] during his life time and she is residing at Malaysia with her husband who happen to be Barrister at Law and practicing at Malaysia. She had been coming to India off and on.
(d) On 20.6.1998 Shri [ENTITY] executed two documents, namely:-
(i) Registered Gift Deed, whereby he bequeathed and conferred 60% of his land and part of the ground floor built up portion along with complete first floor and complete second floor together with the staircase and all rights to easement of the residential house in favour of the Plaintiff.
(ii) Registered Will Deed in favour of defendant No.1 whereby he bequeathed remaining part of the impugned property in favour of defendant No.1.
(e) Gift deed dated 20.06.1998 became effective on its execution and admittedly Plaintiff started enjoying exclusive right of the portion so gifted to her in the impugned property. It was during the life time of Shri [ENTITY] that the impugned property stood divided. In the remaining portion Shri [ENTITY] resided till his lifetime and after his death on 12.5.2002, the said portion of the property devolved upon defendant No.1 by virtue of the registered Will Deed. In other words, defendant No.1 became owner of 40% share of the land and remaining built up portion of the property after the death of her father i.e. after about four years of the execution of the documents. Therefore, there was no joint family existing at the time when the impugned Sale Deed dated 30.7.2004 was executed by defendant No.1 whereby she sold her share in the impugned property in favour of defendant No.2.
12. On the admitted facts of this case, Plaintiff cannot claim pre-empting rights to purchase the share of defendant No.1 in the impugned property. Admittedly, after her marriage plaintiff became member of another family and seized to be a member of the joint family of Shri [ENTITY]. It is pertinent to mention here that Plaintiff has not claimed any relief to enforce her right of pre-emption though pleaded in the plaint. What she has sought is the cancellation of the Sale Deed dated 30.07.2004 on the grounds that she and her family members would face difficulties if a stranger was made to live in the house and she had apprehension that the property might be used for commercial purposes which would be in violation of the Zonal as well as Master Plan and Municipal bye-laws and she would also lose her right of privacy.
13. [SECTION] of the Act speaks of circumstances when cancellation of an instrument can be ordered by the court. As per the provisions of this Section, any instrument can be ordered to be cancelled by the court upon its discretion and adjudication when such written instrument against any person is void or voidable and the person has reasonable apprehension that such instrument if left outstanding might cause him serious injury. The relief of cancellation under [SECTION] of the Act is founded upon administration of protective justice for the fear that the instrument might be vexatiously or injuriously used by the defendants against the plaintiff when evidence to impeach it might be lost or that it might throw a cloud or suspicion over the title or interest of the plaintiff. Following conditions are required to be fulfilled for applying [SECTION] of the Act:-
(i) The written instrument in question must be either void or voidable against the plaintiff;
(ii) The plaintiff must have a reasonable apprehension of serious injury from the instrument being left outstanding; and
(iii) In view of the circumstances of the case, the Court should consider it reasonable and proper to administer the protective and preventive justice asked for.
14. Thus, it is clear that when a contract is voidable, the right to determine it is subject to the condition that an innocent third party is not affected by the cancellation or even a wrong-doer, in case of delay on the part of the party entitled to rescind. As a condition to a rescission of the contract there must be restitution in integrum (restitution to the original position).
15. When a document is void ab initio, a decree for setting aside the same would not be necessary as such a document would be non-est in the eyes of law and it would be a nullity. [SECTION] of the Act refers to both void and voidable documents and it provides for discretionary relief. There is a presumption that a registered document is validly executed and a registered document, therefore, prima facie would be valid under the eyes of law. In the present case, validity and legality of the documents executed by Shri [ENTITY] is not under challenge and the plaintiff has admitted them to be the legal documents executed by Shri [ENTITY] during his life time. Validity of the sale deed is also not specifically challenged. Reference is made to [PRECEDENT].
16. Plaintiff had alleged that if the Sale Deed challenged by her was left outstanding, it would cause her serious injury and for that purpose she had to allege that she had interest in the property which would be jeopardized if instrument was not cancelled. There is no such averment even pleaded by the plaintiff in her plaint. As discussed above, admittedly, she has no interest in the property which has been sold by defendant No.1 in favour of defendant No.2. Cancellation can only be at the instance of a party who had executed the instrument which is void or voidable so far as he or she is concerned and if the document is one executed by the third party, the plaintiff has to show that the instrument so executed had cast a cloud upon her title. Simple averments in the plaint that plaintiff had an apprehension that property might be converted into commercial use by defendant no.2 which would infringe her privacy, without any specific averment how her interest would be jeopardized if the impugned Sale Deed was not cancelled, would not entitle the plaintiff to seek cancellation of the Sale Deed executed by defendant No.1 in favour of defendant No.2.
17. Under [SECTION] of the Act, a person entitled to any legal character, or to any right as to any property can institute a suit against any person denying or interested in denying his title to such character or right and the court in its judicial discretion may make a declaration that said person is so entitled to such legal character as claimed. The relief claimed by the plaintiff in the present case is declaration for declaring the registered Sale Deed dated 30.07.2004 executed by defendant No.1 in favour of defendant No.2 as null and void ab initio. Plaintiffs title in the property gifted to her by her father is neither denied nor disputed by any of the defendants.
18. The object and scope of [SECTION] of the Act is to perpetuate and strengthen testimony regarding title and to protect the same from adverse attack that is, to prevent future litigation by removing existing cause of controversy not only to secure the plaintiffs possession of the property wrongfully taken away from him or her but also to see that he or she is allowed to enjoy that property peacefully. In other words, if a cloud is cast upon the title of the plaintiff by denial of his legal character or right or by execution of any document which is left outstanding would militate against such legal character or right, he is entitled to a relief under [SECTION] of the Act. In this case, plaintiff has not claimed any right or title in respect of 40% share of the property which was sold by defendant No.1 to defendant No.2 by virtue of the impugned Sale Deed. Plaintiff neither had been in possession nor has claimed possession of the suit property which is the subject matter of the Sale Deed. Her rights have not been denied or taken away by defendant No.1 when she sold her property in favour of defendant No.2. Plaintiff cannot claim relief as prayed as of right which has to be granted according to sound principles of law and ex debito justitiae. The court cannot convert itself into an instrument of injustice or vehicle of oppression. The court has to keep in mind the well-settled principle of justice and fair play while exercising its discretion, since justice is the hallmark and it cannot be administered in vaccum. Before granting or refusing to grant relief of declaration or injunction, the court must weigh pros and cons of each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice.
19. From the facts and circumstances as narrated in the plaint it can be safely held that relief of declaration if granted to the plaintiff would be unjust and illegal. Since plaintiff and defendant No.1 were owners of their separate portions by virtue of two separate documents, plaintiff had no right to come to the court to have the impugned sale deed cancelled or to seek an injunction against the defendants upon such obstructions as alleged.
20. [SECTION] discusses perpetual injunction which can be granted by a court to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. When such obligation as aforesaid arises from the contract, the court would be guided by the provisions under [SECTION] of the Act. When the defendant threatens to invade or invades the right to enjoyment of the property of the plaintiff, the court is within its discretion to grant injunction in the cases where the defendants are the trustee of the property of the plaintiff, where there existed no standards for ascertaining the actual damage caused or likely to be caused by such invasion and that such invasion cannot be compensated in terms of money and also if the court is of the view that injunction is necessary to prevent any multiplicity of the proceedings.
21. [SECTION] of the Act deals with mandatory injunction on similar lines.
22. Relief of injunction as prayed by the plaintiff in the plaint is only against defendant No.2 who is in possession of the suit property since after its purchase by way of the impugned Sale Deed. The relief claimed is that defendant No.2 be restrained from entering into or taking possession and/or remaining in possession or enjoyment in the suit premises. Injunction means, the prevention of breach of obligation existing in favour of the plaintiff either expressly or impliedly by the order of the court. Plaintiff in this case has no contract existing with either of the defendants nor the defendants have any obligation to the plaintiff which can be termed as breach of obligation within the meaning of [SECTION] of the Act.
23. Plaintiff has also sought permanent injunction for restraining the defendants from demolishing, renovating, constructing, altering the whole or any portion of the suit premises and also for restraining the defendants from transferring, alienating, encumbering, selling or parting with possession or dealing with suit premises in any manner. The fact remains that the entire claim of the plaintiff is based on apprehensions. There are no averments in the plaint indicating any substantial demolition of the suit premises. There are no allegations that any construction was being raised against the municipal bye-laws or any alteration in the whole or any part of the suit premises has been carried out by the defendants. No injunction can be granted only on the basis of apprehension especially when plaintiff has no right, title or interest in the suit property which exclusively belonged to defendant No.1 and now to defendant No.2. Thus, the facts as pleaded do not entail for an injunction against the defendants. It would not be out of place to point out that plaintiff has not stated any fact which call for a quia timet relief. The enjoyment of the part of the property which was gifted to her as well as the possession of the said property is also not being interfered by either of the defendants. Admittedly plaintiff has not been in continuous physical possession of the property since after her marriage and is residing with her husband in Malaysia.
24. Defendant No.2 is within his rights to repair, renovate, construct his property in the manner he so desires within the ambit of law. The rights of the plaintiff are not affected in any manner. The allegations made by the plaintiff are unfounded and therefore on these allegations no declaration or injunction as prayed can be granted to the plaintiff. The suit of the plaintiff is speculative in nature and the right by virtue of which relief claimed is admittedly not pleaded in the plaint.
25. Cause of action consists of bundle of facts which give cause to enforce the legal injuries for redress in a court of law. The cause of action means, therefore, every fact, which if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendants. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise.
26. Cause of action is defined in [PRECEDENT], in context of relief claimed by the party under [ACT] as:
"It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a court of law. The cause of action means, therefore, every fact, which is traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise."
27. Right to sue must be equated with the cause of action unless the context requires otherwise. The facts professed by the plaintiff must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. The plaint should convey the restricted idea of facts or circumstances which constitute either infringement or the basis of right and no more. In comprehensive sense, the cause of action denotes the whole bundle of material facts which plaintiff must prove in order to succeed and these are all relevant facts without the proof of which plaintiff must fail in his suit.
28. Upon perusal of the plaint, it is clear that the Gift Deed and the Will by virtue of which the suit property has devolved on the plaintiff and defendant No.1 have been admitted by the plaintiff and are not in dispute. Plaintiff has also not pleaded in the plaint that defendant No.2 has denied her title or interest in the property or that any act of defendant No.2 has caused grievance or denial of utilization or enjoyment or possession of her share of the property. No deviation in the Sale Deed, which only bestows the part of the suit property of defendant no.1 to defendant No.2 and not an inch excess, has been alleged by the plaintiff. She has just averred that bathroom locks were found open on the ground floor which falls to her share of the property and no other averment appears in the plaint showing in any way that defendant Nos. 1 and 2 have caused any harm or injury in regard to the legal status or title in the property of the plaintiff by virtue of the impugned Sale Deed.
29. Relief claimed by the plaintiff does not in any way get support from the contents of the plaint as she has not shown any injury caused or reasonable basis for her apprehension that injury might be caused to her or that her rights would be invaded in the property by virtue of the impugned Sale Deed or of the admitted possession of that part of property by defendant No.2.
30. In my opinion, on reading through the relief of cancellation of the Sale Deed and declaration of the same as null and void as claimed by the plaintiff, as well as the contents of the plaint and the averments it cannot be inferred that the plaintiff would suffer serious injury if the impugned Sale Deed is left outstanding.
31. Plaintiff has never been in possession of the dwelling house and has also not used it for habitation since she got married and thereafter has been residing in Malaysia with her husband. Her occasional visits to India as stated by her cannot be deemed to comprehend that she was in possession of the property or was using it as residence. Also by virtue of the impugned Sale Deed only 40% of the share in the plot of land as well as major portion of ground floor is sold by defendant No.1 in favour of defendant No.2 and this is in consistency with the share bequeathed on defendant No.1 by virtue of the Will dated 20.06.1998. Hence legal right and status of the plaintiff cannot be said to have been encroached by the defendants and neither are the defendants denying the title of the plaintiff to 60% share in the immovable land, portion of ground floor, complete first floor and second floor and 60% share in the area over and above barsati floor. Thus, the Sale Deed is valid and cannot be cancelled nor calls for a declaration rendering it void ab-initio.
32. Plaintiff has made unfounded allegations against defendant Nos.1 and 2 which would not entitle the plaintiff to get relief of cancellation of the Sale Deed and declaration of the same as void ab-initio. The suit is speculative in nature and the right by virtue of which relief is claimed is not made out in the plaint.
33. It need to be recaptured that Sale Deed was only with respect to the share of defendant No.1 and since there was no deviation noticed in respect of the sale of the property, thus the defendant cannot be restrained to enter into or take possession or enjoy their entire property in the Sale Deed as defendant No. 2 has the right to enter, enjoy and possess the property purchased by him.
34. Similarly, an order restraining defendant No.2 from demolishing, renovating, constructing altering the whole or any portion of suit premises as per [SECTION] cannot be given as the plaintiff has not disclosed as to if any such act might prospectively or even presently affect or invade upon the rights as well the legal status of the plaintiff. Thus perpetual injunction as prayed cannot be granted in favour of the plaintiff against the defendants.
35. A direction by this court placing an embargo on the defendants from transferring, alienating, encumbering, selling or parting with possession or dealing with suit premises in any manner may also not be an appropriate one because if such an act of alienating, encumbering, selling or parting with possession or dealing with suit premises affects rights or legal status of the plaintiff then the same is not mentioned by the plaintiff.
36. As discussed above, the plaint does not disclose any cause of action against any of the defendants and therefore the suit as filed is not maintainable. Hence, the issue is decided in favour of the defendants and against the plaintiff.
37. In view of discussion on the preliminary issue as above, the suit is hereby dismissed with costs.
[SECTION]. Decree be prepared accordingly.
[ENTITY] (JUDGE) NOVEMBER 07, 2008 vk