IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 5107 of 2008 Date of Decision: 9.3.2010 Mrs.Swaran Sethi. ....... Petitioner. Versus Modland Wears Pvt. Limited. ....... Respondent. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present:Shri M.L.Sarin, Senior Advocate with Ms.Alka Sarin,Advocate for the petitioner. Shri V.K.Jain, Senior Advocate with Shri Jaswinder Singh Bhatti, Advocate for Mr.Pardeep Sethi son of Lt.Dr.Brij Lal Sethi, R/O House No.28, Sector 37, Faridabad to whom notice was directed to be issued vide order dated 3.10.2008. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Civil Revision Petition under Section 115 of the Civil Procedure Code,1908 read with Article 227 of the Constitution of India has been filed for setting aside orders dated 7.4.2008, 9.4.2008 and 3.6.2008 (Annexures P11, P12 and P14 respectively) passed by the Court of Civil Judge (Junior Division), Chandigarh as Executing Court. The facts of the case may be noticed in brief to appreciate the controversy that has been raked up before this Court. A suit for specific performance was decreed in favour of the respondent- M/S Modland Wears Pvt. Limited after it had successfully C.R.No.5107 of 2008 -2- .... enforced an agreement to sell pertaining to House No.40, Sector 4, Chandigarh. According to this agreement, the sale consideration of the property was fixed at Rs.3.15 crores out of which a sum of Rs.35,00,000/- had already been received by the vendor. The appeal preferred before the District Judge, Chandigarh was dismissed vide judgment and decree dated 14.12.2000. Thereafter, a Regular Second Appeal was filed during the pendency of which the parties effected a compromise on 21.7.2003 by which it was agreed that the possession of the property would be delivered on or before 31.5.2006 to the decree holder. An amount of Rs.2.80 crores lying deposited in the Court pursuant to the execution of the decree was agreed to be withdrawn by the respondent to be re-deposited three months before 31.5.2006. The petitioner was also given liberty to withdraw a sum of Rs.65,00,000/- to enable her to purchase a residential house before the delivery of possession could be given to the respondent. The aforesaid terms of the settlement are, in fact, flesh and blood of the compromise. There were several other terms which need not be referred to at this stage. The affairs of the petitioner, who has become old and infirm, are being looked after by her sister – Mrs.Malika Bhalla, being a duly constituted attorney. The General Power of Attorney is on record as Annexure P2. The following terms thereof are necessary to be reproduced for reference purposes:- “(D) Due to my old age I am unable to travel and in these circumstances it is expedient and in the interest of the C.R.No.5107 of 2008 -3- .... Executant to appoint an Attorney for her to manage and deal with the property. (E) The Executant do hereby constitute, nominate and appoint my sister Mrs.Malika Bhalla D/o Dewan Chand Khanna and W/O Mr.R.P.Bhalla, aged 73 years,residing at H.No.879, Sector 17-B, Gurgaon (Haryana) to be her true, lawful and legal attorney to do the following acts, deeds and things for and on my behalf:- (1) To represent me before any office/ authority of any State/ Capital Govt. or local body etc. connected and/or concerned with the said property in any manner whatsoever and to make any statement, file any application, affidavit, undertaking etc. for and on my behalf in respect of the property or any matter incidental thereto. (2) & (3) xx xx xx xx xx xx (4) To deliver vacant, peaceful and physical possession of the said property to M/S Modland Wears Pvt.Ltd. and/ or their authorized representative, pursuant to the orders passed by the Hon'ble Court. (6) To receive, accept the balance sale consideration of Rs.2.80 Crores ( Rupees Two Crores and eighty lacs ) from M/S Modland Wears Pvt. Ltd. and/or their authorized representative, whether in money, bank draft or cheque and to give the receipt and discharge thereof.” C.R.No.5107 of 2008 -4- .... Thereafter, pursuant to the execution of the compromise decree, an amount of Rs.2.15 cores was deposited before the Executing Court and a sum of Rs.65,00,000/- was released to Mrs.Malika Bhalla so as to enable the petitioner to purchase a house. During the execution proceedings, Mr.Pradeep Sethi filed an objection petition. He is nephew of deceased-M.L.Sethi, who was husband of the petitioner and was owner of the house in question. He objected to the release of the amount of Rs.2.15 crores in favour of Mrs.Malika Bhalla on the ground that he being Class-II heir was entitled to succeed to the estate of Shri M.L.Sethi in the eventuality of the demise of the petitioner. His objection was that Mrs.Malika Bhalla, who is holder of General Power of Attorney of the petitioner, is likely to fritter away and misappropriate the amount which she is likely to receive pursuant to the execution proceedings and would defeat his right of succession. For the said purpose, he referred to the mental state of the petitioner which was also established during the course of proceedings before the Executing Court which had appointed a Commission consisting of Thakur Kartar Singh, Advocate; Dr.Gulshan Arora, Senior Medical Officer and Dr.Sanjay Narula, Medical Officer of General Hospital, Gurgaon for ascertaining the mental state of the petitioner, who was residing at Gurgaon. The report of the Commission is on record as Annexure P7, according to which the petitioner was in a condition to move or travel to Chandigarh by car if accompanied by an attendant. The report further reveals that the doctors, who were part of the Commission, on the basis of various medical reports, concluded that it was a C.R.No.5107 of 2008 -5- .... case of senile-age and the petitioner had developed brain atrophy (predominantly Cerebral) with multiple infracts. Thereafter, the petitioner appeared before it pursuant to the directions given by the Executing Court, which, on its own, explored her mental condition by subjecting her to thorough questioning. In the meanwhile, Mr.Pardeep Sethi filed a suit in the Court of competent jurisdiction under the provisions of Mental Health Act,1987 (for short, `the Act') praying that he be appointed as guardian of the petitioner to manage her property/money. The Executing Court, therefore, passed order dated 13.2.2008 to await the orders of the Court in the matter initiated under the Act after noticing the fact that the petitioner had appeared before it and her appearance gave an impression that she was not in a fit state of mind and in these circumstances, a heavy amount of Rs.2.15 crores could not be handed over to her or her attorney without ensuring the protection of her rights. On 7.4.2008, all the parties were present before the Executing Court, which made efforts to seek cooperation of all concerned for taking care of the interest of the petitioner, who did not seem to it to be in a fit state of mind. The relevant observations of the Executing Court made in order dated 7.4.2008 are extracted below:- “In these circumstances, parties were heard at length. Sh.R.S.Walia, ld. Counsel for applicant-Pardeep Sethi also submitted written submissions and the parties were in consensus to the fact that FDR can be deposited in the bank C.R.No.5107 of 2008 -6- .... itself with the direction to the bank to renew the FDR time and again, so that the rights of the JD qua the interest are well protected and she does not suffer any loss as far as interest is concerned. Bank authorities can be directed to disburse the amount and to allow anyone to operate the said FDR as per order of competent court of law. In order to complete the formalities in this regard, let the bank manager concerned bank be called in the court for 9.4.2008.” On 9.4.2008, the Executing Court passed an order with the consent of all the parties that original FDR be handed over to the bank which shall hold the same and renew it automatically in a manner that no loss of interest component is caused to the petitioner and she may earn the maximum benefit of interest on the amount. It was also directed that the amount of FDR shall be disbursed only on the order of the Court of competent jurisdiction dealing with the matter under the Act and till then, the bank shall hold the FDR and the amount as custodian of the petitioner. Since the counsel for the Decree Holder had made a statement for withdrawal of the execution as having been satisfied, the Executing Court dismissed the execution petition as withdrawn on that very day. An application was then moved on 17.5.2008 by the petitioner and her attorney for deciding their application dated 30.3.2006 in which a prayer for release of the amount of Rs.2.15 crores was made. The Executing Court then passed an order dated 3.6.2008 observing that it was due to over-sight that the application dated 30.3.2006 C.R.No.5107 of 2008 -7- .... was not mentioned in orders dated 7.4.2008 and 9.4.2008 and in view of these orders,this application ought to have been simply disposed of for the reason that the matter stood concluded after handing over of the amount to the bank authorities with the consent of the parties. Learned counsel for the petitioner has contended that the Executing Court had no power to go behind the decree as according to the decree, the amount in question was to be handed over to the petitioner through her attorney. He further contended that the bona fides of the attorney of the petitioner are above board as she is taking care of the petitioner, who is her sister and even from the amount of Rs.65,00,000/- which was handed over to her as a part of compromise, not even a single penny has been utilized for the upkeep of the petitioner and the same has been invested wisely for her benefit. It was submitted that Pardeep Sethi is totally an alien to the proceedings and has no concern with the same and the amount in question cannot be withheld on his objection. It was further submitted that Pardeep Sethi has already moved the Court of competent jurisdiction under the provisions of the Act for appointment of a guardian and in case, his prayer is accepted, a guardian of the petitioner will be appointed,but in no circumstances, the amount in question can be withheld from her as long as a valid power of attorney subsists in favour of Mrs.Malika Bhalla. On the other hand, learned counsel for Pardeep Sethi has contended that the bona fides of Mrs. Malika Bhalla are seriously under cloud. With reference to the compromise deed, it was pointed out that C.R.No.5107 of 2008 -8- .... amount of Rs.65,00,000/- was released to enable the petitioner to purchase a house, whereas this amount was invested in various schemes and in which also, Mrs. Malika Bhalla herself is the next beneficiary after the petitioner. It is contended that in the event of the death of the petitioner, the entire amount as kept in various schemes is likely to go to Mrs.Malika Bhalla, which is an apprehension of Pardeep Sethi, who is Class-II heir and whose right to succeed to the estate of Shri M.L.Sethi and the petitioner is likely to be prejudiced. The attention of this Court was also drawn to the provisions of Hindu Succession Act,1956, according to which, Pardeep Sethi is concededly Class-II heir of Shri M.L.Sethi and the petitioner. It was also contended by the learned counsel for Pardeep Sethi that Shri M.L.Sethi and the petitioner had no issue and Pardeep Sethi had lit the funeral pyre of Shri M.L.Sethi. In view of this, he submitted that it is Pardeep Sethi who is only to succeed the estate of the petitioner and in case, the amount in question is handed over to Mrs.Malika Bhalla, the same would be misappropriated by her. It was also submitted that once a person becomes old, infirm and mentally incapable of taking any decision, the power of attorney given to some one on his or her behalf, becomes meaningless. Reliance was placed on a judgment of Allahabad High Court in Mahendra Pratap Singh Versus Smt.Padam Kumarui Devi, 1993 (Suppl.) Civil Court Cases (Allahabad) 544. I have thoughtfully considered the rival contentions and have perused the material on record. There is no doubt that the petitioner is an unfortunate victim of C.R.No.5107 of 2008 -9- .... dementia which has afflicted her because of old age. It is also not in dispute that Mrs.Malika Bhalla is her validly appointed General Power of Attorney and has been prosecuting the case on her behalf. It has been very strenuously contended by the learned counsel for the petitioner that in her old age, the petitioner has a right to utilize the money in whatever way she likes. There could have been no dispute with such a proposition as a person in old age is certainly entitled to utilize his or her assets in the manner he or she wishes to. But, the question is as to whether the petitioner is capable of expressing her will and take a decision to spend the amount in a manner in which she wishes to. The answer is obviously `No' and this impression is further strengthened from the reading of the interaction of the Executing Court with the petitioner which has been noted by it in its order dated 7.12.2007. The relevant part of the said order is extracted below:- “These circumstances, as described above, clearly establish that she is not in fit state of mind. She is not aware of the events that had taken place and it seems that still she is living in past. No doubt, she has good memory about the past events like her relations in legal profession and her husband being a renowned advocate. It gives the impression that the time has stopped for her at some point and she is not acquainted with the things that took place afterwards. In these circumstances, this Court is not sure whether the FDR can be handed over to her as it may be misused or it may be misappropriated. Necessary arrangements are to be made, so that, the amount is C.R.No.5107 of 2008 -10- .... not misused. These facts can be considered and at this stage, this court feels that there will be no justification in keeping Ms. Swaran Sethi sitting in the Court. She is of old age and not having fit state of mind. Let the file be put up on 17.12.2007 for arguments on further course of action. ...........” From the above, it is clear that the petitioner is incapable of expressing herself as there is a complete disconnection between her state of mind and the real world. In this eventuality, the power of attorney holder, even though validly appointed, cannot carry out the express will of the executor leading to a strangely dangerous situation where the holder of the power of attorney can be tempted to destroy the trust of the executor, especially when the helpless executor has such a heavy amount to his or her credit. This Court does not wish to express any suspicion on Mrs.Malika Bhalla, who is General Power of Attorney holder of the petitioner as it would be extremely unfair to suggest such a thing. But, at the same time, the Court cannot be oblivious of the fact that in all fairness of things, the Executing Court has rightly directed the bank to be the custodian of the money of the petitioner as she is totally incapable of expressing her will. It is also to be noticed that orders dated 7.4.2008 and 9.4.2008 were passed with the consent of the parties where the counsel for the parties were present, as also the parties themselves. In these circumstances, it cannot be said that the Executing Court has gone behind the decree or had passed the impugned orders contrary to the terms thereof. C.R.No.5107 of 2008 -11- .... It was a consensual approach of the parties which had converged upon the common platform of the interest of the petitioner which concern was equally shared by the Executing Court that the amount be kept with the bank. Therefore, I do not find any infirmity in such an order, more so when the order is leaning heavily towards the substantial and equitable justice. The Court also does not wish to comment on the veracity of the proceedings initiated by Pardeep Sethi before the Court of competent jurisdiction under the provisions of the Act as this does not affect its reasoning which have been given above. However, Mrs.Malika Bhalla, in the eventuality of requiring any amount for the maintenance and upkeep of the petitioner, shall be at liberty to move an appropriate application to the Executing Court, who may, after examining the need expressed therein, direct certain amounts to be released from the interest component without disturbing the principal amount. The objection of the learned counsel for the petitioner that Mr.Pardeep Sethi has no locus to file an objection to the disbursement of the amount, cannot be accepted at this stage because of the reason that prima facie, he is Class-II heir of Shri M.L.Sethi & the petitioner and, therefore, he is not totally alien to their estate. There is, thus, no ground to interfere with the impugned orders. Accordingly, the instant revision petition is dismissed with only the above mentioned modification. March 09,2010 ( Mahesh Grover ) “SCM” Judge