SH JAIN DASS JAIN Vs. SUDHA RANI JAIN

JUDGEMENT

(1.) THE challenge by means of this First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 18.10.2010 of the Trial Court, and by which judgment the Trial Court dismissed the suit for declaration and perpetual injunction filed on behalf of the appellants/plaintiffs.

(2.) THE facts of the case are that one Sh. Anoop Singh Jain was the owner of the property plot no. 483, khasra No. 740, Municipal No.51, Jangpura Road, Bhogal, New Delhi admeasuring 267 sq. yards (hereinafter ,,the suit property/said property). Sh. Anoop Singh Jain died on 8.4.1972 leaving behind a widow, Smt. Vidya Wati, three sons namely Sh. Bimal Parshad Jain, Sh. Jain Dass Jain and Sh. Dhaninder Kumar Jain, and three daughters namely Smt. Jai Mala, Smt. Vijay Mala & Smt. Vinay Jain. THE three daughters and the widow executed a release deed dated 1.6.1972 in favour of the three sons/brothers, i.e. Sh. Bimal Parshad Jain, Sh. Jain Dass Jain and Sh. Dhaninder Kumar THEse three persons therefore became owners of 1/3 rd share Jain. each in the property. Subsequently, the third brother, Sh. Dhaninder Kumar Jain vide a registered release deed dated 31.1.1986, Ex. PW3/1, released his share in favour of other two brothers namely Sh. Bimal Parshad Jain and Sh. Jain Dass Jain and as a result of which, the two brothers, Sh. Bimal Parshad Jain and Sh. Jain Dass Jain became owners of 1/3rd + 1/6th, i.e. 1/2nd each share of the property. After the execution of the registered release deed by Sh. Dhaninder Kumar Jain, there remained no right, title and interest with him so that the same could devolve thereafter upon his legal heirs and Sh. Bimal Parshad Jain and Sh. Jain Dass Jain became owners of 1/2nd share each in the suit property.

(3.) THE Trial Court after holding that the release deed, Ex.PW3/1 was duly proved to be executed by Sh.Dhaninder Kumar Jain who transferred his interest to his other two brothers, Sh.Bimal Parshad Jain and Sh.Jain Dass Jain however, held that actually the document could not transfer title inasmuch as the case of the plaintiffs was that the release deed was executed on payment of consideration of Rs.60,000/-, and therefore, the release deed was not a valid method of transfer of title and the document which ought to have been executed was actually a sale deed. THE relevant observations in this regard of the Trial Court are contained in paras 23 to 28 of the impugned judgment and which read as under:-