KUSH MALHOTRA Vs. PRAKASH MALHOTRA

JUDGEMENT

(1.) By this appeal filed under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908 the appellant seeks to challenge the judgment and decree dated 19.05.2004 passed by the learned trial court whereby the suit filed by the appellant for declaration, cancellation of sale deed, recovery of possession and perpetual injunction was dismissed.

(2.) Brief facts of the case relevant for deciding the present appeal are that the appellant is the son of respondent no.1 (deceased) and brother of respondent no. 2 and 3 and had filed a suit for declaration, cancellation of sale deed, recovery of possession and perpetual injunction with respect to the property bearing No.373, Block B in Janta Cooperative House Building Society Ltd., Meera Bagh, Outer Ring Road, New Delhi. The appellant had sought cancellation of the sale deed dated 24.10.2001 registered on 8.11.2001 executed by respondent no.1 namely Smt. Parkash Malhotra (deceased) in favour of respondent no. 4 and also the cancellation of the sale deed dated 22.6.2002 executed by respondent no. 4 in favour of respondents no. 6 to 8 . The case of the appellant is that the property in question was acquired by his late father Sh. S.P. Malhotra through his own earnings in the name of his wife Smt. Parkash Malhotra (respondent No.1 herein) and he was the one who paid the entire amount towards the cost of the said plot. That the appellant moved to USA in the year 1982 and he claims that he contributed major portion towards the construction cost on the said plot by sending money from USA. The respondent no.1 sold the suit property to respondent no.4 for Rs. 8,05,000/- and the respondent no. 4 further sold the said property to respondents no. 6 to 8 for Rs. 12,08,500/-. The case set up by the appellant is that the respondent no.1 had no right to sell the said property as it was an ancestral property. The appellant also claims that the sale deed executed by respondent no.4 in favour of respondents no. 6 to 8 is liable to be cancelled on grounds of insufficient consideration as the property was sold for much less than its actual value. That the appellant filed the said suit before the learned trial which vide judgment and decree dated 19.5.2004 was dismissed and feeling aggrieved with the same, the appellant has preferred the present appeal.

(3.) Assailing the impugned judgment and decree, Mr.Nitendra Sharma, learned counsel appearing for the appellant contended that the learned trial court failed to consider the documentary evidence placed on record by the appellant proving fabrication and forgery committed by the respondents No.4, 6, 7 & 8 in collusion with the respondent No.1. Counsel further argued that the learned trial court has also not appreciated the fact that the suit property is a family property and the appellant has invested his hard earned money out of his savings towards construction of the suit property. Learned counsel for the appellant also submitted that the learned trial court has ignored the valuation of the suit property which was more than 19 lacs and that it was sold much below its actual value. Counsel also submitted that the age of the respondent No.1 was 75 years and because of her old age the respondent No.1 did not possess sound mind to sell the property in favour of the respondent No.4. Based on these submissions, counsel for the appellant seeks setting aside of the impugned judgment and decree passed by the learned trial court.