MAN MOHAN BATRA Vs. BHARAT BHUSHAN BATRA

JUDGEMENT

(1.) THIS Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment of the trial Court dated 1.8.2003 dismissing the suit for partition filed by the appellant/plaintiff inasmuch as it was found that the appellant/plaintiff by virtue of registered documents being the Agreement to Sell, Power of Attorney, Will (registered), receipt etc. transferred his 1/4th right in the suit property in favour of the defendant no.1.

(2.) THE facts of the case are that the appellant/plaintiff filed the subject suit for partition claiming that he and the defendants who are his brothers jointly purchased the suit property bearing No. BJ (5), West Shalimar Bagh, Delhi and he had executed a General Power of Attorney and Special Power of Attorney, both dated 26.5.1995, in favour of defendant no.1 qua his share in the said property so that his interest could be looked after. It was pleaded that since the defendant no.1 was acting against the interest of the appellant/plaintiff, the appellant/plaintiff cancelled the General Power of Attorney and Special Power of Attorney on 23.4.1996. It was further pleaded in the plaint that the documents executed by the appellant/plaintiff in favour of the defendant no.1 on 26.5.1995 are without consideration and therefore conferred no right/interest in favour of the defendant no.1. THE appellant/plaintiff also pleaded to have issued legal notice dated 13.5.1996 seeking partition of the property claiming that he was in joint possession of the suit property. Since the claim of partition was refused, the subject suit for partition came to be filed.

(3.) THE only issue which has been argued before this Court is with regard to the validity of the documents being the Agreement to Sell, Power of Attorney, Will etc executed by the appellant/plaintiff in favour of respondent No.1/defendant No.1 which have been proved and exhibited before the trial court as Ex.PW1/D3 to Ex.PW1/D9. On behalf of the appellant/plaintiff, it was argued that the documents were void inasmuch as no consideration flowed under the same to the appellant/plaintiff. It was pleaded that the lines in the documents being the receipt, Ex.PW1/D3 and the Agreement to Sell, Ex.PW1/D6 showed that there were interpolations with regard to the consideration of Rs. 1,35,500/-. It was also argued that it is not disputed that the cheque which was issued by the defendant no.1/respondent no.1 was not encashed and which showed that the documents dated 26.5.1995 were bad on account of lack of consideration.