MEERA NARULA Vs. G.G. MALVANKAR

JUDGEMENT

(1.) The plaintiff has filed the present suit, inter-alia, seeking a decree for specific performance of the agreement to sell dated 20th May, 2006 and addendum dated 8th May, 2007, to deliver the possession of suit property and execute all deeds, necessary documents in order to carry out and execute sale deed in respect of property No. 225, Gulmohar Enclave, New Delhi-49 along with car garage No. 46 and Scooter garage 104 (in short the suit property) in favour of the plaintiff; permanent injunction restraining the defendants from parting possession or creating any third-party right in the suit property or in the alternative a decree of damages and compensation against the defendants.

(2.) As per the plaint the defendant No.1 and her two daughters i.e. defendant No. 2 and 3 are the absolute owners of the suit property having inherited the same from late Dr. G.K.J. Malvankar. Defendant No.1 for the benefit of defendant No.2 and 3 intended to sell the suit property and thus defendant No.1 through defendant No.4 her lawful attorney and her brotherin- law entered into an agreement to sell dated 11th December, 2005 for the sale of the suit property with the plaintiff for a total sale consideration of Rs. 68 lakhs out of which a sum of Rs. 2 lakhs was paid vide cheques bearing No. 718261 and 718262 dated 30th November, 2005 and 1st December, 2005 respectively. The husband of the plaintiff sold two properties at Jamuna Nagar and Gurgaon to arrange the necessary funds so that the sale documents could be executed in favour of the plaintiff by 30th April, 2006. At this stage defendant No.4 approached the plaintiff and told that besides defendant No.1, Defendant No.2 and 3 were also the co-owners of the suit property and the two daughters being minor, permission of the Court was necessary. Thus, a fresh agreement was executed between the parties by defendant No.1 to 3 through their attorney defendant No.4 on 20th May, 2006 for the sale of suit property for the same consideration i.e. Rs. 68 lakhs out of which the plaintiff paid a further sum of Rs. 4 lakhs thus totaling to Rs. 6 lakhs. The balance sale consideration of Rs. 62 lakhs was to be paid at the time of registration of the sale deed and handing over the vacant possession of the suit property to the plaintiff. One of the terms of the agreement to sell was that the defendant No.1 would get the suit property converted into freehold from DDA before execution of the sale deed and since defendant No.2 and 3 were minor, defendant No.1 would also take necessary permission required to sell the property. The expenses were to be borne by defendant No.1. In this regard the plaintiff and her husband extended all the help and cooperation including getting a pay order of Rs. 20,820/- prepared for payment towards part conversion to DDA which pay order was prepared by the plaintiff from her own bankers. The plaintiff's husband deposited the application for freehold to DDA and made several visits. An application under Section 29 of the Guardians and Wards Act 1890 for seeking permission to sell the suit property was also filed on 30th October, 2006 before the learned District Judge, Tis-Hazari by the defendant No.1 through her attorney defendant No.4 which was also done by the plaintiff's husband. One of the requirements for permission for sale of immovable property in which minors had interest was to give a public notice in the newspaper which was also given by the plaintiff at the request of defendant No.4 with the assurance that the amount of Rs. 10,000/- given to the counsel, would also be reimbursed. The said amount of Rs. 10,000/- was later reimbursed by the defendant No.4 to the plaintiff vide the cheque No. 809349. Since neither defendant No.1 nor defendant No.4 were able to trace the original papers of the suit property as per the requirement, an advertisement was also issued in this regard in the national daily expense of which was also borne by the plaintiff. As the time for effecting the sale was coming to an end on 27th May, 2007 and the conversion of suit property to freehold, as also the permission of sale from the learned District Judge was under process, defendant No.1 requested plaintiff for extension of time till 31st October, 2007. Accordingly the plaintiff vide agreement to sell addendum dated 8th May, 2007 agreed that the sale will be completed by 31st October, 2007 by giving a notice of at least two months to the plaintiff. Further, as per the agreement dated 20th May, 2006 the sale price was increased by 5% thus taking the total sale consideration to Rs. 71,40,000/-. The balance amount of Rs. 65,40,000/- was to be paid at the time of execution of the sale documents. However, even after getting an enhanced sale price and extension of time, the defendants were delaying the execution of sale and taking no effective steps for conversion to freehold and completing other necessary formalities. Thus, the plaintiff issued a legal notice dated 7th September, 2007 thereby calling on the defendants to execute the sale deed in respect of the suit property failing which the plaintiff would file a suit for specific performance in the Court of law and get a sale deed executed in her favour through the Court. However, the plaintiff received a letter dated 24th September, 2007 from defendants No.2 and 3 through their counsel stating that they had no desire to sell their house and as no permission to sell the suit property had been obtained from the Court, defendants No.2 and 3 were not bound by the said agreement to sell. Defendant No.4 through his letter dated 23rd September, 2007 informed the plaintiff that defendants No.2 and 3 have refused to sell the property, however malafidely stated that the plaintiff did not want to take the permission from the Court for sale. The letter further stated that defendants No.2 and 3 had attained majority and thus he was no more the attorney of defendants No.2 and 3. Plaintiff and her husband again re-started the pending work of conversion and remaining formalities and in this regard defendants No. 1 to 3 sent their duly signed photographs to the plaintiff's husband in December, 2007 to be submitted in the DDA. These were received around 10th December, 2007 i.e. after defendant No.2 and 3 attained majority. However, defendant No.1 sent another letter dated 11th February, 2008 in the name of plaintiff's husband refusing to go ahead with the sale of suit property and to further talk to the defendant No.4 who was her attorney. Thus, the plaintiff got a public notice got issued through her lawyer on 27th February, 2008 and thereafter has filed the present suit.

(3.) The stand of the defendant No.1 in the written statements is that the suit is not maintainable as it is based on concocted story and fabricated documents. The alleged agreements dated 11th December, 2005, 20th May, 2006 and 8th May, 2007 are either fabricated or without authorization or competence. The suit property was allotted to the husband of the defendant No.1 by DDA and after his death on 26th November, 1980 the same devolved on his legal heirs namely defendants No.1 to 3. Defendants No.2 and 3 being minor at the relevant time, the suit was not maintainable. The defendant No.4 had no power of attorney on behalf of the minors for sale of the suit property. The defendant No.1 had sufficient funds to meet the financial needs of the defendant No.2 and 3, thus there was no necessity to sell the suit property. In the absence of permission from the competent Court under Section 29 of the Guardians and Wards Act, the suit is not maintainable. It is stated that the defendant No.1 had never communicated any intention to sell either to the plaintiff or defendant No.4, nor defendant No.1 was competent to sell the same as defendant No.2 and 3 were coowners. The power of attorney dated 22nd March, 2006 given by the defendant No.1 to defendant No.4 was meant for getting the property freehold and management of the property, however it appears that it included the clause of sale as performa. The power of attorney dated 22nd March, 2006 was sent in good faith and inclusion of the clause regarding sale in the document was of no consequence as defendants No.2 and 3 were minors and there was no permission from the competent Court. Plaintiff's husband made phone calls to the defendant No.1 expressing his interest to purchase the property, however defendant No.1 clearly stated that she was not interested in selling the property. However, on persuasion by the husband of the plaintiff defendant No.1 stated that if at all she considers to sell the suit property, she may consider to sell him being neighbor. The plaint is stated to be based on falsehood. The defendant No.1 had sent the photographs and signed papers to the plaintiff on the advice of defendant No.4 for the purpose of getting the property converted to freehold. Defendant No.4 seriously fell ill in the month of December, 2011, remained hospitalized for 10 days and has not been fully recovered thereafter. Since there was no valid agreement, there is no contractual obligation on the part of the defendants and hence the suit be dismissed.