VINEET KUMAR GUPTA Vs. PRADIP KUMAR GUPTA

JUDGEMENT

(1.) On attaining the majority, the plaintiff has filed the suit for declaration that the agreements, one dated 1.7.1977 and the other dated 21.8.1979, executed between defendants No. 1to 5 and the General Power of Attorney, are null and void and not binding on the plaintiff or alternatively that the same have become infructuous and can not be enforced now and for a decree for possession of the property directing defendant No.5 to hand over the possession of the suit property to the plaintiff and also restraining defendants 1-4 by permanent injunction from selling the property to defendant No.5 or to any body else and also further restraining defendant No.1 from demolishing the original structure built or portion of original construction or any portion and from making any new construction or alienating the property in any manner. The plaintiff by this IA, seeks to restrain defendant No.5 from further demolishing the original structure or changing physical features of the suit property in any manner or to make fresh construction thereon pending the hearing and disposal of the suit.

(2.) The say of the plaintiff is that by perpetual lease deed dated 8.3.1938, one Smt. Rama Bai w/o Dr. Tulsi Ram Was the lessee of Plot measuring 0.956 acres or thereabout, situated at Block No.205, presently known as 20, Bara Khamba Road, New Delhi; that lessee constructed residential house and out-houses on the said plot; that by indenture dated 24.5.1938, rights and interests of Smt. Rama Bai in the said property, were transferred in favour of Smt. Lila Wati w/o Shri Gulraj Gupta, grand-father of defendant No.1; that shri Gulraj Gupta and Smt. Lilawati Gupta had three daughters and two sons, Hans Raj Gupta and Dev Raj Gupta (defendant No.2); that Gulraj Gupta died on 1.8.1941; that defendant No.2 filed a suit being S.No.70 of 1966 for partition of his 1/3rd share against his brother Hans Raj Gupta and mother Smt. Lilawati Gupta; that in the said suit, preliminary decree, on the basis of compromise, came to be passed on 11.4.1967 by this court whereby 1/3rd share came to each one of the parties; that Smt. Lilawati Gupta died on 26.11.1969, after passing of the preliminary decree but before the final decree could be passed, leaving her Will dated 31.1.1968; that in accordance with the said Will of Smt. Lilawati, 2/3rd of her l/3rd share, in the said premises (i.e. 2/9th share of the whole of the premises) devolved upon her daughter Smt. Bimla Lal and remaining l/3rd (i.e. l/9th of the whole of the premises) on Smt. Subhadara Devi, w/o defendant No.2 and mother of defendant No.1 and 3; that Smt. Subhadra Devi, the holder of 179th share, died intestate on 11.2.1970, leaving behind her, heirs and successors as her husband defendant No.2, her two sons, defedants No.1 and 3 and one married daughter (defendant No.4), as exclusive heirs and so defendant No. 1,3,4 and Bimla Lal were impleaded and substituted as defendants in S.No,70/66, pending final decree; that deed of compromise dated 15.12.70 was executed between the above parties, pursuant to which the whole of the said premises was to be divided into two equal shares, as indicated in the plan attached to the said compromise; that Hans Raj Gupta, defendants No.1 to 4 amongst themselves to be the exclusive owners of another half with provision of common use of some servant quarters and cow-shed; that accordingly, in half the house, 26736th share came to defendant No.1, 1/9th share to defendant No.1 & 3 each and 2/36th share to Defendant No.4; that out of 26/36th share of defendant No.2,2/3rd or 24/36th share was held by him in his capacity as Karta of the HUF consisting of himself and his sons defendants No. 1 & 3; that by oral partition effected on 6.5.1974 between the coparceners, the 24/36th share was equally divided amongst each three holding 8/36th share each as a result of Which in the property belonging to the family of Dev Raj (defendant No.2), Dev Raj had 10/36 = 5/18 share, defendants No. 1 & 3 each had 12/36 = 1/3 share and Lalita Khandelwal had 2/36 = 1/18 share; that the shares of defendant No.2 and 4 are individual shares while those of defendant No.1 and 3 are HUF shares; that even though the partition was effected of the family of defendant No.2 and the shares were tetermined, yet the joint status of the property has never been severed nor the possession of the separate shares has been alloted to the members of the Hindu Joint Family; as a matter of fact, the property can not be partitioned in view of clause II of the lease deed dated 8.3.1938 and as such the property is still undivisible; that defenants 1-4 by agreement dated 1.9.77 between the defendants, inter- se, and subsequent building agreement and supplementary sale agreement, both dated 21.8.79, decided to sell the suit premises to defendant No.5 without any legal necessity and without any authority including the share of the plaintiff, which action of the defendants is illegal, malafide, arbitrary and against the interests of the plaintiff; that at the time of the execution of the aforesaid agreements, the plaintiff was a minor and was not aware of his rights qua the suit property; that the plaintiff attained majority only on 31.1.1987 and was appraised of his legal rights qua the suit property.

(3.) The say of the contesting defendant i.e. defenidant No.5 is that he is a bonafide purchaser of half portion of the owners' share of 0.956 acres of land at block No.205, 20-Bara Khamba Road, New Delhi; that the plaintiff and all other defendants are the members of the family of late Gulraj Gupta and his wife late Lilawati Gupta; that the suit has been filed by the grand-son of defendant no.2 and the son of defendant No.1, obviously in collusion and at the behest of and at the instance of the sellers, defendants 1 to 4 only in an attempt to resile from the sale of the aforesaid property to the defendant No.5 since the suit property being covered and located in a prime area in heart of New Delhi, is now extremely valuable; that as early as July 1,1977, defendant No.5 executed an agreement to sell with defendant No.1 to 4 whereby and whereunder the said defendants, according to the recital in the said agreement, held themselves out as owners of the suit property and defendant No.5 accepted, as owners and after being satisfied after reasonable enquiries and taking due and reasonable care and caution to. ascertain the ownership of the defendants, purchased the suit properties admeasuring 0.478 acres (being the owners' share of half of the plot of 0.956 acres) and as more particularly indicated in the map/plan annexed to the said agreement to sell for a then prohibitive consideration of Rs.62,50,000.00 of which a princely sum of Rs.15.00 lakhs was paid by way of earnest money immediately on execution of the said agreement to sell; that the defendant also paid another sum of Rs.15.00 lakhs of (he total consideration and with the payment of remaining amount of Rs.10,50,000.00 on 1.3.81, this defendant paid the entire sale consideration and pursuant to the said agreement, defendant No.5 was put in possession of the suit property and came to be protected under Section 53-A of the Transfer of Property Act, to over-come which the son/grand-son of the sellers has been set up to resile from the sale; that on 21.8.79, defendants 1- 4 also executed an irrevocable power of attorney in favour of defendant No.5 and its Managing Director in respect of the suit property. Thus, this defendant has been the owner and in actual possession of the suit properties since 1.7.1977/21.8.1979 having bonafide purchased the suit property for valuable and prohibitive consideration and that the plaintiff and defendants 1-4 in collusion, with a view to deprive defendant No.5 of the fruits of the purchase of the suit property, have come forward with this suit almost after a decade and a half of the transaction.