Manjit Singh & Anr. vs Nirmal & Ors.

Amit Bansal, J.

The present Appeal under Section 96 of the Code of Civil Procedure, 1908 (‘CPC’) has been preferred by the appellants against the judgment and decree dated 11^th July, 2017 passed by the Additional District Judge-04, South-East District, Saket Courts, New Delhi in Civil Suit No. 7580/2016, titled as Manjit Singh & Anr. v. Nirmal & Ors.

The appellants shall hereinafter be referred to as the appellants/plaintiffs, as the case may be, and the respondents shall hereinafter be referred to as the respondents/defendants as the case may be.

The brief facts as stated in the plaint are as follows:

The plaintiffs, namely S. Manjit Singh and S. Harjinder Singh, are the sons of Late S. Swaran Singh from his first wife, Smt. Swinder Kaur. The marriage between Late S. Swaran Singh and Smt. Swinder Kaur was dissolved in the year 1961, whereafter Late S. Swaran Singh married defendant no.1, Smt. Nirmal.

Defendant no.2, S. Ravinder Singh, is the son of Late S. Swaran Singh and defendant no.1 Late S. Swaran Singh died on 20^th June, 2003.

The plaintiffs instituted a suit seeking partition of the estate of Late S. Swaran Singh, claiming that he had died intestate and that the plaintiffs and defendants no.1 and 2 were his legal heirs.

The suit concerned Plot No.27, Surya Niketan, Delhi (‘Surya Niketan Property’) and Flat No.407, 4^th Floor, Shakuntala Apartments, Nehru Place, New Delhi (‘Nehru Place Property’). The aforesaid two properties are hereinafter referred to collectively as suit properties. The plaintiffs claimed that Late S. Swaran Singh had acquired Nehru Place Property and Surya Niketan Property from his own funds and that the suit properties formed part of his estate.

In the written statement dated 10^th September, 2003, the case set up by defendants no.1 and 2 was as follows:

Through a Will dated 8^th May, 2002, Late S. Swaran Singh had bequeathed all his movable and immoveable properties, including the suit properties, in favour of the defendant no.1.

Nehru Place Property had already been agreed to be sold by Late S. Swaran Singh in favour of S. Kapil Kumar Chopra and S. Narinder Pal Singh, for a consideration of Rs. 5 lakhs, under an Agreement to Sell dated 9^th October, 2001 and that possession thereof had been handed over to them.

Late S. Swaran Singh had executed a General Power of Attorney (‘GPA’) dated 1^st February, 2003 in favour of defendant no.1 in respect of Surya Niketan Property, pursuant to which defendant no.1 had entered into an Agreement to Sell dated 26^th May, 2003 in favour of Ms. Shobha Sharma for a consideration of Rs. 10 lakhs and had handed over possession of the said property to her.

The plaintiffs thereafter amended the suit and impleaded Ms. Shobha Sharma as defendant no.3, S. Kapil Kumar Chopra as defendant no.4 and S. Narinder Pal Singh as defendant no.5. The plaintiffs also sought cancellation of following documents:

The plaintiffs challenged the aforesaid documents on the ground that the signatures and/or thumb impressions of Late S. Swaran Singh appearing thereon were forged and fabricated. In respect of Surya Niketan Property, the plaintiffs specifically disputed the execution and validity of the GPA dated 1^st February, 2003 and the Agreement to Sell dated 26^th May, 2003 and disputed the claim of defendant no.3 that possession of the property had been handed over to her.

By order dated 10^th October, 2006, the Trial Court framed the following issues:

The parties thereafter led evidence in support of their respective cases. The plaintiffs examined, inter alia, witnesses in support of their challenge to the documents relied upon by the defendants and also relied upon the medical records of Late S. Swaran Singh and a handwriting expert’s report. Defendants no.1 and 2 led evidence in support of the Will, GPA and Agreements to Sell, while defendant no.3 led evidence concerning the transaction and possession of Surya Niketan Property.

The Trial Court in the impugned judgment has returned the following findings:

In relation to the Will dated 8^th May, 2002, the Trial Court considered the evidence of the attesting witnesses and the surrounding circumstances and held that the Will had not been duly proved.

In relation to the Agreement to Sell dated 9^th October, 2001 concerning Nehru Place Property, the Trial Court held that Late S. Swaran Singh had executed the Agreement to Sell in favour of defendants no.4 and 5.

In respect of Surya Niketan Property, the Trial Court considered the GPA dated 1^st February, 2003 and the Agreement to Sell dated 26^th May, 2003 and held that Late S. Swaran Singh had duly executed the GPA in favour of defendant no.1 and that defendant no.1, acting as his duly constituted attorney, had executed the Agreement to Sell dated 26^th May, 2003 in favour of defendant no.3 for consideration. The Trial Court further held that the entire consideration had been received by Late S. Swaran Singh and possession of the property had been handed over to defendant no.3.

While deciding the issue of possession, the Trial Court held that defendants no.4 and 5 were in possession of Nehru Place Property and defendant no.3 was in possession of Surya Niketan Property pursuant to the Agreements to Sell. The Trial Court further held that the plaintiffs were neither in actual physical possession nor in constructive possession of the suit properties, as Late S. Swaran Singh did not have any right, title or interest in the suit properties at the time of his death.

The Trial Court consequently held that, since the plaintiffs were neither in actual nor constructive possession of the suit properties and had not sought the relief of possession, the suit for partition was not maintainable in the manner in which it had been framed.

Aggrieved by the aforesaid judgment, the plaintiffs preferred the present appeal.

This matter first came up for hearing on 13^th October, 2017, wherein the counsel for the appellants made it clear that the appeal is restricted to Surya Niketan Property and the appellants do not claim any right, title and interest in the Nehru Place Property. The relevant observations from the said order are set out below:

In the order dated 13^th October, 2017, this Court noted the objection with regard to non-payment of proper court fees on the appeal and held that, since the Trial Court has held that the possession of Surya Niketan Property is with respondent no.3, the appellants would have to value the appeal for the relief of possession on the market value of the property, without prejudice to the respective rights and contentions of the parties. The relevant observations from the said order are set out below:

Consequently, the appellants paid the requisite court fees.

Thereafter, the appellants filed C.M. No.26030/2018 seeking amendment of the plaint so as to incorporate a prayer for possession in respect of Surya Niketan Property.

C.M. No.26030/2018 was subsequently withdrawn by the appellants vide order dated 28th March, 2026.

The parties were heard on 31^st July, 2026 and 13^th August, 2026, when the judgment was reserved.

The counsel for appellants have made the following submissions:

The GPA dated 1^st February, 2003, allegedly executed by Late S. Swaran Singh in favour of defendant no.1, is surrounded by suspicious circumstances and, consequently, the Agreement to Sell dated 26^th May, 2003 executed by defendant no.1 in favour of respondent no.3 on the basis of the said GPA cannot confer any right upon respondent no.3. In this regard, reliance is placed upon the medical records of Late S. Swaran Singh.

The appellants did not seek the relief of possession as Late S. Swaran Singh, during his lifetime, continued to remain in possession of Surya Niketan Property, and, after his demise on 20^th June, 2003, the appellants along with defendants no.1 and 2 continued to remain in possession thereof.

The claim of defendant no.3 that possession of the property was handed over to her on 26^th May, 2003 is false and cannot be accepted, particularly when the deceased was admitted in hospital during the said period. The respondent no.3 herself stated in her cross-examination that she had never met or spoken to Late S. Swaran Singh.

Accordingly, Late S. Swaran Singh continued to remain in possession of Surya Niketan Property and the appellants are entitled to the relief of declaration and partition in respect thereof.

Per contra, counsel appearing on behalf of respondent no.2 has made the following submissions:

Late S. Swaran Singh had executed a GPA dated 1^st February, 2003 in favour of defendant no.1 in respect of Surya Niketan Property pursuant to which defendant no.1 executed the Agreement to Sell dated 26^th May, 2003 in favour of defendant no.3, Ms. Shobha Sharma, for a consideration of Rs. 10 lakhs and handed over possession of the said property to her.

Counsel appearing on behalf of respondent no.3 has made the following submissions:

The respondent no.3 is the purchaser of Surya Niketan Property under the Agreement to Sell dated 26^th May, 2003, executed by defendant no.1 pursuant to the GPA dated 1^st February, 2003 executed by Late S. Swaran Singh in her favour. The respondent no.3 as bona fide purchaser has been in physical and constructive possession of the Surya Niketan Property since 26^th May, 2003.

The respondent no.3 had been put in possession of Surya Niketan Property on 26^th May, 2003 pursuant to the aforesaid Agreement to Sell and, therefore, the plaintiffs were not in actual or constructive possession of the said property.

Late S. Swaran Singh was in a sound and disposing mind when the Agreement to Sell was executed in favour of respondent no.3. In this regard, reliance is placed on the letters placed on record by the appellants, namely, letter dated 6^th May, 2003 [Ex. DW-9/P-5], letter dated 12^th May, 2003 [Ex. DW-9/P-6] and letter dated 23^rd May, 2003 [Ex. DW-9/P-8], all obtained by plaintiff no.2 under RTI from DDA. These letters were confronted in cross-examination of DW-9 (defendant no.1) and duly exhibited. Hence, the hospitalization and health of Late S. Swaran Singh between 6^th May, 2003 till 23^rd May, 2003 does not establish that he was of unsound mind.

There is nothing on record, including in the evidence led by the appellants, to establish or corroborate that the appellants were in actual physical possession of Surya Niketan Property at the time of institution of the present suit.

I have heard the counsel for the parties and perused the record.

To begin with, I would deal with the findings of the Trial Court on issues no.5 and 6, which are set out below for ease of reference:

It has come in evidence that Late S. Swaran Singh, during his lifetime, executed a registered GPA dated 1^st February, 2003 [Ex.DW4/2] in favour of defendant no.1 in respect of the Surya Niketan Property.

The GPA duly records that Late S. Swaran Singh is aged about 82 years, suffering from ill health, and is undergoing treatment for diabetes and blood pressure. On account of expenses required for his treatment, he wishes to sell the Surya Niketan Property and, therefore, has executed the GPA in favour of his wife to enter into a sale agreement for the Surya Niketan Property.

This GPA is a registered document, registered before the concerned Sub-Registrar. The GPA bears thumb impressions of Late S. Swaran Singh.

DW-4, S. Harbans Singh, has deposed on behalf of the defendants that Late S. Swaran Singh had affixed his thumb impressions on the GPA. DW-4 has also deposed that he, along with Ms. Asha Kumari, had signed as an attesting witness on the GPA. He has also deposed that he, along with Ms. Asha Kumari and Mrs. Nirmal Kaur, signed and put their thumb impressions before the Sub-Registrar, and Late S. Swaran Singh put his thumb impressions before the Sub-Registrar. He has duly identified the signatures of Mrs. Nirmal Kaur and Ms. Asha Kumari, as well as his own signatures. He has also identified the thumb impressions of Mr. Swaran Singh on the GPA. The said witness was duly cross-examined, however, the appellants have not been able to discredit his testimony.

The defendants duly summoned the LDC from the office of the Sub-Registrar, Seelampur, Delhi and examined him as DW-1. DW-1 brought the original GPA [Ex. DW4/2] dated 1^st February, 2003 executed by Late S. Swaran Singh. He confirmed the registration of the said GPA.

Once a document is registered and the process of registration is proved by examining the concerned official, a presumption arises that the document was validly executed. It is for the party disputing the document to lead evidence to disprove the credibility of the registered document. In this context, reference may be made to the judgment of the Supreme Court in Prem Singh v. Birbal^{11.(2006) 5 SCC 353}, wherein it has been held that a registered document carries a presumption of validity and the onus lies on the person challenging the same to rebut such presumption. The relevant observations of the said judgment are set out below:

The appellants contend that GPA was forged and fabricated, however, they have failed to discharge the onus of proving the same. Their challenge to the GPA was founded primarily on the report of their handwriting expert, PW2. The Trial Court, however, disbelieved the said expert evidence on the ground that the report was based on comparison of thumb impressions from a dim and light photocopy, and did not indicate any specific markers of forgery in respect of the thumb impressions appearing on the GPA and hence, lacked credibility.

The appellants have also contended that Late S. Swaran Singh was seriously unwell from June 2002 to June 2003, and hence he could not have executed a GPA on 1^st February, 2003. Reliance in this regard is placed on the discharge summary dated 26^th January, 2003 issued by Sitaram Bhartiya Hospital [Ex. P-3].

A perusal of the said discharge summary shows that Late S. Swaran Singh was unwell and undergoing treatment and was discharged from Sitaram Bhartiya Hospital on 26^th January, 2003, and at the time of his discharge, he was in a satisfactory condition. This discharge summary does not suggest that Late S. Swaran Singh was not in a position to visit the Sub-Registrar’s office on 1^st February, 2003 for the execution of the GPA.

Hence, the appellants have failed to place any cogent material on record to demonstrate that the GPA [Ex.DW4/2] was forged or fabricated. Based on the evidence on record, the defendants have proved that the GPA has been validly executed.

In terms of the aforesaid GPA, defendant no.1 was empowered to sell the Surya Niketan Property and also receive the sale consideration in respect thereof. Acting on the aforesaid registered General Power of Attorney, a registered Agreement to Sell [Ex. DW5/3] was executed by defendant no.1, as his attorney, transferring the Surya Niketan Property in favour of defendant no.3.

The defendants duly summoned the LDC from the office of the Sub-Registrar, Geeta Colony, Delhi and examined him as DW-2. DW-2 brought the original Agreement to Sell dated 26^th May, 2003. He confirmed the registration of the Agreement to Sell on 27^th May, 2003. Since the Agreement to Sell was executed through a registered Power of Attorney, there was no requirement for Late S. Swaran Singh to visit the office of the Sub-Registrar.

The appellants have challenged execution of the Agreement to Sell on the ground that since Late S. Swaran Singh was in the hospital from 2^nd May to 30^th May, 2003, he could not have entered into an Agreement to Sell. However, the hospitalization of Late S. Swaran Singh would have no bearing on the Agreement to Sell being executed, as the same was executed by Late S. Swaran Singh through a duly appointed attorney.

The letters relied upon by the appellants [Ex. DW-9/P-5], [Ex. DW-9/P-6] and [Ex. DW-9/P-8], which were put in cross-examination to defendant no.3 by the appellants themselves, show that Swaran Singh was in sound mental condition when the Agreement to Sell was executed on 26^th May, 2003.

The appellants dispute the validity and execution of the Agreement to Sell [Ex. DW5/3]. However, in his cross-examination, the plaintiff no.2 himself stated that he was not aware as to whether the complete sale consideration had been paid by defendant no.3 to Late S. Swaran Singh. The plaintiff no.2 has also admitted that his father, Late S. Swaran Singh, being the owner of the property, had an absolute right to sell the same to anyone.

The Agreement to Sell duly records that the entire sale consideration of Rs. 10,00,000/- has been received by the seller from the buyer through a pay order. In this regard, the defendant no.1 has stated in her affidavit that the amount of sale consideration, i.e. Rs. 10,00,000/- was received by way of a Banker's cheque [Mark – B] in the name of Late S. Swaran Singh and was duly deposited in his bank account no.1120 with Syndicate Bank. The certified copy of passbook of bank account no.1120 with Syndicate Bank in the name of Late S. Swaran Singh for the period from 8^th May, 1999 to 14^th March, 2005, which shows the deposit of Rs. 10,00,000/-, has been exhibited as Ex. DW 1/G. Therefore, the evidence on record shows that defendant no.3 was a bona fide purchaser of the Surya Niketan Property.

As noted above, since the Agreement to Sell is a registered document, there is a presumption in its favour that the said document was validly executed. The onus was on plaintiff to lead evidence to disprove the credibility of the registered document. However, plaintiffs have failed to show that the Agreement to Sell was not validly executed.

In light of the above, there is no infirmity in the findings of the Trial Court that i) GPA was validly executed by Late S. Swaran Singh in favour of defendant no.1; ii) defendant no.1, acting as the duly constituted attorney of Late S. Swaran Singh, executed the Agreement to Sell in favour of defendant no.3 for sale of Surya Niketan Property; and iii) defendant no.3 has paid the entire sale consideration for the Surya Niketan Property.

Next, I proceed to consider findings of the Trial Court on issues no.1 and 2. The same are set out below for ease of reference:

The Agreement to Sell [Ex. DW5/3] records that the seller has handed over actual physical possession of the Surya Niketan Property to the buyer.

The appellants have sought to contend that since Late S. Swaran Singh was in the hospital and undergoing treatment, he could not have handed over possession of the Surya Niketan Property to defendant no.3 on 26^th May, 2003. The appellants also placed reliance on the cross-examination of defendant no.3 on 27^th July, 2013, wherein she stated that she had never met Late S. Swaran Singh.

Since the possession of the Surya Niketan Property was handed over by the Power of Attorney holder of Late S. Swaran Singh to the buyer, which she was authorized to do in terms of the GPA, there was no requirement for the buyer, i.e., defendant no.3, to meet Late S. Swaran Singh.

The defendant no.3 in her cross-examination has also stated that the Surya Niketan Property is in her possession under her lock. She has also produced the letter issued by the President of the housing society to the defendant no.3 regarding the deposit of security and other charges in respect of Surya Niketan Property [Ex. DW-3/6].

Therefore, there is no infirmity in the finding of the Trial Court that defendant no.3 was in physical possession of the Surya Niketan Property since 26^th May, 2003. Consequently, it cannot be said that the appellants were either in physical possession or constructive possession of the Surya Niketan Property. The relevant findings of the Trial Court in this regard are set out below:

Based on the aforesaid findings, the Trial Court held that since the plaintiffs had not sought relief of possession, when admittedly they were not in possession, the suit for partition was not maintainable. Relevant findings of the Trial Court are set out below:

In this regard, reference may be made to the judgment of this Court in Manmohan Batra v. Bharat Bhushan Batra^{22.2012 SCC OnLine Del 2663}, wherein a suit for partition was dismissed by the Trial Court. This Court, while upholding the findings of Trial Court, held that as the plaintiff therein was not in physical possession and the documents recorded delivery of possession to defendants, the plaintiff could not claim constructive possession. The plaintiff was therefore required to seek possession, and in the absence of such relief, the suit for partition as framed was held to be not maintainable. The relevant observations of the said judgment are set out below:

In this regard, appellants had moved an application bearing CM No.26030/2018 seeking amendment of the plaint. In paragraphs 7, 19, and 21 of the said application, the appellants admitted that they were not in possession of the Surya Niketan Property at the time of institution of the suit. Hence, they sought amendment of the plaint so as to include the relief of possession. The aforesaid paragraphs are set out below:

However, the aforesaid application was withdrawn by the counsel for the appellants on 28^th March, 2026.

To a pointed query from the Court as to why the said application was withdrawn, counsel for the appellants submitted that since the appellants were in constructive possession of the Surya Niketan Property, the aforesaid application was withdrawn. However, from the discussion above, it is manifest that plaintiffs were not in actual or constructive possession of Surya Niketan Property at the time of institution of the suit. Consequently, in the absence of possession and without seeking the relief of possession, the suit for partition was not maintainable as framed.

In view of the discussions above, I do not find any infirmity in the findings of the Trial Court that requires interference by this Court.

Accordingly, the present appeal is dismissed.

Pending applications stand disposed of.