Manjeet Kaur & Ors v. Daya Singh Alias Suphwas Srichawla & Anr

2. The facts of the first suit CS (OS) No.1229 against Shri Daya Singh @ iuphwas Srichawla, Defendant No. 1 and Y.T.C. Housing Private Limited, 'Defendant No. 2 may be set out illustratively since the issues that arise in all;he suits are more or less the same.

3. The case of the Plaintiffs is that the suit property was owned by Shri Narain Singh Chawla who died on 2"^ March 1974 leaving behind Smt. Harjinder CS (OS) No. 1229 of2008 batch Page 3 of10.aur, (wife), his children, Shri Onkar Singh @ Seth Onglcar Singh, Shri Jagtar ingh, Shri Pritpal Singh, Shri Narankar Singh, Shri Narinder Singh, Sliri I^aya Singh (Defendant No. 1), Shri Gurdip Singh, Shri Parshotam Singh and is daughters Smt. Manjeet Kaur (Plaintiff No. 1), Smt. Kuljeet Kaur and Smt. uldibir Kaur. It is stated that Shri Ongkar Singh died on 20'^^ May 2002 leaving behind Smt. Surinder Kaur Srichawla (Plaintiff No. 2), Shri ^momthep Srichawla, Ms. Orasa Srichawla and Ms. Orpin Srichawla (PlaintiffNos. 3 to 5). Shri Narankar Singh died on 20"' January-2002 leaving behind his wife, thi-ee sons and one daughter.Jlis two sons Shri Suldidev Singh and Shri Manjit Singh along with their mother, Smt. Vinder Kaur, filed? CS (OS) No. 1196 of.988 seeking partition, declaration" and permanent injunction in respect of the ])roperties including the suit property. A preliminary decree o| partition was )assed on 8'^ May 2007 in the said suit with the consent ofthe ptoies and their •espective shares were determined in tenns ofthe chart submitted to the Court. !^rior to the preliminary decree, Shrf Manjit Singh and Shn Sukhdev Singh executed a relinquishment deed dated 3 May 2005 relinquishing their shares n all the properties including the suit property in favour of Shri Purshotam ahas Shii Prachotam Srichawla, the Defendant in CS (OS) No. 1233 of 2008. Thereafter, on 6*"^ August 2005, Shri Manjit Singh and Shri Sukhdev Singh filed lA No. 6402 of 2005 seeking to withdraw CS (OS) No. 1196 of 1988. PlaintiffNos. 2 to 5 were parties to the suit as legal representatives ('LRs') of Defendant No. 3 in the said suit. The LRs of Defendant No. 3 made a statement on 1^^ September 2005 that they should be transposed as Plaintiffs. On 25^^^ April 2008, an order was passed in lANo. 6402 of2005 pemiitting the Plaintiffs to withdraw the suit and dismissing the suit as withdrawn. In the said CS (OS) No. 1229 of2008 batch Page 4 of10 order, the Court recorded the submission of learned counsel for Shri Manjit Singh and Shri. Sukhdev Singh that they had executed deeds ofrelinquisliment in favour of Shri Purshotam Chawla. It may be noted that the suits filed by the Haintiffs challenging the relinquisliment deeds dated 31^^ May 2005 in favour of Shri Purshotam Chawla were dismissed by this Court by a judgment dated November 2013 in CS (OS) Nos. 1228 of 2008, 1230 of 2008, 1420 of 2008, 1421 of 2008, 1433 of 2008 and 1434 of 2008. ). As far as the present case is concerned, the prayer is for the declaration of he Plaintiffs' pre-emptive right to> purchase the suit propeity from Defendant Nfo. 1, who, according to thbm, failed to inform them of his proposal to transfer his share in the suit property to Defendant No{2. Certain undisputed 'acts concerning the suit property need to be noticed. Suit Nq 294 of 1972 was filed during the life time of late Shri,Seth'<Narain Singh Chawli in relation to the suit property. The said suit was|d:ecreed on 19^"^ May 1^78. Pursuant thereto, sale deeds were executed by the 'Registrar-of this Court in respect of the 1/12"' shares of cach of the twelv.e LRs of late Shri Seih Narain Singh Chawla. This included PlaintiffNo. 1, Shri Ongkar Singh (husband of Plaintiff No. 2 and father of Plaintiffs 3 to 5). As a result Smt. Harjinder Kaur (the widow of late Shri Seth Narain Singh Chawla) and each of the 11 children got their 1/12^'" share inthe suit propeity absolutely.

6. During the pendency of the suits. Plaintiff No. 1 Smt. Manjit Kaur expired on 18^^ April 2010. Even prior to her death, she sold her 1/12"' share in the suit property to Defendant No. 2, YTC Housing Private Limited, by a registered sale deed dated 29* July 2009. Clause 5 ofthe sale deed stated that the vendor admitted that neither she nor her legal heirs and successors would have any CS (OS) No. 1229 of2008 batch Page 5 of10 ight, title and interest in the said share in the suit property and would not laim any right in future and have been left with no right, title and interest of my nature whatsoever in the said share in the suit property and that the vendee, i.e., YTC Housing Private Limited has become the absolute owner of;he 1/12^^ share in the suit property. Apart from an indemnity bond executed on the same date, Plaintiff No. 1 has also sworn an affidavit of the same date agreeing to withdraw the cases filed by her in this Court. This was in the context of Plaintiff No. 1 having filed as many as 21 cases in this Court in relation to the suit property and cert^in^-atheiVP^ The above facts have been brought on record by^'Defendant?;]^ 2'dri, oner of the suits which was dismissed on 8^'' Noveihberl2013. The:;s4d facts h£iye not: been denied by the Plaintiffs. ' ^.

7. One consequence of the above deVe:lQpfhfeht was that PlaintiffiNo. 1 entirely gave up her right, in the suit propert^WiH^^her life time. Consequently, there was no right for her LRs to inhedttllfiefeJ^ filedTA No. 9896 of 2010 under Order II Rule 3 GPi^^reveif'while De no. 2 did not object to their being brought on record it raisM an objection that as a result of Plaintiff No. 1 selling her 1/12" shaie m&;$uit^^p^^ to them, nothing survived in this suit. In its order dated 16'^ May 2013 allowing the application of the LRs of Plaintiff No.l, the Court kept open the above objection of Defendant No. 2.

8. Ms. Richa Kapoor, learned counsel appearing for the Plaintiffs, submitted that notwithstanding all of the above developments, the pre-emptive right of the LRs of Plaintiff No. 1 and the LRs of late Shii Ongkar Singh Chawla (Plaintiffs 2 to 5) to purchase the undivided share of Defendant No. 1 which CS (OS) No. 1229 of2008 batch Page 6 of10 A^as sold to Defendant No. 2by a registered sale deed dated 7"^ May 2008 still sui-vives. According to her, what was sold by Defendant No. 1 is the 'undivided share' in the suit property which implied that the partition of the suit property was yet to take place. Building on this argument, she submitted that the LRs of Plaintiff No. 1 and Plaintiff Nos. 2 to 5, who were the LRs of Shri Ongkar Singh, had inherited the pre-emptive right of their respective predecessors under Section 22 oftheHSA. She further submitted thatalthough the decision of this Court in Kusiim Kumria v. S.P. Kumria 2006 (88) DRJ 233 does not supporther submission, itiails to take into account the decisions of the Supreme Court in Kdnia JRanv v^ Rama RaniAIR 1988 SC 726^ Girja Nandini Devi v. Bijendra JSarain Choudlniiy AIRiJ[90'-SC 1124, Hazari v. Neki AIR 1968 SC 1205. She.^sb rel ed;i4||nj^^he decisions in Audh Behari Singh V. Gajadhar Jaipuria AIR 1954 S^J 417, Bhagiraihi Chhatoi v. Adikanda Chhatoi AIR 1988 driS^d-"285 and Valliyu Sreedev Amma v. SubbadraDevi AIR1976Kerala1^9: '

9. Mr. Gaurav Sariri- learnedTG6unsei.fer.::Defendaiit^i^^ out that the decision in Kiisum Kurririd v. S.P. Kumria uicarly holds'that the right under Section 22 PISA was confitted'tp'G^^ 2 to 5 were not Class I heirs of late Shri Seth Narain Srichawla. Shii Ongkar Singh was not a pre-deceased son, but a deceased son of late Shri Seth Narain Srichawla. The son of a deceased son was not a Class I heir. Pie further submitted that as far as Plaintiff No. 1 is concerned, she sold all her rights in the suit property to Defendant No. 2 during the pendency of the suit. Thirdly, Mi". Saiin pointed out that Plaintiff No.1 had earlier filed CS (OS) No. 405 of 2009 seeking identical reliefs as in these suits. Mi\ Sarin produced acopy oforders dated 8'^ April 2009 and 13^'' May 2009 passed in the said suit which showed that the CS(OS) No. 1229 of2008batch Page 7of10 Plaintiff had abandoned her claim both for permanent and mandatory injunction when it was realised that she had not paid the requisite court fee as the suit had been grossly undervalued. Lastly, it is submitted that the present suits were an, abuse of the process of law. The suit themselves could not have been filed by PlaintiffNos. 2 to 5 by themselves, as it was. PlaintiffNo.1 who was the Class 1 heir. She sold away her right to Defendant No.2 during the pendency ofthe suit. As regards PlaintiffNos. 2 to 5 are concerned, they were parties to the earlier partition suit CS (OS) 1196 of 1988 in which the order dated 25^'^ April 2008 was passed in.,their presence recording the fact that the shares of those Plaintiffs were'spld-tqiSM

10. The above submissions have beeii considered. First-and foremost it requires to be noted' that the twelve heirs of late Shri:;Sethi Narain Singh Chawla became'absolute owners of their^ respective 1/12^'^ share each in the ^.. i! 1 ^ suit property when sale deeds were ekecuted in their favour in respect thereof consequent upon.jthe order -dated 19^'^ May 1978,-in Suit No: 294 of 1972. Sonsequently, just as Smt. Maryit£is:auiSJbecariiC^ owner of her 1/12'^ share in the suit proputy,, so- did,each of the-other Heirs, including Shri Daya Singh, as regards thQil:;-respective shares. The said shares were 'undivided' only in the sense that they perhaps were not demarcated as such. However, after the execution of the said sale deeds, nothing remained of the suit property for being partitioned. These eight suits proceed on the misconception that the suit propeity isyet to be partitioned. Consequently, the prayer for declaring any pre-emptive right of the LRs of Plaintiff No.l or Plaintiff Nos. 2 to 5 to purchase the share of Defendant No.l in the suit property is misconceived. CS (OS) No. 1229 of2008 batch P"ge 8of10

11. The facts in Kanta Rani v. Rama Rani and the other decisions cited by Ms. Kapoor are entirely different. They were in the context of rights in ancestral properties remaining to be partitioned. None of the said decisions involve a situation where registered sale deeds have been executed in respect of 1/12^ shares of each of the heirs of late Shri Seth Narain Singh. Once that event occurred, there was no property left to be partitioned. The word 'undivided' only connoted the need for the 1/12^^ share in the suit property to be demarcated.

12. As far as Plaintiff No is, cpnceri^dj thei;e is in the feet that during her life time ahd'after.filing tteip^^^ suits, she'sold her 1/12''' share in the suit property) to'Befendant No 2by ar0gistered;<;sale.deed. After that, she did not have &yisui-viving right in the suit property. Al^far'as the Plaintiff No.l is concern,ed, nothing sui"vivecl in the suits thereafter. Further after the sale deeds transfening their respective 1/12* share in the suit pipperty in their favour were executed, each heii of late Shri Seth Narain Sjrtgh could have validly transferred such;share,-even ifdfowas not.^yet.demarcated, to any third party. This is what both jplfeiffNo.;l:-and did. The question of that share being offereS'aglin^G ihe Plaintiffs-Or their LRs for purchase does not arise.

13. As far as Plaintiff Nos. 2 to 5 are concerned, they were parties to the earlier partition suit CS (OS) 1196 of1988 in which the order dated 25* April 2008 recording the fact of transfer of the shares of Shri Sukhdev Singh and Shri Manjeet Singh to Shii Parshotam Chawla by therelinquisbiient deed was recorded in their presence. That order has become fmal. Plaintiff Nos. 2 to 5 cannot be permitted to reopen the issue concerning their share in the suit CS(OS) No. 1229 of2008batch Page 9of10 property. Further, the decision in Kusum Kumria v. S.P. Kiimria precludes them from claiming any pre-emptive right under Section 22 HSA since they are not Class I heirs of late Shri Seth Narain Singh.

14. The above reasons are sufficient for the court to conclude that the suits do not disclose any cause of action and that none of the prayers made in the suits can be granted in law. However, there are other factors as well that preclude the Court from permitting the suits to proceed. Although there were five Plaintiffs at the time of filing of these-...suits, the plaint and the affidavit in support of the plaint in eaGH 'suitf>yi^as?:signed'f^^^^^ Orasa Srichawla, PlaintiffNo. 4 for 'selfand attorney'. PlaintiffNo. 1 did not sign the plaint or the affidavit in support^Kereoff'at any time tilf.her death oh- 18^'^ April 2010. Secondly, it is collect that these' suits. Which pray tor peimanent and mandatoiy injunctions have been undervalued for the purposes of court fee. There is no aveiT^nent in the plaints that the Plaintiffs were in constructive or physical possession of any..,of the suit properties.,,The question of paying a fixed court fee doe? not, therefore^?:;aris£:iAltfipu|b;^^ Court could have insisted on the Plaintiffs fiist.raMcing,;good the deficit 'court fee, it is not inclined to do so since in anyceyent,,!^^ stated, the reliefs prayed for in the suits cannot be granted in law.

15. The suits and pending applications are dismissed.

S. MURALIDHAR, J.