Full Text
HIGH COURT OF DELHI
Date of Decision: 18th NOVEMBER, 2024 IN THE MATTER OF:
SHRI PRABHAT KAMAL GUPTA .....Plaintiff
Through: Mr. Seerat Deep Singh, Advocate.
Through: Mr. Aayush Agarwala and Mr. Nilesh Kumar, Advocates for Defendant
Nos.1, 4, 5 & 6.
Ms. Seerat Deep Singh, Advocate for Defendant Nos.2 and 3.
JUDGMENT
1. This application under Section 151 CPC, 1908 has been filed by the Plaintiff seeking cancellation of the Letter/Communication dated 04.10.2023 issued by the Registry of this Court directing the Applicant/Plaintiff to pay stamp duty (e-stamp) amounting to Rs.1,81,49,571.86/- for drawing up the decree.
2. The instant suit has been filed by the Plaintiff for a decree of partition of Property No.10, Friends Colony (West), Mathura Road, New Delhi- 110065 (hereinafter referred to as the „Suit Property‟) which was owned by one Om Prakash Gupta (HUF). It is stated in the application that this Court vide order dated 20.10.2016 passed a Preliminary Decree in terms of the suit property, after excluding 1/3rd share which stood in the name of Ms. Amita Rani Gupta, thereby declaring the Plaintiff and Defendant No. 2 and 3 together having 50% share in the suit property and the balance in favour of Defendant No. 1, 4, 5 and 6.
3. A preliminary decree, on the basis of a family settlement, has been passed by this Court vide Order dated 20.10.2016. Relevant portion of the said Order reads as under;-
Shri Ashok Kamal Gupta, defendant no.4 Shri Avikshit Saras, defendant no.5 Ms. Manasvi and defendant no.6 Ms. Akshita together having 50% share in the property.
10. On enquiry it is stated that neither of the two groups want partition of the property inter se amongst themselves and will take their share of the property together.”
4. A final decree dated 08.05.2017 was passed for partition of the suit property by sale and distribution of the sale proceeds as per the shares declared under the Preliminary Decree for Partition. Thereafter, the parties jointly filed an application bearing I.A. No.17359/2018 seeking modification of the decree dated 08.05.2017 in terms of the Memorandum of Family Settlement dated 25.11.2018. Vide Order dated 18.12.2018, this Court has modified the final decree dated 08.05.2017 in terms of the Memorandum of Family Settlement dated 25.11.2018 and accordingly, a decree sheet was drawn.
5. Vide Order dated 08.05.2017, this Court passed the final decree. Relevant portion of the said Order reads as under:-
6. Thereafter, the oral family settlement was reduced into writing.
7. The principle challenge of the Plaintiff is that a document which is reduced into writing on the basis of arrangement entered into by the members of the HUF, need not be registered and therefore, the Letter/Communication dated 04.10.2023, issued by the Registry of this Court directing the Applicant/Plaintiff to pay stamp duty (e-stamp) amounting to Rs.1,81,49,571.86/- for drawing up the decree, be set aside.
8. Heard the Counsels for the parties and perused the material on record.
9. The Memorandum of Family Settlement dated 25.11.2018 which is entered into between the parties is reproduced and the same reads as under:- “MEMORANDUM OF FAMILY SETTLEMENT That this Memorandum of family settlement is being entered into on this 25th day of Nov 2018 in order to record the oral family settlement entered my between the parties subsequent to the Decree passed by the Hon'ble of Delhi High Court on 8th May 2017 in suit for partition dated being CS(OS) No 109 of 2016, titled Prabhat Kamal Gupta Vs Ashok Kamal & Ors. Between Shri Prabhat Kamal Gupta S/o Late Shri Om Prakash Gupta, Rio No. 15, Gulmohar Avenue, Velachery Road, Guindy-600 032 (Tamilnadu); Shri Shiv Gupta S/o Shri Prabhat Kamal Ro No. 15, Gulmohar Avenue, Velachery Road, Guindy-600 032 (Tamilnadu), through his attorney Shri Prabhat Kamal Gupta, and Ms. Pratyusha Gupta Bie Shri Prabhat Kamel Rio NO. 15, Gulmohar Avenue, Velachery Road, Guindy-600 032 (Tamilnadu) through her attorney Shri Prabhat Kamal Gupta (hereinafter collectively referred to as the First Party). And Shri Ashok Kamal S/o Late Shri Om Prakash Gupta R/o 10, Friends Colony (West), Mathura Road, New Delhi-110065, Shri Avikshit Saras S/o Shri Ashok Kamal R/o 10, Friends Colony (West), Mathura Road, New Delhi-110065; Ms. Marasvi Rani and Ms. Akshita Rani, both minor daughters of Shri Avikshit Saras Rio 10, Friends Colony (West), Mathura Road, New Delhi- 110065 both through their guardian, Shri Avikshit Saras (bereizafter collectively referred to as the Second Party). Whereas the First Party, Mr. Prabhat Karnal Gupta, had filed a suit for partition being C.S. (OS) NO. 109 OF 2016 against the Second Party in respect of the property bearing No. 10, Friends Colony (West), Mathura Road, New Delhi-110065. And whereas the matter came up for hearing on 20.10.2016 before the Bench of Hon'ble Justice Shri Rajiv Sahai Endlaw. During the course of hearing, counsel for defendant no. 1 and 4 to 6 i.e. the Second Party, stated that there was no dispute of the share of the Plaintiff and his children, in the First Party, on the one hand and the share of the Second Party on the other, being 50% each in the subject property. It was also stated that "neither of the two groups wart partition of the property inter se amongst themselves and will take their share of the property together" And whereas after hearing the parties, the Hon‟ble Court was pleased to pass a Final decree for partition on 8th May 2017 of property No.10, Friends Colony (West), Mathura Road, New Delli-110065, as shown in Schedule-C to the plaint (after excluding 1/3rd share already given to and now standing in the name of Smt. Amita Rani Gupta). The copies of the orders dated 27.9.2016, 28.9.2016, 20.10.2016, 26.4.2017 and 8.5.2017 passed in the Suit are attached as Annexure B to this MOU. And whereas as per the order, the Hon'ble Court ordered the sale and distribution of the sale proceeds of the property falling to the share of the First & Second Party due to their inability to arrive at a mutual settlement between them. Whereas the First Party and the Second Party, arising from their emotional bonds with the property, wish to retain, renew and add constructions more appropriate to their present day needs and to meet with the expanded family size. They wish to maintain peace and harmony in the family, avoid any ambiguity or future dispute within themselves and in order to crystallize their separate shares and in the said property have arrived at an oral settlement, on 22nd Nov 2018 which is being reduced into writing herein to place before the Hon'ble High Court a plea for modification of the order dated 8th May 2017. Whereas the parties have agreed to a physical division which is set out in the agreed site plan of the said property is annexed herewith as Annexure A.
THAT THE PARTIES HAVE AGREED AS UNDER:
1. That the Parties have agreed that the portion shown in Red colour in the plan (Annexure A), shall fall to the share of the Second Party collectively. The said portion marked as rectangle ABCD. The limbs of the said rectangle measure as under: Rectangle ABCD i. AB-- 127‟ 11‟‟ ii. BC-- 97‟ 5‟‟ iii. CD-- (to be determined by survey) iv. DA – 99‟ 6" Total area of ABCD 12557 sq. ft. approximately
2. That the rest of the area of the said property as marked in the Rectangle CDEF, (excluding the share of Mrs. Amita Rani Gupta marked as EFGH in the plan) shall fall to the share of the First Party collectively. The said share is marked as CDEF admeasuring 12557 sq. ft and is shaded green in the plan annexed as Annexure A Both parties agree that the limes CD and EF are to be accurately marked on site by a surveyor as provided for hereinafter and the marking shall be governed by the principal that areas of the rectangles ABCD, CDEF and EFGH shall be equal in area.
3. Prabhat Kamal Gupta, part of the First Party, being the Karta of the Om Prakash HUF shall in presence of the Second Party and Amita Rani Gupta mark the boundaries CD and EF with the help of qualified surveyors and each of the parties will be entitled to construct compound walls or erect fences to demarcate boundaries, at anytime at their discretion, with CD and EF forming the centerline of such walls and fences and their allied construction. The costs to be shared equally between the concerned Parties.
4. The First and Second Party have today taken possession of their demarcated shares of the property. However the First Party has permitted the Second Party and their servants to use the said structures, cross hatched in the plan (Annexure A) and falling in the rectangle CDEF, for a limited period of six months from the date of this MOU.
5. The Second Party also shall give an undertaking to this effect to the Hon'ble High Court of Delhi in C.S. (O.S.) NO. 109 of 2016. It is further agreed that without prejudice to the right of the First Party to initiate contempt proceeding for non-compliance of the undertaking. If the Second Party fails to vacate the cross hatched portions within 6 months, the Second Hart shall be liable to pay use and occupation charges for the said portion @ Rs. 30,000/- per month till the time it hands over vacant peaceful possession of the said cross hatched portions to the First Party subject to a maximum of 3 additional months ie total 9 months (6 months starting from date of this MOU plus 3 months).
6. The First Party shall be entitled to remove or restrict usage of the sewage lines, power lines and gas lines currently serving the structures existing in the rectangle ABCD and falling to the share of the Second Party in terms of this MOU en expiry of the period which shall not exceed 9 months from the date of this MOU at their own expense. The First Party shall grant access to the Second Party and their service personnel to facilitate the shifting of the above and any other service lines passing in the rectangle CDEF allotted to the First Party within the period of 6 to 9 months as provided supra. However, the Second Party shall ensure that any excavation necessitated on account of shifting of the sewage lines or power lines in the portion that falls to the share of First Party shall be restored to its original condition an their own cost.
7. That the Parties have agreed that the FAR permissible for the property ABEF totally admeasuring 2322 sq ms. (25114 sq ft) shall be shared equally by both parties. The FAR is for the plot ABEF which is subject matter of this Memorandum, excluding the portion that had already been allocated to Mrs. Amita Rani Gupta. The FAR shall be shared 50-50.
8. The First and the Second Party shall be entitled to: i. Apply for permission for new constructions, demolition or addition & renewals to existing constructions within the bounds of public rules applicable in the respective lands allotted to their share. ii. Prabhat Kamal Gupta, as Karta of the Om Prakash Gupta HUF shall sign all such applications if required by the any of the two parties. iii. The Parties that apply for such permissions and execute constructions thereafter shall strictly and faithfully adhere to the approved plans and licenses, including the conditions imposed therein, to ensure that rights to apply and construct of other parties are not affected. iv. Construction was carried out by Ms Amita Razi vide a sanction plan approved in 1994 or thereabouts and constructed the structures standing in the area EFGH in the Annexed plan at her own cost. The Second party carried out additional constructions on the first and second floor in the land marked as ABEF at its own cost as per sanction plans approved in 2009 or thereabouts. If any of the parties require completion certificates to process their applications for additional construction then the above two parties shall take steps to obtain such completion certificates without demur.
9. That all original title deeds and sanctioned plan and other related documents in respect of the said property are presently in the custody of Shri Ashok Kamal; the parties agree that the said documents shall be placed in joint custody in a safe deposit locker which can only be jointly operated by the designated nominees of the First & Second Party. Both parties shall retain copies thereof.
10. That all parties hereto agree and undertake, that whenever required and for any reason whatsoever, the parties shall extend full corporation to each other, for signing of any documentation whatsoever in relation to the said property, including but not limited to, application(s) for building plans, utilities etc.
11. That the parties hereto confirm and declare that they have voluntarily and of their own free will entered into an oral family settlement 22Nov 2018 and vide this present Memorandum the terms of the said settlement are being put into writing.
12. Shri Avikshit Saras has assured that he is the natural and duly appointed guardian of his minor children Ms. Manasvi Rani and Ms. Akshita Rani and he is competent to enter into settlement on behalf of his minor daughters as the settlement is in their best interest.
13. That the parties undertake to remain bound by the terms and conditions recorded hereinabove. All assurances and undertaking given herein shall be deemed to have been made and given to the Hon'ble High Court of Delhi as well.” (emphasis supplied)
10. The Memorandum of Family Settlement dated 25.11.2018 indicates that an oral family settlement dated 22.11.2018 was entered into between the parties subsequent to the Decree passed by this Court on 08.05.2017 and the said oral family settlement has been reduced into writing on 25.11.2018 so that the same can be placed before the Court for modification of the final decree.
11. Learned Counsel for the Plaintiff places reliance on the judgment of the Apex Court in Kale v. Deputy Director of Consolidation, (1976) 3 SCC 199, wherein the Apex Court has held as under:- “It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable.”
12. A perusal of the above judgment shows that family settlements are not to be registered and stamp duty is not to be paid if the settlement has been arrived at initially as an oral settlement and thereafter, reduced into writing for the purpose of information.
13. In the instant case, the family settlement has been arrived at between the parties after the shares have been determined and it partitions the property and therefore, it will not come within the four corners of the judgment of the Apex Court in Kale (supra).
14. The present case is not one of a family settlement entered into, reduced to, in writing but a case where shares have been demarcated by an Order of this Court and the parties have demarcated the properties mutually instead of approaching a Court. The judgment of the Apex Court in Kale (supra), therefore, will not apply to the present case.
15. Since, the Memorandum of Family Settlement has been entered into between the Parties after the shares have been demarcated and the Parties have only partitioned the property in accordance with the shares demarcated, the document in question cannot be said to be a family arrangement which has been reduced into writing. By way of clever drafting, the Parties cannot disguise an agreement to partition the property entered into mutually by metes and bounds by way of a Memorandum as a Family Settlement entered into between the parties earlier but reduced into writing later. The said document cannot absolve the Plaintiff from the liability to pay the stamp duty. This Court is of the opinion that the law laid down by the Apex Court in Kale (supra) would not be applicable to the document in question.
16. Resultantly, the application is dismissed.
17. The Plaintiff is directed to pay the stamp duty (e-stamp) amounting to Rs.1,81,49,571.86/- for drawing up the decree.
SUBRAMONIUM PRASAD, J NOVEMBER 18, 2024