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t
% L4.10.2011
Present : Mr. Kirti Uppal, Sr. Adv. with Mr. Ajit Dayal, Ms. Richa S. Bhatnagar and Ms. Nimrat Kaur, Advocates for the Appellants.
Mr. Jayant Bhushan, Sr. Adv. with Mr. Rajat Jariwal and Mr. Gautam Talukdar, Advs. for the Respondents.
CAV. No. 92412011
Learned counsel for the respondents has entered appearance and, thus, the caveat is discharged.
CM APPL. No. 19004/2011
Allowed subject to all just exceptions, + FAO (OS) Nos. 494-495/2011 & CM APPL. No. 19003/2011
* The subject matter of dispute is the property bearing No. 6, Kautilya Marg, Chanakyapuri, New Delhi admeasuring 1233.3 sq.yds. where the double-storeyed . house with garage and servant quarters constructed on the same. The perpetual leasehold rights in the suit property were granted by the
President of lndia vide Lease Deed dated 06.11.1958 from
19.09.L952 in favour of one Smt. Raj Rani Nehra, who had carried out the construction and thereafter sold it to Smt. Bhagwati
Talwar vide registered Sale Deed dated 02.04.1960 after obtaining requisite permissions.
Smt. Bhagwati Talwar passed away on 29.11.2006 and is stated to have executed her last Will and Testament dated
03.01.1995. In terms of the said Will, the property was
FAO @St Nos. 494-495/2011 Page I of 5
,I
2011:DHC:11025-DB
(5
.4-' bequeathed to her two sons (respondents) and a daughter Smt. Neena Sarin in equal share with the condition that in case Smt. Neena Sarin pre-decease her, the property would devolve absolutely on her two sons in equal proportion. No rights were bequeathed to the legal heirs of her pre-deceased daughter Smt. Kuku Narang. Smt. Neena Sarin .pre-deceased Smt. Bhagwati
Talwar as she passed away on 16.05.2003. Respondent No. 2 being the sole executor applied to the Calcutta High Court for grant of probate in P.L.A. No. 32412007. lt is stated that no objections were given by appellants No. 2 and 3 (daughters of
Smt. Neena Sarin) and probate was granted vide Order dated
10.01.2008.
The respondents filed a suit for recovery of possession, permanent and prohibitory injunction and for mesne profits alleging that late Smt. Bhagwati Talwar permitted the defendants to use the said property. The respondents are residing in
Kolkatta. lt was their expectation that the property would be vacated by the appellants as and when required as the respondents were the owners, but the situation emerged to the contrary and appellants started claimi.ng rights in the property
The suit was contested by the appellants. lt was inter alia pleaded that they had applied for revocation of the probate. lt is, however, not disputed that there is no stay qua the grant of probate.
{
FAO (OSt Nos. 494-495 ^n11 Paae 2 of 5
The respondents along with the suit filed an application under Section 94 of the Code of Civil Procedure, 1908 (for short, 'the said Code'). This application was being heard when decision of other applications, the following Order was passed on
2I.09.2011 by the learned SingleJudge :-
"fA No. L232512010 (u/S. 94 CPC by the plaintiffs)
After extensive arguments, it has been agreed between the parties that subject to final declsion of this suit, possession of ground floor of property
No.6, Kautilya Marg, Chanakyapuri, New Delhi will be handed over by defendants No. 1, 2 and 3 to the plaintiffs, who may either occupy the same themselves or let out to a suitable tenant, approved by the Court. The possession of the ground floor will be handed over to the plaintiffs within four weeks from today. This is without prejudice to th.e rights and contentions of the parties in the suit. The application stands disposed of in terms of this consent order."
It may be noticed that appellant No. 3 was present in Court when this Order was passed.
The appellants, however, moved an application seeking recall of that Order claiming that appellants No. 1 and 2 were not present in Court when the Order was passed and there was no consent to the settlement on the application under Section 94 of the said Code. Appellant No. 2 is stated to have been out of country. lt has been stated that appellant No. 3 gave consent on the premise that the matter is being referred to mediation
,?
FAO (OSt Nos. 494-495 ^n71 Paae 3 of5
Y a
(which, in fact, has also been done) and had misunderstood the proceedings. This application has been dismissed by the Order dated 05.10.2011 noticing that a consent order was passed after extensive arguments.
We find that the Order passed on 21.09.2011 is by consent of parties (when one of the appellants was also present in Court) and that too after extensive arguments. Obviously, the counsel for the plaintiffs (appellants herein) and appellant No. 3 took a call to settle the matter rather than invite an order. That is the reason why the endeavour of the appellants to seek recall of the
Order dated 2!.09.2011 failed on 05.10.2011.
We have to also keep in mind the fact that, in any case, the
Order dated 2L09.2011 is interim in nature and possession only of ground floor is being handed over to the respondents not of the whole property. The first floor continues to be enjoyed by the appellants. Even assuming that the condition in the Will is not to apply, the respondents would be at least two-third owner of the property. ln the absence of the Will also, respondents would inherit as heirs. The Order has been passed without prejudice to the rights and contentions of the parties in the suit. The appellants seek to exclusively appropriate the use of the complete property and of the constructions thereon even though at best, they can have one-third share in the property if the mother of appellants No. 2 and 3 is held entitled to the share. In
?
FAO (OSt Nos. 494-495 ^n71 Paae 4 of 5
-{ these given facts, the appellants cannot be permitted to wriggle out of the consent given and even otherwise, we find no infirmity in the arrangement arrived at by the learned single Judge in view of the facts set out hereinabove.
Dismissed.
{
'1 ocroBER 14, 2orr madan
FAO (OSr Nos. 494-495 r I Paae 5 of5
% L4.10.2011
Present : Mr. Kirti Uppal, Sr. Adv. with Mr. Ajit Dayal, Ms. Richa S. Bhatnagar and Ms. Nimrat Kaur, Advocates for the Appellants.
Mr. Jayant Bhushan, Sr. Adv. with Mr. Rajat Jariwal and Mr. Gautam Talukdar, Advs. for the Respondents.
CAV. No. 92412011
Learned counsel for the respondents has entered appearance and, thus, the caveat is discharged.
CM APPL. No. 19004/2011
Allowed subject to all just exceptions, + FAO (OS) Nos. 494-495/2011 & CM APPL. No. 19003/2011
* The subject matter of dispute is the property bearing No. 6, Kautilya Marg, Chanakyapuri, New Delhi admeasuring 1233.3 sq.yds. where the double-storeyed . house with garage and servant quarters constructed on the same. The perpetual leasehold rights in the suit property were granted by the
President of lndia vide Lease Deed dated 06.11.1958 from
19.09.L952 in favour of one Smt. Raj Rani Nehra, who had carried out the construction and thereafter sold it to Smt. Bhagwati
Talwar vide registered Sale Deed dated 02.04.1960 after obtaining requisite permissions.
Smt. Bhagwati Talwar passed away on 29.11.2006 and is stated to have executed her last Will and Testament dated
03.01.1995. In terms of the said Will, the property was
FAO @St Nos. 494-495/2011 Page I of 5
,I
2011:DHC:11025-DB
(5
.4-' bequeathed to her two sons (respondents) and a daughter Smt. Neena Sarin in equal share with the condition that in case Smt. Neena Sarin pre-decease her, the property would devolve absolutely on her two sons in equal proportion. No rights were bequeathed to the legal heirs of her pre-deceased daughter Smt. Kuku Narang. Smt. Neena Sarin .pre-deceased Smt. Bhagwati
Talwar as she passed away on 16.05.2003. Respondent No. 2 being the sole executor applied to the Calcutta High Court for grant of probate in P.L.A. No. 32412007. lt is stated that no objections were given by appellants No. 2 and 3 (daughters of
Smt. Neena Sarin) and probate was granted vide Order dated
10.01.2008.
The respondents filed a suit for recovery of possession, permanent and prohibitory injunction and for mesne profits alleging that late Smt. Bhagwati Talwar permitted the defendants to use the said property. The respondents are residing in
Kolkatta. lt was their expectation that the property would be vacated by the appellants as and when required as the respondents were the owners, but the situation emerged to the contrary and appellants started claimi.ng rights in the property
The suit was contested by the appellants. lt was inter alia pleaded that they had applied for revocation of the probate. lt is, however, not disputed that there is no stay qua the grant of probate.
{
FAO (OSt Nos. 494-495 ^n11 Paae 2 of 5
The respondents along with the suit filed an application under Section 94 of the Code of Civil Procedure, 1908 (for short, 'the said Code'). This application was being heard when decision of other applications, the following Order was passed on
2I.09.2011 by the learned SingleJudge :-
"fA No. L232512010 (u/S. 94 CPC by the plaintiffs)
After extensive arguments, it has been agreed between the parties that subject to final declsion of this suit, possession of ground floor of property
No.6, Kautilya Marg, Chanakyapuri, New Delhi will be handed over by defendants No. 1, 2 and 3 to the plaintiffs, who may either occupy the same themselves or let out to a suitable tenant, approved by the Court. The possession of the ground floor will be handed over to the plaintiffs within four weeks from today. This is without prejudice to th.e rights and contentions of the parties in the suit. The application stands disposed of in terms of this consent order."
It may be noticed that appellant No. 3 was present in Court when this Order was passed.
The appellants, however, moved an application seeking recall of that Order claiming that appellants No. 1 and 2 were not present in Court when the Order was passed and there was no consent to the settlement on the application under Section 94 of the said Code. Appellant No. 2 is stated to have been out of country. lt has been stated that appellant No. 3 gave consent on the premise that the matter is being referred to mediation
,?
FAO (OSt Nos. 494-495 ^n71 Paae 3 of5
Y a
(which, in fact, has also been done) and had misunderstood the proceedings. This application has been dismissed by the Order dated 05.10.2011 noticing that a consent order was passed after extensive arguments.
We find that the Order passed on 21.09.2011 is by consent of parties (when one of the appellants was also present in Court) and that too after extensive arguments. Obviously, the counsel for the plaintiffs (appellants herein) and appellant No. 3 took a call to settle the matter rather than invite an order. That is the reason why the endeavour of the appellants to seek recall of the
Order dated 2!.09.2011 failed on 05.10.2011.
We have to also keep in mind the fact that, in any case, the
Order dated 2L09.2011 is interim in nature and possession only of ground floor is being handed over to the respondents not of the whole property. The first floor continues to be enjoyed by the appellants. Even assuming that the condition in the Will is not to apply, the respondents would be at least two-third owner of the property. ln the absence of the Will also, respondents would inherit as heirs. The Order has been passed without prejudice to the rights and contentions of the parties in the suit. The appellants seek to exclusively appropriate the use of the complete property and of the constructions thereon even though at best, they can have one-third share in the property if the mother of appellants No. 2 and 3 is held entitled to the share. In
?
FAO (OSt Nos. 494-495 ^n71 Paae 4 of 5
-{ these given facts, the appellants cannot be permitted to wriggle out of the consent given and even otherwise, we find no infirmity in the arrangement arrived at by the learned single Judge in view of the facts set out hereinabove.
Dismissed.
{
'1 ocroBER 14, 2orr madan
FAO (OSr Nos. 494-495 r I Paae 5 of5
JUDGMENT