Full Text
HIGH COURT OF DELHI
Date of Decision: 21st October, 2024
KUMESHWAR DAYAL SAMMI .....Petitioner
Through: Mr. Abhishek Kumar and Mr. Sachin Kumar Bansal, Advocates alongwith
Petitioner in person (M-9811455868).
Through: Mr. Sanjay Lao, Standing Counsel (criminal) for the State
Vikas PS Farsh Bazar.
Mr. Kunal Mittal and Mr. Sachin Aggarwal, Advocates for R-2 & 3
Prathiba M. Singh, J. (Oral)
JUDGMENT
1. This hearing has been done through hybrid mode. CRL.M.A.31558/2024 (for direction) in W.P.(CRL)-716/2024
2. The present application has been filed on behalf of the Petitioner- Kumeshwar Dayal Sammi under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (‘BNSS’) seeking the following payers: - “(a) Declare the unregistered family settlement dated 25.05.2023 (Notarized) and the Relinquishment deed dated 01.06.2023 which was registered as Document registration No. 5398 in Addi. Book No. 1, Volume No. 3772, on pages No. 109 to 113, on dated 15:25 01.06.2023 before the Sub-RegistrarIVb, Vivek Vihar, Delhi, executed by Sh. Jagdish Malhotra in favour Sh.. Rajeev Malhotra as null, void and no-nest, enabling the parties to get a fresh relinquishment executed in respect of property no. 194/SA/ I, Gali No. 13-14, Bhola Nath Nagar, Shahadara, Delhi 110032. Any other or further Order(s) may also be passed by this Hon'ble Court in favour of Mr.Jagdish Malhotra applicant herein and against the non-applicant as may deem fit and proper in the facts and circumstances of this case, in the interest of justice”
3. A brief background of the present case is that the Petitioner had filed the present petition under Article 226 of the Constitution of India seeking issuance of a writ in the nature of habeas corpus for production of his friend- Mr. Jagdish Malhotra, who was allegedly abducted on the night of 30th April, 2023 by Respondent No. 4-Sampark Foundation (Regd.) on the instance of Respondent No. 2 and 3, who are stated to be the missing person’s younger brother and sister in law respectively.
4. On 1st March, 2024 notice was issued to ld. Counsel for the State who accepted notice and produced a status report dated 1st March, 2024. As per the said status report, Mr. Jagdish Malhotra had been admitted by Respondent Nos. 2 and 3 in a rehabilitation centre namely ‘Nashamukti Paramarsh Evam Punarnivas Kendra’, Krishna Vihar, Ghaziabad, UP which is run by Respondent No. 4 herein, Sampark Foundation (Regd.). The Court then directed the Respondents to produce Mr. Jagdish Malhotra before the Court on the next date of hearing. The relevant portion of the order dated 1st March, 2024 is extracted hereinunder: 15:25
5. The matter was then taken up on 6th March, 2024 wherein the Court observed that Mr. Jagdish Malhotra was in wrongful detention in the Sampark Foundation, rehabilitation centre i.e., Respondent No.4. Further, on the said date, the Court recorded the following settlement terms:
15:25
12. Sh. Rajeev Malhotra has also agreed to pay a sum of Rs. 25,000/- today itself to his elder Brother Sh. Jagdish Malhotra so that he can maintain himself in the interregnum.
13. Keeping in view the facts mentioned above, though the respondent seems to be in wrongful detention in the rehabilitation centre mentioned above, since both the brothers have settled their disputes in the manner as mentioned above and have agreed not to create any hindrance in the life and property of each other, we refrain from proposing any further action. *** *** ***
17. Since both the brothers have entered into amicable settlement and have made statements during the course of proceeding of the present matter, they would remain bound by their such statements and undertakings and if they back out from such statement, they may face Contempt as the undertakings have been given to the Court as well.”
6. On 25th April, 2024 Mr. Jagdish Malhotra and his brother Rajiv Malhotra were present in Court along with their respective Counsel. On the said date, the parties assured the Court that they would readily comply with the directions contained in the order dated 6th March, 2024 and would execute the requisite documents i.e. relinquishment deed/cancellation with regard to the property bearing no. 194/5A/1, Gali No. 13- 14, Bhola Nath Nagar, Shahdara, Delhi-110032 and property bearing no. Plot No. 43, Radhey Shyam Park, Rajender Nagar, Sahibabad, Ghaziabad, U.P.-201005. The relevant portion of the order dated 25th April, 2024 is extracted hereunder:
15:25 Jagdish Malhotra also confirms the same.
5. Both the parties do not dispute that the directions contained in order dated 06.03.2024 pertained to property bearing no. 194/5A/1, Gali No. 13- 14, Bhola Nath Nagar, Shahdara, Delhi-110032 and property bearing no. Plot No. 43, Radhey Shyam Park, Rajender Nagar, Sahibabad, Ghaziabad, U.P.-201005. They both undertake that for due compliance of the directions contained in said order dated 06.03.2024, they would do the needful and would execute requisite documents viz. relinquishment deed or cancellation deed, as the case may be.
6. Barring the above two properties, the parties would always be at liberty to file appropriate petition for claiming right over any other property owned by them.
7. No further action is required in the present petition and the same stands disposed of in terms of the directions already contained in order dated 06.03.2024.”
7. Vide order of this Court dated 12th September, 2024, the settlement terms as recorded in the order dated 6th March, 2024 read with order dated 25th April, 2024 were given effect to by way of the following directions:
15:25 passed:-
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5. Both the brothers- Mr. Jagdish Malhotra and Mr. Rajeev Malhotra are present in Court today, in compliance of the order dated 15th July, 2024.
6. Mr. Rajeev Malhotra submits that he is willing to execute the documents in terms of the settlement agreed before this Court on 25th April, 2024, however, since he is in a financial crunch he is unable to bear the expenses of the execution and registration of the Ghaziabad property.
7. It is clear that the order dated 6th March, 2024 is merely recording of an agreement between the parties which is in the nature of a family settlement. In view of the fact that both the brothers are willing to execute the documents in each other’s favour as agreed, the following directions are issued:i) So far as Relinquishment Deed as also the Cancellation of the earlier Relinquishment Deed in respect of property bearing NO. 194/5A/1, Gali No. 13-14, Bholanath Nagar, Shahdara, Delhi-110032 are concerned, Mr. Rajeev Malhotra shall execute the said documents within a period of one month in favour of Mr. Jagdish Malhotra. The expenses for the registration of the same shall be borne by Mr. Jagdish Malhotra. ii) Insofar as the property bearing No. Plot No. 43, Radhey Shyam Park, Rajender Nagar, Sahibabad, Ghaziabad, U.P.-201005 is concerned, Mr. Jagdish Malhotra shall execute a Gift Deed and any other connected documents thereto in favour of Mr. Rajeev Malhotra within the same period and the said document shall be described as a Gift Deed/Family Settlement; iii) Upon the execution of the respective 15:25 documents within a period of one month, neither party shall interfere in the enjoyment and ownership of the said properties by the other. iv) If at any point of time Mr. Rajeev Malhotra wishes to get the said Gift Deed registered with the concerned Sub-Registrar, Mr. Jagdish Malhotra shall cooperate for signing in the Sub-Registrar’s Office. It is further made clear that the expenses for the registration of said Gift Deed shall be borne by Mr. Rajeev Malhotra; v) Let the draft documents be exchanged between the counsels within a period of two weeks and the execution of documents be undertaken on or before 20th October, 2024; vi) The above shall, however, not affect the rights of parties in terms of paragraph 6 of the order dated 25th April, 2024.”
8. As per the above order dated 12th September, 2024 one of the directions, which was issued, was for cancellation of the relinquishment deed in respect of the property bearing No.194/5A/1, Gali No. 13-14, Bhola Nath Nagar, Shahdara, Delhi-110032. The said cancellation of the relinquishment deed was to be registered before the concerned Sub-Registrar.
9. The present application has been moved informing this Court that the concerned Sub-Registrar has refused to cancel the relinquishment deed qua the property bearing No.194/5A/1, Gali No. 13-14, Bhola Nath Nagar, Shahdara, Delhi-110032. The Registrar has taken a position that only the Court has the power to declare or cancel any relinquishment deed as null and void. Further, the concerned Sub-Registrar has also refused to register the fresh relinquishment deed on the ground that since the relinquishment deed is 15:25 already existing qua the said property, a fresh relinquishment deed cannot be entertained.
10. The averments in the application read as under: -
11. Considering the fact that the settlement that was agreed to between the parties vide order dated 6th March, 2024 is in the nature of a family settlement, 15:25 this Court, is of the opinion that the dispute needs to be given a quietus and the settlement deserves to be implemented, as per principles envisaged in Order XXXII A of the CPC. Accordingly this Court declares that the earlier Family Settlement dated 25th May, 2023 and the relinquishment deed dated 1st June, 2023 registered as documents bearing registration number 5398 in Addl. Book No. 1, Volume No. 3772, on pages No. 109 to 113, 1st June, 2023 before the Sub-Registrar-IVb, Vivek Vihar, Delhi executed by Mr. Jagdish Malhotra in favour of Mr. Rajeev Malhotra shall be treated as null and void and would have no effect in the eyes of law. Rule 3 of Order XXXII A of the CPC reads as under: -
12. This order would thus enable parties to get a fresh relinquishment deed executed in respect of the property bearing No.194/5A/1, Gali No. 13-14, Bhola Nath Nagar, Shahdara, Delhi-110032. 15:25
13. Both the documents i.e. relinquishment deed/cancellation deed qua the property bearing no. 194/5A/1, Gali No. 13- 14, Bhola Nath Nagar, Shahdara, Delhi-110032 and property bearing no. Plot No. 43, Radhey Shyam Park, Rajender Nagar, Sahibabad, Ghaziabad, U.P.-201005, which are now to be executed by the concerned parties, in terms of the previous order dated 12th September 2024, shall be executed before the concerned Sub-Registrar-IVb, Vivek Vihar, Delhi, who shall take on record the order passed today by this Court so that the same can be reflected in his records as well.
14. The parties are directed to appear before the Sub-Registrar on 28th October, 2024 at 11am.
15. The application is disposed of in the aforesaid terms.
PRATHIBA M. SINGH JUDGE AMIT SHARMA JUDGE OCTOBER 21, 2024/dk/rks 15:25