Full Text
HIGH COURT OF DELHI
SMT. SEEMA KOHLI .....Plaintiff
Through: Mr.P.D.Gupta, Sr. Adv.
Through: Mr.Ajay Verma, Sr. Adv.
K.Verma, Mr.Armaan Verma, Advs. for D-1-2.
JUDGMENT
1. This application has been filed by the plaintiff under Order XII Rule 6 read with Order XX Rule 18 of the Code of Civil Procedure, 1908 (in short, ‘CPC’), praying for a preliminary decree of partition to be passed, thereby declaring the plaintiff and defendant nos. 1 to 3 to be each owning a 1/4th share in property bearing No. A-7, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi (hereinafter referred to as ‘Suit Property’). The plaintiff asserts that since there are no triable issues that arise to be adjudicated by this Court, a preliminary decree ought to be passed in the Suit. Case of the Plaintiff
2. In the plaint:a) The plaintiff asserts that the father of the plaintiff and defendant nos.[1] to 3, late Shri Suresh Chander Dua, was the owner of one-half share of the Suit Property, and died intestate on 05.06.2007, leaving behind the plaintiff (daughter), defendant nos. 1 and 2 (sons), defendant no. 3 (daughter), and defendant no. 4 (wife); b) It is asserted that the Suit Property was purchased by late Shri Suresh Chander Dua along with one late Shri Brij Lal and late Shri Bishambar Lal, vide Sale Deed dated 28.09.1967; c) Shri Brij Lal died intestate on 04.12.1968. The legal heirs of Shri Brij Lal released their entire 1/3rd share in the Suit Property in favour of the other two co-owners, that is, late Shri Suresh Chander Dua and late Shri Bishambar Lal, vide three separate Release Deeds dated 20.11.1975, 07.09.1978, and 20.03.1985; d) Later, Shri Bishambar Lal sold his one-half undivided share in the Suit Property to defendant nos. 1 and 2 vide Sale Deed dated 16.03.1990, thereby making late Shri Suresh Chander Dua the owner of one-half undivided share in the Suit Property, while the defendant nos. 1 and 2, jointly, to be the owner of the other one-half share; e) Upon the death of late Shri Suresh Chander Dua, his onehalf share in the Suit Property devolved upon the parties to the Suit; f) Thereafter, out of their natural love and affection for their mother, that is, defendant no.4, the plaintiff, and defendant nos.[1] to 3 executed a Relinquishment Deed dated 11.10.2007, relinquishing their share in the Suit Property in favour of defendant no.4, thereby making her the absolute owner of one-half undivided share in the Suit Property, which was earlier owned by the father of the plaintiff and defendant nos.[1] to 3; g) It is asserted that the Suit Property continued to be occupied by defendant nos.[1] and 2 and defendant no.4; h) The plaintiff asserts that the defendant no.4, out of her love and affection, allowed certain portions of the Suit Property under her possession to be used by the family of defendant nos.[1] and 2, and in view thereof, they agreed to take care of defendant no. 4 and also provide for her maintenance and for her needs; i) The plaintiff asserts that as defendant nos.[1] and 2 stopped paying maintenance to defendant no.4 and started misbehaving and mishandling her and tried to dispossess her from the Suit Property, the defendant no.4 was constrained to file an application under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (in short, ‘MWPSC Act’); j) Defendant nos. 1 and 2, in turn, filed a Suit, being CS (OS) No. 388/2018 titled Sunil Dua & Anr. v. Shashi Rani Dua & Ors., propounding a Will dated 14.10.2005 of late Shri Suresh Chander Dua, and seeking cancellation of the Relinquishment Deed dated 11.10.2007 executed by them. Defendant nos. 1 and 2 claimed that they were also the owners of one-half share in the Suit Property belonging to their father; k) The said Suit was withdrawn by defendant nos. 1 and 2 on 30.07.2019, thereby abandoning their claim under the alleged Will dated 14.10.2005, as also their challenge to the Relinquishment Deed dated 11.10.2007; l) The learned District Magistrate in the proceedings under the MWPSC Act, vide an Order dated 15.01.2019, directed defendant nos. 1 and 2 to hand over peaceful vacant possession of the portion/room on the ground floor and top floor of the Suit Property to the defendant no. 4, and remove their belongings from the garage on the ground floor and the second floor of the Suit Property; m) Defendant nos. 1 and 2 challenged the said Order by way of a Writ Petition, being W.P. (C) 1595/2019 titled Shri Sunil Dua & Anr. v. State (NCT of Delhi) & Ors.. This Court, however, refused to interfere with the Order of the learned District Magistrate, and therefore, defendant NO. 4, in execution of the order passed by the learned District Magistrate, was put in possession of the Suit Property; n) The plaintiff asserts that after the dismissal of the Suit, being CS (OS) No. 388/2018 titled Sunil Dua & Anr. v. Shashi Rani Dua & Ors. filed by defendant nos. 1 and 2, the defendant no. 4, out of her natural love and affection, executed a Gift Deed dated 02.09.2019 in favour of the plaintiff and defendant no. 3, thereby transferring her entire one-half share in the Suit Property to them, and also handed over the actual physical possession of the Suit property to them; o) The plaintiff asserts that thereafter they called upon defendant nos. 1 and 2 to hand over the title deeds in respect of the one-half share of the Suit Property, however, the said defendants refused to do the same; p) The plaintiff, therefore, filed the present Suit praying for the following relief:- “A) Pass a preliminary decree of partition in respect of property bearing No. A-7, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi, admeasuring 416 sq. yds., thereby holding the plaintiff and the defendant No. 1 to 3 to be the co-owners to the extent of 1/4th share each; B) appoint a Local Commissioner to inspect the suit property and suggest the ways and means to divide/partition the suit property by metes and bounds; In the alternative, if the suit property is found to be not divisible by metes and bounds, then the same be ordered to be put to inter se bidding between the parties, failing which a final decree may be passed; C) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining them from creating any third party interest in the suit property in any manner. OR D) Pass a decree of mandatory injunction, thereby directing the defendant Nos. 1 and 2 to hand over the original title deeds of the half share of the property, which was earlier in the name of the father of the co-owners of the property, i.e. plaintiff and defendant No. 1 to 3. E) Award costs of the proceedings throughout;” Submissions of the learned Senior Counsel for the plaintiff
3. The learned senior counsel for the plaintiff asserts that ownership of one-half share of the Suit Property of the defendant no.4 cannot be disputed by defendant nos. 1 and 2. He submits that defendant nos. 1 and 2 had earlier filed a Suit challenging the Relinquishment Deed dated 11.10.2007 executed by them in favour of defendant no. 4. The said Suit was, however, withdrawn by defendant nos. 1 and 2, thereby abandoning their challenge to the Relinquishment Deed dated 11.10.2007 and/or to the title of defendant no.4 to one half share in the Suit Property.
4. He submits that defendant no.4, being the absolute owner of one-half share of the Suit Property, has validly gifted the same to the plaintiff and defendant no. 3 through Gift Deed dated 02.09.2019. The Gift Deed cannot now be challenged by defendant nos. 1 and 2 on the grounds on which they had earlier filed their Suit, as they had withdrawn the same unconditionally and without any leave to file a fresh Suit.
5. He submits that the only defence raised by defendant nos. 1 and 2 in their Written Statement/Counter Claim is that defendant no. 4 had entered into a family settlement with defendant nos. 1 and 2 by executing an Agreement of Understanding dated 19.10.2010. Defendant nos. 1 and 2 have asserted that in terms of the said Agreement, defendant no. 4 had agreed to execute a Will of her share in the Suit Property in favour of defendant nos. 1 and 2. He submits that defendant no. 4, having executed a Gift Deed dated 02.09.2019 of her share in the Suit Property in favour of the plaintiff and defendant no. 3, was no longer bound by the said term of the Agreement of Understanding dated 19.10.2010.
6. He submits that, in fact, defendant nos. 1 and 2 in their earlier Suit had also claimed that the said Agreement of Understanding was executed between defendant no. 4 and defendant nos. 1 and 2, with the husband of defendant No. 3 obtaining signatures thereon from defendant nos. 1 and 2 in confidence. They had pleaded that the said Agreement, however, is exhausted and has become non-enforceable and is otherwise void. The learned senior counsel for the plaintiff submits that defendant nos. 1 and 2 cannot now place reliance on the Agreement of Understanding to make a claim on the Suit Property.
7. He submits that, in any case, there cannot be a specific performance directed to execute a Will. He submits that, unfortunately, defendant no. 4 has since expired and, even otherwise, the Agreement to execute a Will can no longer be enforced.
8. He submits that as the Written Statement of defendant nos.[1] and 2 reveals no worthwhile defence, and is merely a moonshine defence, hence, a decree ought to be passed in favour of the plaintiff under Order XII Rule 6 of the CPC. In support, he relies upon the judgment of this Court in Monika Tyagi & Ors. v. Subhash Tyagi & Ors., 2021 SCC OnLine Del 5400. Submissions of the learned Senior Counsel for the defendant nos.[1] and 2
9. On the other hand, the learned senior counsel for defendant nos. 1 and 2 submits that there is no admission to the claim of the plaintiff in the Written Statement filed by defendant nos. 1 and 2 in the present Suit. The Suit is not only defended by defendant nos.[1] and 2, but also a Counter Claim has been filed by them.
10. He submits that for purposes of passing a Decree under Order XII Rule 6 of the CPC, the admission in the Written Statement has to be clear and unequivocal. Order XII Rule 6 of the CPC cannot be invoked where triable issue(s) arise for adjudication.
11. He submits that merely because the earlier Suit was withdrawn by defendant nos. 1 and 2, the defendant nos. 1 and 2 are not debarred from raising a similar plea in their defence in the present Suit. In support, he places reliance on the judgment of the Supreme Court in Kandapazha Nadar & Ors. v. Chitraganiammal & Ors., (2007) 7 SCC 65.
12. He submits that in the present case, defendant no. 4, in the Agreement of Understanding dated 19.10.2010, undertook to execute a Will of her share in the Suit Property in favour of defendant nos.[1] and 2. The said Agreement is in nature of a family arrangement/agreement, which has a superior status and can be enforced. In support, he places reliance on the judgment of the Supreme Court in Commissioner of Wealth Tax, Mysore v. Her Highness Vijayaba, Dowger Maharani Saheb of Bhavnagar Palace, Bhavnagar & Ors., (1979) 2 SCC 213; and Ripudaman Singh v. Tikka Maheshwar Chand, (2021) 7 SCC 446; and of this Court in Ravi Singhal & Ors. v. Manali Singhal & Ors., 2000 SCC OnLine Del 546; and Dinesh Gupta & Ors. v. Rajesh Gupta & Ors., 2018:DHC:7300.
13. He submits that the plaintiff, defendant no. 3, and defendant no.4, in their Written Statement filed in the earlier Suit filed by the defendant nos. 1 and 2, had themselves relied upon the Agreement of Understanding dated 19.10.2010. The Defendant no. 4 had also filed her application under the MWPSC Act claiming maintenance and rights in the Suit Property based on the said Agreement of Understanding. He submits that, therefore, defendant no. 4 was bound by the same and could not have executed the Gift Deed dated 02.09.2019 in favour of the plaintiff and defendant no. 3.
14. He submits that though the Agreement of Understanding dated 19.10.2010 obliges defendant no. 4 to execute a Will of her share in the Suit Property, in effect, the same creates a life interest in the Suit Property in favour of defendant no.4 and the said share of the Suit Property was to thereafter devolve on the defendant nos. 1 and 2. Analysis & Finding
15. I have considered the submissions made by the learned counsels for the parties.
16. Order XII Rule 6 of the CPC reads as follows: “ORDER XII Admissions
6. Judgment on admissions.—(1) Where admissions of fact have been made either in the pleading or otherwise; whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question-between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”
17. Explaining the above provisions, the Supreme Court in Karan Kapoor v. Madhuri Kumar, (2022) 10 SCC 496, has held that the above provision confers a discretionary power to a Court who ‘may’, at any stage of the Suit, on the application of any party or on its own motion, and without waiting for determination of any other question between the parties, make such Order or give such Judgment as it may deem fit having regard to any admission made by the parties. The said power should be exercised only when specific, clear, and categorical admission of facts and documents are on record. It is intended to relieve the parties from a full-fledged trial and to pass a Judgment/Decree without taking any evidence, with an admission of facts raised by one side and admitted by the other.
18. In R.K. Markan v. Rajiv Kumar Markan & Anr., 2002 SCC OnLine Del 148, this Court reiterated that for the passing of a Decree on the basis of admission in the pleadings, the admission has to be unequivocal, unqualified, and should be taken as a whole and not in part.
19. In Monika Tyagi & Ors. (supra), a learned Single Judge of this Court held that the plea taken by the defendant in the Written Statement can be considered by the Court to find out whether it discloses any meaningful defence or not. If the pleadings are vague and are in the nature of total moonshine, the provisions of Order XII Rule 6 of the CPC would be attracted, and the Court would be fully justified in not sending the case for trial but to pass a Decree based on admission.
20. Applying the above test to the facts of the present case, it has to be considered whether the defence raised by defendant nos. 1 and 2 in the present Suit is a moonshine defence for which the parties should not be relegated to a trial but a Decree be passed in favour of the plaintiff at this stage itself.
21. As is noted hereinabove, the plaintiff has placed much reliance on the earlier Suit filed by defendant nos. 1 and 2 and its withdrawal, to contend that defendant nos. 1 and 2 cannot now place their defence on a challenge to the title of defendant no. 4 to one-half share of the Suit Property. In this regard, it is to be noted that defendant nos. 1 and 2 had filed the earlier Suit, that is, CS(OS) 388/2018, contending therein that the father of the plaintiff herein and defendant nos. 1 to 3, late Shri Suresh Chander Dua, had executed his last and final Will on 14.10.2005, bequeathing his share in the Suit Property in favour of defendant nos. 1 and 2. They stated that under the mistaken fact that their father had died intestate, they executed a Relinquishment Deed dated 11.10.2007 in favour of their mother, that is, defendant No. 4. They prayed for the following reliefs in CS(OS) 388/2018: “a) pass a decree thereby cancelling and declaring the relinquishment deed dated 11.10.2007 duly registered vide document NO. 4889, Addl. Book No.1, Volume No. 791, on pages 131 to 136 on 11.10.2007 in the office of SR-II, Punjabi Bagh, New Delhi, as null and void;
(i) Direct the defendant No. 4 to cancel the entries of the registration of document No. 4889, Addl. Book No.1, Volume No. 791, on pages 131 to 136 on 11.10.2007 in the office of SR-II, Punjabi Bagh, New Delhi;
(ii) Direct the defendant No. 4 not to register any document of transfer, gift, mortgage, sale deed, Will on the basis of the relinquishment deed dated 11.10.2017 registered as document No.4889, Addl. Book No.1, Volume No.791, on page 131 to 136 on 11.10.2007 in the office of SR-I, Punjabi Bagh, New Delhi; b) Pass a decree thereby Declaring the plaintiffs as the absolute owners of the share of Late Shri S.C. Dua in property bearing No.A-7, Bhagwan Dass Nagar, East Punjabi Bagh, New, Delhi; c) Pass a decree thereby Restraining- the defendant No.1 from executing any document of transfer of title in favour of any third party; d) Costs of the suit may also be awarded in favour of the plaintiffs and against the defendants;” (Emphasis supplied)
22. The said Suit was unconditionally withdrawn by the defendants vide Order dated 30.07.2019 of this Court. The defendants neither prayed for nor were granted leave to institute a fresh suit in respect of the subject matter of the Suit. In terms of the Order XXII Rule 3 (4) of the CPC, the defendants shall therefore be precluded from instituting any fresh Suit in respect of the said subject matter or part of the claim. They, however, would not be precluded from taking the same plea in defence to the present Suit. Reference in this regard may be had to the judgment of the Supreme Court in Kandapazha Nadar (supra), wherein it has been held as under:
23. Having said the above, it is to be noted that the defendants in the present Suit, not only in their defence but also in the Counter Claim, based their defence/claim on the Agreement of Understanding dated 19.10.2010 executed between them and their mother, the erstwhile defendant no.4. The prayers made in their Counter Claim by the defendants, are reproduced herein under: “i. pass a decree declaring the Gift Deed dated 02.09.2019 null and void, illegal and non est, and of no effect insofar as the right, title or interests of Counter Claimants are concerned particularly in respect of the 50% share of the Suit Property which belonged to late Shri Suresh Chander Dua; ii. pass a decree declaring that Counter Claimants are entitled to have a Will executed by Defendant No. 3 in their favour with respect to 50% share of late Shri Suresh Chander Dua in the Suit Property; iii. pass a decree for specific performance directing Defendant No.3 to execute a Will with respect to 50% share of late Shri Suresh Chander Dua in the Suit Property, equally bequeathing the same in favour of Counter Claimants; iv. pass a decree declaring that in view of the Family Settlement as recorded in document dated 19.10.2010, Defendant No. 3 could not execute the Gift Deed dated 2.9.2019; v. pass a decree of permanent injunction restraining Defendant Nos. 1 & 2 from acting in any manner pursuant to Gift Deed dated 2.9.2019 or creating any right, title or interests in favour of any person/third party based thereon; vi. pass a decree of permanent injunction restraining Defendant No.3 from in any manner acting under the Relinquishment Deed dated 11.10.2007 with respect to 50% share of late Shri Suresh Chander Dua in the Suit Property other than making a Will with respect thereto in favour of Counter Claimants.”
24. As far as the claim based on the purported Will dated 14.10.2005 of late Shri Suresh Chander Dua, the father of the plaintiff and defendant nos. 1 to 3 is concerned, the defendant no. 1 and 2, having withdrawn their Suit unconditionally and without any leave from the Court, are barred from making such claim. The defendant nos. 1 and 2 have also not filed a petition seeking probate of the said purported Will till date.
25. Even otherwise, in the Agreement of Understanding dated 19.10.2010, the defendant nos. 1 and 2 have admitted to the fact that their mother, the erstwhile defendant no.4, was holding 50% of the share in the Suit Property in her favour. I may reproduce the relevant Clauses of Agreement of Understanding, as under: “That the first party, second party and third party are joint co owners of the Residential house No. A-7, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi-110026 in 50%, 25% and 25% respectively and the said property is mortgaged with Karnataka Bank Ltd. against the Bank Limits being enjoyed by Phoenix Cables Pvt. Ltd. xxxx
4. That the A-7, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi-10026 shall be shared between all three parties to this agreement. Ground Floor possession and the Roof right shall remain with First Party along with possession of Garage Rooms on Ground floor and Second Floor, First Floor possession shall remain with Second Party along with Garage Room on First Floor and Second Floor possession shall remain with Third Party along with Garage Room on Third Floor. Property papers as required by law in favour of each other shall be executed in same pattern. However the status of the ownership of the property can remain status co if parties to this agreement-agree. Valuation of the first and second floor shall be evaluated by registered valuer appointed by Shri Arun Nandrajog and the value of the floor shall decided by Valuer and Arun Nandrajog.”
26. The defendants themselves have placed reliance on and have based their entire claim and Counter Claim on Clause 15 of the said Agreement of Understanding dated 19.10.2010, which itself presuppose that the defendant no.4 owned 50% of the share in the Suit property in her own right and is entitled to bequeath the same to the defendants. Clause 15 of the Agreement of Understanding is reproduced herein below:
been agreed by the First Party.”
27. Therefore, in view of the above, the defendant nos. 1 and 2 cannot now be allowed to contend that the erstwhile defendant no.4, that is, their mother, did not have 50% share in the Suit Property.
28. The defendant nos. 1 and 2, in their Suit, had also specifically prayed for an order of injunction restraining the erstwhile defendant no. 4 from transferring her share in the suit property to any third person. They abandoned the said prayer. They cannot now be allowed to seek the same prayer in form of their defence to the transfer of the Suit Property made by the erstwhile defendant no. 4.
29. In addition to the above, as far as the claim of the defendant nos.[1] and 2 based on the abovementioned Agreement of Understanding dated 19.10.2010 is concerned, though erstwhile defendant no.4, that is, the mother of the plaintiff and the defendants, had initiated proceedings under MWPSC Act and also pleaded in her Written Statement filed to the Suit of the defendant nos. 1 and 2, that the said Agreement of Understanding is valid and binding on her, it was the defendant no. 1 and 2 who asserted to the contrary in the Suit filed by them, and contended as under:
disagreement arose between the plaintiff themselves with regard to the factories run by the plaintiffs at Wazirpur and Nongloi. As far as the plaintiffs recollect, in the year 2010 or nearabout, the kitchen of plaintiff No. 1 and defendant No. 1 was common, on the ground floor. In that connection exchange of hot words took place, between the wife of the plaintiff No. 1 and defendant No. 1 and in that exchange of words an issue regarding the use of the property arose. A dispute arose regarding the working of the kitchen. This dispute also resulted in a quarrel between the son of plaintiff and son of defendant No.2. Till then the plaintiffs never doubted the husband of defendant No. 2 and at his instance signed document brought by him as the plaintiffs had confidence in him at that point of time and did not doubt his conduct. In this manner, under these circumstances as far as the plaintiffs recollect, the plaintiffs had signed same documents, which is claimed by husband of defendant No.2 as a Memorandum of Understanding. The said Memorandum of Understanding, since the dispute arose between brothers and the mother in law and daughter in law, the husband of defendant NO. 2, had obtained their signatures. Consequently in the year 2012 or near about, the kitchen of plaintiff No. 1 became separate and the wife of plaintiff No. 1, continued with the kitchen on the first floor, while the kitchen of the wife of plaintiff No. 2 was on the second floor. This exhausted the alleged document/Memorandum of Understanding signed and the same became non enforceable. The said Memorandum of Understanding cannot be made the basis of arbitration as has been set up in the Email dated 18.05.2018. It is stated that the husband of defendant No. 2 being an interested party and having a bias in his mind, cannot act as an Arbitrator. The alleged Memorandum of Understanding is otherwise void and not enforceable at law.”
30. The defendant nos. 1 and 2 herein, having asserted in CS(OS) 388/2018 that the Agreement of Understanding dated 19.10.2010 was void and was not enforceable in law, cannot now base their claim on the said Agreement of Understanding. The defendant nos. 1 and 2 cannot be allowed to approbate and reprobate.
31. Even otherwise, Clause 15 of the Agreement of Understanding dated 19.10.2010, on the basis of which the entire defence and the Counter Claim of the defendants rests, states that the erstwhile defendant no.4, that is, mother of the parties shall execute a Will in regard to all her immovable properties in favour of the defendant nos.[1] and 2 in equal ratio and shall have no right to cancel such Will. Though there is no doubt in the proposition of law that a family settlement entails a sanctimonious position and should ideally be enforced as these settlements are aimed to bring about a settlement of disputes between the family members, however, in the present case, the same cannot be enforced as: (a) the erstwhile defendant no.4 has unfortunately expired; (b) the said clause does not contain any embargo on the erstwhile defendant no.4 to transfer her share in the Suit Property during her lifetime. In fact, it specifically authorizes the erstwhile defendant no.4 to transfer her share in the Suit Property to a third party in case the defendant nos.[1] and 2 fail to comply with their obligation of paying maintenance to her in terms of the Agreement of Understanding dated 19.10.2010; (c)in the present case, it is pertinent to note that the erstwhile defendant no.4, that is, the mother of the parties, was forced to institute a proceeding under the MWPSC Act. Maintenance was granted to her by the learned District Magistrate, vide an Order dated 15.01.2019, and the defendants were directed to evict themselves from the Ground Floor and the Top Floor of the Suit Property. The said Order of the learned District Magistrate was challenged by the defendant nos.[1] and 2 before this Court by way of a Petition, being W.P. (C) 1595/2019 titled Shri Sunil Dua & Anr. v. State (NCT of Delhi) & Ors, which was dismissed by the Order dated 18.02.2019 of this Court. It is stated that it was only when the defendant nos. 1 and 2 failed to obtain any favourable order, the maintenance was paid by them to the erstwhile defendant no.4. These facts have remained undisputed by the defendants. Section 16(c) of the Specific Relief Act, 1963 provides that if a party to a contract fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him, he shall not be entitled to seek specific performance of the said contract. The defendant nos. 1 and 2 having refused to perform their obligations under the Agreement of Understanding, in terms of Section 16 (c) of the Specific Relief Act, 1963, they cannot now seek specific performance thereof; and,
(d) As noted hereinabove, the defendant nos. 1 and 2 in their
Suit, that is, CS (OS) No. 388/2018 titled Sunil Dua & Anr. v. Shashi Rani Dua & Ors., had also prayed for an order restraining erstwhile defendant no. 4 from transferring the Suit Property. The defendant nos. 1 and 2 withdrew the said Suit unconditionally and without reserving any right to claim this relief in other proceedings. The defendant nos. 1 and 2, therefore, have abandoned their rights, if any, under the Agreement of Understanding.
32. As mentioned hereinabove, the Order XII Rule 6 of the CPC confers a discretionary jurisdiction to a Court to pass a decree where inter alia it finds that the defence alleged by the defendants is a moonshine and is not entitled to succeed. Such jurisdiction may also be exercised where the defence raised by the defendants does not raise any triable issue. The present would be one such case. Conclusion & Direction
33. In view of the above, the application is allowed.
34. A preliminary decree declaring the plaintiff and the defendant nos.[1] to 3 to be the co-owner of the Suit Property, that is, A-7, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi, with each having 1/4th (25%) share therein, is hereby passed.
35. The Counter Claim of the defendant nos. 1 and 2, that is, CC No. 7/2020, is dismissed.
36. There shall be no orders as to costs.
37. Let a Decree Sheet be drawn accordingly. CS(OS) 617/2019 & IAs 16651/2019, 10620/2021
38. The parties are given an opportunity to explore possibility of arriving at a settlement on the final division of the Suit Property.
39. List before the Court on 21st October, 2024.
NAVIN CHAWLA, J AUGUST 5, 2024/rv/Arya/VS Click here to check corrigendum, if any