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I.A. No. 7207/2009 in CS (OS) No. 1308/2002 Shri Mahendra Kumar Gupta ...Plaintiff
Through : Mr. P.S. Bindra, Adv.
Through : Mr. Sudhir Chandra Agarwal, Sr.
Adv. with Mr. G.K. Misra and Mr. Rajesh Pandit, Advs. for D1 & D2
Mr. Vikas Dhawan with Mr. Abhimanyu Mahajan, Advs. for D3
Mr. Manish Kumar with Mr. Amit Kumar, Advs. for D4 & D5
Mr. Virender Goswami with Mr. Vaibhav Kumar, Advs. for D6
Date of Decision: February 23, 2010
JUDGMENT
1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No in the Digest? MANMOHAN SINGH, J.
1. By this order I shall dispose of I.A. No.7207/2009 filed by defendant Nos. 1 and 2 under Section 151 of the Code of Civil Procedure, 1908 seeking suitable directions with regard to the valuation of all the joint properties as included in the order dated 16th September,
2006. 2010:DHC:1098
2. The present suit has been filed for partition, separate possession, rendition of accounts and mesne profits. Brief facts are that the property bearing No. 3, Amrita Shergil Marg, New Delhi – 110003 (old address being 39, Block-I, Ratendone Road, New Delhi – 110003 and hereinafter referred to as the „suit property‟) was granted to late Sh. Lala Hansraj Gupta vide a perpetual lease deed on 6th May, 1936 duly registered with the Sub-Registrar, Delhi.
3. A residential property was erected thereon and the same was made part of an HUF by the name of M/s Hansraj Gupta & Sons on 1st July, 1972. The members of this HUF were the Karta‟s i.e. late Sh. Hansraj Gupta‟s wife and his four sons being defendant Nos. 1, 3 and 6 as well as the plaintiff. Defendant Nos. 4 and 5 are the daughters of late Sh. Hansraj Gupta. Defendant No. 2 is the son of defendant No. 1. Sh. Hansraj Gupta expired on 3rd July, 1985 and left behind seven heirs. He also left behind a Will, the same having been executed on 28th July,
1985. The said Will has been supported by the plaintiff but is being alleged to be false by defendants 3 and 6 and the same is the subject of probate petition No. 62/1985 pending in this court.
4. The suit property had been leased out to a company by the name of Hansraj Gupta & Co. Pvt. Ltd. and late Sh. Hansraj Gupta used the same as his residence in the capacity of the CEO of the said company. After the death of Sh. Hansraj Gupta, the company allotted the residence to no one. At the time of his death, the occupants of the suit property were his widow (now deceased), defendant No. 1 and the children of defendant No. 1 and Mr. Raviraj Gupta. Defendant No. 1 proclaimed himself the Karta of the HUF and continued to reside in the suit property without the consent of all the other coparceners as to his Karta status.
5. The company surrendered the tenancy pursuant to the resolution passed by the Board of Directors on 12th January, 2002. Though defendant No. 1 never had the right of occupation of the suit property as Karta of the HUF, now especially after surrender of the tenancy by the company, he has absolutely no right to use or occupy the suit property. Hence the present suit was filed for partition etc. of the suit property.
6. This court passed an order dated 16th September, 2006 enumerating the properties which formed part of the estate of late Sh. Hansraj Gupta and so deserved to be partitioned in the present proceedings. An adjournment was granted to the parties to file affidavits in support the above-stated position. By the next order dated 22nd September, 2006 it was observed that affidavits of defendant Nos. 1, 2 and 6 and of the plaintiff were filed. Defendant No. 3 was to file his affidavit in two days. Defendant Nos. 4 and 5 wished to dwell on the matter a little further. The remaining affidavits were not filed eventually.
7. In the present application, defendant Nos. 1 and 2 have prayed that as contained in the order dated 16th September, 2006, all the properties that combine to form the estate of late Sh. Hansraj Gupta may be valued together and the share of all the parties be determined based on the same.
8. Defendant No. 1 has submitted that he is the Karta of the HUF and has been residing in the suit property since the last three decades. It is the wish of defendant No. 1 to retain the suit property. He has submitted that he has a share in the suit property as well as in the other joint properties forming part of the HUF and in case the value of the suit property turns out to be more than his and defendant No. 2‟s joint share (yet to be determined) in the same, defendant Nos. 1 and 2 are willing to compensate the other coparceners with the differential amount.
9. This court has allowed the other defendants to value the suit property and the applicants have stated that they have no objection to such valuation. It is submitted that if each property of the joint properties are taken up for partition separately, there would be more litigation and struggle. Further, despite the existence of other properties, a suit for partition of only the suit property was filed with the sole intention of dispossessing the defendant Nos. 1 and 2 from there.
10. Therefore, it has been prayed that this court pass directions with regard to valuation of all the joint properties stated in the order dated 16th September, 2006 and determination of each coparcener‟s share therein as otherwise, if a separate suit has to be filed for partitioning each and every property, the process would be long drawn, cumbersome and would involve multiple litigation.
11. Further, by way of this application defendant Nos. 1 and 2 have also brought forward the fact that a partition suit regarding property No. 20, Barakhamba Road, New Delhi labelled CS (OS) No. 1284/2002 is already pending before this court. The said property has been included in the list of joint properties of the HUF in the order dated 16th September, 2006. It has been prayed that the said suit may be clubbed with the present suit.
12. I have perused the application of defendant Nos. 1 and 2. The application filed by the defendant Nos. 1 and 2 is strongly opposed by the plaintiff and defendant No. 3. On 6th July, 2009 this Court granted defendant No. 3 two weeks time as the last opportunity to file a reply to the application under consideration. On 27th August, 2009 counsel for defendant No. 3 stated that the reply filed by defendant Nos. 1 to 3 may be ignored and treated as not filed. However, counsel for defendant NO. 3 has made an oral submission to the effect that as far as the suit property is concerned, defendant No. 3 has no objection if orders as regards this are passed.
13. The relevant portion of order dated 16th September, 2006 can be read as under: “Be that as it may, the parties are agreed on the properties and businesses which would form part of the estate of Late Lala Hansraj Gupta which deserves to be partitioned in the present proceedings. With the consent of all the parties, the same are detailed hereafter:-
1. 3, Amrita Shergill Marg, New Delhi
3. The following assets and properties held in the name of Hansraj Gupta and Co. Pvt. Ltd.:-
(i) Rudrapur
(ii) Kolhu assets
(iii) Misc. Godowns
(iv) Bijwasan
(v) D-179 Okhla Industrial Area Ph. I
(vi) 20 Netaji Subhash Marg
(vii) Sitapur - Land and Building
(viii) Ajmerigate Property No. 4634
(ix) Godown Lakhimpur
(x) Godown Dadri
(xi) Meerut Town Building
4. Property on the Meerut Delhi Road
5. Property held in the name of Raghushree- Madhoram Budh Singh firm
6. Land at Mehrauli
7. Chawri Bazar Properties:-
(i) Farashkhanna, Delhi
(ii) 510 Raghumall Gali, Chawri Bazar (iii) 3543 Chawri Bazaar, Delhi (iv) 3544 Chawri Bazaar, Delhi (v) 3545 Chawri Bazaar, Delhi (vi) 3546 Chawri Bazaar, Delhi (vii) 4759 Chawri Bazaar, Delhi (viii) 3760 Chawri Bazaar, Delhi (ix) 69 Chawri Bazaar, Delhi
8. Land at Haryana:-
(i) Lakharpur
(ii) Anagpur
9. Property in Kolkata:- 77/7 Mahatma Gandhi Road, Kolkata
10. Mussorie Property ? (i) Hotel Raghu Shree
(ii) Madho Bhawan
(iii) Raghu Niwas
11. Property held by Bharat Cable and property at Ajmeri Gate It is stated by Mr. Mahendra Kumar Gupta, plaintiff herein, that so far as property at Sr. No. 10 above mentioned is concerned, the same has already been directed to be partitioned by a court order in some other proceedings and he shall produce the court order in respect
14. In the same order, it was also observed that defendant Nos. 3, 6 and the plaintiff would have no objection to parting with 1/42 of the suit property and the same could be given to their two sisters being defendant Nos. 4 and 5. Further, if the other defendants were willing, defendant no. 3 had no objection to parting with 4/140 share of the value of 50% of the sale proceeds of property bearing No. 20, Barakhamba Road, New Delhi. Counsel for defendant Nos. 4 and 5 submitted that he would take instructions from his clients as to whether they would forego their claim with respect to the other properties in light of this settlement offered.
15. All the parties were directed to file affidavits stating their „no objection‟ to the contents of the order. The following persons have filed their respective affidavits stating as under:
(I) Mahendra Kumar Gupta, Plaintiff has filed an affidavit stating that he has no objection if 1/42 share in the suit property is given to each sister. Further, he has stated that he has no objection if the properties as mentioned in the order are partitioned.
(II) Desh Raj Gupta, Defendant No. 1 has filed an affidavit stating that he has no objection if 1/42 share in the suit property is given to each sister provided they undertake to (a) forego all their claims in all other assets of late Hans Raj objections and allow it to be probated. He has further stated that he has no objection if the properties as mentioned in the order are partitioned.
(III) Rajendra Kumar Gupta, defendant No. 6 has filed an affidavit stating that he has no objection if 1/42 share in the suit property is given to each sister provided they forego their claim in respect of other assets of late Hans Raj Gupta. Further, he has stated that he has no objection if the properties as mentioned in the order are partitioned.
16. No affidavit has been filed on behalf of defendant Nos. 4 and 5 in fact, in their written statement the said two defendants have stated the following aspects which seem pertinent:
(I) Defendant Nos. 4 and 5 will not give up their rights, title and claim in any of the properties belonging to late Hans Raj Gupta as they have a legitimate share in the same;
(II) In order dated 16th September, 2006 the parties have admitted that defendant Nos. 4 and 5 have rights, title and interest in the assets of late Hans Raj Gupta; and,
(III) Defendant Nos. 4 and 5 have filed a substantive suit for partition of all the properties held by late Hans Raj Gupta which is CS (OS) No. 106/2007 which is pending adjudication and in view of which the present suit, confined to one of the various properties which are subject matter of the other suit is non-maintainable.
17. During the course of hearing, it was brought to the notice of this Court that the various properties mentioned in order dated 16th September, 2006 are embroiled in several separate litigations. In lieu of this, an objection was raised by defendant No. 3 stating that the properties sought by defendant Nos. 1 and 2 to be valued together cannot be valued together as individual proceedings are on-going with respect to the same. A list of these properties with the pending suits/ status is given below: Sr. No. Property included in Annexure ‘D-2’ Remarks
1. 3, Amrita Shergill Marg The present suit pertains to this property.
2. 20 Barakhamba Road A suit bearing No.1284/2002 has already been instituted for partition and/or development of this property and the same is pending before this Court. Further, in this property 50% ownership of undivided and undefined portion of the property vested in a third party, i.e. United Towers Limited. Further third party rights have been created even in respect of this property. This property cannot be introduced in the present litigation. Further, the property as owned between the members of the family already stands divided by virtue of Memorandum of Understanding dated 7th March, 1995 executed between the parties.
3. M/s. H.G. Gupta & Sons
31 Shivaji Marg, Najafgarh, ND 34 Shivaji Marg, Najafgarh, ND This was a partnership firm, which has since been dissolved and a receiver has been appointed by the orders of this Court passed in Suit No.1794/1985. Partition has already taken place and the directed to be distributed and/or appropriated as per the orders of the court.
4. Hansraj Gupta & Co. Private Limited Rudrapur Kolhu Assets Misc. Godowns Bijwasan D-179, Okhla Indl. Area Ph.I 20, Netaji Subhash Marg Sitapur-Land and Building Ajmeri Gate Property No.4634 Godown Lakhimpur Godown Dadri Meerut Town Building The properties mentioned under this head (except properties namely, 20, Netaji Subhash Marg, Sitapur- Land and Building, Meerut Town Building-treated separately) are owned by the company which has been incorporated under the Indian Companies Act, 1913 and is a separate legal entity from its members. Further, the said company has not been wound up and has a number of equity shareholders apart from the parties to the suit. Accordingly, by no stretch of imagination, the properties of the company incorporated under the Indian Companies Act can be introduced in this litigation.
5. Meerut-Delhi Road Together with properties being 20 Netaji Subhash Marg, Meerut Town Building and Sitapur Land and Building were exclusively owned by late Lala Hansraj Gupta in his individual capacity and were not jointly owned by the parties to the present suit. In any event, the division of these properties is dependent on the outcome of the probate proceedings bearing PR No.62/1985. As per the will propounded by defendant No.l, these properties, alongwith various other properties, are held individually by late Lala Hansraj Gupta and the division of the said properties as per the will propounded by defendant No.1, if upheld would vest in public charitable trust.
6. Raghushree Madhoram Budh Singh This is a partnership firm and a suit bearing No.518/1993 for dissolution and rendition of accounts is pending before the district court. Apart from plaintiff, defendant Nos.1, 3 and 4, a Limited is also a partner. Accordingly, this property can also not be included in the present
7. Land at Mehrauli Same as at (v) above.
8. Chawri Bazaar Properties Farashkhanna, Delhi 510, Raghumali Gali Chawri Bazaar 3543 Chawri Bazaar, Delhi 3544, Chawri Bazaar, Delhi 3545, Chawri Bazaar, Delhi 3546, Chawri Bazaar, Delhi 4759 Chawri Bazaar 3760 Chawri Bazaar 69, Chawri Bazaar, Delhi The properties namely, 3543 Chawri Bazaar, Delhi; 3544 Chawri Bazaar Delhi; 3545, Chawri Bazaar, Delhi; and 3546 Chawri Bazaar, Delhi are not owned by any of the party to the present litigation. These properties were exclusively owned by late Lala Hansraj Gupta in his individual capacity and were not jointly owned by the parties to the present suit. In any event, the division of these properties is dependent on the outcome of the probate proceedings bearing PR No.62/1985. As per the will propounded by defendant No.1, these properties, alongwith various other properties, are held individually by late Lala Hansraj Gupta and the division of the said properties as per the will propounded by defendant No.1, if upheld would vest in public charitable trust. The properties, namely, Farashkhanna, Delhi; 510, Raghumali Gali Chawri Bazaar; 4759 Chawri Bazaar; 3760 Chawri Bazaar and 69, Chawri Bazaar Delhi are entirely tenanted and not even jointly owned by all the parties to this suit. Accordingly, the same cannot be made available for partition in the present
9. Land at Lakharpur, Haryana Land at Anangpur, Haryana These pertain to leasehold rights which are outside the jurisdiction of this Court, and, therefore, it is neither convenient nor permissible to introduce these properties to the present litigation. Further, the patta rights in these properties already stand divided in the name of all the parties to the suit.
10. Calcutta Property This property is jointly owned by this Court and is neither convenient nor permissible to introduce this property in the present proceedings. Further, the property is under occupation of the tenants and accordingly cannot be included in the present proceedings.
11. Mussoorie Property-Hotel Raghu Shree Madho Bhawan Raghu Niwas Again, this properties is outside the jurisdiction of this court and is owned by the partnership firm viz. M/s. Hotel Raghushree in which late Smt. Angira Devi i.e. mother of the parties was also a partner.
12. Raj Enamel The property owned by this company has already been sold and the matters pertaining to this have been settled.
13. Mrs. Angira Gupta properties K.G. Marg in Kavi Nagar Raghu Ganj, Chawri Bazaar 911 Gali Inderwali, Kucha Pati Ram Godown at Lakhimpur 50% Shares in partnership – Hotel Raghushree at Mussorrie These properties are not joint property and some of the properties are outside the jurisdiction of this court.
14. Bharat Cables Ajmeri Gate Even though disputed by answering defendant, defendant No.1 is claiming to be absolute owner of this property. Moreover, these are only the tenancy rights in the properties.
15. Residential properties given to MKG and RKG by M/s. HRG and Co. Pvt. Ltd. 16-B Mathura Road, N.D. R-235, Greater Kailash, Part-I In these properties, Hansraj Gutpa and Co. Pvt. Ltd. is the tenant and accordingly cannot be included in the present proceedings.
16. M/s. Central Distillery Ltd. M/s. Rampur Engineering Co. Ltd. As is obvious by their description, these pertain to limited companies incorporated under the Companies Act, and, therefore, cannot, by any stretch of imagination, be called joint property or joint family property of the parties to the present litigation. existing claim over these companies.
18. It is clear from the above-mentioned list and various documents on record that there are very many suits are pending inter-se between the parties, including the present suit. All these suits are at different stages of proceedings and have as their subject different subject matters for instance, certain suits are for partitioning properties, some are for declaration with respect to Hans Raj Gupta & Co., some are as regards arbitration matters and some are for dissolution of the various firms. Further, the suits are pending in this Court as well as in Tees Hazari Courts. In light of these facts and circumstances, it appears to be confoundedly unreasonable to club the valuation of all the properties to be carried out together. There is also no consent of all the parties in this regard.
19. As far as the order dated 16th September, 2006 is concerned, affidavits of all the parties were required to be filed for the said order to be acted out upon. A detailed discussion as regards the lack of affidavits and the conditional acceptance of the said order by the parties has already been mentioned in paragraphs 14 to 16 of this order.
20. The performance of parties as stipulated/stated in the said order was clearly dependant on the acceptance of the same by all the concerned parties i.e. the said order can be said to be in the form of a proposal which would have materialised in case of acceptance on behalf of all the parties concerned.
21. After scrutinising the peculiar circumstances of the present matter I am of the considered opinion that the prayer sought in the present application cannot be allowed, in view of the difficulties explained by the parties. Therefore, keeping in mind the above discussion, the present application filed by defendant Nos. 1 and 2 is dismissed. CS (OS) No. 1308/2002 List before Joint Registrar on 25th March, 2010.
MANMOHAN SINGH, J. FEBRUARY 23, 2010 dp