Sukruti Dugal v. Jahnavi Dugal & Ors.

14. According to him, the facts clearly establishes the collusion between the family members of defendant No. 1 and suppression of material facts by the plaintiff while seeking status quo order. On this ground only, the order of which vacation is sought is liable to be vacated.

15. Further, it is the case of Mr. Dutt that the plaintiff does not have any prima facie case in her favor, when admittedly as per the title documents of the Vasant Vihar property has been in the joint names of S.N. Dandona and his wife and Kailash Hill property is in the name of S.N. Dandona. This averment of defendant No.3/applicant in the written statement has not been rebutted.

16. He submitted that the reliance placed by the plaintiff on the photocopies of the documents of S.N. Dandona, pertaining to Vasant Vihar property is misplaced when the sale deed of the Vasant Vihar property stands in the name of S.N. Dandona and his wife. Thus no prima-facie case of HUF is made out by the plaintiff. He submits that the properties are not HUF properties. Even, if it is considered on a demurer that the properties are HUF properties, even then the plaintiff does not a prima facie case.

17. According to him, it is a well settled principle of law that there can be a partial partition between two branches of the Joint Hindu Family executed by the heads of the two branches of Joint Hindu Family even without consent of other members.

18. In the present case, there was clearly a partition between the two branches headed by the defendant No. 1 and defendant No. 3 and since a larger share came to the family branch of the defendant No. 1, no consent of family of the plaintiff was required for such partition, which was more than fair and equitable for their family branch, who were getting the larger share. In support of his submission, Mr. Duttt has relied upon the following Judgments:

1. Kalloomal Tapeswari Prasad vs. Commissioner of Income Tax, Kanpur, (1982) 1 SCC 447.

2. Meva Devi & Ors vs. Omprakash Jagannath Agrawal and Ors., AIR 2008 Chh 13.

19. That apart, it is his submission that the basis of the claim of the plaintiff challenging the consent decree by way of amendment is also prima facie false. The defendant no. 3, in his written statement clearly stated that the plaintiff and the defendant No. 2 had participated in the settlement meetings which were held at Defence Colony Club and were fully aware of the pendency of the suit and the settlement by way of the consent decree and in fact, had consented to the same.

20. He also submitted that the defendant No. 3 in his written statement has also denied categorically and repeatedly that the suit properties are not HUF properties. The plaintiff has not filed any replication refuting the said factual averments, thereby clearly admitting the same. He also stated that, it is a well settled principle of law that the non-filing of replication on crucial averments of facts amounts to deemed admission of the facts in the written statement. The deemed admission will arise in view of Order VIII Rule 9 read with Order VIII Rule 5 and Order VIII Rule 10 of the CPC. He has placed reliance on the judgment in the case of Mohan Madan vs. Sheel Gulati, MANU/DE/2429/2015.

21. That apart, it is his submission that the observation of the Division Bench in order dated January 16, 2020, that the effect of the consent decree should await the trial of the present suit, is erroneous as neither was the said consent decree before the Division Bench nor did the Division Bench make any such observation on the validity of the consent decree. The challenge before the Division Bench was to the validity of the order dated September 23, 2019, wherein, the Ld. Single Judge has held that the legal ingredients of HUF were not pleaded in the plaint and therefore, treating the application of the defendant no. 3 under Order XII Rule 6 dismissed the said suit. He stated, the Division Bench, relying on the Supreme Court judgments, held that, at the threshold pleadings in the suit should be seen and if averments of HUF are made in the suit, then it cannot be dismissed at the threshold. Therefore the Division Bench restored the suit and remanded it back. It is the submission of Mr. Dutt that the observations made in the said order should be read in that context and should be misinterpreted.

22. Pertinently the fact of prior sale by way of affidavits of plaintiff, defendant Nos. 1 and 2 were also not filed by that time, and hence even these facts were not before the Division Bench. According to him, till date no stay has been granted on the consent decree.

23. That apart, it is his submission that the non-filing of the amended written statement by defendant No.3 is immaterial. Mr. Dutt stated that, in the written statement, defendant no. 3 has clearly denied that the properties were HUF properties. It has also been averred that the plaintiff had participated in the meetings in respect of the consent decree and that there is no rebuttal in this regard by the plaintiff. It is a complete answer to the claim of the plaintiff in the amended suit that the consent decree was collusive and fraudulent and that the properties are of HUF.

24. He stated that, it is well-settled principle of law that pleadings should be read as a whole and the written statement must answer the point of substance. In support of his submission, he has placed reliance on the Judgment in Ramchandra G. Kapse v. Haribansh Ramakbal Singh 1996 (1) SCC 206. It is his submission that an admission should be categorical. It should be conscious and deliberate act of the party making it, showing an intention to be bound by it. He also stated that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short, the discretion should be used only when there is a clear admission which can be acted upon. He has referred to the Judgment in the case of Himani Alloys Ltd. vs. Tata Steel Ltd., (2011)15 SCC 273.

25. Mr. Dutt submitted that specific averments were made in the written statement, asserting the validity of the consent decree and specific denials with regard to the properties, that they are not HUF properties. The plaintiff was aware of the consent decree, the point being duly covered in the written statement and it cannot be said that the defendant No. 3 has admitted that the said consent decree is collusive and entered behind the back of the plaintiff in respect of HUF properties as falsely alleged.

26. Mr. Dutt submitted that the contention of the plaintiff that vacating the stay order would tantamount to executing the decree and should not be permitted, is wholly misconceived. He stated that, till date neither has the consent decree been stayed nor has it been held to be prima facie invalid by any court. On the contrary, prima facie, the false and collusive nature of the suit and suppression of material facts by the plaintiff is clearly made out. The main issue raised by Mr. Dutt is whether the status quo order ought to be vacated and not the fate of the consent decree. In any case, the purported rights of the plaintiff are protected. If the applicant gets possession of the basement and ground floor and the applicant undertakes that it will not create any third-party rights or part with possession till the pendency of this suit, the same can be recorded in the order of this Court.

27. On the other hand, Mr. Sunil Dalal, learned Sr. Counsel appearing for the plaintiff had opposed the application by stating that the plaintiff has filed a suit for partition of properties, rendition of accounts and permanent injunction. He submitted that when the applicant had appeared on March 7, 2019 and informed the Court about the consent decree dated February 4, 2015, passed in CS(OS) 1175/2010, the plaintiff was shocked and she immediately preferred an application under Order VI Rule 17 CPC on April 13, 2019, which was allowed taking the amended suit on record. The applicant also filed an application under VII Rule 11 CPC, which was allowed by this Court vide its judgment dated September 23,

2019.

28. The plaintiff filed RFA (OS) NO. 86/2019 and the Division Bench vide its judgment dated January 16, 2020, set aside the Judgment dated September 23, 2019 holding in paragraph 19, which I shall reproduce in paragraph 61 of this order.

29. According to Mr. Dalal, the matter was remanded back by the Division Bench and the applicant consciously chose not to file the written statement. Thereafter the plaintiff filed an application under Order VIII of the CPC seeking to close the right of applicant to file the written statement. The applicant on November 18, 2020 made a statement that, he does not wish to file the amended written statement to the amended suit and would adopt the earlier written statement. Hence, the amended portions stand deemed to be admitted along with the amended paragraph which is to declare the consent decree as null and void along with other reliefs stated in Prayers 1-A and 1-B.

30. That apart, it is his submission that the applicant is not entitled to seek vacation of the interim order dated December 21, 2018 for the reason that despite the opportunities given, applicant has not filed any written statement to the amended plaint filed by the plaintiff, wherein, the alleged compromise decree is challenged by the plaintiff and sought to be declared as null and void. Hence, there is no traverse / challenge / opposition by the defendant No. 3/ applicant to the pleadings of the plaintiff to that effect and as such defendant No. 3 / applicant cannot seek vacation of the stay on the strength of the alleged decree.

31. According to Mr. Dalal, the prayers which are now deemed to be admitted of the amended suit, i.e., prayers 1-A and 1-B, particularly have to be decreed and till the same is not decided, the averments made in the application by defendant No.3 / applicant cannot be allowed. He also stated that there is no written statement and application on record in the eyes of law as the same are allegedly signed by an Attorney. But, neither is such an Attorney on record nor have the necessary averments with regard to the personal knowledge of the facts been made. The pleadings / application allegedly filed by applicant / defendant No. 3 are having no consequence in view of the judgment of the Supreme Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, (2004) 3 SCC 584.

32. According to him, the Supreme Court has also in the case of Vidhyadhar v. Manikrao and Another, (1999) 3 SCC 573 held that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct.

33. He stated that the plaintiff vide diary No. 39158/2021 on April 3, 2021, had given an advance copy to the counsel for all the defendants and has already filed her replication to the earlier written statement filed by applicant. The plaintiff has refuted the allegation of applicant with regard to the knowledge / participation of the plaintiff in the alleged compromise / settlement. He also stated that the alleged consent decree was obtained by the defendant Nos. 1 and 3 in collusion and connivance with each other and the plaintiff was neither informed nor made party in the said suit as observed by the Division Bench in the judgment dated January 16, 2020.

34. He further stated that the properties are HUF properties in which all the family members have equal shares and the same cannot be divided / partitioned only amongst defendant Nos. 1 and 3 excluding the other family members.

35. He also stated that the properties left behind by the grandfather of the plaintiff are only joint family properties which belong to the HUF, to which the parties in the suit are members and thus having equal share in the suit properties.

36. Mr. Dalal’s submission is that in the absence of consent or participation of the plaintiff and other family members in the previous suit or any alleged partition, it cannot be treated that the properties were partitioned and parties have received their due share. He stated that the alleged consent decree partitioning the suit properties was unjust, improper and illegal and the same is not binding upon the legal right of the plaintiff in the suit properties. He also stated, whatever settlement entered into between defendant No.1 and 3, was between them, which has no concern or binding upon the plaintiff or any other person who is / are not a party to the settlement. The plaintiff has also come to know after receipt of the written statement filed by the defendant No. 1 that, she has sold the first and second floor to two different parties on the basis of the registered Will in her favour. He highlighted the fact that the defendant No. 1 has sold the above floors prior to passing of alleged consent decree and on the basis of the Wills and not on the basis of the alleged settlement/consent decree, which clearly proves the claims, intentions and collusion between defendant No.1 and 3. Furthermore, he stated that, as per the disclosure made by defendant No.1 in her written statement, she has sold the first two floors prior to passing of alleged settlement decree, and defendant Nos.[1] and 3 neither disclosed nor mentioned the same to this Court or in the alleged compromise application. It is apparent that at the time of passing of the alleged settlement decree or alleged compromise, the above floors, i.e., first and second floors of the Vasant Vihar property were not in existence and the said fact would have been in the knowledge of defendant no. 3 / applicant, who is now, in order to conceal his fraud and collusion with defendant No.1, is alleging collusion between the plaintiff and defendant No. 1.

37. Mr. Dalal submits that the findings of the Division Bench of this Court are final and binding in nature. He justified the order of the Division Bench by stating that it was passed on due consideration of the averments in the plaint and supporting documents. Hence, the applicant cannot submit that the judgment of the Division Bench be treated as a stray reference and only cursory. He also stated that such submission on behalf of the applicant is not only unfounded but it is very unfortunate. He stated that the applicant, by way of filing the present application is trying to make a meek attempt to get the judgment passed by the Division Bench reversed / revisited by this Court which is not possible in view of the principals of “obiter dicta” and propriety.

38. That apart, he stated that the applicant by way of filing the present application wants to put the cart before the horse for the reasons that, instead of defending the case in trial the applicant wants to get the suit rendered infructuous by seeking a vacation of the stay. He also stated that in a suit for partition the relief of injunction is vital relief in order to protect the subject matter of the suit, i.e. suit property. Moreover, the plaintiff has categorically averred in her suit that the suit properties are HUF properties and such fact is duly considered by the Division Bench. Hence, at this juncture accepting the submission / application of the applicant would result miscarriage of justice to the plaintiff.

39. Mr. Dalal stated that the plaintiff is in possession and actual use and occupation of the Vasant Vihar property and as such vacation / modification of the stay order will effect the valuable rights of the plaintiff.

40. Lastly he stated that it is a clear attempt of the defendant No.1 with the defendant No.3 to deny the right of the plaintiff which is evident from the fact that, he was not made a party in the CS (OS) 1175/2010 as rightly observed by the Division Bench.

41. He seeks the dismissal of the application.

42. Mr. Sunil Choudhry, learned counsel appearing for defendant No.1, would contest the application by stating that the same has been filed by pleading facts which are incorrect. He denied that there is any collusion between the plaintiff and the defendant No.1, with regard to the enforcement of the decree. He also relied upon the fact that this Court had also in its order dated March 13, 2020 passed in the Execution Petition No.96/2020, directed the parties to seek clarification from the Division Bench of this Court.

43. He further submitted that, this Court while passing the order dated March 13, 2020 had rightly reproduced the relevant portion of the order dated January 16, 2020, passed by the Division Bench of this Court, wherein, it is categorically stated that the enforcement of the consent decree has to await till the outcome of the trial in the present suit.

44. He denied the fact that defendant No.1 has sold the properties as per the family share. He stated that the defendant No.1 has sold the first and second floor of the property bearing No.25 Vasant Vihar, New Delhi, prior to passing of the consent decree, having the legal rights to do so on the basis of registered Will in her favour executed by her parents, also in her independent capacity and having the legal rights do so, without the knowledge and consent of any of her family members.

45. He further stated that the plaintiff has filed the present suit in her own right without talking, consulting or discussing with the defendant No.1. He also stated that defendant No.1 is not in talking terms with the plaintiff.

46. Further, it is submitted that there is no willful defiance of the orders passed by this Court, and the affidavit could not be filed by the defendant No.1, within 10 days initially due to the non-service of summons and thereafter the matter was pending for hearing the applications filed by the plaintiff and defendant no. 3/applicant. Thereafter, the Court was closed due to COVID-19. Furthermore, he stated that the written statement was also not filed as the plaintiff had moved an application under Order VI Rule 17 CPC seeking amendment of the plaint, and, the suit was rejected under Order VII Rule 11 CPC. Thereafter the appeal preferred by the plaintiff was allowed by the Division Bench of this Court vide order dated January 16, 2020 directing the parties, to appear before this Court, and the defendants to file written statement to the amended plaint. However, thereafter, due to COVID-19 pandemic, Government of India implemented a nationwide lockdown in order to contain the spread of COVID-19, defendant No.1, being a senior citizen, who is suffering from various ailments was vulnerable to the COVID-19 infection and as such she could not meet her counsel to get her written statement drafted.

47. It is further submitted that the defendant No. 1 filed her written statement immediately after the situation became normal and thus, in view of the above, there was no deliberate delay in filing of written statement by the defendant No.1. He further stated that, defendant No.1 has no concern with the filing of the present suit by the plaintiff. He also stated, initially, the defendant No.1, could not file the affidavit in the execution petition as she was not having any knowledge about the pendency of such petition and thereafter the Division Bench of this Court has passed the direction in its order dated January 16, 2020, in RFA (OS) 86/2019, that the consent decree must await the outcome of present suit.

48. It is also his plea that the defendant No.3 / applicant was / is having the knowledge about the status of the properties prior to the filing of the suit, at the time of filing of his suit and also at the time of passing of consent decree.

49. According to Mr. Choudhary, defendant No.1 had communicated to the defendant No.3 / applicant and disclosed the status of the parties to him. He stated that the properties were sold by the defendant No.1 with the knowledge and consent of defendant No.3 / applicant. Even otherwise, the defendant No.1 has already filed her detailed written statement disclosing the status of the properties and also filed a separate affidavit in compliance of directions of this Court. So, the present application filed by the defendant No.3 / applicant lacks merits and is liable to be dismissed.

50. Having heard the learned counsel for the parties and perused the record, the only issue which arises for consideration is whether the order dated December 21, 2018 needs to be vacated.

51. I have already reproduced the interim order passed on December 21, 2018 in paragraph 2 above.

52. The suit has been filed by the plaintiff seeking partition with regard to three properties as depicted in paragraph 3 above. The plea of Mr. Dutt was primarily that the suit has been filed in collusion between the plaintiff and the defendant Nos. 1 and 2, who are the mother and brother of the plaintiff. The defendant Nos. 1 and 2 in their affidavits disclosed that the first floor, ground floor and the terrace of the Vasant Vihar property have been sold to third parties in the year 2012 and Kailash Hill property in the year 2015, whereas the case of the plaintiff in her affidavit is that she is in possession of the first floor and basement of the Vasant Vihar property, which fact establishes suppression of material facts and collusive nature of the suit.

53. He stated that the Vasant Vihar property was in the name of S.N. Dandona and his wife and Kailash Hill property was in the name of S.N. Dandona and as such not being the HUF properties, the suit for partition on the premise that these are HUF properties is not maintainable. Similarly, the property in Dehradun never belonged to S.N. Dandona and the same does not form part of the consent decree dated February 4, 2015. In fact, the suit has been filed by the applicant against defendant No.1 wherein defendant No.1 has set up a Will in her favour and this Court vide order dated June 3, 2010 granted status quo in relation to transfer and creating third party rights in the said properties.

54. Suffice to state, the above submissions of Mr. Dutt would not entitle the applicant the prayer of vacation of stay. It is a conceded position that the previous suit in which decree dated February 4, 2015 was passed, was filed by the applicant only against defendant No.1 herein being daughter of S.N. Dandona whereas the present suit has been filed by the plaintiff by contending that the properties in question are HUF properties and she is a member of the HUF and also the co-parcener and the decree dated February 4, 2015 shall not be binding on her, defendant No.2 and defendant Nos. 4 and 5.

55. One of the pleas of Mr. Dutt was that the plaintiff has wrongly and falsely represented in the affidavit that she is in possession of the first floor of the Vasant Vihar property as the same was already sold / disposed of at the time of filing of the suit. This submission of Mr. Dutt has been contested by Mr. Dalal by stating that the plaintiff is in possession and actual use and occupation of the Vasant Vihar property and as such vacation / modification of the stay order will affect the valuable right of the plaintiff. In fact, I find that Mr. Chaudhary appearing for defendant No.1 has stated that defendant No.1 has sold the first and second floor of the property being 25, Vasant Vihar, New Delhi as per the family share prior to the passing of the consent decree having legal rights to do so on the basis of registered Will in her favour executed by her parents and also in her independent capacity without the knowledge and consent of any of her family members.

56. It was also the submission of Mr. Dutt that if the plaintiff was actually in possession of the first floor and basement of the Vasant Vihar property, then she would have known about the said sale and the plaintiff having kept quite all these years and has now in the year 2018 filed the suit on the basis that the applicant is trying to sell the Vasant Vihar property, which proves that the entire case of the plaintiff is collusive and based on suppression of material facts and falsehood. This plea is also not appealing for the reason that it is the case of the plaintiff that she came to know about the consent decree dated February 4, 2015 only when the applicant had on March 7, 2019 appeared in CS (OS) 1175/2010 and it is immediately thereafter that the plaintiff had filed an application under Order VI Rule 17 CPC on April 13, 2019, which was allowed by this Court and plaintiff was permitted to amend the suit. The suit is not barred by limitation as sought to be put by Mr. Dutt. In fact, I note that, it is the case of the plaintiff that the defendant Nos.[1] and 3 are in collusion with each other, as it is apparent that, at the time of passing of the alleged settlement decree or alleged compromise, she had the knowledge of the sale of the first floor and second floor of the Vasant Vihar property, who, now in order to conceal the fraud is alleging collulsion between plaintiff and defendant No.1. Suffice to state, the collusion, if any, between the parties and its effects thereof, has to be proved by way of trial. Mere allegation at this stage by the plaintiff in that regard cannot be a ground to vacate the stay where subject matter of the suit is for partition including rendition of accounts.

57. Further it is the case of Mr. Dutt that the plaintiff does not have any prima facie case in her favour when admittedly the title documents of the Vasant Vihar property have been in the name of S.N. Dandona and his wife and the Kailash Hill property is in the name of S.N. Dandona.

58. As stated above, the case of the plaintiff in the plaint is that the properties are HUF properties and she is a member of the same. In this regard, the plaintiff, as noted by the Division Bench in paragraphs 15 and 16 of its order dated January 16, 2020, has relied upon the correspondence exchanged between S.N. Dandona and Chartered Accountant; copies of income-tax reports; computation of wealth of the specified HUF, wherein the Vasant Vihar property has been included. Though it is the plea of Mr. Dutt that the applicant in the written statement has denied categorically and repeatedly that the suit properties are HUF properties and the plaintiff has not filed any replication refuting the factual averments thereby clearly admitting the same. The said submission has been contested by Mr. Dalal by stating that despite opportunities, applicant has not filed any written statement to the amended plaint wherein the alleged compromise decree is challenged by the plaintiff and has prayed that it be declared null and void. In the absence of any written statement to the amended plaint, the pleadings in the written statement has no consequence in the eyes of law. Moreover, the plaintiff has already filed replication to the earlier written statement filed by the defendant No.3 / applicant refuting the allegation with regard to the knowledge and participation of the plaintiff in the alleged compromise / settlement and the fact that the alleged consent decree was obtained by the defendant No.3 / applicant in collusion and connivance with the defendant No.1. Suffice to state, the issue is, whether the properties are HUF properties or not. Suffice to state, the issue is whether the properties are HUF properties or not, is a question of fact that need to be decided by the Court after trial during which the parties shall lead their respective evidence, both oral as well as documentary. Pending decision on the said aspect, the interim order cannot be vacated.

59. It was also the plea of Mr. Dutt that there can be a partial partition between the two branches of the Joint Hindu Family executed between two branches of Joint Hindu Family by the heads of the two branches and since largest share has come to the family of the defendant No.1, no consent of the family is required for such partition. I am unable to agree with the submission of Mr. Dutt for the simple reason that the plaintiff is not claiming a right in the properties through defendant No.1 but she is claiming in her own right as a member of the HUF being a coparcener which issue need to be proved / established by the plaintiff by adducing evidence. But the said plea of Mr. Dutt cannot be a ground to vacate status quo order granted by this Court as the suit is for partition of properties and they need to be preserved till such time the suit is decided.

60. The plea of Mr. Dutt that defendant No.3 in his written statement has stated that plaintiff and defendant No.2 had participated in the settlement meeting which lead to the settlement decree dated February 04, 2012 and were fully aware of the suit and the settlement by way of consent decree and had in fact consented for the same is also required to be proved by the defendant No.3 by adducing evidence as such a plea has not been accepted by the plaintiff or the defendant No.2. In fact no document has been produced by the defendant No.3 to prima facie show the participation of plaintiff and defendant No.2 in settlement meeting leading to the settlement decree.

61. One of the submissions of Mr. Dutt was that the observation of the Division Bench in the order dated January 16, 2010 to the effect, the consent decree should await trail of the suit is erroneous as neither, the consent decree was before the Division Bench nor the Division Bench made any observation on the validity of the consent decree. Suffice to state, the Division Bench in its order dated January 16, 2020 has in paragraph 19 stated as under:

62. In view of the above, it must said that defendant No.3 cannot state that the judgment rendered by the Division Bench is erroneous. Such a statement is clearly contemptuous. The judgment of the Division Bench was clearly passed in an appeal filed by the plaintiff against the order passed by this Court rejecting the plaint converting the application under Order VII Rule 11 CPC as an application under Order XII Rule 6 CPC on the ground that it is the averments as made in the plaint, which need to be looked into and nothing else. There is no denial to the fact that the suit is for partition and it is the case of the plaintiff that the properties are of HUF of which she is the member. The order dated January 16, 2020 cannot be faulted.

63. The plea of Mr. Dutt is that neither the plaintiff nor the defendant No. 2, who claimed that the two properties are HUF properties, have not made any effort to seek restitution of the amount appropriated by the defendant No.1 through sale, which clearly establishes the collusion between the plaintiff and the defendant No.1 and suppression of material facts by plaintiff while seeking status quo order is concerned, the same is without merit. The amended suit incorporates a prayer for rendition of accounts which prayer may also relate to the amount received by the defendant NO.1 from the properties put on sale.

64. For the reasons stated above, the present application is devoid of merit and as such is dismissed. It is made clear that the conclusion drawn is a prima-facie view and shall have no bearing on the final adjudication of the suit. To be listed before the Roster Bench on April 11, 2023, subject to the orders of Hon’ble the Chief Justice.

V. KAMESWAR RAO, J

JANUARY 09, 2023