Full Text
TEST.CAS. 33/2016
LINA KHOSLA & ORS ..... Petitioners
Through: Mr. Rahul Sharma, Ms. Jyoti Dutt Sharma and Mr. C.K. Bhatt, Advs.
Through: Mr. Rajiv Kumar Ghawana and Ms. Akshita Chhatwal, Advs. for R-2.
17.09.2019
JUDGMENT
1. The four petitioners, of which petitioners no.1&2 namely Lina Khosla and Sonia Dutta are the daughters, and the petitioners no.3&4 namely Navin Devichand and Takeshwar Devichand, are the sons of late Joginder Lal Devichand, filed this petition seeking Letters of Administration to the estate of late Joginder Lal Devichand on the basis of the document dated 7th October, 2002 stated to be the validly executed last Will of the said Joginder Lal Devichand.
2. The only other son/heir of late Joginder Lal Devichand, namely Rajan Devichand was impleaded as respondent no.2.
3. The petition was entertained and citation thereof issued. The respondent no.2 has filed objections to the Letters of Administration sought by the petitioners.
4. Proceedings were listed last before this Court on 5th September, 2019 2019:DHC:4656 for framing of issues, when the counsel for the petitioners stated that the petitioners did not desire to litigate and were agreeable to division of the estate as mentioned in Schedule-A to the petition at page 7 of the Part-IIIA file, comprising of the following properties:-
I. Immovable Assets
1. Flat at NO.B-81, LGF, Greater Kailash-1, New Delhi Valuation:- Rs.2.25 Crores [Approx.]
2. C-I/1036, Vasant Kunj, New Delhi. Valuation:- Rs.1.40 Crores [Approx.]
3. Tenancy and Business at Shop No.19-A, Connaught Place New Delhi. (Devichand’s) and the following movable estates of late Joginder Lal Devichand with each of the four petitioners.
II. Moveable Assets
1. All Valuable Furniture, Fixtures & Fittings at B-81, LGF, Greater Kailash-1, New Delhi. Valuation:- Rs.[5] Lacs [Approx.]
2. All Valuable Furniture, Fixtures & Fittings at C-I/1036, Vasant Kunj, New Delhi. Valuation:- Rs.[2] Lacs [Approx.]
3. All Valuable Furniture, Fixtures & Fittings, Books of Accounts and Raw materials. Valuation:Rs.1.[5] Lacs [Approx.]
4. Maruti Suzuki 800CC Car (Model 1985). Valuation:- Not Known. with the four petitioners and the respondent no.2 each getting 1/5th undivided share therein.
5. On request of the counsel for the respondent no.2 on 5th September, 2019, the proceedings were adjourned to today and personal presence of the respondent no.2 directed.
6. The counsel for the respondent no.2 states that the respondent no.2 is present in person. It is further stated that of the three immovable properties, the flat at Greater Kailash-I, New Delhi and the business at Connaught Place, were/are properties of Hindu Undivided Family (HUF) of which late Joginder Lal Devichand had only a 1/4th share.
7. On enquiry, it is informed that late Joginder Lal Devichand died in the year 2002 i.e. prior to coming into force of the Hindu Succession (Amendment) Act, 2005.
8. The counsel for the petitioners states that the petitioners do not admit the properties aforesaid to be HUF properties. It is also contended that the petitioners, for the sake of settlement, have agreed to the respondent no.2 also having a share, though he stands excluded therefrom by the provisions of the Special Marriage Act, 1954.
9. The counsel for the respondent no.2, on being told that if the respondent no.2 desires the aforesaid questions to be gone into, the same cannot be done in this Test. Cas. and a separate proceeding therefor will have to be initiated, under instructions from the respondent no.2 states that the respondent no.2 is agreeable to the proposal of the petitioners, of each of the four petitioners and the respondent no.2 being declared to be having 1/5th undivided share in the estate. He however states that the respondent no.2 be given his 1/5th share in monetary terms, within such time as may be ordered by this Court, instead of being relegated to division of the estate by metes of bound or to sale of the estate pursuant to final decree for partition.
10. The counsel for the petitioners states that neither of the petitioners are in a position to pay the money equivalent of 1/5th share of the respondent no.2, and in fact, pursuant to a preliminary decree for partition, also seek a final decree for partition, of sale of the flats at Greater Kailash-I, New Delhi and Vasant Kunj, New Delhi. It is further stated that the petitioners, after the demise of their father, have been carrying on business of Devichand’s in partnership and had also called upon the respondent no.2 to join in the said partnership, which the respondent no.2 has not.
11. It is quite evident that the respondent no.2 does not want to join in the partnership.
12. Once the respondent no.2 is agreeable to partition of the estate as proposed by the petitioners, the respondent no.2 cannot be permitted to impose a condition as aforesaid, that he be paid money equivalent of his share by others, instead of receiving his share in accordance with law.
13. In accordance with the dicta of the Division Bench of this Court in B.S. Oberoi Vs. P.S. Oberoi 2013 SCC OnLine Del 616 and of the Coordinate Bench of this court in Harinder Singh Kochar Vs. State (2010) 173 DLT 365 and Ambica Mengi Vs. State MANU/DE/4557/2015 that on compromise being arrived at between the parties in a Test. Cas., a decree for partition can be passed, a preliminary decree for partition of the properties aforesaid, also detailed in Schedule-A as aforesaid to the petition, is passed, declaring the four petitioners namely Lina Khosla, Sonia Dutta, Navin Devichand and Takeshwar Devichand and the respondent no.2 Rajan Devichand, to be having 1/5th undivided share each in each of the aforesaid properties.
14. Since it is not in dispute that the immovable properties at Greater Kailash-I and Vasant Kunj cannot be partitioned by metes and bounds, a final decree for partition thereof, of sale thereof and of distribution of sale proceeds as per shares declared in preliminary decree for partition, also has to be passed.
15. As far as the tenancy and business at Shop No.19-A, Connaught Place, New Delhi in the name of Devichand’s is concerned, the only way to partition the same would be to allow the parties to make inter se bids as to valuation thereof, with the party/parties bidding the highest, acquiring the share of other/others.
16. As far as the movable properties are concerned, the same have to be liquidated and the net proceeds thereof divided as per shares declared in the preliminary decree for partition.
17. A final decree for partition of properties aforesaid, also detailed in Scheduled-A to the petition as aforesaid, is thus passed,:-
(i) of sale of Flat No. B-81, LGF, Greater Kailash-1, New Delhi and Flat No. C-I/1036, Vasant Kunj, New Delhi and of distribution of sale proceeds thereof amongst the parties as per shares declared in the preliminary decree for partition;
(ii) of inter se bids to be made by the parties with respect to tenancy and business at Shop No.19-A, Connaught Place, New Delhi, with the party/parties bidding highest acquiring the share of other/others against payment of consideration and execution of requisite documents; and,
(iii) of liquidation of movable assets in monetary terms and by distribution of same as per shares declared in the preliminary decree for partition.
18. Final decree for partition be drawn up.
19. Stamp Duty payable on the final decree for partition to be also borne by the parties in equal proportion, with the party failing to pay his/her share being liable to reimburse it to the other/s with interest at 10% per annum from the date of payment by other/s till the date of realisation/adjustment.
20. The counsel for the respondent no.2 states that the respondent no.2 was agreeable to partition, only subject to his proposal of the petitioners paying to him the monetary value of his share.
21. I reiterate that once the respondent no.2 is agreeable to partition, he cannot impose his will as to the mode of partition and which has to be in accordance with law.
22. The counsel for the respondent no.2 states that the respondent no.2 is now not willing for any settlement.
23. Such conduct cannot be permitted in Court. The petitioners instituted this proceeding to prove the document claimed by them to be the validly executed last Will of common predecessor of parties. The respondent no.2 disputed the document. The effect of the said dispute raised by respondent no.2 was that the common predecessor died intestate and in which eventuality, the four petitioners and respondent no.2, being the only heirs, would have had equal share in the estate. In view of said dispute raised by respondent no.2, the petitioners, for sake of amicable settlement, gave up their claim under the documents claimed to be the Will and accepted the version of respondent no.2, of the common predecessor dying intestate and in which eventuality each of the four petitioners and respondent no.2 would have equal share in the estate. The respondent no.2, though took time from 5th September, 2019 to today, to respond to such proposal and initially disputed absolute title of common predecessor to two properties, but ultimately gave up the said objection and agreed to the proposal of the petitioners. The condition put by the respondent no.2 to the said proposal, was found to be outside the law, once the respondent no.2 had otherwise agreed to partition of entire estate as proposed. Accordingly, decree for partition was passed. It is significant that the respondent no.2 has not initiated any proceeding himself, to claim a share even in the properties, absolute title whereof of the common predecessor is disputed. The respondent no.2 is found to be playing the game of litigation, by putting spokes in the claim of petitioners, even after petitioners have agreed to the version of respondent no.2. The courts cannot allow their process to be so abused, especially in matters between family members, and allow one of the family members to hold others to ransom, by putting unreasonable conditions and by, under threat of stalling distribution of estate, extract his pound of flesh from those family members who can ill afford lengthy and costly litigation.
24. Thus the objections of respondent no.2, to passing of a decree for partition, to which respondent no.2 had also agreed, even if conditionally, are rejected.
RAJIV SAHAI ENDLAW, J. SEPTEMBER 17, 2019 ‘pp’..