Navita Arjun Vohra v. Nitin Arjun & Anr

1. The Present suit for declaration, partition and consequential reliefs has 2019:DHC:3577 been filed by Ms. Navita Arjun Vohra against the Defendants – Mr. Nitin Arjun and Ms. Harsh Mohini Arjun who are the brother and mother of the Plaintiff respectively. The prayer in the suit is as under: “a. Pass a decree of declaration that the writing dated 21.10.2006 purporting to be memorandum of so-called family settlement dated 03.06.1977 is illegal, null, void and not binding on the plaintiff; b. Pass a decree of declaration that the plaintiff is the owner of and entitled to shares of the properties as mentioned below: Property Plaintiff‟s share 1 House No.C-43, Defence Colony, New Delhi

4 Unit No. 1219 measuring 1000 sq. ft. in Vatika Trade Centre 1/6 (1/3 of father‟s ½ Share) c. Pass a preliminary decree of partition and separate possession of shares of the plaintiff in the said properties in favor of the plaintiff; d. After passing a preliminary decree as prayed above, pass appropriate orders/direction for appointment of a local commissioner for effecting the partition of the suit properties by metes and bounds and/or suggesting other appropriate mode of partition; e. Pass a final decree of partition and separate possession of plaintiff‟s shares in the suit properties; f. Pass a decree of permanent injunction restraining the defendants from preventing and objecting to the plaintiff‟s use and enjoyment of the suit properties as a joint owner to the extent of her shares till partition and separation of her share therein; g. Pass a for rendition of accounts of rent from 16.03.2012 of the rented portion of house No. C-43, Defence Colony, New Delhi received by the defendants and for payment of plaintiffs 4/9th due share in the same. h. Pass a for rendition of accounts of rent from 16.03.2012 of the unit no.1219 in Vatika Trade Center, Gurgaon, received by the defendants and for payment of plaintiff‟s 1/6th due share in the same. i. Pass such other and further order(s) as may be deemed fit and proper in the facts and circumstances of the case.”

2. Prior to the present suit being filed by the Plaintiff, a testamentary case was filed in respect of the Will of the father of the Plaintiff dated 24th February, 2010. The said Test. Case was originally filed before the District Court and was thereafter withdrawn and filed before this Court and is now registered as Test. Case.97/2015.

3. The disputes in the present case relate to the same family of Late Mr. Ratan D. Arjun who had left behind various immovable/movable assets. The case of the Plaintiff is that she is broadly entitled to 1/3rd share in her father’s assets. However, the stand of the defendants is that an oral family settlement was entered into in 1977 which was thereafter reduced to writing in 2006. Thus, in the suit for partition the Plaintiff’s stand is that the Memorandum of Family Settlement (hereinafter „MOFS‟) which was executed on 21st October, 2006 is illegal, null and void and accordingly the reliefs as extracted above were prayed for by the Plaintiff.

4. The Defendants took a stand in the written statement that while the Plaintiff is challenging the MOFS, the oral family settlement which the MOFS has in fact reduced to writing, dated 3rd June, 1977 has not been challenged. In response thereto in the replication, the Plaintiff refuted this fact and stated that the oral family settlement has also been challenged by her in the plaint. Issues were framed in the matter on 23rd August, 2016. At that stage, the Plaintiff moved the present application being I.A.13781/2016 and sought framing of additional issues. The said application for additional issue was rejected, at that stage to await the decision in the amendment application.

5. Mr. Trideep Pais, ld. counsel has made submissions on behalf of the Plaintiff in the application for amendment and Mr. Rajesh Yadav, ld. counsel has submitted on behalf of the Defendant. The broad stand of the ld. counsel for the Plaintiff is that a reading of the plaint would reveal that in several paragraphs, the challenge to the oral family settlement has been made though ld. counsel concedes that the prayer is not worded so happily. He further submits that the trial in the Test. Case and in the suit is going on. The statement of the mother – Defendant No.2 has been recorded in the Test. Case, however, the recording of evidence commenced only after the filing of the application for amendment. He relies on Mohinder Kumar Mehra vs. Roop Rani Mehra and Others (2018) 2 SCC 132 and A.K. Gupta and Sons Ltd. vs. Damodar Valley Corporation AIR 1967 SC 96. It is further submitted by Mr. Pais that the amendment is being opposed by the Defendant on the ground that the amendment is beyond limitation and such an amendment cannot be allowed. He submits that the amendment in the present case would be governed by Article 110 of the Limitation Act, 1963 and not Article 59 as there is an issue as to whether the Plaintiff was a coparcener on the date of the demise of her father i.e. 16th March, 2012 in view of the amendment that has been brought about into the Hindu Succession Act, 1956 w.e.f. 9th September, 2005. He further submits that the first date of knowledge of the family settlement insofar as the Plaintiff is concerned was acquired only on 29th October, 2013 when, in reply to the objections filed by the Plaintiff in the Test. Case, the copy of the MOFS was served upon the Plaintiff.

6. On the other hand, Mr. Yadav submits that the Plaintiff was wellaware of the existence of the oral family settlement dated 3rd June, 1977 which is evident from a reading of the plaint. He also relies upon a finding of this Court in order dated 16th October 2017, passed in an application under Order VII Rule 14 being I.A. 13780/2016. In the said order, the Court has recorded that the signature on the MOFS is admitted by the Plaintiff and hence she is deemed to have always had knowledge of the MOFS. It is further argued that the amendment application is belated inasmuch as the stage for filing the same is long over as trial has commenced. The affidavit of Defendant No.2 – mother had been filed by the time the application for amendment was preferred. Reliance is placed on the judgment of the Supreme Court in Rajkumar Gurawara (Dead) Through LRs vs. S.K. Sarwagi and Company Private Limited and Another, (2008) 14 SCC 364.

7. The Court has heard the ld. counsel for the parties. A perusal of the plaint shows that there are several paras which are replete with challenges to the oral family settlement. The said paras are extracted herein below:

8. The prayer in the suit, however, prays for a declaration that the writing dated 21st October, 2006 purported to be a memorandum of so-called family settlement dated 3rd June, 1977 is illegal, null and void and does not bind the Plaintiff. When the Defendant filed the written statement, the Defendant took an objection that the Plaintiff has not challenged the oral June, 1977 and this was also refuted in the replication. The relevant paragraph of the replication reads:

It is thus clear that the oral family settlement has never been admitted and has in fact been challenged and disputed consistently by the Plaintiff. The question therefore in the present case is whether the amendment ought to be allowed at this stage when the evidence of Defendant No.2 has already commenced and allowing of the amendment could result in further delays.

9. The issue raised in the present case is more substantive than procedural. The MOFS, of which a declaration is being sought as being illegal, is a document in writing which records the earlier oral family settlement. The Plaintiff has repeatedly, in various paragraphs in the plaint, raised a challenge that the said settlement was either not entered into or that she was a minor at the time when the said oral family settlement was purportedly executed. The main question that is to be adjudicated in this litigation is as to whether there was an oral family settlement in 1977 and whether the said settlement was reduced into writing in 2006. This being the main issue that is to be adjudicated, procedural technicalities cannot come in the way of the substantive relief being granted or denied after evidence is led. Considering the fact that evidence has already commenced in the matter, this Court is of the opinion that instead of amending the prayer in the plaint, if one of the issues is re-casted, that would itself suffice the purpose. The order dated 4th November, 2016 had not finally decided this aspect as it was left to be considered at a later stage once the amendment application is decided. The relevant portion of the said order reads –