Full Text
HIGH COURT OF DELHI
Date of Decision: 16th July, 2019
SHOBHA AGGARWAL & ORS. ..... Plaintiffs
Through: Mr. P. K. Aggarwal and Mr. Tannya Sharma, Advocates (M:9643781288)
Through: Mr. P. K. Rawal and Mr. Tarun Agarwal, Advocates for D-1
(M:9810008623)
Mr. Kunal Aganpal, Advocate for D-2 (M:9717402777)
XXXIX Rule 4 CPC), I.A. 14034/2018 (u/O VI Rule 17 CPC)
JUDGMENT
1. The Plaintiffs - Smt. Shobha Aggarwal, Smt. Shanta Gupta and Sh. Deepak Kumar, the son of Late Smt. Swarnlata, are the daughters of late Sh. Nitya Nand Aggarwal and Smt. Vidyawati. The Defendants – Sh. Krishan Kumar and Sh. Shiv Raj Kumar, are the brothers of Plaintiffs No. 1 and 2. Plaintiff No. 3 is the son of one daughter of Late Sh. Nitya Nand Aggarwal who is since deceased. Thus, the Plaintiffs, on the one hand, represent the interests of the daughters and the Defendants are the two sons. The father – Sh. Nitya Nand Aggarwal died intestate on 11th January, 1971 and Smt. Vidyawati died on 28th February, 1991. The present suit for partition has been filed in respect of the following four movable/immovable properties: “a) 12/171, Sunder Nagar Market, New Delhi,110 003 measuring 150 sq. yards, (hereinafter, „Sunder Nagar property‟) 2019:DHC:3390 b) Shop cum Flat No.11 & 12, Sector 22, Chandigarh, (hereinafter, „Chandigarh property‟) c) Plot No. 1-A, Block No. B-1, Mohan Industrial Estate, New Delhi measuring 900 sq. yards. (hereinafter, „Mohan Nagar property‟) d) Jewellery left behind by Smt. Vidyawati weighting 50 tolas consisting of 2 sets of karas, 2 necklace, 8 churis and other miscellaneous items and money received by Smt. Vidyawati from LIC on the death of Shri Nitya Nand.”
2. According to the Plaintiffs, the cause of action for the present suit arose on 12th July, 2018 when an attempt was made to disturb the Plaintiffs’ possession in respect of one room in the Sunder Nagar property. Thereafter, police complaints were filed, leading to the filing of the present suit.
3. On 23rd July, 2018, this Court had passed an ad-interim order to the following effect:
A Local Commissioner was also appointed to visit the suit property and submit a report. The Defendants moved an application under Order XXXIX, Rule 4 CPC which was listed on 8th August, 2018. The vaction of the interim order was sought on the following grounds:
4. On the said date, the relinquishment deeds were perused and it was clear that the factum of the relinquishment deeds was not mentioned in the plaint. Accordingly, the ad-interim order was vacated with the following observations:
6. Considering the facts and circumstances of the case, there is a serious question as to whether the suit itself is maintainable in the present form. If the Plaintiffs are not in possession, court fee would also have to be paid. The injunction does not deserve to be continued due to the suppression which the Plaintiff has indulged in. The order dated 23rd July, 2018 is accordingly vacated. The date given in I.A. 9353/2018 i.e. 16th August, 2018 stands cancelled. Both I.As are disposed of.”
5. The Plaintiffs filed an appeal against the said order and on 27th August, 2008, the ld. Division Bench had directed status quo to be maintained. Thereafter, vide order dated 7th September, 2018, the ld. Division Bench disposed of the appeal with the following observations: “Having heard the learned counsel for the parties, we are of the considered view that the order impugned dated August 08, 2018 passed by the learned Single Judge in I.A. under Order XXXIX Rule 4 CPC vacating the order of status quo granted ex parte is primarily on the ground that the appellant herein has suppressed a relinquishment deed and also by taking note of Commissioner‟s report. From the material that has come on record, the appellant has tried to indicate before us that the relinquishment deed was not executed at all and it is not a document which could be relied upon and he refers to certain power of attorney and other facts in support thereof. Be that as it may, for the present we are not going into the various constructive aspects of the matter for the simple reason that the stay granted in favour of the appellant was vacated without granting him an opportunity to submit his counter affidavit and or go through the Commissioner‟s report which was relied upon by the learned Single Judge. In view of the above, we allow this appeal quashing the order passed by the learned Single Judge and request reconsideration of the application under Order XXXIX Rule 4 CPC afresh in accordance with law, after giving an opportunity to the appellant to file his counter affidavit or reply to the application. Status quo order to continue till the next date of hearing. List the matter before the learned Single Judge on September 17, 2018. CM No. 34342/2018 (for stay) In view of the order passed in the appeal, the application has become infructuous.”
6. The matter has been listed before this Court post the Division Bench order. At that stage, parties had submitted before the Court that they wish to explore mediation which, however, failed, as recorded in order dated 4th October, 2018. Pleadings have since been completed by the parties. Thereafter, arguments were heard from time to time.
7. Vide order dated 12th November, 2018, owing to the contention of the Plaintiffs that there was no registered relinquishment deed in respect of the Sunder Nagar property, the Defendants were directed to file certified copies of the said relinquishment deeds which were claimed to be registered. The Defendants had submitted that apart from the relinquishment deeds, the Plaintiffs have also executed three Rectification deeds on 11th May, 1973. Accordingly, on 12th November, 2018, the three relinquishment deeds dated 25th July, 1972, in original, and certified copies of the three rectification deeds dated 11th May, 1973 were handed over to the Court and the same were directed to be kept in a sealed cover.
8. Further submissions have been made on behalf of the parties. On behalf of the Defendants, the Court was informed that the records of the Sub-Registrar in respect of the registration of the relinquishment deeds are not available, however, a diary entry of the register is available. Accordingly, the Defendants were permitted to place the certified copy of the diary entry on record.
9. Mr. P.K. Aggarwal, ld. counsel for the Plaintiffs, has made his submissions. It is his submission that the relinquishment deeds were not in the knowledge of the Plaintiffs who are not very highly educated. In fact, since the registered relinquishment deeds have not been produced and even a certified copy has not been produced, no reliance can be placed on the same. It is his further submission that irrespective of whether the relinquishment deeds are executed or not, the daughters would still hold a share in the immovable assets of their parents as the relinquishment deeds related only to the properties of Late Sh. Nitya Nand Aggarwal - the father, and the sisters have not relinquished their share in their mother’s property. Even if it is taken that their share in their father’s assets has been relinquished, the Plaintiffs would still have 1/5th share out of the mother’s share.
10. Moreover, the ld. counsel for the Plaintiffs submits that a General Power of Attorney (hereinafter, „GPA‟) was executed by the Plaintiffs on 21st January, 1971 in favour of Defendant No. 1 and as per the said GPA, authority was given to the brother only to take action against tenants, etc. in Chandigarh and Sunder Nagar property. Clauses 10 and 11 of the General Power of attorney are relied upon which read as under:
11. On the strength of clause no. 10, it is argued that the GPA was meant only to obtain mutation in the name of all the heirs and to get the succession certificate. It is further submitted that a second power of attorney on similar lines was also executed by Smt. Shanta Gupta who attained majority around 29th May, 1971. Thus, the clauses in the two powers of attorney show that the sisters, i.e., the Plaintiffs, never had any intention of relinquishing their share in the properties. Further, reliance is placed on the letter dated 29th September, 1981 which was written by Defendant No. 1 to the MCD which clearly states that even as of 1981, despite the execution of the relinquishment deeds, Defendant No. 1 clearly represented to the MCD that the brothers and the sisters along with the mother are the joint owners. The relevant portion of the said letter is set out below: “Dear Sir, I, Krishan Kumar for self and as General Attorney of Smt. Vidya Wati, Shri Shiv Raj Kumar, Smt. Shobha Rani, Smt. Shanta Rani and Smt. Swaran Lata, of 10- 11, Bengali Market, New Delhi, do hereby make the following complaints in respect of the premises noted as subject above:-
1. We, jointly are the owners of shop No. 12, Sunder Nagar Market, New Delhi, which premises we have licenced to Shri Hans Raj and the said Shri Hans Raj had unauthorisedly covered the rear open courtyard of the said premises for which, besides the Land & Development Officer as the lessor of the land having taken objection, was also objected to by the Municipal Corporation of Delhi. The Municipal Corporation took proceedings u/S 343 of the D.M.C. Act for the demolition of the said rear covered court—yard and after duly completing the said proceedings demolished the same on 24.9.1981. We understand that due record about the demolition of the unauthorised coverage of the court-yard has duly been made by the relevant Branch of the Municipal Corporation of Delhi. …”
12. It is also submitted that the Plaintiffs had even applied under the RTI Act to obtain copies of the relinquishment deeds but the Plaintiffs were informed that no such documents are available in the archives.
13. Finally, Mr. Aggarwal submits that as per Order XX Rule 18, even if the share of the Plaintiffs is held to be 1/15th or 1/5th, the fact that the Defendants admit that the Plaintiffs have 1/15th share itself shows that the Plaintiffs are entitled to seek status quo in respect of the property as the first right of any co-sharer is to seek a preliminary decree under Order XX Rule 18 CPC. It is only when a property cannot be partitioned by metes and bounds that the Court can proceed to auction the property or permit sale of the property.
14. On behalf of Defendant No.1, Mr. P. K. Rawal, ld. counsel submits that the Plaintiffs are completely guilty of concealment of material facts and suppression as they have not only completely concealed the relinquishment deeds but also the rectification deeds which were executed in respect of the said relinquishment deeds. Further, it is also submitted that the Plaintiffs were well aware that the Chandigarh property and the Mohan Nagar property was disposed of long ago. Reliance is placed on letter dated 1st July, 2016 written by the Plaintiffs. As per the said letter, the Plaintiffs have clearly agreed for 1/11th share of the Sunder Nagar property. The interesting feature is that in the said letter, the stand of the Plaintiffs is that by selling the Chandigarh property and the Mohan Nagar property, the Defendants have bought two properties, namely, C-350, Yojana Vihar, New Delhi (hereinafter, „Yojana Vihar Property‟) and commercial flat bearing no. 118, Hans Bhawan, Bahadurshah Zafar Marg, New Delhi (hereinafter, „Hans Bhawan Property‟). When this was clearly in the knowledge of the Plaintiff, they ought not to have sought any injunction in respect of the Chandigarh property or the Mohan Nagar property.
15. It is further submitted that the averment in the application under Order VI Rule 17 that knowledge of the Yojana Vihar property and Hans Bhawan property was acquired only from the written statement, is thus completely false and untrue. Reliance is placed on the replication filed by the Plaintiffs wherein in para 10, the Plaintiffs admit as under:
On the basis of the above averment in the replication, it is argued by the Defendants that the letter dated 1st July, 2016, in fact stands admitted by the Plaintiffs.
16. It is further submitted on behalf of Defendant No.2 – Mr. Kunal Aganpal, ld. Counsel that a perusal of the assessment order of the Assistant Controller of Estate Duty shows that the only two properties which were in the name of Late Sh. Nitya Nand Aggarwal were the Sunder Nagar property and the Chandigarh property. The Mohan Nagar property was never considered part of the estate of Late Sh. Nitya Nand Aggarwal.
17. This Court has heard the submissions of both the parties. First, the submission of the Plaintiffs that they were not aware of the execution of the relinquishment deeds and the rectification deeds is not plausible. The relinquishment deeds were executed on 25th July, 1972 and were duly registered with the Sub-Registrar. The certified copies of the rectification deeds dated 11th May, 1973 have also been produced. A conjoint reading of the relinquishment deeds and the rectification deeds clearly shows that the Plaintiffs had relinquished and released all their shares and interest in the Sunder Nagar property, the Chandigarh property and all other movable assets of their father in favour of their mother – Late Smt. Vidyawati and the two brothers. Even if it is presumed that these relinquishment deeds may or may not have been registered, the fact remains that these were in fact executed by the Plaintiffs and the rectification deeds also show that the relinquishment deeds were duly executed. The original relinquishment deeds are on record and the signatures thereupon are not denied. The said documents were well within the knowledge of the Plaintiffs at the time of the filing of the suit and were extremely relevant documents for grant of adinterim orders. Thus, there is no doubt that the Plaintiffs are guilty of suppression.
18. However, the matter is now being adjudicated on merits. The relinquishment deeds and the rectification deeds read together would only have the effect of the rights of the daughters in their father’s share being relinquished, but their mother’s share would still be inherited by them as the mother admittedly died intestate. Thus, the share of the mother which existed in the Sunder Nagar property would still devolve upon the Plaintiffs, the share being 1/5th of their mother’s share. Thus, even if the relinquishment deeds and rectification deeds are taken into consideration, there is no doubt that each of the Plaintiffs would inherit 1/15th share in the Sunder Nagar property. The said property is today being used as residence of Defendant No.1. Defendant No.2 lives in Yojana Vihar property.
19. The Plaintiffs claim that they have possession of one room in the Sunder Nagar property. A perusal of the Local Commissioner’s report shows that the Local Commissioner had found Plaintiffs No.1 and 2 along with Defendant No.2 in one room in the Sunder Nagar property.
20. The Ground Floor of the Sunder Nagar property is partly tenanted and partly Defendant No.1’s son is running a business from the said property. The fact however remains that the Plaintiffs live in their matrimonial home as they are married sisters and Defendant No.2 lives in the Yojana Vihar property. Thus Defendant no.1 and his family, are in occupation of a substantial portion of the Sunder Nagar property.
21. Insofar as the Yojana Vihar and Hans Bhawan properties are concerned, the ld. Counsel for the Plaintiffs wishes to amend the suit and seek partition of the said properties. The plaint mentions the Yojana Vihar property in para 7 though partition of the said property was not sought at the time when the suit was filed. Insofar as the Hans Bhawan property is concerned, it does not find a mention in the plaint. However, these properties were well within the knowledge of the Plaintiffs though they did not seek any relief in respect of these properties. Due to the fact that the suit is at a nascent stage, even admission/denial having not been concluded, an application has been moved by the Plaintiffs seeking amendment and addition of these properties in the relief. This Court is inclined to allow the said amendments in view of the fact that, at best, knowledge of these properties could be attributed to the Plaintiffs dating back to the letter dated 1st July, 2016. It cannot however be said that the said letter and the knowledge thereof would bar the Plaintiffs from seeking an amendment, if, for whatever reason, the said two properties have not been included in the plaint. The admitted position is that the Mohan Nagar property and the Chandigarh property have already been sold. In view of this, the Mohan Nagar property and the Chandigarh property are deleted from the list of assets of which partition is sought. The Plaintiff is permitted to replace these properties with the Yojana Vihar property and the Hans Bhawan property.
22. The submission of Defendant No. 2 is that the Chandigarh property was sold in 1975 and the share of the mother in the said property was already transmitted to her account during her lifetime. This objection would have to be proved at the stage of trial and considered at the final stage in order to determine whether any property was in fact purchased after the Chandigarh property was sold and if the Plaintiffs have any share in the same. At this stage, it cannot be held that the Plaintiffs are not entitled to amend the plaint. The amendment sought is permitted without prejudice to the legal objections and defences of the Defendants. The said defences would be liable to be raised in the amended written statement to be filed by Defendants. Amended plaint already filed is accordingly taken on record.
23. Coming to the interim relief that is required to be passed in the present suit, the applications, i.e., for interim injunction and vacation of injunction have been heard by the Court. The initial order was passed under the presumption that on the basis of the case made out in the plaint - Plaintiffs’ parents had both passed away intestate and all the children were entitled to an equal share. The Defendants have placed on record enough documentary evidence to support the plea that there is a relinquishment deed executed by each of the sisters along with the rectification deeds to the said relinquishment deeds. Therefore, prima facie it is clear that the plaintiffs have relinquished their shares in their father’s assets in favour of their mother and their brothers. Thus, as per the documents available on record at this stage, the only share which the Plaintiffs would be entitled to would be the share of their mother who is since deceased. None of the Plaintiffs are residing in the suit property. They all reside in their matrimonial homes as the memo of parties itself suggests. Defendant No. 2 admittedly lives in the Yojana Vihar property. Under these circumstances, this court is of the opinion that the interest of all parties would be served if the parties can enjoy their respective shares in the Sunder Nagar property during their lifetime as the Defendants are senior citizens who are more than 81 and 70 years of age and all the Plaintiffs are either in their 60s or 70s. One of the sisters is in fact deceased and her legal heirs are the Plaintiffs.
24. It is the submission of the Defendants that, at best, the Plaintiffs would be entitled to 1/15th share and as per the Plaintiffs, they would be entitled to 1/5th share. The Defendants, as per the submissions of Ld. Counsels appearing for them, wish to monetize the suit property and enjoy the sale proceeds inasmuch as the Defendants do not continue to wish to reside in the suit property any longer. Accordingly, the Defendants are permitted to explore a buyer for the suit property and if an appropriate buyer is found, the Defendants are permitted to approach the Court by means of an application by placing the draft agreement to sell on record. At that stage, the Court would consider as to what amounts should be deposited in this Court in order to secure the interests of the Plaintiffs who are also senior citizens and if any other terms are to be imposed, before permitting sale of the property. The interim order is modified to this extent alone in respect of the Sunder Nagar property. Since the Chandigarh and Mohan Nagar property are already sold, the interim order is vacated qua these properties.
25. The applications under Order XXXIX Rules 1 & 2 CPC, XXXIX Rule 4 CPC and u/O VI Rule 17 CPC are disposed of in the above terms.
26. Insofar as the Yojana Vihar and Hans Bhawan properties are concerned, the Plaintiffs are permitted to move an application seeking interim relief, if they are so advised.
27. Written statement to the amended plaint be filed within 30 days along with affidavit of admission/denial. Replication within two weeks thereafter along with the affidavit of admission/denial.
28. List before the Joint Registrar for admission/denial on 11th September,
2019. List before Court for framing of issues on 31st October, 2019.
PRATHIBA M. SINGH JUDGE JULY 16, 2019/Rahul/dj