Full Text
HIGH COURT OF DELHI
SOHAN SINGH TALWAR ..... Plaintiff
Through: Mr. G. K. Sharma, Advocate.
Through: Mr. Amiet Andlay and Mr. Arun K.
Sharma, Advocates. (M:9891685368)
JUDGMENT
1. Late Sardar Parkash Singh Talwar, who migrated to India after partition was married to Smt. Harbans Kaur, who is Defendant No.4. She did not have any children. Thereafter, he married Smt. Agya Kaur and they had three sons and one daughter. Plaintiff – Sardar Sohan Singh Talwar, Defendant No.1- Mr. Kuldeep Singh Talwar and Defendant No.2- Shri Rajinder Singh Talwar are the three sons. Defendant No.5- Smt. Trilochan Kaur was the daughter. Both wives of Sh. Parkash Singh Talwar are alive.
2. Plaintiff has instituted the present suit for permanent injunction, rendition of accounts, partition, declaration and possession of the following properties. “PROPERTY NO. 1 D-4/1 (PART), KRISHNA NAGAR, DELHI-110051MEASURING 116.[6] SQ. YDS.
PROPERTY NO. 2 2018:DHC:7485 D-4/2, KRISHNA NAGAR, DELHI-110051 (MEASURING 233 SQ. YDS.) PROPERTY NO. 3 C-2/3, SECOND FLOOR, KRISHNA NAGAR, DELHI-110051MEASURING 60 SQ. YDS.”
3. Insofar as property no.3 i.e. C-2/3 Second Floor, Krishna Nagar, Delhi-110051, admeasuring 60 sq. yards is concerned, the Plaintiff does not insist on the partition of the said property in the present suit. The Plaintiff is residing in the house and the same belongs to his mother Smt. Agya Kaur. This is clear from his cross-examination where it is recorded as under: “Q.128. Are you claiming partition qua property bearing No.C-2/3, Second Floor, Krishna Nagar?
4. Insofar as property no.1 bearing no.D-4/1, Krishna Nagar, Delhi, admeasuring 116 sq. yards is concerned, the same is a commercial property consisting of four shops (hereinafter „commercial property‟). It is the admitted position that out of four shops, three shops are currently tenanted. The Defendants do not dispute that the Plaintiff enjoys 1/3rd share in this property.
5. Insofar as property no. 2 bearing no.D-4/2, Krishna Nagar, Delhi (hereinafter „residential premises‟) is concerned, apart from the Plaintiff and his family, other family members namely two brothers and their families and their two mothers are residing in this premises. The Plaintiff is not in physical possession of this property. The said residential premises is in the name of the Late father and the Defendant No.2 Shri Rajinder Singh Talwar.
6. In the plaint, the case of the Plaintiff is that the entire assets were made by his father. It‟s his case that his father had started business of jewellery and thereafter the brothers had together started the business of readymade garments by the name M/s. Talwar Collections. Plaintiff claimed he had a share in the said businesses and according to him, he was receiving an amount of Rs.9,000/- per month from the said businesses. He claimed that he is in joint possession of the commercial property and that the rent from the tenants of the three shops is being collected by the Defendants. Thus, the Plaintiff seeks rendition of accounts in respect of business of M/s. Talwar Collections and rendition of accounts from the three shops. Plaintiff claims 1/4th share in the residential premises and 1/3rd share in the commercial property. The relief sought by the Plaintiff in the present suit are as under: “(i) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants, their agent, attorney representatives restraining them from parting with the possession or creating third party interest in the suit properties or raising any construction, with respect to 1/4th share of the plaintiff in the properties owned by the father of the plaintiff as mentioned in Annexure-A, annexed to the plaint;
(ii) Pass a decree for permanent injunction in favour of the plaintiff and against the defendants their representatives, associates, agents and assigns thereby restraining them from interfering into the peaceful possession of the plaintiff of the property bearing No. C-2/3, 2nd Floor, Krishna Nagar, Delhi-110051.
(iii) Pass a decree/order of rendition of accounts directing the defendants no. 1 to 4 to provide the details of accounts of M/s. Talwar Collections from 2003 to 2014, accounts of rent received by the defendants from 4 tenants from 2003 to 2014 and accounts of the funds received after selling the property bearing No. IX/6132, Gandhi Nagar Delhi- 110031 and invested in different properties between the year 2003 to 2014.
(iv) Pass a decree of partition by metes and bounds in respect of the immoveable properties mentioned in Annexure 'A', annexed with the plaint.
(v) Pass a decree of declaration in favour of the plaintiff and against the defendants, declaring the plaintiff as the owner of the 1/4th share of the properties left by Sh. Parkash Singh Talwar and owner of 1/3rd share already in the name of the plaintiff in the property bearing No. D-4/1, Krishna Nagar, Delhi-
110051.
(vi) Pass a decree of possession in favour of the plaintiff and against the defendants in respect to the 1/4th share of the plaintiff in the properties left by Sh. Parkash Singh Talwar and for the 1/3rd portion owned by the plaintiff in property Bearing No. D-4/1, Krishna Nagar, Delhi- 110051.
(vii) Any other relief/reliefs this Hon'ble Court deems fit and proper in the circumstances of the present case may kindly be passed in favour of the plaintiff.”
7. The case of the Defendants in the written statement is that the suit has not been properly valued as the Plaintiff is not in possession of any of the two properties i.e., the commercial property and the residential property. The third property is in the possession of the Plaintiff and partition of the said property is not sought. The Defendants have set up a defense of an oral family settlement claimed to have been arrived at in the year 2002. According to the Defendants, the terms of the said settlement are as under:
1) That the Plaintiff would be given a separate property to stay with his wife and children and that the same was to be transferred in his name once he got over his alcohol addiction.
2) That the Plaintiff would be given a share from the future sale proceeds of a property in Gandhi Nagar and the Plaintiff shall be given some money and jewellery.
3) According to the Defendants, the Gandhi Nagar property, which was exclusively in possession of Smt. Agya Kaur, was accordingly sold on 6th June, 2002 and part of the proceeds were given to the Plaintiff. Another property in Hargobind Enclave was also sold and sale proceeds were divided with the Plaintiff. Thereafter, the property where the Plaintiff resides currently i.e. C-2/3, Second Floor, Krishna Nagar was purchased on 22nd November, 2005 and sole/exclusive possession of the same was handed over to the Plaintiff.
4) That with the purchase of the property C-2/3, Plaintiff had relinquished/accepted his ouster/exclusion from the suit properties i.e. both the residential premises and the commercial property.
5) That the amount of Rs.9,000/- was basically given out of compassion by the mother considering the jobless status of the Plaintiff. Money was being paid to the Plaintiff‟s wife. According to the Defendants, Plaintiff had executed a disclaimer deed confirming the full and final settlement.
8. The Defendants state that the Plaintiff‟s wife is instrumental in filing of the present litigation and that she is being encouraged by a builder/property dealer by the name Mr. Ashok Kumar Ratan, who was apprehended with the Plaintiff‟s wife by the customs authorities at Madras airport.
9. The following issues were framed in the suit on 10th August, 2016. “1) Whether the suit is under valued and the plaint has been insufficiently stamped? (OPD)
2) Whether any oral family settlement had been arrived at between the parties to the suit in the year 2002 and if so, the effect thereof? (OPD)
3) Whether the plaintiff is entitled for the decree for permanent injunction as prayed in prayer clause (i) and (ii)? (OPP)
4) Whether the plaintiff is entitled for the decree/order of rendition of account, as prayed for in prayer clause (iii)? (OPP)
5) Whether the plaintiff is entitled to a decree of partition by metes and bounds in respect of the three suit properties? (OPP)
6) Whether the plaintiff is entitled to a decree of declaration declaring him as the owner of 1/4th undivided share in the properties at No.1 and 2 mentioned in the schedule attached to the plaint, owned by late Shri Prakash Singh Talwar? (OPP)
7) Whether the plaintiff is entitled to a decree of declaration declaring him as the owner of 1/3rd undivided share in the property at No.3 mentioned in the Schedule attached to the plaint? (OPP)
8) Whether any oral settlement had been arrived at between the parties to the suit in the year 2002 and if so, the effect thereof? (onus on the parties)
9) Relief.”
10. A Local Commissioner was appointed for recording the evidence. On 16th February, 2017, an additional issue was also framed, which reads as under: “Whether disclaimer dated March 2011 was executed by the plaintiff in favour of the third defendant? If so, its effect? OPD”
11. On behalf of Plaintiff the following witnesses were examined. Mr. Sohan Singh Talawar - PW-1 Mr. Gopal Datta - record keeper, Sub-Registrar-IV, - PW-2 Mr. Bahadur Singh Talwar, nephew of Parkash Singh Talwar and cousin of Plaintiff - PW-3
12. On behalf of Defendants, following witnesses were examined. Pritam Singh Talwar - DW-6 Smt. Trilochan Kaur - DW-5 Rajender Singh Talwar - DW-2 Shri Surjeet Singh – DW-8
13. The following are the documents exhibited in the matter. List of documents on behalf of the plaintiff:
┌─────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Documents Exhibit Pg. No │ │ No No. │ ├─────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Site Plan of the property bearing No. D-4/1, Krishna PW- 1/1 Pg.2 │ │ Nagar, Delhi- 110051. Vol.III A │ │ 2. Site Plan of the property bearing No. D-4/2, Krishna PW- 1/2 Pg.3 │ │ Nagar, Delhi- 110051. Vol.III A │ │ 3. Site Plan of the property bearing No. C-2/3, Krishna PW- 1/3 Pg.4 │ │ Nagar, Delhi- 110051. Vol.III A │ │ 4. Copy of the Sale Deed dated 4th December 1986 executed Mark Pg. 5 to │ │ between by Shri Vinod Kumar in favour of Shri Prakash A/PW- 22 │ │ Singh Talwar concerning the property bearing No. D-4/2, 2/1 Vol III A │ │ Krishna Nagar. │ │ 5. Copy of the Sale Deed dated 13th May 1996 executed Mark Pg. 23 to │ │ between by Shri Vinod Kumar in favour of Shri Prakash B/PW- 49 │ │ Singh Talwar concerning the property bearing No. D-4/1, 2/2 Vol III A │ │ Krishna Nagar. │ │ 6. Copy of the Panchayat Letter dated 11th April 2012, to Mark C Pg. 53 to │ │ Panchayat (Jadiya Biradri), signed by the plaintiff, 57 │ │ defendant 2,3 and Panchayat Pardhan. Vol III A │ │ 7. Translated typed copy of the letter in sl. No 6 Mark C Pg. 58 to │ │ Vol III A │ │ 8. Copy of the Panchayat Letter dated 2nd December 2012, to Mark C Pg. 63 to │ │ Panchayat (Jadiya Biradri), by the plaintiff along with the 65 │ │ typed translated copy. Vol III A │ │ CS (OS) 1941/2014 Page 7 of 25 │ │ 2018:DHC:7485 │ │ 9. Copy of the school fee receipt of Tansihq Talwar dated Pg. 66 │ │ 18th October 2014. Vol III A │ │ 10. Copy of the school fee receipt of Krish Talwar dated 18th Pg. 67 │ │ October 2014. Vol III A │ │ 11. Photographs of the suit property, D-4/1, Krishna Nagar, Mark D Pg. 68 │ │ Delhi- 110051. and E Vol III A │ │ 12. Photographs of the suit property, D-4/2, Krishna Nagar, Mark F Pg. 69 │ │ Delhi- 110051. Vol III A │ │ 13. Copy of the judgement of District and Sessions Judge, DW- Pg. 70 to │ │ Karkardooma Courts in Civil Suit No: 39/07 between Sh. 2/P1 99 Vol │ │ Rajinder Singh Talwar and Prem Prakash, decided on 8th III A │ │ October 2007. │ │ 14. Site map of property bearing no D-4/1, Krishna Nagar, P/5 Volume │ │ showing the share of the plaintiff after partition. I A. │ │ 15. Consent terms on behalf of the plaintiff. P/5 Volume │ │ I A. │ │ 16. Judgment copy of Krishna Gupta and Anr. v. Rajinder P/6 Volume │ │ Nath & Co. HUF and Ors, CS(OS) No 663 of 2011- I A. │ │ decided on 11th February 2013. │ │ 18. Valuation report of the property bearing no C-2/3, Second P/9 Pages 2- │ │ Floor, Krishna Nagar, Delhi- 110051. 3 of │ │ physical │ │ file │ │ Volume │ │ I A. │ │ 20. Calculation of shares of the parties in property bearing D- P/9 Page 9 │ │ 4/1, Krishna Nagar measuring 116.66 Sq. Yds. of │ │ Volume │ │ I A. │ │ 21. Calculation of shares of the parties in property bearing D- P/9 Page 5 │ │ 4/2, Krishna Nagar measuring 233.33 Sq. Yds. of │ │ Volume │ │ I A. │ │ List of documents on behalf of the defendants: │ │ Sl. Documents Exhibit Pg. No │ │ No No. │ │ 1. Copy of the Sale Deed dated. 6th June 2002. Pg. 1 to │ │ - 16 of │ │ Vol III B │ │ 2. Copy of the Sale Deed dated. 21st May, 2004. PW-1/ Pg. 17 to │ │ D2 24 of │ │ Vol III │ │ CS (OS) 1941/2014 Page 8 of 25 │ │ 2018:DHC:7485 │ │ B. │ │ st │ │ 3. Copy of the Sale Deed dated. 21 May 2004. Pg. 25 to │ │ - 39 of │ │ Vol III │ │ B. │ │ 4. Copy of the Sale Deed dated. 22nd November 2005. PW- Pg. 41 to │ │ 1/D1 52 of │ │ Vol III │ │ B. │ │ 6. Copy of the newspaper publication dated 8th February Pg. 56 to │ │ 2012. - 58 of │ │ Vol III │ │ B. │ │ 7. Copy of the valuation report dated 24th October 2014 for DW 8/1 Pg. 59 to │ │ property bearing no D-4/2, Krishna Nagar. 62 of │ │ Vol III │ │ B. │ │ 8. Copy of the valuation report dated 24th October 2014 for DW 8/2 Pg. 63 to │ │ property bearing no D-4/1, Krishna Nagar. 66 of │ │ Vol III │ │ B. │ │ 9. Original Disclaimer Deed dated 2nd March 2011. DW 6/1 Pg. 68 to │ │ 69 of │ │ Vol III │ │ B. │ │ 10. Copy of the Sale Deed dated. 21st May, 2004. PW- Pg. 87 to │ │ 1/D3 111 of │ │ Vol III │ │ B. │ └─────────────────────────────────────────────────────────────────────────────────────────────────┘
35. Issues are accordingly decided as under: Issue No.1- Whether the suit is under valued and the plaint has been insufficiently stamped? Insofar as issue no.1 i.e. the court fee is concerned, valuation of the residential property bearing No.D-4/2, Krishna Nagar, being Rs.71 Lakhs and the Plaintiff not being in possession of the same, Plaintiff is liable to pay the court fee in respect of this property. Insofar as the commercial property bearing No.D-4/1 is concerned, since the property is under tenancy, the Plaintiff is held to be in constructive possession of the said property and no court fee would be liable to be paid. Issue No. 2- Whether any oral family settlement had been arrived at between the parties to the suit in the year 2002 and if so, the effect thereof? Additional issue-Whether disclaimer dated March 2011 was executed by the plaintiff in favour of the third defendant? If so, its effect? Issue No.8 - Whether any oral settlement had been arrived at between the parties to the suit in the year 2002 and if so, the effect thereof? It is held that there was no oral family settlement arrived at between the parties in respect of the assets of Late Shri Parkash Singh Talwar. Further the disclaimer deed only mentions the relinquishment of the properties that were solely in the name of Smt. Agya Kaur. Thus, it is held that the disclaimer deed does not in any way bar the Plaintiff from asking for his respective share from the properties owned by his father. Issue No.3 - Whether the plaintiff is entitled for the decree for permanent injunction as prayed in prayer clause (i) and (ii)? Plaintiff in prayer clause (i) seeks a decree for permanent injunction restraining the Defendants from parting with or creating third party interests or raising any construction with respect to his share in the suit properties. In view of the fact that a monetary equivalent of the value of his 1/5th share in the residential premises is being granted, no permanent injunction is liable to be granted. In respect of the commercial property, the 2/5th share equalling 46.[6] Sq. Yards is to be demarcated. Until the demarcation, takes place, there shall be an injunction restraining all parties from creating any third party rights. Prayer clause (ii) is in respect of property bearing no. C-2/3, 2nd Floor, Krishna Nagar, Delhi-110051, qua which the Plaintiff has given up his claims. Issue No.4 - Whether the plaintiff is entitled for the decree/order of rendition of account, as prayed for in prayer clause (iii)? It is held that the prayer of rendition of accounts as prayed for by the Plaintiff is rejected for want of conclusive evidence as held above. Issue No.5 - Whether the plaintiff is entitled to a decree of partition by metes and bounds in respect of the three suit properties? It is held that in respect of the residential property i.e. D-4/2 Krishna Nagar, partition by metes and bounds is not feasible. It is deemed proper, to grant the monetary equivalent of 1/5th share of the Plaintiff. In respect of the commercial property i.e. D-4/1 Krishna Nagar, partition by metes and bounds is possible. Accordingly, it is held that the Plaintiff is entitled to his 2/5th share of 46.6. sq.yards. The same would be demarcated from the extreme southern end moving towards the northern end. Issue No.6 - Whether the plaintiff is entitled to a decree of declaration declaring him as the owner of 1/4th undivided share in the properties at No. l and 2 mentioned in the Schedule attached to the plaint, owned by late Shri Prakash Singh Talwar ? The Plaintiff is held entitled to declaration to the effect that he is the owner of 1/5th share in the residential property and 2/5th share i.e., 46.[6] sq. Yards in the commercial property. But in respect of the residential property, the Plaintiff would only be entitled to the monetary value of his share. Issue No.7 - Whether the plaintiff is entitled to a decree of declaration declaring him as the owner of 1/3rd undivided share in the property at No.3 mentioned in the Schedule attached to the plaint? The Plaintiff has given up his claim to this property.
36. The suit is decreed in the above terms. The Commissioner Mr. Shishu Chauhan, Civil Engineer is directed to execute and carry out demarcation in the commercial property within a period of six weeks after ascertaining convenience from counsels for both the parties. Compliance report be filed by the Local Commissioner. Fee of the Local Commissioner is fixed at Rs.25,000/- to be shared by the Plaintiff and the Defendants equally. Decree sheet be drawn. All pending I.As., if any are disposed of.
PRATHIBA M. SINGH, J. JUDGE NOVEMBER 27, 2018