Vinod Kumar & Anr. v. Asha Devi & Ors.

9. The Trial Court, after perusing the evidence, documents and pleadings on record, dismissed the suit on 13th February 2015, in the following terms: “23. In view of the above, I am of the opinion that the plaintiffs have failed to prove issue No.1, 3, 5 & 7 and the findings on issue No.2, 6 & 8 have gone in favour of defendants, the plaintiffs are not entitled to any relief. Hence, suit of the plaintiff deserves dismissal. The same is dismissed with cost of Rs.20,000/- (Rupees Twenty Thousand). Decree sheet be prepared accordingly. File be consigned to Record Room. ”

10. The findings of the Trial Court, inter alia, are as under: a) That no document was placed on record to substantiate that Sh. Om Parkash had spent any money for construction on the property. b) That Sh. Om Parkash did not stay in the suit property but was posted in Lucknow. c) That 40% of the suit property was given to Sh. Om Parkash by Smt. Maya Devi. d) That there was an oral partition between the parties by which 40% of the suit property went to the family of Sh. Om Parkash and 60% of the rear portion of the property went to the share of Sh. Ved Parkash. e) That the two daughters of Smt. Maya Devi are not coparceners under Section 6 of the Hindu Succession Act, 1956 (hereafter, „HSA‟), hence they did not have any right in the suit property as Smt. Maya Devi had expired in 1985, prior to the amendment in Section 6 of HSA which came into effect in 2005.

11. The present appeal impugns the Trial Court judgment dated 13th February, 2015. In the present appeal, on 10th August, 2015, this Court had directed that parties “will maintain status quo as to the title and possession” and the said order was made absolute on 17th November, 2015, when the appeal was also admitted. Counsel for the Appellant has addressed arguments and the Respondents are represented by Respondent no.3 who appears in person. Submissions of Appellants/Plaintiffs

12. It is the contention of the Plaintiffs that since Smt. Maya Devi died intestate and her two daughters executed relinquishment deeds in favour of the Plaintiffs, they are entitled to 40 sq. yards out of the 60 sq. yards in the rear portion. Thus, the Plaintiffs claim that the front portion of the property already vests in their favour in view of the oral family settlement in the year 1980 and out of the rear portion they are entitled to 40 sq. yards i.e. a total of 80 sq. yards out of 100 sq. yards property. It is further submitted by the Plaintiffs that both the daughters of Smt. Maya Devi are coparceners under Section 6 of HSA. Submissions of Respondents/Defendants

13. On the other hand, Defendant No.3- Ms. Rani Mehta, one of the daughters of Sh. Ved Parkash, who appeared in person, submitted that the death of Smt. Maya Devi took place in 1985 and the present suit for partition was instituted only in 2010. She submits that the construction on a part of the property i.e. 40 sq. yards was illegal as sub-division of the plot could not have been made. She further submits that both her aunts were married in 1957 and 1967 respectively and did not have any rights in the suit property. According to her, the MCD ought to be directed not to interfere in the Respondents' peaceful enjoyment and possession as also construction of the suit property. She further submits that her father has always been in possession of the rear portion of the property and that by way of the family settlement of 1980, the Defendants are the owners of the 60% of the rear portion. Analysis and findings Whether there was any oral partition of the family property in 1980?

14. There is no written document capturing the terms of the family settlement, and the Court has to therefore analyse the pleadings and evidence on record. The lease deed in favour of Smt. Maya Devi is not in dispute. PW-1 admits that 40% share of the property was given to Sh. Om Parkash. He, however, denied that the remaining 60% was given to Sh. Ved Parkash. He also admits that there was no dispute over the partition till the death of Smt. Maya Devi and even till the death of two brothers, Sh. Om Parkash and Sh. Ved Parkash. He admits that there was no document to show that his aunts ever asserted their rights in the suit property.

15. PW-2, Smt. Kamlesh Malhotra, one of the daughters of Smt. Maya Devi, initially stated that the property was not divided amongst the two sons in the ratio of 40% and 60%, but again said that the 40% was given to Sh. Om Parkash and that the remaining 60% was not divided. Her deposition is relevant and is set out hereinbelow: “............. It is wrong to suggest that the property was divided among two sons by the mother into ratio of 40% in favour of elder son and 60% in favour of younger son Late Sh. Ved Parkash. (vol. The mother said I will see later on, I have other children also). Again said 40% was given to Om Parkash and 60% of share was not divided. It is wrong to suggest that when this plot was allotted it was constructed. It is wrong to suggest that Om Parkash was not residing in the plot. It is correct that he was serving in Lucknow. It is correct that he was living in Rajender Nagar. (Vol. front portion was constructed by Om Parkash and younger brother has done nothing). Om Parkash was died in 1994 and Ved Parkash died in 1999 and my mother died in 1985. I cannot say if Om Parkash has no right in 60% of the portion of the plot which was given to Late Shri Ved Parkash. It is correct that Smt. Asha Devi is of mild mind and Sukhdev is also in a petty job. Prior to that, he was not employed. It is correct that Rani is still unmarried. (Vol. I have asked her so many time to get married but she is listening to me). It is wrong to suggest that defendants have not ever mishehaved. It is wrong to suggest that I am harassing the defendants at the instance of Vinod and his wife. It is correct that Vinod‟s wife was working in police department and she is doing nothing now and she is now a housewife only. It is correct that I have not asked for any right in the property in 1995 when my mother died or my elder brother died in 1994 and even then when my younger brother Ved Parkash died in

1999. It is correct that even after death of Ved Parkash I never raised any question of my right in the property. I have executed the alleged deed when later on I was not allowed to come in the house and I was insulted by Rani........................ I cannot say what construction was raised by Om Parkash.” She also admitted that she had no proof to show that Sh. Om Parkash had constructed any structure in the suit property.

16. D3W[1] – Ms. Rani Mehta stated that an oral family settlement took place in 1980. She admitted that Sh. Om Parkash carried out construction in 1980 and 1983 in the front portion of the 40 sq. yards area of the suit property. She stated that Sh. Om Parkash used to reside in Lucknow. Sh. Ved Parkash was employed as a beldar-daily worker in the MCD. She also stated in her affidavit that her father had carried out some renovation work in the rear portion of 60 sq. yards of the property and that Smt. Maya Devi used to reside with her father.

17. D3W[2] – Sh. Ashok Kumar was a colleague of Sh. Ved Parkash in the MCD. He stated that he visited Sh. Ved Parkash’s home when he was working with the MCD and that there was a wall between the portions of the Defendants and Plaintiffs. He categorically stated in his affidavit as under: “.......During the life time of Shri Ved Parkash I have visited many times his house and came to know that the house belongs to Shri Ved Parkash and saw his family residing there.

4. That many times I alongwith other colleague late Shri Ved Parkash got carried out the repairs of the house in our supervision.

5. That in rear portion comprising of two rooms, kitchen and bath room is in possession and ownership of the defendant and front side 40 sq. yards constructed upto 4th storey is in possession of the wife of elder brother of late Shri. Ved Parkash (Plaintiff).

6. That I have come to know while visiting the house that no sister of late Sh. Ved Parkash was residing there. We persons from the office were always helping Ms. Rani Mehta and the home of the defendant is towards the gali.

7. That late Sh. Ved Parkash is survived with his wife daughter Rani Mehta and son Shri Sukh Dev. The mother of Ms. Rani Mehta and Sh. Sukhdev is remained ill after the death of late Sh. Ved Parkash.”

18. In his cross-examination, he stated as under: “I know the family of Mr. Ved Parkash. It is correct that I was having visiting terms with the family of Mr. Ved Parkash................... The suit property belonged to the mother of late Shri Ved Parkash. Late Shri Ved Parkash used to get the repairs done in the portion he was living on his own. I used to go alone at the house of late Shri Ved Parkash.................... The suit property consists one room, kitchen, laterin-bathroom, store and some vacant portion when I visited their house. I used to enter from the front gate and used to go from the back gate and there was no wall in between.”

19. A perusal of the evidence on record establishes the following facts unequivocally: a) That the family of Sh. Om Parkash resided in the front portion of the suit property and had carried out construction in the 40 sq. yards area. b) That family of Sh. Ved Parkash resided in the rear portion of the property consisting of 60 sq. yards. c) That two daughters did not claim any rights so long as their mother was alive. d) That the two daughters also did not claim any rights from either of their brothers while they were alive. e) That the relinquishment deed appears to have been executed due to the misbehaviour of the Defendant No.3 with her aunt, as admitted by PW[2] in her cross examination. f) That the D3W[2], who was a colleague of Sh. Ved Parkash, who used to visit the suit property, confirms that Sh. Ved Parkash used to get renovation/repair work done in his portion of the property.

20. All this goes to show that during the lifetime of the mother there was an oral family settlement between the parties and the front portion consisting of 40 sq. yards of the property was given to the family of Sh. Om Parkash and the rear portion of 60 sq. yards was given to other son Sh. Ved Parkash. Both the daughters of Smt. Maya Devi had acquiesced to this position and had not claimed any rights in their mother’s property during her lifetime or even during the lifetime of the brothers. Thus, the family settlement had not only taken place, but had also been acted upon by all the heirs of Smt. Maya Devi, both in intent and in conduct.

21. The stand of the Plaintiffs that the oral family settlement merely vested the 40 sq. yards property in favour of Sh. Om Parkash and not the remaining 60 sq. yards in favour of Sh. Ved Parkash, seems to be a clear case of double-speak. While the Plaintiffs rely on the oral family settlement to safeguard their own 40 sq. yards share, they seem to approbate and reprobate by, in the same breath, arguing that the remaining 60 sq. yards was to be divided among the legal heirs of Smt. Maya Devi. If this position is correct, then the Plaintiffs ought to have been claiming rights even in the rear portion of 60 sq. yards meaning thereby the Defendants would then be entitled, as per the Plaintiffs, only to 15% i.e. 15 sq. yards of the property. The pleaded case of the Plaintiffs is, however, that the Defendants are entitled to 20 sq. yards i.e. 1/3rd share in the suit property. The oral family settlement, therefore, is being interpreted by the Plaintiffs as an arrangement by which Sh. Om Parkash was not only vested with 40 sq. yards but was also divested of his rights from the 60 sq. yards. If this is so, the oral family settlement is not correctly pleaded by the Plaintiffs, and thus, no credence can be given to the oral settlement as contended by the Plaintiffs. The oral family settlement is being twisted by the Plaintiffs for their convenience.

22. The Defendants’ stand in the written statement to the following effect has greater credibility:

The Defendants’ above stand has also been independently corroborated by Mr. Ashok Kumar and in fact, even by PW-2 Smt. Kamlesh Malhotra. PW-2 has clearly deposed that "I have executed the alleged deed when later on I was not allowed to come in the house and I was insulted by Rani." She also deposed that there is nothing to show that Sh.Om Parkash spent any money on the construction of the property and that he also did not continuously reside in the suit property. Thus, it is the admitted position that there was no proof, whatsoever, to show that Sh. Om Parkash spent any money on the construction of the property and he also did not reside continuously in the suit property. On the other hand, Sh. Ved Parkash and his family resided in the rear portion of the 60 sq. yards, carried out renovation/repair work and continued to be in possession thereof. Thus, the oral family settlement as pleaded by the Defendants is clearly established.

23. Once the oral family settlement is established, this Court need not to examine the question of Section 6 of HSA. If the oral family settlement was not established by the parties, then the two daughters of Smt. Maya Devi would have to be treated as coparceners in view of the recent judgment of the Supreme Court in Danamma @ Suman Surpur & Anr. v. Amar & Ors. 2018 SCC OnLine SC 63 wherein the Supreme Court held as under:

26. Hence, it is clear that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.”

24. Thus, on this issue the Trial Court’s view is not sustainable. However, the conclusion arrived at by the Trial Court that there was an oral family settlement is established and borne out from the evidence. It is also borne out from the record and evidence that both the daughters of Smt. Maya Devi had agreed to the position that they would have no rights to the suit property. In fact, the long gap in the execution of the relinquishment deed in favour of the Plaintiffs itself shows that for more than 5 decades, no rights had been claimed by the said two daughters. As per the dictum of the Supreme Court in Kale and Ors. v. Deputy Director of Consolidation & Ors. (1976)3 SCC 119, an oral family settlement is binding on all the parties. The Supreme Court observed as under:

court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement................... 44....... The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who have taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement.....”

25. Even this Court in Bhagwan Krishna Gupta v. Prabha Gupta ILR (2008) 2 Del 79 has taken a view that a “family settlement can be oral and need not be in writing. An oral family settlement is binding on the parties and need not be registered.” Thus, oral family settlements are recognised in law and are binding on the members of the family.

26. The Trial Court’s judgment does not warrant any interference on the conclusion. The Plaintiffs are not entitled to partition of the back portion of the property measuring 60 sq. yards. The Defendants are declared as the owners of the rear portion of the property measuring 60 sq. yards of the property and are entitled to enjoyment, use and occupation of the suit property without any interference whatsoever. Copy of this judgment be sent to the municipal authorities to ensure that no harassment is caused to the Defendants in their enjoyment, use, occupation and construction in the rear portion of 60 sq. yards of the property. This direction to the municipal authorities is being passed in the unusual circumstances of this case wherein the Defendant No.1 i.e. Smt. Asha Devi, widow of Sh. Ved Parkash is not mentally sound and Defendant No.2 Shri Sukhdev Mehta, son of Sh. Ved Parkash does not keep in good health, and Defendant No.3 Ms. Rani Mehta, daughter of Ved Parkash, is a single lady who is taking care of her family.

27. The appeal is dismissed with no order as to costs. Interim order stands vacated.

PRATHIBA M. SINGH, J. JUDGE APRIL 13, 2018