Full Text
HIGH COURT OF DELHI
2+ CS(OS) 238/1989 PAMELA MANMOHAN SINGH ..... Plaintiff
Through: Mr. Ashwini Kumar Mata, Sr. Adv. with Mr. Mahendra Rana & Mr. Jatin Teotia, Advs.
Through: Mr. Lovkesh Sawhney, Adv. for D- 1(a) to 1(d).
Mr. Praveen Kumar, Adv. for the applicant Texla in IA No.16343/2015.
Ms. Malavika Rajkotia and Mr. Ranjay N., Advs. for applicant Frick
India Ltd. in IA No.14913/2011.
Mr. Rakesh Kumar Yadav, Adv. for applicant Mr. Acharya Onkar Mishra.
25+ TEST.CAS. 19/1997 PAMELA MANMOHAN SINGH ..... Petitioner
Teotia, Advs.
Through: Mr. Praveen Kumar, Adv. for the applicant Texla in IA No.16283/2015.
AND
2016:DHC:5421 26+ TEST.CAS. 20/1997
K.V. KOHLI THROUGH LR’S ..... Petitioners
Through: Mr. Lovkesh Sawhney, Adv.
Mr. Praveen Kumar, Adv. for the applicant Texla in IA No.16339/2015.
01.08.2016
JUDGMENT
1. All the three proceedings concern the estate of Dr. Raseel Kohli who died leaving Pamela Manmohan Singh as her daughter and Major K.V. Kohli as her son and leaving the following properties: (i) 1/3rd share in Property No.15, Jor Bagh, New Delhi (the other 2/3rd was in the name of Pamela Manmohan Singh and K.V. Kohli equally);
(ii) Property No.198, Golf Links, New Delhi;
(iii) Property No.6-B, Jangpura Extension, Mathura Road, New
(iv) Property No.7/29, Daryaganj, Delhi;
(v) Property No.31, Jor Bagh, New Delhi (under the tenancy of Dr.
(vi) cash and other movable assets.
2. Pamela Manmohan Singh has set up a Will dated 23rd September, 1987 whereunder Dr. Raseel Kohli is stated to have bequeathed her aforesaid estate to both Pamela Manmohan Singh and K.V. Kohli with both of them having different shares in different properties. Pamela Manmohan Singh has filed Test Cas. No.19/1997 seeking probate of the said Will.
3. According to K.V. Kohli, Dr. Raseel Kohli has left validly executed last Wills both dated 7th March, 1986 whereunder the entire estate has been bequeathed to K.V. Kohli. K.V. Kohli has filed Test Cas. No.20/1997 seeking probate of both the said Wills. However, K.V. Kohli, on 31st May, 2010 before the Division Bench in FAO(OS) No.336/2010 and as recorded in the order of that, date has given up the claim on the basis of one of the Wills set up by him and which Will in the order of the Division Bench is recorded to have been executed in the evening of 7th March, 1986. The counsel for K.V. Kohli states that of the two Wills of which probate was initially sought in Test Cas. No.20/1997, one was type-written and registered and the other was handwritten and unregistered and K.V. Kohli is now relying only on the handwritten unregistered Will and not on the typewritten registered Will.
4. K.V. Kohli has since died and his wife and children have been substituted in his place in all the three proceedings.
5. CS(OS) No.238/1989 has been filed by Pamela Manmohan Singh for partition of all the properties.
6. Property No.6-B, Jangpura was in possession of one Khairati Lal and Dr. Raseel Kohli in her lifetime had filed a suit for recovery of possession of the said property from Khairati Lal and the same had been decreed. According to Pamela Manmohan Singh, Khairati Lal has unlawfully handed over possession of the said property to Harnam Kaur, Mahinder Kaur and Jagjit Singh, all three of whom were partners of M/s. Texla Service Centre (and are hereafter referred to as Texla Service Centre). K.V. Kohli, claiming to be the sole owner of the said property under the Will of Dr. Raseel Kohli set up by him, has transferred the said property by three Sale Deeds in favour of the aforesaid three partners of M/s. Texla Service Centre.
7. Recording of evidence has begun only in Test Cas. No.19/1997. It is informed that both the attesting witnesses of the Will propounded by Pamela Manmohan Singh have already been examined and cross-examined by the counsel for K.V. Kohli. The proceeding in Test Cas. No.19/1997 is now at the stage of recording of evidence of Pamela Manmohan Singh herself.
8. Issues are informed to have been already framed in CS(OS) No.238/1989 as well as in Test Cas. No.20/1997.
9. Vide order dated 3rd December, 2014 in CM(M) No.319/2013 arising from another litigation between the parties, certain consent arrangement as to proceeding with the trial was recorded.
10. M/s. Texla Service Centre has applied for impleadment in Test Cas. No.19/1997. The counsel for M/s. Texla Service Centre, on specific query whether M/s. Texla Service Centre if so allowed to be impleaded therein would also like to cross-examine the two attesting witnesses who have already been examined as aforesaid, states that he has not looked at their evidence to find out whether there is any need for M/s. Texla Service Centre to cross-examine them after they have already been fully cross-examined by the senior counsel for K.V. Kohli.
11. The counsel for M/s Texla Service Centre ought to have come prepared with the said aspect and the hearing held cannot be wasted for his unpreparedness. I am of the view that there is no need to give any opportunity to M/s Texla Service Centre to examine the witnesses already examined. Pamela Manmohan Singh and K.V. Kohli are at logger heads with each other not only with respect to property no.6B Jangpura Extension but several other more valuable properties and there is nothing to suggest that K.V. Kohli, after selling property no.6B Jangpura Extension to M/s Texla Service Centre can give up his claim with respect to the said property inasmuch as the claim of K.V. Kohli to the said property as well as all other properties is on the basis of the same document claimed to be the last validly executed Will of Dr. Raseel Kohli.
12. I have enquired from the counsels whether Pamela Manmohan Singh and K.V. Kohli are seeking rights in the properties aforesaid, otherwise than as heirs of Dr. Raseel Kohli.
13. The senior counsel for Pamela Manmohan Singh as well as the counsel for K.V. Kohli state that it is not in dispute that all the properties aforesaid were personal properties of Dr. Raseel Kohli and the rights of the parties therein are as per the Wills respectively propounded by them.
14. After hearing the counsels at length, I am of the view that the trial in all the three proceedings should be consolidated and consolidated issues should be framed.
15. On the pleadings of the parties, the following consolidated issues are framed in the three proceedings:
(I) Whether the Will propounded by Pamela Manmohan Singh or the handwritten and unregistered Will propounded by K.V. Kohli is the validly executed last Will of Dr. Raseel Kohli? OPPr.
(II) Relief.
16. It is agreed between all the parties:
(i) that the evidence already recorded of the two attesting witnesses of the Will propounded by Pamela Manmohan Singh shall be read as evidence in pursuance to the above consolidated issues;
(ii) that Pamela Manmohan Singh will conclude her evidence first;
(iii) that the witnesses of Pamela Manmohan Singh will be examined only by the counsel for K.V. Kohli;
(iv) that the counsel for M/s. Texla Service Centre will not be entitled to cross-examine the witnesses of Pamela Manmohan Singh unless it sets up a case of K.V. Kohli colluding with Pamela Manmohan Singh and / or having arrived at a settlement with Pamela Manmohan Singh or having abandoned the case set up till now and to the prejudice of M/s Texla Service Centre;
(v) the counsel for M/s. Texla Service Centre will however be entitled to be present during the recording of the evidence;
(vi) M/s. Texla Service Centre would similarly not be entitled to lead any evidence of its own;
(vii) that depending upon the outcome of the issue framed and the need for accounts including mesne profits payable by either party to the other for use / benefits of the property/ies since the demise of Dr. Raseel Kohli, the same will be considered after the preliminary decree if any of partition;
(viii) that the evidence be recorded before a Court Commissioner.
17. Accordingly, Dr. R.K. Yadav, Additional District Judge (Retd.) Mob.9910384623 is appointed as the Court Commissioner for recording evidence of the parties on the consolidated issues aforesaid.
18. He is requested to record the evidence within the Court Complex and to endeavour to complete the same within six months of the date of first appearance of the parties before him, as agreed by all the counsels. He is granted liberty to have the matter placed before the Court, if any of the parties are found delaying recording of the evidence.
19. The fee of the Court Commissioner is tentatively fixed at Rs.[1] lakh besides out of pocket expenses of which 50% to be borne by Pamela Manmohan Singh and remaining 50% to be borne by K.V. Kohli and to be paid before commencement of the evidence. It is upto K.V. Kohli, if so desires to ask M/s. Texla Service Centre to pay any share of the fee.
20. The Registry is directed to send the files of the three proceedings at the place and time fixed by the Court Commissioner for recording of evidence.
21. The senior counsel for Pamela Manmohan Singh states that affidavit by way of examination-in-chief of Pamela Manmohan Singh has already been filed.
22. Copies thereof be again furnished to the counsels for K.V. Kohli and M/s. Texla Service Centre.
23. Pamela Manmohan Singh, if so desires, is at liberty to file a fresh affidavit on or before 9th August, 2016. If no fresh affidavit is filed by then, the recording of her evidence shall proceed on the basis of the affidavit by way of examination-in-chief already filed.
24. The parties to appear before the Court Commissioner with prior appointment on 11th August, 2016 for fixing the dates of trial.
25. The counsel for M/s. Texla Service Centre states that Pamela Manmohan Singh, in execution of the decree against Khairati Lal, is attempting to dispossess M/s. Texla Service Centre from property No.6-B, Jangpura and seeks stay of the same.
26. I have enquired the letting value of property No.6-B, Jangpura from the counsels.
27. Though the counsel for M/s. Texla Service Centre does not give any value but the counsel for Pamela Manmohan Singh states that the letting value of the property is minimum Rs.1,50,000/- per month.
28. As per the Will propounded by Pamela Manmohan Singh, the share of Pamela Manmohan Singh in property No.6-B, Jangpura is 2/3rd and the remaining 1/3rd share is of K.V. Kohli.
29. Stay of execution proceeding to dispossess M/s. Texla Service Centre from property No.6-B, Jangpura is granted on the following conditions:
(i) that M/s. Texla Service Centre shall not part with possession of the said property to any other person or induct any other person into possession thereof and shall not alienate or create any third party interest therein acting on the basis of the sale deeds executed by K.V. Kohli in its favour or otherwise;
(ii) that in the event of the Will propounded by Pamela Manmohan
Singh being upheld by the Court, M/s. Texla Service Centre will pay mesne profits / damages for use and occupation to Pamela Manmohan Singh @ 2/3rd of Rs.1,50,000/- per month from the date of coming into possession of the property and till the date of vacation of the 2/3rd share thereof and the amount if any so due is made a first charge on M/s. Texla Service Centre’s 1/3rd share of the property purchased from K.V. Kohli (It is the case of M/s. Texla Service Centre that Dr. Raseel Kohli had by a registered agreement to sell agreed to sell the said property to M/s Texla Service Centre. However on enquiry, whether M/s. Texla Service Centre has sought specific performance of the said agreement to sell, the counsel for M/s. Texla Service Centre states that though a suit for specific performance was filed but withdrawn after execution of sale deeds in its favour by K.V. Kohli. In this view of the matter, today M/s. Texla Service Centre cannot claim any benefit of the said agreement to sell and if the Will propounded by Pamela Manmohan Singh is upheld, under the sale deeds executed by K.V. Kohli in its favour, can claim right to only 1/3rd share in the property and cannot claim ownership of entire property in terms of agreement to sell).
30. It is informed that CS(OS) No.206/2016 filed by Pamela Manmohan Singh for cancellation of the sale deeds executed in favour of M/s Texla Service Centre is listed today before Hon’ble the Judge-in-Charge.
31. The counsels agree that the outcome of the said suit would also depend upon the outcome of the consolidated issues framed here and no separate evidence shall be recorded in CS(OS) No.206/2016 and in the event of the Will propounded by Pamela Manmohan Singh being accepted, the sale deeds executed by K.V. Kohli in favour of M/s. Texla Service Centre shall be treated as cancelled or as with respect to K.V. Kohli’s 1/3rd share in the property.
32. List awaiting the report of the Court Commissioner on recording of evidence on 6th March, 2017.
33. All counsels agree that this order will be in supersession of all earlier orders as to the procedure to be followed in these three proceedings. IA No.8619/1994 in CS(OS) No.238/1989 (of plaintiff u/O 12 R-6 CPC)
34. In view of the aforesaid, this application does not survive and is disposed of. IA No.3424/1995 in CS(OS) No.238/1989 (of Vinod Nair u/S 340 Cr.PC)
35. None appears for Vinod Nair who is stated to be the representative at one time of K.V. Kohli.
36. The counsel for K.V. Kohli also states that this application is no longer relevant.
37. The application is disposed of. IA No.8597/1995 in CS(OS) No.238/1989 (of plaintiff u/O 39 R-1&2 CPC)
38. Dismissed as not pressed. IA No.9503/1995 in CS(OS) No.238/1989 (of plaintiff u/S 2L of the Delhi Rent Control Act, 1958)
39. Dismissed as not pressed. IA No.5999/2000 in CS(OS) No.238/1989 (of plaintiff u/O 39 R-1&2 CPC)
40. Stay order is stated to have been already passed on this application.
41. The said interim order is made absolute till the decision of the proceedings.
42. The application is disposed of. CCP(O) No.116/2002 in CS(OS) No.238/1989
43. The counsels state that on an earlier occasion, a statement has already been made that this application is not being pressed.
44. Dismissed as not pressed. IAs No.2506/2002, 3867/2004 & 3868/2004 in CS(OS) No.238/1989 (of K.V. Kohli for directions)
45. K.V. Kohli by this application seeks 1/3rd rent of property No.15, Jor Bagh, New Delhi which is stated to have been let out pending these proceedings and rent whereof is being received by Pamela Manmohan Singh.
46. The counsel for K.V. Kohli states that this application be taken up on some other date.
47. The senior counsel for Pamela Manmohan Singh states that the rent would be accounted for at the final stage. It is further stated that K.V. Kohli has recovered the entire fixed deposit amounts and also sale proceeds of property No.6-B, Jangpura, New Delhi.
48. To be taken up at the stage of final hearing.
49. It is however directed that Pamela Manmohan Singh to file accounts of the rent received from time to time duly supported by documents with advance copy to counsel for K.V. Kohli, every six months. CCP(O) No.96/2009 in CS(OS) No.238/1989 (of K.V. Kohli against Pamela Manmohan Singh)
50. The counsel for K.V. Kohli sates that subject to accounts being filed as today directed and subject to the upto date accounts being filed within one month, this petition is not pressed.
51. Dismissed as not pressed, on aforesaid terms. IA No.14913/2011 in CS(OS) No.238/1989 (of M/s Frick India Limited claiming to be lessee in one of the suit properties for extension of lease)
52. The counsel for K.V. Kohli states that M/s. Frick India Limited is the company of the son of Pamela Manmohan Singh and which is a tenant in property No.198, Golf Links, New Delhi at a rent of Rs.50,000/- per month. He states that K.V. Kohli is willing to offer Rs.[3] lakhs per month for the said property.
53. The counsel for the applicant M/s. Frick India Limited states that rent will be paid @ Rs.[3] lakhs per month with effect from today.
54. It is informed that rent till the date of filing of the application has been paid @ Rs.50,000/- per month.
55. The application is disposed of with the following directions:
(I) M/s. Frick India Limited shall be entitled to continue in occupation of the property subject to paying rent of Rs.[2] lakhs per month with effect from 1st October, 2011 till the month of July, 2016 and rent @ Rs.[3] lakhs per month with effect from 1st August, 2016 till further orders;
(II) Liberty is given to the parties to apply for enhancement of rent, if the proceedings remain pending; (III) 50% of the arrears of rent and 50% of the future rent be paid to Chuckles Kohli son of K.V. Kohli, as per the statement of the counsel for all the heirs of K.V. Kohli, as according to the Will propounded by Pamela Manmohan Singh, she and K.V. Kohli have equal share in the property and subject to adjustment / accounting in the event the Will propounded by K.V. Kohli being upheld;
(IV) The arrears of rent be paid within six weeks;
(V) The future rent be paid by the 15th day of each month for which the rent is due;
(VI) However, out of the arrears, M/s Frick India Limited would be entitled to deduct only the amount which has been paid towards property tax to the Municipality and that too subject to furnishing receipts of such deposits.
56. The application is disposed of. CCP(O) No.127/2012 in CS(OS) No.238/1989 (of Pamela Manmohan Singh against M/s. Chuckles Kohli for vacation of interim order)
57. It is stated that Chuckles Kohli has transferred 1/3rd share in property No.15, Jor Bagh inspite of interim order.
58. The counsel for Chuckles Kohli states that a memorandum was signed with one Ravinder Singh and Ravinder Singh has now filed a suit for specific performance which suit Chuckles Kohli is contesting. It is also stated that Chuckles will not settle with Ravinder Singh without leave of this Court in these proceedings.
59. In the light of the aforesaid, need to pursue this petition further is not felt and is disposed of. IA No.4829/2012 in CS(OS) No.238/1989 (of plaintiff u/O 6 R-14A CPC)
60. The counsel for K.V. Kohli states that the present addresses of all the heirs of K.V. Kohli shall be handed over to the counsel for Pamela Manmohan Singh in writing under his signatures within one week from today.
61. Recording the statement aforesaid of the counsel for K.V. Kohli, the application is disposed of. IA No.6311/2012 in CS(OS) No.238/1989 (of D-1B u/O 9 R-9 CPC)
62. The counsel for K.V. Kohli states that this application was with respect to rent to be paid by M/s. Frick India Limited and in view of aforesaid does not survive.
63. The application is disposed of. IA No.13667/2012 in CS(OS) No.238/1989 (of defendant for direction)
64. This application also was with respect to M/s. Frick India Limited and does not survive and is disposed of. IA No.19057/2012 in CS(OS) No.238/1989 (of D-1(b) u/O 39 R-1&2 CPC)
65. The counsel for K.V. Kohli states that in view of aforesaid, this application also does not survive.
66. The application is disposed of. IA No.21811/2012 in CCP(O) No.127/2012 in CS(OS) No.238/1989 (for condonation of delay in filing contempt petition)
67. The application has become infructuous and is disposed of. IAs No.92/2013 & 94/2013 in CS(OS) No.238/1989 (of Acharya Onkar Mishra for impleadment)
68. None appears for the applicant.
69. Dismissed. IA No.22565/2015 in CS(OS) No.238/1989 (of plaintiff for condonation of delay in filing reply)
70. The application does not survive and is disposed of. IA No.7325/2009 in Test Cas. No.19/1997 (for condonation of 50 days delay)
71. The counsels state that in view of aforesaid, this application does not survive.
72. The application is disposed of. IA No.16283/2015 in Test Cas. No.19/1997 & IA No.16339/2015 in in Test Cas. No.20/1997 (both of M/s. Texla Service Centre u/O I R-10 CPC)
73. The counsel for M/s. Texla Service Centre states that in view of aforesaid, this application does not survive.
74. The application is disposed of. Copy of this order be given dasti.
RAJIV SAHAI ENDLAW, J. AUGUST 01, 2016 ‘bs’..