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23rd May, 2016 DR. P.K. CHAWLA AND ORS. ..... Plaintiffs
Through: Ms. Gunjan Sinha Jain, Advocate.
Through: None.
To be referred to the Reporter or not? Yes VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. This is a suit for partition. There are three plaintiffs who are real brothers, namely Dr. P.K. Chawla, Sh. Satish Chawla and Sh. Naresh Chawla. Plaintiffs had the fourth brother namely late Sh. Vinod Kumar Chawla. The three defendants are the legal heirs of Sh. Vinod Kumar Chawla being his widow, son and daughter. Partition by means of present suit is sought of property no.4-C-171, Dayanand Colony, Lajpat Nagar, New Delhi.
2. Counsel for the plaintiffs was heard on 19.5.2016. Counsel for the plaintiffs has also been heard with respect to further clarifications today in the post lunch hearing. Counsel for the plaintiffs states that counsel for the defendants was duly informed about this matter having been called out in the 2016:DHC:4202 finals list and hearing having been commenced, but, yet the counsel for the defendants has not appeared.
3. The cause of action as pleaded for seeking partition is that the suit property was owned by the father late Sh. Bhim Sain Chawla. Sh. Bhim Sain Chawla died intestate on 2.10.1969. On the death of Sh. Bhim Sain Chawla, he left behind his four sons and his widow Smt. Manorama Rani Chawla, mother of the plaintiffs and late Sh. Vinod Kumar Chawla. Smt. Manorama Rani Chawla died on 7.7.1999. Smt. Manorama Rani Chawla is said to have executed her last Will and testament dated 3.4.1979 bequeathing the suit property equally among her four sons i.e three plaintiffs and late Sh. Vinod Kumar Chawla. Plaintiffs therefore claim that each of the three plaintiffs is 1/4th co-owner of the suit property with remaining 1/4th ownership being of late Sh. Vinod Kumar Chawla who is now represented by the defendants in the present suit. During the course of arguments, counsel for the plaintiffs conceded to the fact that this Court need not pronounce on the validity or otherwise of the Will of Smt. Manorama Rani Chawla dated 3.4.1979 inasmuch as even if Smt. Manorama Rani Chawla expires intestate, and the suit property is taken to be the suit property of late Sh. Bhim Sain Chawla, even in such a scenario since late Sh. Bhim Sain Chawla died intestate, all the four sons of late Sh. Bhim Sain Chawla and Smt. Manorama Rani Chawla i.e the three plaintiffs and late Sh. Vinod Kumar Chawla will be 1/4th equal co-owners of the suit property.
4. Defendants have contested the suit. The factum of ownership of the suit property of late Sh. Bhim Sain Chawla is admitted. The only main defence of the defendants is that on 20.3.2007 there was a family settlement between the three plaintiffs and late Sh. Vinod Kumar Chawla whereby the total value of the suit property was taken as Rs.[1] crore and the defendants had to pay a sum of Rs.25 lacs to each of the three plaintiffs, i.e Rs.75 lacs in all on or before 31.7.2007, and consequently the defendants were to become the sole owners of the suit property. Defendants have relied upon the written settlement deed Ex.PW1/Ex.D-1 of the year 2007 in support of their defence of the family settlement having been entered into between the plaintiffs and the defendants and being therefore binding on all the parties i.e plaintiffs had to only receive Rs.25 lacs each as their share of the suit property.
5. Plaintiffs have countered the defence of the defendants based on the oral settlement dated 20.3.2007; and which was thereafter put in the form of writing, by stating that this family settlement was signed only by plaintiff nos.[1] and 2 and not by plaintiff no.3/Sh. Naresh Chawla and therefore on account of refusal of Sh. Naresh Chawla to sign this settlement agreement the same could not go through. Plaintiffs have therefore pleaded that there was no final family settlement of March, 2007 and also that the same was never acted upon.
6. The following issues were framed in this suit on 12.10.2009:- “1. Whether the plaintiffs are entitled to 1/4th share each in the suit property 4-C-171, Dayanand Colony, Lajpat Nagar, New Delhi? OPP
2. If issue no.1 is decided in favour of plaintiffs, whether the plaintiffs are entitled to partition of the suit property, as claimed by plaintiffs? OPP
3. Whether plaintiffs are entitled to recover damages @ Rs.30,000/- per month from defendants on account of use and occupation of their share in the suit property by defendants? OPP
4. Whether the settlement arrived at between the parties on 20th March 2007 was revoked and cancelled and, therefore, not acted upon, as claimed by plaintiff? OPP
5. Whether the suit is not maintainable, as claimed by defendants? OPD
6. Relief.” Issue Nos.1, 2, 4 and 5
7. Issue nos.1, 2, 4 and 5 will be decided together because if defendants succeed in proving the settlement dated 20.3.2007, then, plaintiffs will not be entitled to partition, and conversely if the defendants fail to prove the settlement dated 20.3.2007, the three plaintiffs will be 1/4th co-owners of the suit property with the fourth share falling to Sh. Vinod Kumar Chawla, predecessor-in-interest of the defendants and plaintiffs hence will be entitled to the relief of partition.
8. In order to decide as to whether at all there was a family settlement dated 20.3.2007, we would have to refer to the said document itself besides the oral evidence of the parties, as to whether or not this family settlement was signed by and thus binding on all the parties and also that whether this settlement was acted upon to show that it was entered into between the parties and also acted upon. If the family settlement is either not final on account of the plaintiff no.3 having not signed the same or on account of the same not having been acted upon, suit for partition will have to be decreed. The settlement of March, 2007 being dated 20.3.2007 has been proved as the document Ex.PW1/Ex.D-1. Though this document is undated but it is not disputed that if this document was final, this document would be dated 20.3.2007. Plaintiffs have also filed and proved this original agreement of March, 2007 as Ex.PW1/Ex.D-2. The difference between Ex.PW1/D-1 and Ex.PW1/D-2 is that the document Ex.PW1/Ex.D-2 filed by the plaintiffs is crossed out and it is stated on the first page after crossing out the whole page by writing an expression „void‟ across this first page of the document, and, the second page is again scored out on the entire page and on the entire page by hand the word „cancel‟ is written. The common point of both the documents, however, is that the said documents do bear the signatures of the plaintiff nos.[1] and 2 and the defendant no.2/Sh. Rishi Chawla for and on behalf of the defendants. Another common point is also that para/Clause 4 in both the documents has been crossed out and initialed. The document Ex.PW1/Ex.D-1 reads as under:- “ AGREEMENT This agreement is made at Faridabad on this……day of ……….., 2007 Between Dr. P.K. Chawla, Sh. Satish Chawla and Sh. Naresh Chawla all sons of Late Sh. Bhim Sain Chawla all are resident of 681, Sector-15, Faridabad (Haryana), Satish Chawla presently residing at 9 Grace-Shantz Karkland-49J3A[4], Quebec (Canada), Naresh Chawla presently residing at 1222, Balantry Road, Oakville Ontario L64 5 M[6], Canada (herein after called the party of the first part). AND Mr. Rishi Chawla S/o Late Sh. Vinod Kumar Chawla and Smt. Sharda Rani Chawla W/o Late Sh. Vinod Kumar Chawla both R/o. 4-C/171, Dayanand Colony, Lajpat Nagar, New Delhi (hereinafter called the party of the second part). WHEREAS the second party has possession of the H. No.4-C/171, Dayanand Colony, Lajpat Nagar, New Delhi, which is an ancestral property on the name of Late Smt. Manorma Chawla W/o Late Sh. Bhim Sain Chawla (Mr. Rishi Chawla is the grand son of Late Smt. Manorma Chawla and Smt. Sharda Rani is the daughter in law of late Smt. Manorma Chawla). Whereas a dispute was going on between first party and second party towards the property bearing No.4-C/171, Dayanand Colony, Lajpat Nagar, New Delhi, but now they have agreed to settle the dispute which had arisen between them, on the following terms and conditions:-
1. That the First party will relinquish their rights, title and interest qua the above said property bearing no.4-C/171, Dayanand Colony, Lajpat Nagar, New Delhi for which second party will pay Rs.75,00,000/- to first party (Dr. P.K. Chawla, Sh. Satish Chawla and Sh. Naresh Chawla Rs.25,00,000/- each respectively).
2. That the second party shall make the payment on or before 31st July 2007 to the first party.
3. That after receiving the payment the first party will not claim, file any suit towards the above said property.
4. That if the second party will not make the payment within the stipulated Sd/- time period i.e. 31st July 2007 the first party will reserve their rights to Sd/take legal necessary action.
5. That the parties hereto and their respective legal heirs shall abide by the terms and conditions of this agreement. Sd/- Dr. P.K. Chawla Sd/-Satish Chawla WITNESSES First Party 1 Sd/- Sd/- Rishi Chawla
9. A reference to the aforesaid document shows that admittedly plaintiff no.3/Sh. Naresh Chawla did not sign the same. Admittedly, therefore this document will not bind the plaintiff no.3. The issue however is that whether still this document binds the plaintiff nos.[1] and 2 as these plaintiff nos.[1] and 2 have signed the same however it is claimed that this family settlement was never finalized upon on account of the plaintiff no.3 not signing the same. A facet of this settlement being final would be if it had been acted upon. In my opinion, defendants have failed to prove that the family settlement document Ex.PW1/Ex.D-1 has been finalized or ever acted upon, for the following reasons:-
(i) The typed document shows that all the three plaintiffs were expected to sign together as one group as party of the first part, thus once the plaintiff no.3 has not signed the document, the document cannot be said to have fructified and come into existence because it is not as if the three separate plaintiffs are referred to being three separate parties having independently three separate rights i.e the three separate plaintiffs have not been called as party of the first part, party of the second part and the party of the third part. As already stated above, three plaintiffs have been referred to jointly as a party of the first part. For this reason, it is held that since plaintiff no.3 Sh. Naresh Chawla did not sign this family settlement, this family settlement itself did not come into force. That there is no final agreement being the family settlement dated 20.3.2007 is also clear from communication being the email dated 5.4.2007 sent by the plaintiff no.2 to Sh. Rishi Chawla/DW1/defendant no.2. This email has been proved as Ex.PW1/10 as per the affidavit by way of evidence of the plaintiff no.1/Dr. P.K. Chawla who deposed as PW[1]. Though this document was subsequently marked as Mark G on 7.7.2010, I would have to take this document as proved because when defendant no.2/DW1/Sh. Rishi Chawla was confronted with this email dated 5.4.2007 in his cross-examination on 10.7.2013, defendant no.2 only stated that he does not recall of receiving this email from the plaintiff no.2/Sh. Satish Chawla. In my opinion, this answer is not good enough to deny exhibition of this email and hence the plaintiffs have legally proved this email dated 5.4.2007 as Ex.PW1/10 since DW[1] while deposing has not deposed that he has never received the email dated 5.4.2007 and which stand is different from the witness deposing that he does not recall having receiving the email dated 5.4.2007, and therefore, it is held that the plaintiff no.2 had sent this email dated 5.4.2007 to the defendant no.2/Sh. Rishi Chawla/DW[1]. In this email plaintiff no.2/Sh. Satish Chawla has clearly stated that the Settlement Agreement dated 20.3.2007 cannot go ahead on account of the plaintiff no.3/Sh. Naresh Chawla having failed to sign the same. This email dated 5.4.2007 reads as under:- “From: Satish Chawla [SChawla@GWV.com] Sent: Thursday, April 05, 2007 11:56 AM To: Rishi Chawla (rishirich8552@yahoo.co.uk) Cc: Naresh Chawla (Naresh Chawla): Ashish Chawla (Ashish Chawla); Kusum Chawla (Kusum Chawla) Subject: Property at Lajpat Nagar Dear Rishi and Bhabhiji, I am sorry to inform you that Naresh did not sign the document, hence there is no deal and we are back to the same dilemma and issue still remains unresolved. Rishi and Bhabhiji, during my meeting of 20th March 2007 at Lajpat Naga I had stated that in the event this issue is not settled amicably to the satisfaction of all parties then Naresh and others will have no choice but to seek the legal route to settle the matter. Furthermore I had also mentioned to you during the meeting that, should there be any legal action taken against you by any one of the brothers to settle the dispute then I will have no choice but to have my legion with that person i.e. with Naresh and others who are taking legal action against you to settle this matter. I spoke with Naresh this morning and was confirmed that legal action will be institute to resolve the property dispute which we could not settle among ourselves. In addition you also confirmed to me during my telephone conversation of 3rd April 2007 that we should go ahead and take the legal course of action to settle the property issue. I am sorry that I could not resolve this dispute and have failed in my mission, furthermore I agree with your comment that let the court decide our faith. I know it may take time but it has already taken 20 years of my effort with no results. Keep in touch and good luck. Regards Satish CC to Ashish Chawla with the request to hand over this e-mail to Dr Pramod Chawla”
(ii) The second reason for holding that this family settlement was not operative and not acted upon is because para 2 of this family settlement shows that only on defendants making total payments of Rs.75 lacs to the three plaintiffs by 31.7.2007 that the defendants were to become the owners of the suit property, and for this purpose let us take it also that plaintiff nos.[1] and 2 would have been individually bound by the family settlement dated 20.3.2007 because of their having signed the same, however, it is seen that defendants have failed to pay any amount whatsoever to any of the three plaintiffs including the plaintiff nos.[1] and 2 by 31.7.2007 or even till the filing of the suit. The admitted case of the defendants is that payments have not been made to the plaintiffs and that the plaintiffs have not received any amount from the defendants by 31.7.2007. The only defence of the defendants is that they were always ready, but this defence does not hold water because in the cross-examination of defendant no.2 who appeared as DW[1], it is conceded that he has no documents with him to show an amount of Rs.75 lacs being available with him on 20.3.2007 and no evidence is led by the defendants that they had with them in their bank accounts or otherwise an amount of Rs.75 lacs as on 31.7.2007. There is also no deposition by the defendant no.2/Sh. Rishi Chawla that the defendants tendered to the plaintiffs an amount of Rs.75 lacs by 31.7.2007 i.e DW[1] in his affidavit by way of evidence filed as examination-in-chief has not deposed that he tendered an amount of Rs.75 lacs to the three plaintiffs or an amount of Rs.25 lacs to each of the plaintiff nos.[1] and 2. Therefore on the defendants having failed to pay to either of the plaintiff nos.[1] and 2 an amount of Rs.25 lacs each on or before 31.7.2007 as also not proving any tendering of the amounts to the plaintiffs including the signatories plaintiff nos.[1] and 2 by 31.7.2007, and finally having failed to prove any financial capacity to pay the amount of Rs.75 lacs to the plaintiffs by 31.7.2007, it is thus held that defendants have failed to discharge the onus of proof upon them that the family settlement dated 20.3.2007 was in fact acted upon, as is the case of the defendants.
(iii) I may note that in fact it is not as if by the family settlement dated
20.3.2007, plaintiffs were not admitted to be the equal co-owners of the suit property with the deceased Sh. Vinod Kumar Chawla, predecessor-in-interest of the defendants. In fact the Settlement Agreement dated 20.3.2007 relied upon by the defendants itself shows that effectively the suit property was valued at Rs.[1] crore, and the three plaintiffs therefore had a share of Rs.25 lacs each, totaling to Rs.75 lacs for the three plaintiffs. Clearly therefore the family settlement dated 20.3.2007 does not deny any rights of the plaintiffs to be the equal co-owners of the suit property but only quantifies the share of each of the plaintiffs at Rs.25 lacs each, and once that is so, taken with the fact that plaintiffs each have not received an amount of Rs. 25 lacs by 31.7.2007, it will be unequivocally unjust besides being illegal to hold that the plaintiffs are only entitled to Rs.25 lacs each as stated in the Settlement Agreement dated 20.3.2007 and are not entitled to seek partition of the suit property.
10. In view of the aforesaid discussions, issue nos.1, 2, 4 and 5 are decided in favour of the plaintiffs and against the defendants by holding that each of the three plaintiffs are 1/4th co-owners of the suit property and therefore a preliminary decree is liable to be and is accordingly passed holding that each of the plaintiffs are 1/4th co-owners of the suit property no. 4-C-171, Dayanand Colony, Lajpat Nagar, New Delhi and which is a single storey building. Issue No.3
11. Plaintiffs had claimed from the defendants damages at the rate of Rs.30,000/- per month on account of the plaintiffs‟ share in the suit property. No doubt, it is the law that if a co-owner holds portion in excess of his share, such a co-owner would be liable to pay damages, however, since the issue is of imposition of a huge monetary liability it was necessary for the plaintiffs to lead evidence which this Court would believe and Court‟s judicial conscience is satisfied for passing of a money decree for a specific amount. Plaintiffs therefore had to lead evidence with respect to the rate of rent in the area with respect to per square feet or any other unit area method. Plaintiffs had also to prove that what is the constructed area of the suit property occupied by defendants and what is the excess area with them. Plaintiffs had also to lead documentary evidence to show the rate of rent of comparable premises in the same area or adjoining areas. The plaintiffs have failed to prove any of the above aspects. Plaintiff nos.[1] to 3 who have deposed as PW[1], PW[2] and PW[3], have only given a self-serving assertion in para 9 of their affidavits that property can fetch Rs.10,000/- per month from 7.7.1979. In my opinion such type of flimsy evidence cannot be a believable proof with respect to an important issue of rate of mesne profits in the facts of this case even if there is no cross-examination on the sketchy and limited evidence. In law, even if a defendant is ex parte, yet plaintiff has to lead such evidence which will amount to discharge of onus of proof. Self-serving averments without basis with respect to area of the property, condition of the property, construction of the property, comparable rent rates per square feet or any unit area method etc would not amount to plaintiffs having proved the entitlement to claim damages at the rate of Rs.30,000/- per month from the defendants.
12. This issue is therefore decided in favour of the defendants and against the plaintiffs. Relief
13. In view of the above discussion, it is held that each of the three plaintiffs are 1/4th co-owners each in the suit property no.4-C-171, Dayanand Colony, Lajpat Nagar, New Delhi. A preliminary decree is accordingly passed giving each of the three plaintiffs 1/4th share each in the suit property. Defendants jointly are held entitled to the remaining 1/4th share in the suit property. Plaintiffs are held not entitled to damages/mesne profits from the defendants. Parties are left to bear their own costs.
14. List for further proceedings on 13th September, 2016 wherein parties will give their submissions with respect to partition by metes and bounds of the property or if the property has to be reconstructed under collaboration agreement, then how and in what manner and with which builder, and if the property has to be sold then by inter se bidding or by public auction etc etc. MAY 23, 2016 VALMIKI J. MEHTA, J. Ne