Narender Singh Oberoi vs Hari Dass Sood And Anr.
1990 Latest Caselaw 123 Del

JUDGMENT

V.B. Bansal, J.

(1) This appeal of Narinder Singh Oberoi is directed against the two orders dated October 31, 1986 by the learned Single Judge of this Court in Execution No. 90 of 1984. Vide order in Execution No. 90 of 1984 and Execution Application No. 317 of 1985 the learned Single Judge has directed the Registrar of this Court to obtain from the judgment-debtor an application to the Land & Development Officer for obtaining permission for transfer of the disputed portion of property No. 4, Hailey Road, New Delhi in favor of the decree-holder. It has further been directed that after obtaining the necessary permission as aforesaid the Registrar shall upon the judgment- debtor to execute the sale-deed failing which the sale deed shall be executed by the Registrar for and on behalf of the judgment-debtor. Vide other of even date the learned Single Judge dismissed E.A. 235 of 1984 and E.A. 64 of 1985 as premature.

(2) It would be necessary to give facts in brief to appreciate the arguments advanced at the Bar.

(3) Narinder Singh Oberoi filed Suit No. 511 of 1973 against , Dass Sood and Amar Singh Sawhney for specific performance of an agreement dated 30th December, 1970 for sale of l/9th share of the property No. 4, Hailey Road, New Delhi in his favor. It was also prayed that incase defendant No. 1 failed to execute the sale-deed the same may be ordered to be executed by an official of the court. He also prayed for the delivery Of the portion in actual possession of defendant No. 1 with a further prayer that the plaintiff would be entitled to take possession of such portion of the property which may fall to the share of defendant No. 1. This suit was decreed on 25th October, 1976. with a direction that Hari Dass Sood defendant No. 1 would obtain sanction of the Land and Development Officer and certificate of income-tax clearance from the Income Tax Officer and in case of failure on his part to do so, the decree shall be executed in the manner provided under Order 21, Rule 35 of the Code of Civil Procedure.

(4) The appeal, Rfa (OS) 3 of 1977, filed by Hari Dass Sood challenging the aforesaid judgment and decree was dismissed on 16th, December, 1983.

(5) Earlier, Hari Das Sood had filed Civil Suit No. 314 of 1967 against his brother Dr. Chiranji Lal for partition of the premises consisting 1/2 of the main Kothi and two back quarters in 4, Hailey Road, New Delhi and for rendition of accounts. Narinder Singh Oberoi was added as a defendant in the said suit pursuant to an order of Avadh Behari J. in view of the fact that he had filed a suit for specific performance against Hari Dass Sood in respect of his share in the premises known as' 4, Hailey Road, New Delhi'.

(6) A preliminary decree for partition was passed on 10th August, 1972 in Suit No. 314 of 1967 and a final decree was passed on 7th August, 1981 holding that the portion marked 'A' in the plan annexed to the report of the Local Commissioner would go to Hari Dass while the portion marked 'B' would go to his brother Dr. Chiranji Lal.

(7) In Execution Case No. 90 of 1984 the decree-holder Mr. Narinder Singh Oberoi made a prayer that the possession of the portion marked 'A' in the plan annexure 'Y' which was in physical possession of the judgment- debtor and his brother Chiranji Lal may be handed over to him.

(8) The learned counsel for the appellant has submitted that the learned executing court has committed a material error in coming to the conclusion that "as per decree itself the permission of the Land & Development Officer has to be obtained first in point of time before the sale deed is executed and then presented to the Sub Registrar of documents for registration". He has submitted that there was no such prayer by the plaintiff-decree-holder in the suit for specific performance filed by him against the judgment-debtor. He has further contended that though the trial Judge had specified in the decree that permission had to be obtained from the Land & Development Officer, in appeal the Division Bench had specifically come to the conclusion that there was no such requirement. He has, thus, urged that the impugned order be modified and the Registrar be directed to proceed to get the sale- deed without having to first obtain permission from the Land & Development Officer.

(9) The learned counsel for the judgment-debtor has, on the other hand, submitted that the judgment-debtor had already moved the Land & Development Officer for permission to transfer his share to the decree-holder and on account of the permission having been refused vide letter dated 29th April, 1980 (Ext. JD-1) the contract stands frustrated and so impossible of execution.

(10) We have given our thoughtful consideration to the submission and have no hesitation in coming to the conclusion that it is not necessary to ask for permission of the Land & Development Officer before proceeding for the execution of the sale-deed in favor of the appellant/decree-holder in the facts and circumstances of this case.

(11) It is the admitted case of parties that the lease-deed dated 1st April, 1936 was executed between the Secretary of State for India in Council (Lesser on one part and Bawa Hardayal Singh (Lessee) on the other part in respect of the premises, 4, Hailey Road, New Delhi. The relevant condition of this lease-deed is contained in para 2(11) which reads as under :- "THE lessee will upon every assignment transfer or Sub-lease of the said premises hereby demised or any part thereof and within one calender month thereafter deliver a copy of the deed of assignment, transfer or Sub-lease to the Lesser or the Chief Commissioner of Delhi, and all such assignees, transferees and sub-lessees shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefore. Provided always that the lessees shall not assign, transfer or sublease a part only of the said premise, hereby demised without the previous approval in writing of the Chief Commissioner of Delhi".

(12) The admitted facts are that initially this lease-deed was in favor of Bawa Hardayal Singh. However, in a suit for partition instated by Nihal Singh the property was partitioned and Nihal Singh, Gyan Parkash Som Prakash Bedi got separate shares. On his death, Nihal Singh was succeeded by his three sons, namely, Mohinder Singh, Rajinder Singh and Davinder Singh and 1/9th share of aforesaid Mohinder Singh was purchased by Hari Dass respondent/judgment debtor in Court Auction regarding which sale certificate dated 7th June, 1947 was issued in his favor from the court of Senior Sub Judge, Delhi. The share of Rajinder Singh and Davinder Singh was purchased by Dr. Chiranji Lal, brother of Hari Dass. Thereafter, the Land & Development Officer by his letter dated 10th November, 1947 recognised Dr. Chiranji Lal Hari Dass, Bawa Gyan Parkash Bedi and Bawa Som Parkash Bedi as joint lessees.

(13) Subsequently, Sardar Karam Singh and M/s Inter Continental Agencies (P) Ltd. also became co-lessees and the Land & Development Officer of the Ministry of Works & Housing vide letter dated 27th September, 1974 recognised Dr. Chiranji Lai, Hari Dass, Bawa Gyan Parkash, S. Karam Singh and M/s Inter Continental Agencies (P) Ltd. as joint lessees, with a further stipulation that they all shall be responsible for performance/observance of ail the terms/covenants of the lease jointly or severally under the lease-deed.

(14) There is no doubt that in the decree-sheet of Suit No. 511 of 1973 it has been specified that Hari Dass Sood should obtain the sanction of the Land & Development Officer for transfer of his share in favor of the decree- holder. This direction, however, stood modified in appeal, as is apparent from the judgment dated 16th December, 1983 in Rfa (OS) 3/77. It has specifically been stated in the said judgment of the Division Bench that this matter needs to be decided by the Court in execution proceedings.

(15) It is not in dispute that in pursuance of the agreement to sell, Narinder Singh Oberoi. has obtained a decree for specific performance in respect of the whole interest which Hari Dass had in 4, Hailey Road, New Delhi. He has prayed for physical possession of that portion which was in possession of Hari Dass or to which he may ultimately become entitled. It is, thus, clear that it is not an assignment of a part of the interest by Hari Dass and to our mind no permission of the Land & Development Officer is, thus, required. As already mentioned above the Land & Development Officer has accepted a number of persons as joint-lessees in respect of 4, Hailey Road and the appellant has also prayed for execution of the sale-deed in respect of the entire interest of Hari Dass, on the basis of which he may be able to get his name recorded as a joint-lessee in the Land & Development Office.

(16) Learned counsel for the respondent has submitted that since the Land & Development Officer has already rejected the prayer made by Hari Dass for permission to transfer his share in favor of Narinder Singh Oberoi it would not be permissible to execute the sale deed in the absence of specific permission from the Land & Development Officer. He has referred to the letter Ex. JD-1 dated 29th April, 1980, received by Hari Dass co-lessee from the Land & Development Office. A perusal of this letter clearly indicates that the permission was sought for transfer of 575 sq. yds. of land in 4, Hailey Road, New Delhi and this permission was declined on the ground that this would amount to sub-division of the plot which is not permissible under Clause 2(1!) of the Perpetual Lease.

(17) The respondent has not placed on record the correspondence he had with the Land & Development Officer in response to which the aforesaid letter was written. Further, this point was also agitated in Rfa (OS) 3/77 and in the absence of the material on record it was held to be of no help to the jadgment-debtor. This argument, therefore, cannot be of any help to the judgment-debtor in these proceedings before us. We may also note that Shri R.S. Chadha, Deputy Director, Land Development Office (DHW1) has suited in Court that the Land & Development Officer will have no objection to the transfer of undivided share of Hari Dass Sood in the property in question in favor of the decree-holder in compliance of the judgment of the High Court subject to the fulfillment of certain conditions.

(18) Learned counsel for the respondent/judgment-debtor has also submitted that the decree-holder has asked for possession of the specific portion shown as 'A' in plan 'Y' which would amount to partition of the lease, which is not permissible under the law and so the decree-holder cannot ask for such possession. We do not find any force in this submission. Suit No. 314 of 1967 was filed by Hari Dass Sood against his brother Dr. Ciliranji Lal for partition of the partition consisting of 1/2 of the main Kothi and two back quarters at 4, Hailey Road, New Delhi. A final decree for partition was passed on 7th August, 1981 holding that the portion marked 'A' would go to the plaintiff while portion marked 'B' in plan 'Y' would go to Chiranji Lal. It is not disputed that Narinder Singh Oberoi was imp leaded as a defendant in the aforesaid suit in pursuance of an order dated 27th April, 1977. It is, thus, clear that Narinder Singh Oberoi decree-holder has replaced Hari Dass Sood and so would be entitled to get possession of that portion which was in possession of Hari Dass Sood or to which he was held to be entitled.

(19) The objection raised by Chiranji Lal that the said partition would amount to division of the lease granted by the President of India resulting in forfeiture of the lease was negatived and notice which had been issued to the Land & Development Officer was discharged holding that it was not a case of division of the lease. In any case, it is not open to the respondent to take this plea now, when this very plea had been raised against him by Dr. Chiranji Lal in the suit and had not been accepted by Court.

(20) Learned counsel for the decree-holder has submitted that there was no partition of the lease at any time and the arrangement was only for enjoyment of the lease property by the co-lessees and all that the decree-holder wants to get is the whole share/interest of Hari Dass to be transferred to him in compliance of the decree for specific performance and to get possession of the portion in possession of the judgment-debtor or to the portion to which he may ultimately be entitled.

(21) We arc of the view that in the facts and circumstances of the case there is no question of frustration of the agreement as pleaded by learned counsel for the respondent and consequently it cannot be said that application No. 235 of 1984 for execution of the sale-deed in favor of the decree-holder and Execution Application No. 64 of 1985 for filing a copy of the proposed sale-deed are premature. As a result, the appeal is accepted. The direction by the learned Single Judge to the Registrar for obtaining permission of the Land & Development Officer before the execution of the sale-deed is set aside. The proposed draft sale-deed submitted by the decree-holder is ordered to be taken on record. The Registrar will proceed further to get the sale-deed executed in favor of the decree-holder and possession delivered to him. However, we make no order as to costs.

(22) The parties are directed to appear before the Registrar on 15th March, 1990.