Bawa Barbara Singh Bedi vs Joginder Singh Bedi And Anr.
1993 Latest Caselaw 244 Del

JUDGMENT

C.M. Nayar, J.

(1) The present suit is filed by the plaintiff, Bawa Darbara Singh Bedi, against the defendants Shri Joginder Singh Bedi and Smt. Nirmal Jyoti Ahuja, who are the son and daughter of the plaintiff. The prayer in the suit is for declaration against the defendants, declaring that the plaintiff has the right to demarcate the ground floor premises of property situated at 70, Malcha Marg,Chankyapuri, New Delhi, and to execute a Codicil by way of supplement to the Will dated December21, 1984, executed by the plaintiff, in terms of the compromise dated January 4, 1985,between the parties. It will be relevant to reproduce the prayer clause, which reads as follows:- "ITis,therefore,respectfully prayed that this Hon'ble Court may be pleased to pass a decree of declaration in favor of the plaintiff against the defendants declaring that the plaintiff has the right to demarcate the ground floor premises of the property situated at 70, Malcha Marg,Chankyapuri, New Delhi with servant quarters and the two garages into two specified equal shares and execute a Codicil by way of supplement to the Will dated 21.12.1984 executed by the plaintiff, in terms of the compromise dated 4.1.1985 as aforesaid to demarcate the ground floor of the said property with servant quarters and two garages into two equal portions and provide therein that the portion marked "yellow' in the plan annexed to the Codicil shall become the exclusive property of defendant no. I after the death of the plaintiff while the portion marked 'red' in the plan shall become the exclusive property of defendant no.2 after the death of the plaintiff, and the portion marked "green' shall remain the joint property of the defendants, as common area for common use. A copy of the proposed codicil with the plan attached thereto is annexed to the plaint and marked as Annexure 'A'. The same may be treated as part of the plaint."

(2) The defendant no. I had filed a suit bearing No.443 of 1984 in this Court, seeking partition of various properties, including the property 70, Malcha Marg, Chanakyapuri, New Delhi, against the plaintiff and his other sons, who are brothers of defendant no. I. The plaintiff and his other sons, who were defendants in the said suit contested the suit and denied that defendant no. 1 had any right, title and interest in the property in suit, including the residential property No.70, Malcha Marg, New Delhi. It was the case of the plaintiff and others in the said suit, that the above said residential property was the exclusive personal property of the plaintiff and defendant no. I had no right,title and interest in the same. Thereafter, an application under Order 23 Rule 3 and Section 151 Civil Procedure Code . was moved before this Court to the effect that the plaintiff and the defendants had arrived at a settlement and decree in terms of the same be passed accordingly.

(3) The plaintiff has further averred in paragraph 7 of the plaint as follows:- "7. That one of the terms of the compromise arrived at as aforesaid among all the members of the family was as follows:- "LEASEHOLD property No.70, Malcha Marg, New Delhi, is entered in the records of the Land & Development Office and the N.D.M.C, as solely owned by Shri Darbara Singh Bedi. The property is declared as the joint property of Bawa Darbara Singh Bedi and Shri Joginder Singh Bedi in the following manner: Provided, however, that Shri Darbara Singh Bedi shall have no right, to transfer it by way of gift or Will to any of the heirs or their descendants or to any one else. (i) The ground floor with servant's quarters and the two garages shall be the absolute property of Shri Darbara Singh, who will have absolute title thereto and exclusive right to its use and occupation including the right of alienation by way of tenancy only. In the event of Shri Darbara Singh predeceasing, his share in the ground floor shall jointly vest in Smt. Nirmal Jyoti and Shri Joginder Singh Bedi, in equal shares, and in case Shri Joginder Singh Bedi predeceases, Shri Darbara Singh Bedi, his half share in ground floor shall go to his heir................ "

(4) This Court then passed a decree in terms of the compromise between the parties and the order of the learned Judge dated January 4, 1985, reads as follows:- "SUITNo. 443/81 & LA. 7378/84. In view of the fact that Criminal Revision No. 84/84 has been allowed by Mr. Mahesh Chandra, Additional District & Sessions Judge, New Delhi on 3rd January, 1985 and the proceedings in criminal Complaint No. 16/1 filed by S.Joginder Singh Bedi against his father and brothers Mr.Darbara Singh and others have been quashed and in view of the averments in the application for compromise as also the statement of parties as also the statements of Mrs.Jasbir Kaur mother of S.Joginder Singh Bedi, the plaintiff and Ms.Nirmal Ahuja, sister of S.Joginder Singh Bedi, the suit is disposed of in terms of the compromise petition. The compromise petition shall form a part of the decree. Parties to bear their own costs."

(5) The plaintiff had executed a Will dated December 21, 1984, and he bequeathed the ground floor portion with servant quarters and garages of property No. 70, Malcha Marg, New Delhi, to devolve upon his son Shri Joginder Singh Bedi and daughter Smt. Nirmal Jyoti Ahuja, defendants I and 2 herein, after his death. The relevant portion of the Will reads as follows:- "THATI am the absolute owner of the ground floor portion with servants' quarters and garages of the property situated at 70. Malcha Marg, Chanakayapuri, New Delhi together with servants' quarters and garages. I hereby bequeath the above said ground floor portion of the aforesaid property and the servants' quarters and garages in favor of my daughter, Smt. Nirmal Jyoti Ahuja and my son Shri Joginder Singh Bedi, in equal shares after my .death."

(6) The plaintiff in the present suit has asked for declaration that he be permitted to divide and demarcate the property in favor of defendants I and 2, so that no disputes arise between them and as, defendant no. I had already questioned his right to demarcate the. portion in the ground floor of the suit property. It was in view of these circumstances and with a view to ensure peace, harmony and tranquility between the defendants after his death and for his mental peace in his life time about the future peaceful and. secure life of his only daughter, defendant no.2, the present suit has been filed.

(7) Summons in the suit were issued to the defendants on March 15, 1993 for May26, 1993. Thereafter, the plaintiff, as well as, the defendant moved an application, being I.A.No. 3351/93, under the provisions of Order 23 Rule 3 and Section 151 Civil Procedure Code . to the effect that the parties had arrived at, a compromise and a decree in terms of the same be passed accordingly. The terms of the compromise are specified in the above-said application.

(8) The following Terms of compromise, which are relevant for Consideration of the application, may be reproduced as follows:- "(I)That the ground floor of 70 Malcha Marg, Chankayapuri, New Delhi, with servant quarters and two garages shall stand demarcated into two equal portions. One portion has been shown as yellow in the plan annexed hereto and the other portion has been shown red in the said plan. The portion shown green in the plan shall be known as common area for common use. (II) That the defendants have accepted the right of the plaintiff to execute the. codicil as supplement to the Will dated 21.l 2.1984 and the plaintiff has accordingly executed a codicil to the effect that portion shown yellow in the plan annexed to the codicil shall belong to defendant no.1 and shall vest in him as His exclusive property after the death of the plaintiff while the portion demarcated as red shall belong to defendant no.2 and shall vest in her as her exclusive property after the death of the plaintiff. It is further clarified that after the death of the plaintiff one servant quarter shown yellow in the plan shall vest in defendant no. I and the second servant quarter shown red in the plan shall vest in the defendant no.2, while the toilet and the balcony attached thereto shall remain the joint property of the defendants as common area for common use. The codicil executed by the plaintiff with the plan annexed thereto shall not be challenged by the defendants or their heirs on any ground whatsoever after the death of the plaintiff and shall be binding on their convicting in accordance with and as supplement to the Will dated 21.12.1984 of the plaintiff. The codicil is attached herewith and is marked as Annexure'B'. (III) That the area shown green in the plan shall remain as joint property of defendant No.1 and 2 as common area for common use. There are two separate gates, one parallel to the drive way and the other opposite the garages. The gate opposite the drive way will be the share of defendant No.1 and the gate opposite the garage will fall to the share of the defendant no.2. (IV) That defendant no. I shall have the right to occupy and use the portion marked yellow in the site plan during the lifetime of the plaintiff provided, however, that he shall have no right to occupy the same until the present compromise is recorded by this Hon'ble Court and a decree is passed in terms thereof by this Hon'ble Court. The possession of the said portion for use and occupation by defendant no. 1 shall be handed over to him after the compromise is recorded and the decree is passed by this Hon'ble Court in terms thereof in the Hon'ble Court itself. (V) That defendant no.2, during the lifetime of the plaintiff shall have the liberty to reside with the plaintiff, in the portion marked red in which the plaintiff shall be residing and shall continue to reside."

The par tics have made the prayer that this Court be pleased to order that the Agreement and compromise, contained in para 4 of the. application be recorded and decree in accordance with the compromise be passed.

(9) The learned counsel for the plaintiff has contended that the first compromise, which was arrived at between the parties, and which is incorporated in the decree of the Court dated January 4, 1985, did not clarify and specify the respective portions, which were to devolve upon the defendants after the death of the plaintiff and it has now become necessary on the basis of the circumstances, as explained in the plaint, that the declaratory decree be passed incorporating the terms of compromise, as contained in the application in the present suit. It is contended that the first decree did not give the right to demarcate the property and it is necessary to seek the present declaration. Reference is made to the judgments as reported in Sourendra Nath Mitra and others v. Tarubala Dasi ; Bajirao Narhar Peshway. Sakharam Balvant Peshway, Air 1931 Bombay 295 and M/s Silver Screen Enterprises v. Devki Nandan Nagpal, .

(10) The contention is that the provisions of Order 23 Rule 3 Civil Procedure Code . do not confer discretion on Court arid when the suit is adjusted by lawful compromise and no injustice is established, the Court must record it and pass a decree accordingly. In Sourendra Nath Mitra and others (supra) the following passage is relied upon:- "THE only remaining question is whether the compromise should have been recorded and a decree made in accordance therewith under Order 23 Rule 3 Civil Procedure Code . The words of the rule do not in terms appear to confer a discretion on the Court, but their Lordships desire to say nothing to prejudge a contention that the Courts retain an inherent power not to allow their proceedings to be used to work a substantial injustice such as emerged in the case of Neale v. Gordon Lennox (6). In the present case no injustice of any kind was establisbed, and as it was established that the suit had been adjusted either wholly or in part by a lawful compromise, it was the duty of the Court to record the agreement and pass a decree in accordance therewith."

(11) In Bajirao Narhar Peshway (supra), the Single Bench of the Bombay High Court reiterated the proposition that the law not merely entitles the parties but compels the Court to record a compromise in accordance with the terms "so far as it relates to the suit".

(12) In M/s Silver Screen Enterprises (supra) the Hon'ble Supreme Court has held as under- "THE compromise in question specifically says that the parties thereto have compromised all their disputes mentioned therein including the two matters referred to earlier. On the basis of that compromise both the appellant and the respondent were required to withdraw all the pending proceedings excepting the one mentioned earlier. There is no dispute that one of the matters compromised is that relating to the appeal with which we are concerned berein. Once a dispute is validly settled out of Court, it is open to a party to a litigation to move the Court to pass a decree in accordance with the compromise. Rule 3 of Order 23, of Code of Civil Procedure provides that where it is proved to the satisfaction of the Court that a suit (which expression includes an appeal) has been settled wholly or in part by any lawful agreement, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to that suit. This is mandatory provision."

(13) The learned counsel for the defendants has reiterated the submissions, made by counsel for the plaintiff and has submitted that the fresh compromise must be in line with the original compromise which was entered into between the parties before this Court and an order in this regard was passed on January 4, 1985. He has referred to the judgment of the Patna High Court in Srimati Sabitri Thakurain v. Mrs. F.A.Savi and others Air 1933 Patna 306. He has argued that the Court cannot refuse to record the compromise and pass a decree in terms of the same when the compromise is lawful and legally enforceable. The following passages is relied upon from the above said judgment: "NOW what Order 23 Rule 3 requires is that the agreement or adjustment should be lawful. Lawful, in our opinion, means lawful within the meaning of the Contract Act; that is to say,the rule requires an agreement which is legally enforceable, but not necessarily one that is specifically enforceable. We are unable to accept the contention of the appellant that in order to enable the Court to record a compromise the terms, which are to be complied with after the decree, should be specifically enforceable under the Specific Relief Act. To hold this will mean the exclusion of a large number of cases from the purview of Order 23 Rule 3. For instance, suits for realization of money will not be compromisable, and parties will be precluded from settling their disputes about monetary liabilities by fixing amounts to be payable by one to (mother or by fixing Installments. All such suits will go outside this section, because obligations for payment of money though certainly enforceable are not specifically enforceable in the sense that a specific sum of money cannot be made payable like, say, a specific book, picture or article of furniture. If the terms settled by the parties be enforceable under the law, we do not see why the compromise should be held to be other than perfectly lawful. There is no reason, and we have no power, to import into Order 23 Rule 3 restrictions which are not to be found there. If one of the parties agreed in a pending suit to do .after the decree things which are not specifically enforceable, the Court will even then, in our opinion, have to record the compromise-provided there is nothing unlawful in it- and to pass a decree. It is not the business of the Court to speculate on the difficulties that may arise at the time of execution. It will be for the executing Court to devise means and give suitable remedies in case the compromise decree is disobeyed. The Code of Civil Procedure contemplates the passing of a decree for specific performance of a contract which cannot be specifically enforced. Such a decree may not be passed oncontest, but in our opinion can be passed with consent; and if the compromise be lawful, we do not see how the Court can refuse to record it and pass in accordance with a decree which may contain terms that are not specifically enforceable."

(14) There is no doubt that the provisions of Order 23 Rule 3 Civil Procedure Code . empowers the Court to record compromise between the parties and pass a decree in terms thereof. The provisions of Order 23 Rule 3 Civil Procedure Code . are reproduced as follows:- "O.23R.3. Compromise of suit-Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit."

PROVIDED that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment."

(15) The primary requirement, as laid down by the above said provision, is that the Court must be satisfied that the suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties. The present facts of the case indicate that the compromise between the parties was entered into and a decree in terms thereof was passed as far back as January 4, 1985. The plaintiff had executed a Will in December, 1984, which categorically stated that the suit property shall devolve upon the defendants in equal shares after the death of the plaintiff. There is no doubt about the proposition that the effect of the Will only operates after the death of the Testator, the plaintiff herein in the present suit. The present suit seeks to re-enforce the terms of the compromise, which had become part of the decree passed in 1985 and a declaration is sought by the plaintiff to the effect that he has the right to demarcate the ground floor premises of the property 70. Malcha Marg, Chanakyapuri, New Delhi and to further execute a Codicil by way of supplement to the Will dated December 21, 1984. He has filed a plan of the suit premises, which will pass to the defendants 1 and 2 respectively, after the present decree is passed in the suit. The plaintiff has averred in the application under Order 23 Rule3 Civil Procedure Code .,which was filed within a period of few days after the summons in the suit were issued to the defendants. The defendants have accepted the right of the plaintiff to execute the Codicil, as supplement to the Will dated December 21,1984 and the plaintiff has accordingly executed the Codicil to the effect that the portions of the suit property be demarcated and the same shall vest in the defendants, as their exclusive property, after the death 6f the plaintiff. It is further submitted that the above said defendants shall have the right to occupy and use their respective portions, during the lifetime of the plaintiff, provided however, that he or she shall have no right to occupy the same until the present compromise is recorded by this Court and a decree in terms thereof be passed. The effect of these provisions in the application are that the defendants shall be given possession of the property during the life time of the plaintiff, who shall further execute a Codicil, as supplement to the Will dated December 21; 1984. The authorities cited by the counsel for the plaintiff, as well as, for the defendants do establish that the lawful compromise must be accepted by the Court and a decree in terms thereof bepassed. These cases are on their own facts and cannot be equated with the facts and the nature of relief, which is claimed in the present suit. Here the parties had already entered into a compromise and a decree was passed by this Court as far back as January 4, 1985. The relief, now claimed is in the nature of declaration that the plaintiff is empowered to demarcate the property in .his life time and also to hand over the possession after the passing of the decree in this suit. Firstly, the plaintiff is seeking a decree in the nature of a clarificatory relief and secondly, he wants to surrender the possession of the suit property in his life time to the defendants, which will have wider ramifications, such as incidence of taxation and transfer of the respective shares after satisfying the requirements of law. This indeed cannot be permitted in a suit of this nature,

(16) The other questions, which require consideration in the present suit, as well as in the subsequent application for compromise, are whether the plaint discloses any cause of action and, whether, the first decree passed on January 4, 198.5, debars-the plaintiff to demarcate the portions of the suit property. The contents of the compromise application only indicate that the plaintiff wishes to demarcate the portions and hand them over to the defendants in his life time, although the suit property may remain his absolute property till his death, as stated above. The effect of Will and the Codicil has to operate after the death of the Testator and in case, the plaintiff desires to demarcate the respective portions of the defendants, and hand over the possession in his life-time, the same can be done by recourse to appropriate proceedings and not by means of seeking declaratory decree from this Court.

(17) In view of the above, the plaint does not disclose any cause of acetic and the same is accordingly rejected. The application under Order 23 Rule 3 Civil Procedure Code . does not lie on the facts and circumstances. of the present case, and the same is also dismissed. The plaintiff shall be at liberty to take recourse for appropriate remedy, for transfer of the respective shares in favor of the defendants and the earlier compromise decree does not lay down any restrictions on his powers to demarcate the portions of the defendants which shall devolve on them in terms of the Will in the first suit.