Shri Sushil Kumar Gupta vs Shri Anil Kumar Gupta And Ors.
2007 Latest Caselaw 1477 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The plaintiff has filed a suit for permanent injunction against the original defendants in respect of the property bearing No. 1, Tughlak Lane, New Delhi. The plaint was subsequently amended and suffice to say at this stage that defendants No. 7 and 8, now imp leaded in the suit, are not members of the family while the plaintiff and the other defendants are members of the same family.

2. Late Shri L. Hanuman Pershad Gupta was Karta of a HUF styled as M/s Deoki Nandan and Sons and one of the assets acquired by the said HUF was the property in suit in pursuance to a perpetual lease deed dated 13.10.1937. On the said plot a construction was raised and the family members occupied the property.

3. The HUF is stated to have disrupted in the year 1957 which had a consequent impact on the suit property. Late Shri L. Hanuman Pershad Gupta passed away on 8.12.1972 leaving behind a Will by which his estate was bequeathed to his four sons in equal shares. The property in suit in pursuance to a memorandum of mutation dated 31.3.1975 was consequently mutated.

4. With the passing away of late Shri L. Hanuman Pershad Gupta and the family members being large, disputes arose between the members as is often the case. The property in suit was envisaged to be developed as a group housing complex. A resolution dated 15.3.1982 was passed by the firm whereby the share in the property was divided between the four groups of co-owners. The group housing was never developed. There was further passing away of the family members and ultimately the disputes were referred to arbitration and were resolved in pursuance to an award of late Justice Jaswant Singh, a retired Judge of the Supreme Court. One of the terms of reference was as under:

The parties have agreed amongst themselves that the property 1, Tughlak Lane, New Delhi (whether forming part of assets of DNS or not) be divided equally amongst the four parties physically with separate titles, with power to the Arbitrator to direct the sale of the property if the physical division is not possible/equitable.

5. The Arbitrator ultimately made and published an award dated 8.6.1988 which was duly registered. In terms of the findings arrived at by the Arbitrator, the property in suit was held not capable of division and was to be put to sale.

6. A challenge was raised to the award in Suit No. 1754-A/1988 which failed and the award was made rule of the Court with certain minor modifications. The findings in respect of the property in suit in the arbitral award were not interfered with. The result was that in terms of the award, this property had to be put to sale. An appeal filed against the judgment of the learned single Judge making the award rule of the Court also failed. This resulted in the second round of litigation about the execution of the award.

7. The present suit is, however, a precursor to the execution proceedings as originally filed and the cause for the same is stated to be the apprehended action of defendant No. 1 to sell his share in the suit property prior to the sale in pursuance to the award. A relief was, thus, prayed for a restraint decree against defendant No. 1 from alienating, assigning, parting with possession or otherwise creating any third party interest in the suit property. It may be noticed that different parties were in occupation of different portions of the property though there was no sub-division by metes and bounds.

8. The suit was contested and it transpired that defendant No. 1 had entered into an agreement to sell and parted with possession. Subsequently, even defendant No. 2 did the same and the prospective purchasers were imp leaded as defendants No. 7 and 8.

9. The plaintiff also amended the suit in view of the subsequent events and sought to challenge the agreements entered into by defendants No. 1 and 2 with defendants No. 7 and 8 coupled with the right of possession. It may, however, be noticed that no declaratory relief was sought but only injunctive reliefs in this behalf were prayed for against all these defendants. The basic case of the plaintiff was that the said defendants could not step into the joint house of the family and must be treated as trespassers.

10. The aforesaid plea of the plaintiff is based on the provisions of Section 44 of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P. Act) read with Section 4 of the Partition Act, 1893 (hereinafter referred to as the Partition Act). These provisions read as under:

44. Transfer by one co-owner.--Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

4. Partition suit by transferee of share in dwelling-house.-- (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2) If in any case described in Sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section.

11. It is the case of the contesting defendants that there was no impediment to the sale of their undivided share in the property or parting with possession since the intent of the parties was to sell the property if it was not capable of division and that is what ultimately the award also directed, which stands affirmed. A further plea was raised that the present disputes can be dealt with within the scope of objections under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) which reads as under:

47. Questions to be determined by the Court executing decree.__

(1) All question s arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) ...

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

[Explanation I.-- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

[Explanation II. --(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]

12. The development which also took place after the original filing of the suit was the filing of the execution petition in which objections have been filed by the plaintiff to the similar effect. However, it is the case of the plaintiff that the plaintiff is entitled to still proceed with the suit and it is only in the suit proceedings that the objections of the plaintiff are liable to be adjudicated.

13. A preliminary issue was framed on 21.1.1999 as under:

In view of the pendency of the execution application by which some of the parties to the Award have sought the decree to be executed, whether this Court can decide the questions raised in this suit

14. It is the aforesaid issue which has to be examined. I have heard learned Counsel for the parties on the aforesaid preliminary issue. It may also be noticed that the plaintiff's endeavor to seek by an interim order the displacement of defendants No. 7 and 8 from the property or of the user of the property by them did not succeed. The appeal against the same also did not succeed before the court.

15. Learned Counsel for the plaintiff contends by reference to the provisions of Section 44 of the T.P. Act read with Section 4 of the Partition Act that defendants No. 7 and 8 are trespassers in the suit property and these specifically prohibit the entry of defendants No. 7 and 8 in the suit property. It is further contended that there is no conveyance deed executed in their favor and only agreements to sell have been executed.

16. Learned Counsel for the plaintiff strongly emphasised that the aforesaid provisions have been made for a salutary cause of protecting a dwelling house from being inundated by outsiders. Learned Counsel referred to the judgment of the Apex Court in Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. . It has been held by the Supreme Court that both these provisions are complimentary to each other and the term 'undivided family' and 'dwelling house' have the same meaning in both the sections. In case of a dwelling house belonging to an undivided family where the property is not divided by metes and bounds, the transfer by the widow and sons of a deceased co-owner would come within the mischief of the second paragraph of Section 44 of the T.P. Act. Interim mandatory injunction against the vendors and vendees regarding possession was held as liable to be issued.

17. Learned senior counsel for defendants No. 7 and 8, on the other hand, at the inception stated that there is no sanctity of the dwelling house left in the present case as it is the agreement of the co-owners and the direction of the award that the property has to be sold by auction. Execution proceedings have already been filed in which the property is to be put to sale. It is the contention of the learned senior counsel that the plaintiff does not want to see the end of implementation of the award on account of the fact that the plaintiff owes monies to other co-owners and, thus, monies are a charge on the share of the plaintiff who continues to be in enjoyment of a part of the property. Learned Counsel contends that in any case in view of the objections filed by the plaintiff, the same is liable to be dealt with by the executing Court under Section 47 of the said Code. To support the said contention, learned Counsel has referred to the judgment of the Apex Court in Gangabai Gopaldas Mohata v. Fulchand and Ors. . The Supreme Court while examining the provisions of Section 47 of the said Code, held that it was the duty of the executing Court to consider the claim of any party seeking to represent the interest of a decree holder disputing the same. The resolution of this dispute has to be by the executing Court. Learned Counsel also referred to a judgment of the Division Bench of this Court in Harinder Pal Singh Chawla v. Nirmal Daniere and Ors. . The aspect of Section 44 of the T.P. Act relating to an undivided family house was examined. The Will had been executed giving the exclusive and independent portions of the property to respective legatees. It was also held that though the land was common, the construction actually stood divided and the nature of construction of the building as one unit and the land underneath undivided, cannot lead to the conclusion that it is an undivided family dwelling house. An important aspect considered was that the property devolved on the two legatees in pursuance of a Will giving exclusive and independent respective portions of the properties to the legatees. In the present case also the parties are stated to be in possession of different portions of suit property and defendants No. 7 and 8 came into possession under Section 53A of the T.P. Act in pursuance to agreements to sell and have been in

18. On consideration of the aforesaid legal provisions and judgments and hearing the learned Counsels for the parties, I am of the considered view that the joint character of a dwelling house no more remained intact so as to invite the provisions of Section 44 of the T.P. Act read with Section 4 of the Partition Act. It cannot be lost sight of that the object of these provisions is to protect a house from being invaded by outsiders. In the present case, though there was no division by metes and bounds, the parties were in possession of respective portions of the house and were enjoying the same. In view of the above, the factual aspect is similar to the judgment in Harinder Pal Singh Chawla v. Nirmal Daniere and Ors. (supra).

19. An important aspect which arises in the present case is that the intent of the parties was also to sell the property in a public auction. The object was not to preserve the dwelling house. The learned Arbitrator found that it was not possible to divide the house by metes and bounds. A direction was, thus, made for sale of the property by auction. This award was made rule of the Court and sustained by the Division Bench insofar as this direction is concerned. Since the parties have not been able to put the property to sell by public auction, that aspect will have to be considered in the execution proceedings. In such case, in my considered view, the provisions of Section 44 of the T.P. Act and Section 4 of the Partition Act would have no application.

20. The other aspect is also the scope and ambit of Section 46 of the said Code. The rights of defendants No. 7 and 8 to step into the shoes of defendants No. 1 and 2 will have to be examined in those proceedings. The Supreme Court has already observed in Gangabai Gopaldas Mohata v. Fulchand and Ors. (supra) that insofar as these aspects are concerned, the powers of the executing Court are wide enough to deal with these aspects. The execution petition is pending in which objections have been filed by the plaintiff herein. It is in those proceedings that the execution of the award which in turn would require the sale of the suit property in a public auction, naturally with a charge of the amounts liable to be paid by the plaintiff from his share, would be examined. There can be, thus, no question of deciding or for the plaintiff to claim any of the reliefs of injunction as prayed for in this suit in respect of the suit property.

21. I am, thus, of the considered view that this suit is not maintainable and, thus, liable to be dismissed.

22. In the end I must note with some regret the unwillingness of the plaintiff to even join in the public auction of the suit property which was proposed as a method to end the dispute since that was the direction in the award which had to be executed. The plaintiff insists that defendants No. 7 and 8 must move out of the property first before the public auction while he will not move out. Thus, the plaintiff wants the public auction minus defendants No. 7 and 8 in the property and on his remaining in the property on the ground that he is the original owner. This is despite the willingness expressed by learned Counsel for defendants No. 7 and 8 to give an undertaking to the Court to vacate the premises or that he and all the other parties may move out and the property be put to public auction. The result is that the dispute in its finality still remain to be re-solved.

23. The suit is dismissed with costs.