Sanjeev Sarin And Anr. vs Smt. Rita Wadhwa
2007 Latest Caselaw 2181 Del

JUDGMENT

Sanjay Kishan Kaul, J.

IA No. 4596/2006

1. After some hearing, it is agreed that this application can be disposed of with the directions that the parties will preserve both the movable and immovable assets of their late mother Smt. Madhurekha Sarin and abide by the result of the litigation which has been or may be instituted by the parties.

2. The application stands disposed of.

OMP No. 247/2006

3. The petitioners have filed this petition seeking directions against the respondent to hand over vacant possession of the ground floor of House No. B- 1/23, Vasant Vihar, New Delhi (hereinafter referred to as the said property) and to shift to her own house; to deposit with the Registrar of this Court rent; and damages for use and occupation of the ground floor; and appoint a receiver in respect of the entire property.

4. The parties are brothers and sister and are legal heirs to the estate of their mother Smt. Madhurekha Sarin. One of the properties is House No. B-1/23, Vasant Vihar, New Delhi which was originally owned by the father of the parties, Shri I.C. Sarin and the mother Smt. Madhurekha Sarin and on the demise of the father, in pursuance to the Will, his share devolved on the parties' mother and she became the exclusive owner of the property. The parties were unable to amicably resolve the disputes since it is the case of the petitioners, the sons, that all the parties equally have 1/3rd share in the inherited estate while the respondent seeks to propound a Will of their late mother giving her exclusive right. It may be noticed that the original Will has not seen the light of the day till date and it is the case of the respondent that the original Will is not even available.

5. The parties also went to arbitration and a separate dispute is pending in respect of the challenge to the award on account of the fact that the arbitrator had come to a conclusion that there was no valid arbitration agreement between the parties. The arbitrator further held that in view of the disputes pertaining to an alleged Will the arbitrator would have no jurisdiction to decide the matter.

6. In the present proceedings though various aspects were raised, the fact remains that the respondent is in occupation of the ground floor of the said property and is enjoying the same while certain movables are in the custody of the petitioners. The parties are already directed to preserve the property and abide by the result of the litigation which has been or may be instituted by the parties for division of the estate.

7. The relevant aspect is that on 12.3.2007 the parties agreed that without prejudice to their rights and contentions, the first floor of the said property be let out to the benefit of the succeeding party. This was so agreed because if the portion was lying vacant, whoever would be the succeeding party, would be a loser. In fact, even if the petitioners were to succeed, the respondent would get 1/3rd share and, thus, the letting out was for the benefit of all the parties. The parties further agreed to obtain the best offer for renting out the first floor of the said property within 15 days of the passing of the order and to produce the same in a sealed cover. It was directed that the proposed tenant will also remain present in Court.

8. On the next date of hearing on 23.4.2007 the offer received from the petitioners was opened but it was found that there was no prospective tenant indicated. There were only offers from the property dealers with the best proposed offer being of M/s Navyug Properties, which stated that the property could be let out for Rs.1,65,000/- with six months' advance rent and three months' refundable security deposit. At that stage, learned Counsel for the parties stated that a local commissioner be appointed for showing the property to prospective tenants. This would envisage the property being shown periodically to different tenants both as brought by the petitioner and the respondent for which the time would be fixed by the local commissioner. It was further agreed that the local commissioner would explore the possibility of getting the flat renovated and repainted from a professional person for which the costs would be borne by both the parties. Insofar as the costs were concerned, it was directed that at that stage this would envisage the willingness of both the parties to incur the necessary expenses. A local commissioner was accordingly appointed. Subsequently the keys, lying in the Court, were handed over to the local commissioner.

9. The local commissioner submitted his report as noticed in the order dated 4.7.2007. The parties were given further options to submit proposed offers from the tenants and for the prospective tenants to inspect the premises. The authority was agreed to be given to the local commissioner. The key of the main gate, which had an access to both the floors, was directed to be handed over by the respondent to the local commissioner to get duplicate keys made. Thereafter the parties took adjournments for settlement of the matter and on numerous occasions the matter was taken in Chambers but there has been no fruitful results. It is, thus, necessary to pass the final directions in the present petition.

10. It may be noticed that as per the report of the local commissioner, the hiring of the first floor would be decided after carrying out necessary renovations. This also seems to be the only possibility in view of the fact that the parties have not been able to obtain any prospective tenants with the existing condition of the property. The local commissioner obtained quotations from three contractors - Aawaran, Shrivan and Birhmanand Sharma. The lowest quotation is of Aawaran for Rs.2,40,175/-. There is a subsequent report also available of the local commissioner dated 1.8.2007 which recognizes that various brokers and property dealers brought by the parties had visited the premises and even the property dealers stated that the premises had to be first renovated.

11. The respondent, however, filed objections to the report of the local commissioner. It is the submission of the learned Counsel for the respondent that the local commissioner exceeded his brief in inviting persons to assess the cost of renovating the premises since that could be done only with the consent of the parties. It is further stated that one of the persons who has given the quotation has been brought by the petitioners. It is further stated that Aawaran has not visited the premises.

12. I find no merit in the objections. The order dated 23.4.2007 was clear that such a power was conferred on the local commissioner for getting the flat renovated and repainted at the cost of the parties. The only question on which the consent had to be obtained was on the willingness of the parties to incur the necessary expenses. The matter has not proceeded since then because the respondent has not been wiling to incur the expenses. This does not mean that the local commissioner exceeded his brief.

13. The objection insofar as one of the contractors being brought by the petitioners again has no basis since nothing precluded the respondent from obtaining a competitive bid for getting the premises renovated. In any case, the contractor alleged to have been brought by the petitioners is Birhmanand Sharma, whose estimate is highest and, thus, not liable to be accepted.

14. The parties have not been able to let out the premises and there appears to be such distrust that it is not possible for the parties to jointly carry out the endeavor agreed to in terms of the order dated 12.3.2007.

15. In order to give intent to the agreed order dated 12.3.2007, I deem it appropriate to appoint the said Shri A.K. Ohri as the receiver for the first floor of the said property to carry out the repairs and let out the same. In view of the lowest quotation being of Aawaran of Rs.2,40,175/- as compared to the quotation of Shrivan of Rs.2,90,570/- and of Birhmanand Sharma of Rs.5,12,000/-, I direct the receiver to get the repairs carried out from Aawaran at the stipulated cost.

16. The local commissioner thereafter shall invite the parties or other brokers to submit the necessary proposals to let out the first floor after carrying out the repairs and the best offer would be placed before the Court since the letting should be in pursuance to the specific orders of the Court.

17. The only question which remains to be considered is as to from where the expenses for renovation has to be borne. It is not in dispute that there are certain accounts of the deceased where substantive monies are lying and which have been frozen. I deem it appropriate that the amounts be released from the said accounts. It is informed that the rents were being credited to HDFC Bank A/c No. 5031000000089 at the Dear Park Branch, New Delhi, which is joint in the name of the deceased mother and the respondent. It is, thus, directed that an amount of Rs.2,40,175/- be released to the local commissioner, Shri A.K. Ohri, in order to facilitate payment to Aawaran as it may require payments to be made over Installments. The Bank Manager to comply with the said directions.

18. The receiver will be paid tentatively a further fee of Rs.30,000/-, to be equally borne by the parties. It is suggested by learned Counsel for the respondent that this amount can be also paid out of the aforesaid account of the HDFC Bank, to which there is no objection of learned Counsel for the petitioner. Ordered accordingly. The Bank Manager to take necessary action in this behalf.

19. At this stage learned Counsel for the respondent states that in order to facilitate water supply to the occupants of both the floors, it may be necessary to build a water tank and provide a pump. It is agreed that in this behalf also the receiver may obtain necessary instructions and carry out the work for which the parties will agree to bear the costs to be paid out of the aforesaid account of the HDFC Bank. It is also agreed that the receiver will pay the up-to-date House Tax for the property out of the said account for which a banker's cheque will be issued by the Branch Manager of the HDFC Bank.

20. The petition stands disposed of.

21. List on 07.03.2008 for directions to await the report of the receiver in respect of the proposal for letting out the premises.

22. dusty to learned Counsel for the parties for being delivered to the named receiver.