Abhay Sapru vs Chitralekha Bukshi
2008 Latest Caselaw 1059 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+ RFA (OS) 17/2008 & CM Nos. 3802/2008, 3803/2008 & 3805/2008



                                 Reserved on : 28th April, 2008
                                 Date of Decision : 18th July, 2008

ABHAY SAPRU                                 ...... Appellant
                                 Through: Appellant in person

                    Versus


CHITRALEKHA BUKSHI                     ...... Respondent.
                                 Through: Mr. Sanjay Jain, Sr. Adv. with
                                 Mr.Jayant Tripathi and Mr. A. Ahmad,
                                 Advocates.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE V.K.SHALI

     1. Whether reporters of local papers may be
        allowed to see the judgment?               No
     2. To be referred to the Reporter or not?     Yes
     3. Whether the judgment should be reported in the Digest? Yes

                    JUDGMENT

%

V.K.SHALI, J

1. This is an appeal filed by the appellant under Section 96 of the

CPC read with Order 41 Rules 1 and 2 and Section 10 of the Delhi High

Court Act, 1966 against the preliminary decree dated 7 th January, 2008

passed by the learned Single Judge in case titled as Abhay Sapru Vs.

Chitralekha Bukshi & Anr. bearing No. CS(OS) 192/1999.

2. By virtue of the impugned judgment, the learned Single Judge has

held that both the plaintiff and defendant no.1 have equal shares i.e. ½

share in the property bearing No.16A, Westend, New Delhi and further

that they are bound by the family settlement Ex.D1/3 till the time the

final decree for partition is not passed by metes and bounds by the Court.

3. Briefly stated the facts leading to the filing of the present appeal

are that property No.16A, Westend, New Delhi measuring 1205 sq.

yards was sub-leased to Late Lt. General B.M.Kaul by Diplomatic

Enclave Extension Cooperative House Building Society Ltd. Lt. Gen.

Kaul built a single storied house on the said piece of land and passed

away on 18th April, 1972 leaving behind his widow Smt. D.K.Kaul and

two daughters namely Smt. Chitralekha Bukshi respondent and Smt.

Anuradha Sapru both being defendant Nos. 1 and 2 in the suit. It may

be pertinent here to mention that after the death of Lt.Gen. Kaul, the

leasehold rights of the aforesaid plot in question were mutated in the

name of Smt.D.K.Kaul and her two daughters namely Smt. Chitralekha

Bukshi, respondent (defendant no.1 in the suit) and Smt. Anuradha

Sapru (defendant no.2 in the suit) (since deceased) on 20th November,

1978. The Diplomatic Enclave Extension Cooperative House Building

Society also carried out necessary mutations in respect of the aforesaid

plot in the name of the aforesaid three persons. Since Lt. Gen. Kaul had

not made any Will accordingly and the aforesaid three legal heirs i.e. his

widow and two daughters namely Smt. D.K.Kaul, Smt.Chitralekha

Bukshi and Smt. Anuradha Sapru (since deceased) had inherited the

aforesaid property in the proportion of 1/3rd share each according to the

Hindu Succession Act. The plaintiff further stated in the plaint that

Smt. D.K.Kaul who happened to be his maternal grand mother had made

nomination in favour of the appellant herein to the extent of her

respective share which was to the tune of 1/3rd each. Smt. D.K.Kaul

died intestate on 25th November, 1993 and accordingly it was claimed by

the appellant that he became the owner of 1/3rd share in the suit property

being the only nominee of Smt. D.K.Kaul in terms of Section 26 of the

Delhi Co-operative Societies Act, 1972 and the bye-laws framed

thereunder. The Society on the request of the appellant however

refused to accede to the request of the appellant to substitute his name as

a legal heir to the extent of 1/3rd share so far as the deceased Smt.

D.K.Kaul was concerned. This resulted in filing of the suit for partition

by the appellant claiming his share to the extent of 1/3 rd in the suit

property.

4. The respondent (defendant no.1 in the suit) who happened to be

the Masi (real sister of the mother of the appellant) filed her written

statement and took a plea that an oral family settlement was arrived at on

12.2.1998, i.e., after 16 years from the date of the death of their father Lt.

Gen. Kaul. According to the said family settlement, the respondent had

got exclusive possession of the entire ground floor except common

facilities/areas and the right of access to the first floor so far as defendant

No.1/respondent is concerned. It was denied that so far as the appellant

is concerned, he had become the owner of 1/3rd share being the only

nominee of Late Smt. D.K.Kaul, and also the owner to the extent of 1/3rd

share of his mother Smt.Anuradha Sapru (since deceased) who was the

defendant no.2 in the suit and thereafter expired during the pendency of

the suit itself. Thus in effect, the appellant/plaintiff was claiming 2/3rd

share in the suit property as against 1/3rd share being held by the

respondent. So far as the defendant no.2 Smt. Anuradha Sapru, mother

of the appellant is concerned, she contested the claim of the appellant to

the extent that the appellant had become the owner of 1/3rd share of the

suit property in his own independent capacity and in the capacity as the

nominee of Smt. D.K.Kaul. She had admitted that there was a family

settlement and according to the said settlement she along with her

mother Smt. D.K.Kaul was entitled to the ground floor of the suit

property while as in terms of the family settlement, her sister was given

the right to raise the construction on the first floor and above.

5. It may also be pertinent here to mention that Respondent had set

up a counter claim also so far as her case is concerned. In the counter

claim she had claimed that a declaration be issued to the extent that she is

the owner of the first floor and above in respect of the suit property and

further that if the family settlement is not made the basis of the claim of

defendant no.1 even then she is entitled to ½ share in the suit property.

6. On the basis of the pleadings of the parties, following three issues

were framed:

(a) Whether the act of nomination by the predecessor-in-interest with the Cooperative Society is over ridden by the provisions of Hindu Succession Act, 1956 or not?

(b) Whether the cost of construction of the first floor of the suit property was paid by Defendant No.1 or? If so its effect.

(c) Whether the family settlement was ever effected by the Plaintiff and by the deceased Smt. Dhanraj Kishore, if so to what effect?

(d) Relief.

(e) On 3.2.2003 an additional issue was framed which is as under:

Whether the provisions of the family settlement dated 12.2.1988 operates as a will if so to what effect?"

7. After framing of the issues, none of the parties adduced their

evidence. On the contrary, the parties contended that since the facts are

not in dispute, therefore, the Hon'ble Court may pass appropriate order

with regard to the claim of the appellant. The learned Single Judge after

hearing arguments of the parties has decided the matter holding that both

the appellant and the respondent have ½ share in the suit property and

accordingly passed a preliminary decree to that effect.

8. The Learned Single Judge held that the nomination of the

appellant by his maternal grandmother did not amount to making a will

in his favour or the fact that he was the sole inheritor. The appellant

was held only to be a trustee qua the other legal heirs. Thus the issue

Nos.(a)& (e) were decided against him. So far as issues Nos.(b) and (c)

were concerned the Learned Single Judge came to the finding that the

cost of construction of first floor was borne by the respondent herself and

that there was a family settlement though there was no formal partition

by metes and bound. As regards the relief the Learned Single Judge

passed a preliminary decree finding the shares of the parties as ½ each.

9. The appellant by virtue of the present appeal has challenged the

said preliminary decree. The appellant has argued in person. As is the

normal case when the party appears in person his version of facts and the

law gets blurred and in most of the cases he makes incoherent and

ambivalent submissions. In the instant case also we did not get much of

the assistance from the appellant. The appeal is also verbose and

against the practice and the procedure prescribed by the CPC. The

pleadings must contain only the material facts and not the law, yet

copious reference to the law has been made. The sum and substance of

the submission made by the appellant is to the effect that he does not

have ½ share in the suit property but on the contrary he has 2/3rd share in

the property. This submission is advanced on the basis of the fact that

after the death of Lt. Gen. Kaul, there were three legal heirs who had

succeeded to his estate namely the widow Smt. D.K.Kaul and the mother

defendant no.2 Smt. Anuradha Sapru (since deceased) and defendant

no.1 Smt. Chitralekha Bukshi. Each one of them had 1/3rd share in the

property. Since Smt. D.K.Kaul had nominated to the Cooperative

Society, the name of the appellant, therefore, in the capacity of the legal

heir of Smt. D.K.Kaul he got 1/3rd share. The other 1/3rd share which

originally belonged to defendant no.2 (since deceased) in the suit and the

mother of the appellant namely Smt. Anuradha Sapru, also fell to the

share of the appellant on account of her death and therefore, by adding

these two 1/3rd shares the appellant was claiming 2/3rd share in the

property while the remaining 1/3rd share was to the account of

Respondent namely Smt. Chitralekha Bukshi. Although, it has been

recorded in the judgment of the learned Single Judge that originally the

appellant had even denied the existence of the oral family settlement

reduced into a memorandum, which is Ex.DW1/3, but during the course

of hearing, the appellant had admitted that the said oral family settlement

which had clearly specified that so far as the ground floor of the suit

property is concerned, that would have fallen to the share of Late Smt.

D.K.Kaul and the mother of the appellant namely Smt. Anuradha Sapru

while as defendant no.1 namely Smt. Chitralekha Bukshi had been given

the right to raise construction on the first floor and above and after

having such a right she had actually raised the construction thereupon on

the first floor.

10. The finding of the learned Single Judge, was to the effect that

although there was an oral family settlement reduced into writing by way

of Ex.DW1/3 however, as no partition by metes and bounds had taken

place, accordingly after apportioning the shares in the proportion of ½

share each between the appellant and the respondent, the learned Single

Judge had proceeded to appoint an Officer of this Court as a Court

Commissioner for the purpose of suggesting the actual modalities of

physical partition of the property which is still pending before the

learned Single Judge.

11. As against this the submissions made by the appellant, Sh. Sanjay

Jain, the learned Senior counsel appearing for the respondent has very

fairly conceded that although according to the family settlement, the

ground floor had fallen to the share of the appellant, the first floor and

above has fallen to the share of the respondent as it was built by her in

terms of the aforesaid memorandum of settlement and therefore it

belonged to her. So far as the shares which have been fixed by the

learned Single Judge in the proportion of ½ share each both for the

appellant and respondent are concerned, the learned Senior counsel did

not assail the same and urged that the learned Single Judge has rightly

held that on account of death of Smt. D.K.Kaul, her 1/3rd share would

devolve in equal proportion to both the daughters namely Late Smt.

Anuradha Sapru and Smt. Chitralekha Bukshi and thus both of them had

½ share in the suit property. The learned Senior counsel further fairly

conceded that notwithstanding the fact that the first floor and the portion

above the first floor which will be built by the respondent would be

owned by the latter in accordance with the memorandum of settlement

Ex.D1/3, if at all the second floor or the portion above it, will ever be

built by the respondent in accordance with the Building bye-laws, the

same would be shared in the proportion of ½ shares each between the

appellant and the respondent.

12. We have considered the submissions of the respective sides and

perused the records. The first and foremost contention of the appellant

to the effect that he has 2/3rd share in the suit property is totally devoid of

any merit. No doubt the property was originally owned by Lt. Gen.

Kaul but on account of death of Lt. Gen. Kaul the property devolved on

three legal heirs namely the widow Smt. D.K.Kaul and two daughters.

The property was thereafter mutated in the name of the aforesaid three

persons both in the records of DDA as well as the Cooperative Society.

No doubt Smt. D.K.Kaul, the widow of Lt. Gen. Kaul had in the year

1985 made the appellant as a nominee in the records of the society and

thus shown her intention that the appellant is the nominee to take the

charge of the share of Smt. D.K.Kaul after her death, but according to the

legal position, the nominee is only a trustee of the property of the

deceased and he cannot usurp the share of the deceased to his own

advantage completely and to the exclusion of the other legal heirs.

Meaning thereby that even though a person may be shown to be a

nominee in the records of a particular society or organization, but the

role of nominee is only that of the trustee to ensure that the clear

devolution of the property takes place to the legal heirs. This legal

position has been expounded and duly supported by the judgments in the

detailed order of the learned Single Judge to which we need not refer.

However, one judgment is more than sufficient to reiterate this position

as has been referred to by the Learned Single Judge, i.e., Vishin N.

Khanchandani & Anr. vs. Vidya Lachmandas Khanchandani & Anr.

(2000) 6 SCC 724 which supports this proposition.

13. Thus on account of the death of Smt. D.K.Kaul, 1/3rd share would

have devolved in equal proportion in favour of respondent no.1 Smt.

Chitralekha Bukshi and defendant no.2 Smt. Anuradha Sapru (since

deceased) and the mother of the appellant i.e. Smt. Anuradha Sapru

thereby making their share as ½ each. As against this, the appellant

under some erroneous assumption or mis-conception preferred to file the

suit for partition that as he was shown to be as a nominee by his

grandmother (Nani) he had 1/3rd share in the property making both his

aunty and mother namely Smt. Chitralekha Bukshi and Smt. Anuradha

Sapru as defendants 1 and 2 respectively. So far as 1/3rd share of Smt.

Anuradha Sapru is concerned as she had died during the pendency of the

suit and the appellant was claiming himself to be the sole legal heir,

therefore, he was claiming himself to be the owner of the 1/3 rd share of

his mother also by operation of law. As against this, the learned Single

Judge has held that after the death of Smt.D.K.Kaul her 1/3rd share

devolved of her two daughters namely Smt. Chitralekha Bukshi and Smt.

Anuradha Sapru who therefore, became entitled to ½ share in the suit

property. In our opinion, there is no infirmity in the judgment of the

learned Single Judge so far as the preliminary decree is concerned

holding that both the appellant and respondent no.1 have ½ share in the

suit property. It has also been held by the learned Single Judge that

although the appellant had originally denied the existence of

memorandum of oral settlement, which was reduced in the shape of a

Memorandum Ex.DW1/3, but wisdom dawned on him during the

pendency of the suit to admit the said memorandum of settlement

according to which the appellant in the capacity of the successor in

interest of the defendant no.2 would be entitled to only the ground floor

of the property while as, the respondent no.1 has been under the said

memorandum of settlement permitted to raise construction on the first

floor and above that but as the learned Senior counsel has very fairly

conceded that as on date only first floor is constructed therefore, any

construction raised by the respondent no.1 over and above the second

floor and in accordance with the building bye-laws will be shared in

equal proportion between the appellant and respondent no.1. This is a

very fair concession of fact which has been made by the learned Senior

counsel to the advantage of the appellant though neither his conduct

justifies this nor has he any legal right to that effect.

14. In the light of the aforesaid facts and circumstances of the case, we

find that there is no merit in the present appeal filed by the appellant

accordingly the same is dismissed. However, no cost is imposed

keeping in view the fact that the appellant is appearing in person in a

family matter although we strongly feel that the appellant was

unnecessarily dragging the respondent no.1 in litigation for no rhyme or

reason.

(V.K. SHALI) JUDGE

(MUKUL MUDGAL) JUDGE July 18, 2008 RN