Mr. Raj Khurana vs Mrs. Amrawati Madan & Ors.
2009 Latest Caselaw 3227 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Date of Reserve : 29.07.2009
                                                     Pronounced on : 18.08.2009

+                     IA Nos. 5434/2008 & 5149/2008 in CS (OS) 776/2008

       Mr. Raj Khurana                                             ........ Plaintiff

                      Through : Mr. M.C. Dhingra, Advocate

                                            Versus

       Mrs. Amrawati Madan & Ors.                           ...... Defendants

              Through : Nr. Dhiraj Sachdeva, Advocate for Def. 1 to 3.
              Mr. Vikram Nandrajog, Advocate for the applicant in IA 6069/2008.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?                  Yes

2.     To be referred to Reporter or not?                   Yes

3.     Whether the judgment should be                       Yes
       reported in the Digest?

S.RAVINDRA BHAT, J.

*

1. This order will dispose of the plaintiff's application for temporary ad-interim injunction, i.e. IA 5434/2008. The plaintiff sues the defendant for declaration, recovery of possession mesne profits and permanent injunction. The plaintiff and defendant Nos. 2 and 3 are sons of late Parkash Chand Khurana; (hereafter called "the late father") the first defendant a daughter of the said late father. It is not disputed that the said father of the parties, died on 23-3-2007.

2. The facts necessary for deciding the application are that according to the plaintiff, the late father had, at the time of his death, bequeathed his assets and properties, by excluding the first defendant. The bequest was in favour of the plaintiff's brothers, i.e the second and third defendant, in respect of a factory situated at 700 sq. yards, a tenanted premises at Samaipur, Delhi. It is alleged that under the will, the testator bequeathed the

IA Nos.5434/08 & 5149/08 in CS (OS) No.776/2008 Page 1 leasehold residential property, at 27, Rajendra Park, exclusively in his favour. The plaintiff contends that exclusive tenancy rights were bequeathed in his favour in respect of a godown at 48176/6, Katra Subhash Chandni Chowk, and rights were bequeathed in favour of defendant Nos. 2 and 3 in respect of the tenancy in Shop No. 5260, Ballimaran, Chandni Chowk. The plaintiff alleges that immediately upon death of the late father, the first defendant took over a portion of the residential property, and occupied two rooms and balcony on the first floor. It is further alleged that after the funeral ceremonies were over, the parties to the suit became aware of the deceased's will, dated 20th February, 2007, which was discovered in a room which had been locked. The plaintiff also alleges that the defendants agreed to vacate the premises, but after the first death anniversary of the deceased.

3. It is contended that the plaintiff requested the defendants to vacate the premises, and honour their father's will, on 1-4-2008; however, they declined to oblige and refused to hand over possession. It is alleged that the defendants had acted upon the will and sold the factory and distributed its proceeds amongst themselves, but dishonestly refused to accept the plaintiff's rights. The plaintiff also says that the defendants threatened to hand over the shop premises which had been bequeathed to him. The plaintiff alleges that the house property had been converted into free hold, during the deceased's life time, and that he (the plaintiff) had paid for such charges.

4. The plaintiff's first application for ad-interim injunction was moved on 29th April, 2008, (IA 5149/2008); notice on it, and summons in the suit, were issued 1st May, 2008. Immediately thereafter, the present application, IA 5434/2009 was moved, alleging that after notice was issued by the court, the defendants learnt about the present proceeding, and with a view to defeat any likely order, they colluded with "builder mafia" and sought to hand over possession of the property. It is alleged that on 2-5-2008 itself such "mafia" with the aid of "hoodlums" sought to take over possession of the property which was resisted; the plaintiff sought police assistance. It is alleged that assurances to abide by the court's order were given, but promptly ignored, when again attempts were made to forcibly dispossess the plaintiff. Therefore, ex-parte injunction was sought. The court heard the application on 5-5-2008, issued notice to the defendants, and directed the local police

IA Nos.5434/08 & 5149/08 in CS (OS) No.776/2008 Page 2 authorities to ensure that no harm is caused to the plaintiff, due to his filing the suit, and also ensure that no untoward incident takes place.

5. The plaintiff's counsel reiterated the contentions made in the suit, and the applications and argued that the court should protect his interests. It is urged that the DD entry, recorded by the police on 6th May, 2008, corroborates the plaintiff's version about the defendants' attempts to forcibly dispossess him, and defeat the court's process and orders. It is contended that the court should, in these circumstances, protect the plaintiff's possession, to the entire property. It was argued that the so-called purchaser could under no circumstance have been given possession of any portion of the property, since it was concededly undivided property, and the defendants did not have exclusive possession; reliance is placed on Section 44 of the Transfer of Property Act, 1882 (herafter "TPA"). Counsel submitted that even though the defendants' position is that they had sold possession of their share to third parties, after police intervention, the portions which were earlier occupied by the defendants are now in the plaintiffs' possession.

6. The defendants deny the plaint averments, and contend that the deceased never executed any will, as alleged. It is argued that the plaintiff's reliance on the so-called will is unmerited; similarly, the averments pertaining to agreement by the parties to honour the will or any such understanding, is denied. According to the defendants, there is no question of the first defendant taking possession of two rooms and balcony of the first floor, which were in the late father's possession. The plaintiff is alleged to be in possession of three rooms, a kitchen, two stores and two toilets, on the ground floor, in the back side and small barsati room on the second floor of the house property at Rajindra Park, commensurate with his 1/4th share. The defendants allude to mediation of the parties' dispute by Shri B.L. Madan, the first defendants' husband, which led to settlement about the plaintiffs' share in the house property, that is in his possession.

6. The defendants deny the plaintiffs' contentions regarding bequests in respect of other commercial property or that they threatened to sell any of them. It is argued that they lawfully sold their three fourth share in the house property, of which they had possession, to M/s Banke Bihari Expotrades Pvt. Ltd, through a sale deed dated 2nd May, 2008;

IA Nos.5434/08 & 5149/08 in CS (OS) No.776/2008 Page 3 according to them, this transaction was not sudden, but was commenced on 11-2-2008. The defendants contend that the plaintiff has not chosen to question that sale deed.

7. From the above discussion, it is apparent that the real bone of contention, in the present application, is with regard to the house property. The position of the parties is diametrically opposed to each other; the plaintiff relies on a will, which is entirely disputed by the defendants. The latter submit that the plaintiff has one fourth share; they concede that when the suit was filed, they had not entered into any sale transaction with the third party.

8. The defendants' position is that their share in the house property, to the extent of 3/4th share was sold by a registered deed, to third parties on 2-5-2008 and was the culmination of a process that began in February 2008. They rely on a copy of that sale deed, as well as copy of an arbitration agreement dated 31-3-2007, executed by the parties to the suit, to resolve their disputes through arbitration. It is emphasized that this document does not even allude to the alleged will.

9. No doubt, the defendants have placed the copy of the sale deed on record. That says that the vendors' rights are to the extent of three fourths undivided share in the house property. There is no allusion to the total built area of the house, and no attempt made to address the issue about the un-conveyed one fourth rights of the plaintiff to the property. In this context, Section 44 of TPA, relied on by the plaintiff, pertinently says that:

"44. Where one of two or more co-owners of immovable 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 liability 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."

10. The Orissa High Court, speaking of Section 44, said, in Bhim Singh v. Ratnakar Singh (AIR 1971 Ori 198),- where the undivided family consisted of the plaintiff and the

IA Nos.5434/08 & 5149/08 in CS (OS) No.776/2008 Page 4 defendants 1 and 2 therein; the first defendant having alienated his share to third parties- that:

"If in this state of things, a member of the family transfers his share in the dwelling house to a stranger paragraph 2 of Section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of the provision in Section 44 is to prevent the intrusion of the strangers into the family residence which is allowed in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger-transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co- ownership of the property should be kept out."

It was also held in another judgment (Udayanath Sahu v. Ratnakar Bej, AIR 1967 Ori 139) on the question whether the enjoyment of ascertained separate portions of the common dwelling house and the alienee taking possession made any difference, that:

"If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant- transferee in such a case becomes illegal. Plaintiff's co-owners are entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under Section 44 of the T.P. Act."

The Supreme Court, in Dorab Cawasji Warden,-vs- Coomi Sorab Warden & Others AIR 1990 SC 867 approved the above decisions of the Orissa High Court. A similar approach to Section 44 is echoed in the judgment reported as Srilekha Ghosh (Roy) & Anr -vs- Partha Sarathi Ghosh 2002 (6) SCC 359, where it was held that:

"Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play."

In another previous decision, reported as Ghanteshwar Ghosh -vs- Madan Mohan Ghosh AIR 1997 SC 471, the Supreme Court held that:

IA Nos.5434/08 & 5149/08 in CS (OS) No.776/2008 Page 5 "It is obvious that by the time the Act came to be enacted, the legislature had in view the aforesaid parent provision engrafted in Section 44 of the T.P. Act to the effect that a stranger to the family who becomes the transferee of an undivided share of one of the co-owners in a dwelling house belonging to undivided family share of one of the co- owners in a dwelling house belonging to undivided family could not claim a right of joint possession or common or part enjoyment of the house with other co-owners of the dwelling house. Implicit in the provision was the legislative intent that such stranger should be kept away from the common dwelling house occupied by other co-sharers. It was enacted with the avowed object of ensuring peaceful enjoyment of the common dwelling house by the remaining co-owners being members of the same family sharing a common hearth and a home."

11. The above discussion would have been prima facie dispositive of the two applications, since they demonstrate that a third party stranger cannot be granted possession of undivided shares in a joint family property, by virtue of Section 44, TPA; he would have to work his remedies and seek partition. Here, the defendants are not saying that partition ever took place; they allege that their undivided shares were sold, and the third party transferee was given possession of what was with them. This is arguably contrary to Section 44, as it undermines the surviving co-owners' rights, in the absence of a partition. The court has to however, also deal with other contentions urged by the defendants.

12. The materials placed on record, by way of recording of the plaintiffs' complaint, the steps taken by the police, to secure the interests and safety of the parties, have not been denied. In any case, they show that the plaintiff always kept insisting that his rights could not be frittered away. The court cannot also be unmindful of the possibility of the defendants having become aware of the present suit, and hastily executing the sale deed, to create irreversible situations, with the object of defeating possible orders in this suit.

13. In the above circumstances, the defendants are hereby restrained from taking any steps towards dispossession of the plaintiff, till further orders, from the portions of the premises under occupation by him, as mentioned in the suits. The local police authorities are hereby directed to ensure that the portions of the suit house property, which were earlier in the defendants possession, and were sold with effect from 2-5-2008, are placed under lock. The plaintiffs' existing possession in the suit property shall not be disturbed. The key to the other portions of the premises shall be placed under sealed cover, and deposited in court.

IA Nos.5434/08 & 5149/08 in CS (OS) No.776/2008 Page 6 The local police authorities are also directed to ensure the safety of the plaintiff, who claims that some "mafia" have threatened him.

14. IA 5434/2008, is allowed in the above terms; for the same reasons, IA 5149/2008 is dismissed. No costs.

CS (OS) 776/2008

List on 4th November, 2009 before the Joint Registrar for further proceedings.

August 18, 2009                                              (S. RAVINDRABHAT)
                                                                    JUDGE




IA Nos.5434/08 & 5149/08 in CS (OS) No.776/2008                                          Page 7