Bhai Manjit Singh vs Bhai Analjit Singh And Ors
2009 Latest Caselaw 4977 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                   RESERVED ON: 13.11.2009
                                                 PRONOUNCED ON: 04.12.2009
+                   IA Nos. 13808/2006 and 9700/2006 in CS (OS) 1673/2006
BHAI MANJIT SINGH                                                   ..... PLAINTIFF

              Through Mr. P.V. Kapur, Sr. Advocate with Mr. Anil Airi and
              Ms. Chetna Gauram, Advocates

                                                 versus

BHAI ANALJIT SINGH AND ORS.                 C+                        ..... DEFENDATS

              Through : Mr.Amarjit S. Chandhiok,Sr. Advocate with Mr. B.K. Sood, Advocate
              for Defendant no.1
              Mr. Rajiv Nayar, Sr. Advocate with Mr. K.R. Chawla, Advocate for defendant
              no.2
              Mr. Sandeep Sethi, Sr. Advocate with Mr. Sunil Verma, Advocate for Defendant
              no. 3
              Mr. Sanjeev Puri, Sr. Advocate with Mr.Sachin Puri, Advocate for
              defendant nos. 4 to 6.
              Mr. B.B. Sawhney, Sr.Advocate(Def. No.7 in person) with Mr.Amit K. Singh
              and Mr.Lakshay Sawhney, Advocates for defendant no. 7 with defendant no. 7 in
              person.
              Mr. A.K. Sharma, Advocate for defendant no. 9.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.

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

2.     To be referred to Reporter or not?                  Yes

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

HON'BLE MR. JUSTICE S.RAVINDRA BHAT

%

1. This order will dispose of two applications, namely, I.A. No. 13808/2006, for decree and

dismissal of the suit, on the basis of admitted pleadings and materials on record; and I.A. No.

9700/2006, for ad interim injunction during pendency of the suit.

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 1

2. The suit seeks partition of one-third share of the estate of Late Dr. Bhai Mohan Singh,

mentioned in Schedule-1 to the plaint; a declaration that shares of the second defendant company

(hereafter called "DGH") held by the parties are to be dealt-with and voting rights in respect

thereto exercised in accordance with the family settlement dated 30.12.1989 (hereafter called

"the 1989 settlement"), and for permanent injunction against defendants from dealing with

shares and from exercising voting rights contrary to such settlement and from varying the share-

capital of the DGH. Another injunction sought is to restrain the Defendant Nos. 1 & 2 and 4 to 9

from dealing with in any manner whatsoever or raising any construction over the property

comprising land measuring 5730 square yards, known as 15, Aurangazeb Road, New Delhi.

3. The facts to the extent they are undisputed by all parties are that the plaintiff and first

defendant are brothers, sons of Late Dr. Bhai Mohan Singh. It is stated that in 1988, Late Dr.

Bhai Mohan Singh's family consisted of his wife, Late Smt. Avtar Mohan Singh and three sons,

i.e. the plaintiff Dr. Parvinder Singh and the first defendant, Bhai Analjit Singh. The family was

affluent and owned various assets, both immovable and movable, besides interests in various

companies, firms etc. It is stated that due to differences regarding the management and control of

such assets, there was a feeling that to avoid later discord, settlement was necessary; accordingly

the 1989 settlement was entered into by all family members and their respective spouses and

children. The plaintiff refers to his group as "BMS" in the family settlement and the first

defendant as "BAS Group". The family of late Dr. Parvinder Singh is referred to as the "PS

Group". It is submitted that the family settlement binds all the parties and family members.

4. The DGH is a privately-held company with its registered office at 15, Aurangazeb Road,

the majority of which was owned and controlled by the family; the company had no business and

its only asset is its said immovable property. Apparently, the property, in the records of the Land

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 2 and Development Office (L&DO) had different addresses at the time of the 1989 settlement, viz.

Nos. 1 and 2, South End Lane and 15, Aurangazeb Road. Under the 1989 settlement, the said

property was to be shared amongst parties so that 1, South End Lane (measuring 2420 square

yards) fell to the share of the PS Group; 2, South End Lane (measuring 2420 square yards) fell to

the plaintiff's group and 2420 square yards in 15, Aurangazeb Road was to go to BAS Group.

The parents were to have the main house and balance of the approximate 5730 square yards of

the property.

5. The suit alleges that being a completely family-owned company, DGH cannot plead that

it is a separate entity - the plaintiff submits that its corporate veil has to be lifted. It is stated that

the spirit of the family settlement was that no one outside the family could have any controlling

interest in the DGH. The 1989 settlement attained finality and the parties took steps for its

implementation. The plaintiff refers to such steps in Annexure-I, which forms part of an award

dated 24.05.1994 in proceedings between Late Dr. Bhai Mohan Singh and Late Dr. Parvinder

Singh; the award was made rule of the Court on 06.12.1995. It is also claimed that steps to

effectuate the settlement were taken towards distribution of shareholding of several firms and

companies, including Ranbaxy Laboratories, M/s. Montari Industries and M/s. Max India Ltd.

Similarly, ownership in respect of no. 61, Golf Links was transferred in the records of Central

Government in the name of Bhai Manjit Singh HUF on 23.12.1999. The description of all the

various steps taken is made in para 14(a) to (k) of the suit.

6. The suit also refers to a previous proceeding, i.e. CS (OS) 36/2004, filed by the first

defendant against late Dr. Bhai Mohan Singh, and CS (OS) 1082/2004, by the PS Group, against

late Dr. Bhai Mohan Singh, as well as arbitration proceedings. According to the suit, the plaintiff

and his family members, on 04.01.2006, held 34,710 equity shares of the second defendant,

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 3 DGH, representing approximately 13.08% of the issued and paid-up equity capital. It is

submitted that the plaintiff, as Director of M/s. Montari Industries Ltd, also agreed to surrender

tenancy of that company and gave up such rights in the tennis court. The plaintiff refers to share-

purchase agreement dated 04.01.2006, for sale of shares of DGH to one M/s. Liquid Investment

and Trading Company, in which the first defendant owns controlling interest. The plaintiff

clarifies that the said agreement only pertains to sale of shares and the consideration was for

those shares and mention of other properties in the agreement is irrelevant and frivolous.

7. The PS Group had filed a suit for declaration and permanent injunction titled Nimmi

Singh v. Dr. Bhai Mohan Singh in which it was stated on 29.09.2004 that Dr. Mohan Singh had

transferred shareholding in DGH to third defendant. Though the plaintiff was arrayed as party,

no relief was claimed against him. The suit was compromised on 01.08.2004 and the plaintiff

deleted from the array of parties. In terms of the order, the PS Group was declared to be absolute

owners of property, being 1, South End Lane, New Delhi.

8. Late Smt. Avtar Mohan Singh expired on 04.07.2004 and late Dr. Bhai Mohan Singh, on

27.03.2004. The suit alleges that after Dr. Mohan Singh's death, the first defendant produced a

Will dated 24.08.2005, registered on 18.11.2005, naming him and Defendant Nos. 7-9 as

executors. The plaintiff disputes its authenticity and states that the Will is not the last Will and

testament and was contrived to usurp the rights of legitimate heirs. It is alleged that the Will is

contrary to 1989 settlement as Dr. Bhai Mohan Singh could not have bequeathed the assets as

claimed in it. The first defendant, as well as Defendant Nos. 7-9 apparently have filed a probate

proceeding, being case no. 428/2006, which is pending on the file of the ADJ. The plaintiff

alleges why the Will cannot be an authentic and genuine one; but was a stratagem to take

advantage of the emotional condition of late Dr. Bhai Mohan Singh in the wake of death of his

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 4 wife. The suit refers to a Memorandum of Understanding (MoU) dated 28.07.2004 between the

first defendant and late Dr. Bhai Mohan Singh, and alleges that this reveals a clever design and

mechanism of the first defendant. The plaintiff also alleges that after the said document, the first

defendant started pressing various litigations with the aim of distancing Dr. Bhai Mohan Singh

from his family members and reducing him to a state of dependence and ultimately culminating

in the execution of the Will, which the suit alleges to be tainted by undue influence. It is

submitted that the Will cannot be given effect to and the plaintiff and other legal heirs, as Class-I

heirs of Dr. Bhai Mohan Singh, are entitled to their shares in the property.

9. Defendant Nos. 1, 7 and 9 have contested the proceeding. They seek an order for

dismissal of the suit or exclusion of some reliefs in terms of Order 16 Rule 16 CPC. According

to them, (in I.A. No. 13808/2006), the suit is divided into two limbs; the first pertains to rights in

relation to No.15, Aurangazeb Road and the other, relating to assets forming part of the estate of

Dr. Bhai Mohan Singh, of which one-third share is claimed on the plea that the registered Will is

not valid and binding. The applicant alleges that the plaintiff has made false and misleading

statements that the family settlement provided that the 15, Aurangazeb Road property would be

continued to be owned by the DGH, in which at least 51% shareholding was to be at all times

held by late Ms. Avtar Mohan Singh jointly with late Dr. Bhai Mohan Singh and after death of

survivor, they were to devolve on all the three sons equally. Reference is made to paras 11 and

12 of the suit. It is alleged that the mention of the share-purchase agreement dated 04.01.2006 is

described in a restricted manner as if it pertained only to the transfer of shares in the DGH to a

company controlled by the first defendant as also giving-up rights in the tennis Court. It is

pointed-out that the plaintiff has filed a copy of the share-purchase agreement.

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 5

10. The applicant/first defendant argues that a fair-reading of the share-purchase agreement

discloses that the plaintiff and his family, members of the DGH were parties. If this fact were

taken into consideration along with the suit averments that DGH's corporate veil is to be lifted,

the plaintiff cannot thereafter contend that neither the first defendant nor Dr. Bhai Mohan Singh

were party to the agreement. The applicant relies upon Clause 9.4, which expressly supersedes

all previous discussions and agreements with reference to the subject matter of the agreement or

any matter directly or indirectly related to it. The definition clause in the Agreement includes all

parties. The applicant/Defendant No.1 also refers to recital-C of the share-purchase agreement

which defines the subject-matter to be the "property" and the "larger property."

11. According to the applicant, the various conditions and stipulations in share-purchase

agreement dated 04.01.2006 and the allied documents, such as irrevocable letter of undertaking

dated 04.01.2006, executed by the plaintiff and family members in favor of the purchaser

company as well as the termination agreement dated 04.01.2006, handing-over possession of a

portion of 15, Aurangazeb Road to DGH and lastly, the confirmation/undertaking dated

04.05.2006 to the Defendant No.1 and purchaser company by the plaintiff and his family

members, seal the fate of the suit vis-à-vis 15, Aurangazeb Road property. It is submitted that the

suit, therefore, is patently dishonest - the documents clearly justify that whatever rights that

existed or could have been claimed by the plaintiff and his family members were given-up in

these documents for a substantial monetary consideration of Rs.12.75 crores. Express reliance is

placed upon recital no. 3, Clauses 5.1, 5.2 and 9.4.

12. It is argued that as far as the second limb of the suit relating to allegations about undue

influence exercised by the first defendant leading to execution of a Will with the aim of claiming

ownership and share in other assets and properties, a probate proceeding is pending where the

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 6 rights of the parties would be adjudicated upon. The probate Court alone has exclusive

jurisdiction to consider and adjudicate the question of validity and due execution of a Will of the

testator and whether he was of sound and disposing mind. This Court, plainly, therefore, cannot

entertain and try such disputes. It is submitted, therefore, that the second limb of the suit

pertaining to other assets cannot be adjudicated upon as the subject-matter falls outside the

jurisdiction lawfully vested in the Court.

13. The applicant/Defendant No.1 also refers to an Aide Memoire executed as supplementary

to the family settlement, sometime in 1991, and states that the said document had the effect of

superseding the 1989 settlement. The applicant/defendant argues that the parents of the plaintiff

and the first defendant executed a joint Will on 11.09.2003, bequeathing all immovable and

movable property to the survivor absolutely and forever. The mother, Smt. Avtar Mohan Singh

passed away on 04.07.2004. Consequently, late Dr. Bhai Mohan Singh, the father, became the

absolute owner. It is submitted that no party objected to the Will. Reference is made to the No

Objection Settlement recorded by all the heirs to the said Will dated 11.09.2003. Bhai Mohan

Singh transferred his shares (in DGH) to the third defendant Trust on 28.07.2004. The plaintiff

does not challenge the Trust or the creation of such interest. If all these factors are taken into

consideration, says the applicant, what clearly emerges is that the right conferred upon by the

1989 settlement stood altered by an agreement at different stages - through the Aide Memoire in

1991; later by the execution of the Will in terms of which the shares vested in Dr. Bhai Mohan

Singh, who, in turn transferred them to the Trust. These facts coupled with the plaintiff's parting

with the ownership of his shareholding on 04.01.2006 clearly entitle the Court to conclude that

the plaintiff does not have any interest in the property, and the suit, therefore, should be

dismissed on the basis of existing materials and averments.

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 7

13. Learned counsel for the applicant/Defendant No.1 relied upon the judgment reported as

Uttam Singh Duggal v. Union Bank of India AIR 2000 SC 2740, to say that if the Court

concludes that there is sufficient material to warrant an appropriate order that would conclude

one or some of the issues, including dismissal of the suit, the Court can, in its discretion proceed

to pass such order without awaiting conclusion of trial. Stating that the Probate Court alone has

exclusive jurisdiction, learned senior counsel relied upon the decision reported as Chiranjee Lal

Shrilal Goenka v. Jasjit Singh 1993(2) SCC 507.

14. The plaintiff submits that the application, I.A. No. 13808/2006 has to be dismissed and

contests the interpretation placed by the applicant/defendant upon the various documents and the

share-transfer agreement dated 04.01.2006. According to the plaintiff, the share purchase

agreement has to be read as a whole rather than the Court viewing, selectively, the few

conditions and stipulations relied by the defendant. The plaintiff submits that the subject matter

of the share-purchase agreement was transfer of the 34,710 equity shares in the DGH by the

plaintiff and his family members and any expression used in the document is incidental to the

said shares' sale. The plaintiff denies interpretation of Clause 9.4 of share-purchase agreement.

15. It is argued on behalf of the plaintiff that the applicant does not aver anywhere about any

admission in the suit with specificity. Consequently, the plaintiff is made to answer to

unintelligible allegations. Learned senior counsel submits that the family arrangement clearly

visualizes that eventually one-third share in the property was to devolve upon each branch, as

provided by the document. The plaintiff highlights that significantly, the 1989 Settlement rights

were in no manner affected by any subsequent document. It is urged that pertinently that the

share-purchase agreement of 04.01.2006 does not refer to or supersede the 1989 settlement. It is

claimed that PS Group held 15.59 percent in DGH; the plaintiff held 13.89 percent in DGH and

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 8 the first defendant held 6.24 percent in DGH. The rest were held by late Bhai Mohan Singh and

his wife. The family settlement clearly stipulated that regardless of the nature of the shareholding

pattern, each branch, constituting children of Bhai Mohan Singh and Ms. Avtar Mohan Singh,

was entitled to one-third share ownership and title. The suit, consistent with this understanding

and consistent with the stipulations in the family arrangement or settlement, alleges that the

corporate veil of the DGS has to be lifted. The plaintiff submits that in the suit filed by the first

defendant himself, being CS (OS) 36/2004 (Bhai Analjit Singh v. Bhai Mohan Singh), an

averment was made that the family settlement was intended to resolve the differences in such

manner that regardless of shareholding in DGH, the ownership and title of the respective

branches was fixed. It is submitted that in the same suit, a reference to the Aide Memoire was

made. It was necessary to enter into such arrangement due to difficulties faced in giving effect to

the family settlement fully because a portion of the land could not be constructed upon. The

plaintiff refers to para 19 of the suit of the first defendant which states that all persons having

controlling interest in DGH were party to the family settlement and were bound by it.

16. The plaintiff also relies upon the order dated 01.08.2006 whereby compromise terms

were recorded in CS (OS) 1082/2004, filed by the Defendant Nos. 4-6. That order struck-off the

plaintiff from the array of parties and expressly stated that it would not have a conclusive effect

in respect to his rights, to the estate of late Dr. Bhai Mohan Singh. In terms of the said

compromise, a decree was drawn, entitling the plaintiffs there - i.e. Defendant Nos. 4-6- to

absolute ownership rights of the property, being No.1, South End Lane, comprising of the main

house, out-house, lawn space over 2500 square yards, in their occupation. A further declaration

that Defendant No. 1 and others did not have any right, title or interest in such property was also

given. The undertakings of the parties, to that effect, were accepted by the Court. The plaintiff

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 9 argues that if the effect of such compromise were to be carefully considered, it would be

apparent that the PS branch got exactly what was agreed to be given to it in the family settlement

of 1989. Therefore, the fact that the plaintiff parted with some shareholding in DGH by the

shareholder's agreement dated 04.01.2006 did not preclude his right to maintain the present suit

in respect of some rights in the said property. Learned senior counsel submitted that the share-

purchase agreement dated 04.01.2006 might have the effect of diminishing the plaintiff's

entitlement in the 15, Aurangazeb Road property but certainly not extinguishing it altogether, as

contended.

17. It is argued that an order dismissing the suit under Order 12 Rule 6 based upon the

admissions is to be made on the basis of clear, unconditional and unambiguous admissions.

There cannot be any admission by inference as such matters pertain to question of fact. The

Court should not be involved in any interpretative exercise, leading to a conclusion that the suit

is not maintainable. Reference was made to the judgment reported as Raj Kumar Chawla v.

Lucas Indian Services 129 (2006) DLT 755. It was submitted, therefore, that some of the clauses

in the share-purchase agreement cannot be viewed in isolation of the entirety of the case pleaded

by the plaintiff, duly supported by the documents. These include the defendants' averments and

the Court cannot pick or cull-out some portions of such documents or pleadings to infer

admissions. Learned counsel for the plaintiff urged that the extent of jurisdiction of the probate

Court is only to decide whether the Will so propounded was validly executed by the testator or

testatrix, as the case may be. It does not extend to the question of whether the testator had the

right or title interest in respect of the property bequeathed as that falls within the domain of the

Civil Court. Elaborating on this, it was contended that the right of late Dr. Bhai Mohan Singh to

bequeath the properties and the share in the manner he did by the impugned Will, in the light of

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 10 the binding family settlement and other arrangements, admittedly arrived at by the parties can

never be the subject matter of probate proceedings but appropriately arise for the determination

of the Court. Reliance is placed upon the judgment reported as Kanwaljit Singh Dhillon v.

Hardayal Singh Dhillon 2007 (11) SCC 357.

18. In terms of the 1989 settlement (para 5 of the recital), it was mentioned that the family

owned certain immovable properties described in the Third Schedule. The Third Schedule

mentioned inter alia the property at 15, Aurangazeb Road and the properties at 1, South End

Lane and 2, South End Lane. According to the Third Schedule, DGH was described as "the

present owner". Clauses 6(2), 7(2) and 8(3) stated that 2420 square yards of land, being 15,

Aurangazeb Road was to fall to the PS Group, 2420 square yards of land, being 15, Aurangazeb

Road was to fall to the BAS Group and 2420 square yards out of the immovable property at 15,

Aurangazeb Road was to belong to the plaintiff's group. The Aide Memoire (Ex. P-6/D-4, 5 and

6) mentioned that the earlier settlement had provided for the manner of division of the 15,

Aurangazeb Road property and that extensive inquiries about the implementation of the

settlement showed that several difficulties exist. With a view to resolve the matter, a revised

understanding was arrived at and spelt-out in para 5 which stated inter alia that status quo would

continue during the lifetime of each of the parents, after which the first defendant was entitled to

use and occupation of the entire house, i.e. 15, Aurangazeb Road, minus the areas shown in red

colour in the attached plan. Contingent arrangements were made for the eventuality of

supervening circumstances, leading to reduction of the area in the enjoyment of the plaintiff.

Clause 7 of the Aide Memoire stated that 51% voting rights were to be held at all times by late

Smt. Avtar Mohan Singh jointly with Bhai Mohan Singh during her lifetime and Dr. Bhai Mohan

Singh, after her death. The shares were to devolve equally on the plaintiff, the first defendant and

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 11 the PS Group. A supplementary Aide Memoire was later executed specifically in the light of

some construction activity undertaken by the Defendant No.1 in respect of his portion. This also

reiterated the respective rights of branches of the family.

19. A joint and mutual Will dated 11.09.2003, of Dr. Bhai Mohan Singh and Smt. Avtar

Mohan Singh, in its operative part states as follows:

"XXXXXX XXXXXX XXXXXX Each of us, hereby Devise/ Bequeath and testify that in the event of demise of either of us, all properties, moveable and immoveable, held by us individually or jointly, Rights, Interests of all assets of whatever description - that in the name of (one of us) is seized or possessed by any one of us who dies shall devolve Exclusively, Absolutely for ever, on the survivor of us, who shall also act as the Sole Executor of This Will.

XXXXXX XXXXXX XXXXXX"

20. During his lifetime, after the death of Smt. Avtar Mohan Singh, late Dr. Bhai Mohan

Singh donated or transferred shareholding in the DGH to the third defendant Trust. Concededly,

the total extent of such shareholding is 64.28 percent.

21. In the light of the above facts, now it would be necessary to analyze the share-purchase

agreement dated 04.01.2006. It was entered into by seven parties, including the plaintiff, his

wife, his son, Mr. Vikramjit Singh and daughter-in-law, Ms. Zeenia Singh and second son, Mr.

Mohanjit Singh. The other parties were M/s. Liquid Investment and Trading Company and DGH.

The plaintiff group were called "sellers" and M/s. Liquid Investment and Trading Company were

named "purchasers". The material portions of the said agreement read as follows:

"WHEREAS:

A. The Sellers are the legal and beneficial owners of 34,710 equity shares of the Company, specific details of which are listed in Schedule-I of this Agreement (collectively the "Sale Shares") with a par value of Rs.10/- (Rupees Ten) each,

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 12 representing approximately 13.89% of the total issued and paid-up equity share capital of the Company.

B. The Sellers have agreed to sell and the Purchaser has agreed to purchase from the Sellers, the Sale Shares in accordance with the provisions of this Agreement.

C. The Parties have arrived at certain mutual understandings, with respect to the Sale Shares, Third Party Claims, the Property and the Larger Property (which shall collectively be referred to hereinafter as the "subject matter of this Agreement"), the terms and conditions of which have been recorded hereunder."

"ARTICLE 1 DEFINITIONS & INTERPRETATION

XXX XXX XXX XXX XXX

XXX XXX XXX XXX XXX

"Larger Property" means the properties at 15, Aurangzeb Road, New Delhi-110 011 and 1, South End Lane, New Delhi-110 011, which properties are owned by the Company and of which the Property forms a part;

XXX XXX XXX XXX XXX

"Property" means the plot of land bearing No.2 situated at South End Lane, New Delhi-110 011 together with the rights, interests, privileges and benefits appurtenant thereto along with the easement rights and right to ingress and egress and all the structures constructed thereon, including but not limited to the servant quarters constructed thereon, together with the fixtures and fittings installed and affixed on the land and the buildings and forming part of the land and the buildings standing thereon, forming part of the Larger Property;

"Sale Shares" has the meaning assigned to it in Recital A;

          XXX                XXX            XXX            XXX            XXX



IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006                                            Page 13
                                     ARTICLE 2
                          TRANSACTION AND PURCHASE PRICE

       2.1     Subject to the provisions of this Agreement, the Sellers, as the legal and

beneficial owners of the Sale Shares, shall sell, transfer, convey and deliver to the Purchaser, free from all Encumbrances (including any non-disposal undertakings, if any given in respect thereof), together with all accrued benefits and rights, title and interests attaching thereto and all dividends declared in respect of the Sale Shares on and from the Completion Date, and the Purchaser shall purchase, acquire and accept from the Sellers the Sale Shares.

2.2 In full consideration of the Sellers agreeing to sell the Sale Shares to the Purchaser, the Purchaser hereby agrees to pay an aggregate amount of Rs.12,75,00,000 (Rupees Twelve Crores Seventy Five Lakhs Only) as the purchase price for the Sale Shares (the "Purchase Price"). The Purchase Price shall be paid by the Purchaser as follows:

(a) Rs.4,25,00,000 (Rupees Four Crore and Twenty Five Lakhs Only) (the "Completion Date Payment") shall be paid by the Purchaser to the Sellers in the manner set out in Article 3.2(c) of this Agreement. The Completion Date payment shall be payable ratably to the Sellers in accordance with their ownership percentage of the Sale Shares as existing immediately prior to the Completion and as set forth in Schedule-I hereof, each percentage amount being such Seller's "Pro Rata Portion"; and

(b) Rs.8,50,00,000 (Rupees Eight Crore and Fifty Lakhs Only) (the "Contingent Amount") shall be paid by the Purchaser, subject to the provisions of and in the manner set out in Article 4 of this Agreement.

             XXX              XXX            XXX             XXX            XXX


                                           ARTICLE 5

                           RELEASES AND OTHER COVENANTS

       5.1     Each constituent of the MS Group, on behalf of itself, and on behalf of

each and all of its respective past, present, and future affiliated entities, individual members, partners, predecessors, successors, assigns, agents, parents, divisions, employees, attorneys, accountants, spouses, representatives, and heirs, hereby absolutely and forever releases, remises, acquits, and discharges BMS and BAS Group and each and all of their respective affiliated entities, individual members, partners, predecessors, successors, assigns, agents, parents, divisions, employees, attorneys, accountants, spouses, insurers, representatives, and heirs, from any and all claims, demands, actions, causes of action, debts, controversies, liens, contracts, agreements, covenants, judgments, orders, obligations, accured

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 14 or prospective, liabilities, damages, costs, expenses or losses, of any and every kind or nature whatsoever, and by whomever asserted, whether known or unknown, suspected or unsuspected, or which otherwise may now exist or heretofore may have existed, at law or in equity, relating to the subject matter of this Agreement.

5.2. Each of the constituents of the MS Group hereby confirms and agrees that they, either by themselves or through any other Person(s) associated with them, do not, in any manner, have or shall ever have any right, entitlement or claim in law or equity or otherwise against BMS and any member of the BAS Group and/or any of their respective affiliated entities, partners, predecessors, successors, assigns, agents, parents, divisions, employees, attorneys, accountants, spouses, insurers, representatives, and heirs(i) in respect of or involving the Property or the Larger Property or any portion thereof, (ii) in respect of or involving the Sale Shares, and to this end no action or proceeding (including arbitration) by any constituent of the MS Group, whether acting directly or indirectly, will be sustainable, and neither BMS nor any member of the BAS Group and, or any of their respective affiliated entities, partners, predecessors, successors, assigns, agents, parents, divisions, employees, attorneys, accountants, spouses, insurers, representatives, and heirs shall have any liability whatsoever in this regard relating to the subject matter of this Agreement.

             XXX              XXX            XXX             XXX            XXX

       9.4     Entire Agreement and Supercession of Prior Agreements

This Agreement supersedes all prior discussions and agreements (whether oral or written, including all correspondence) if any, between any of the Parties with respect to the subject matter of this Agreement or any matter directly or indirectly related thereto, and includes, but without limitation,

(a) such discussions/agreements where all or some of the Parties hereto are the only parties to such discussions/agreements and (b) such discussions/agreements where all or some of the Parties hereto are amongst the parties to such discussions/agreements. This Agreement contains the sole and entire agreement between the Parties hereto with respect to the subject matter thereof or any matter directly or indirectly related thereto. For the limited purpose of this Article 9.4, the term "Parties" shall mean, collectively, each member of MS Group, the Purchaser, BMS, his late wife, the late Mrs. Avtar Mohan Singh, and each member of BAS Group.

XXX XXX XXX XXX XXX"

22. As the court is able to see, the controversy here is whether the suit contains

averments, and the list of documents filed along with it, contain stipulations, which

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 15 would in effect, negate the claim, or any part of it, obviating altogether the necessity of a

trial. If so, the court has the discretion to make such appropriate order as is warranted, in

the circumstances - including dismissing the suit.

23. It is not the object of this order to explore the law relating to admissions, and

decrees or orders that can be made on the basis of admissions of one or other of the

parties. The ruling in Uttam Singh Duggal sufficiently clarifies the issue. It is now

established that to qualify for an order or decree which concludes one or another issue, in

a suit, the averment should be unconditional and unambiguous. Raj Kumar of the

Division Bench states that there cannot be an inferential admission - it has to be

unambiguous. In other words, the court should not deduce an admission, as the result of

an interpretive exercise.

24. In this case, the plaintiff claims one third share of the Aurangzeb Road property,

and also claims share in other properties mentioned in the schedule to the suit. He has

disclosed the existence of a share purchase agreement, dated 4-1-2006, where he and all

his family members are parties; the defendant No. 1 and others were parties to it. No

doubt, the Agreement does define what is "property" and "larger property". Some of its

terms, particularly Clause 5.1 and 5.2, as also 9.4 do seem to suggest what the Applicant

urges, i.e. that the plaintiff parted with his rights, in respect of the Aurgangzeb Road

property. Yet, those conditions cannot be read in isolation. The plaintiff also relies on the

1989 settlement, and the Aide Memoire, which do put in place a family arrangement

whereby the three brother's families or groups were entitled to share the assets in a

particular manner. The joint Will of the plaintiff (and defendant No.1's) father and

mother did not facially, detract from this position. Similarly, there are some conditions in

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 16 the Share purchase agreement - notably Recitals B and C as well as Clause 2.2 ("In full

consideration of the Sellers agreeing to sell the Sale Shares to the Purchaser...) which

indicate that the transaction whereby the plaintiff received amounts, was in consideration

of the shares owned by him. The court cannot also be unmindful of the circumstance that

none of the documents, which the Applicant defendant terms as containing admissions

(the Share Transfer Agreement, undertakings, termination letter and so on) make any

explicit mention of the 1989 Settlement and other documents, the existence of which is

not denied by anyone. The first defendant's averments in the previous suit filed by him,

are also significant.

25. The court's approach while considering whether any averment, or omission to

traverse any material allegation amounts to an admission cannot be myopic. It has to of

necessity, take into consideration the implications which may arise from a party urging

one contention or another, on the basis of existing materials. The reason for this is

obvious. A plaintiff, in order to be non-suited, should have disclosed materials, or

pleaded something that would render the whole claim untenable either in the facts or in

law. Similarly, the defendant's pleas should be clear and unambiguous. If these well

settled approaches are ignored, there is a possibility of the litigant being denied a fair

trial.

26. As to whether the plaintiff's share was one third or something smaller, in the light

of the Share Purchase Agreement of 4-1-2006 cannot be a matter of discussion, merely

on the basis of the terms contained in the document; more so if one sees that the suit

relating to the PS group's share was compromised with a recognition of their one third

share. Further, the plaintiff has urged in the suit about various consequential steps being

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 17 taken pursuant to the 1989 settlement. In these circumstances, whether he has any right,

and if so, to what extent in the properties that are the subject matter of the suit, or some of

them, cannot be subjected to a mini-trial, as would happen, inevitably if the defendant's

contentions were to be accepted.

27. As far as the contention regarding the existence of probate proceedings is

concerned, while there cannot be any dispute that the probate court has exclusive

jurisdiction to try the issue about genuineness and due execution of the will, it does not

concededly possess jurisdiction to decide on issues concerning property entitlements. The

plaintiff is disputing the authority of the testator to bequeath the shares in the properties,

or bequeath the properties, saying that he had ownership rights. Trial on those aspects

falls legitimately within the domain of the civil court.

28. In view of the above discussion, the court is of the opinion that there is no merit in

the application of the Defendant seeking dismissal of the suit, as there are no

unambiguous or clear admissions. The application under Order XII Rule 6, CPC therefore

has to fail.

29. This court is of the opinion that the plaintiff has been able to establish a prima

facie case, on the basis of the documents placed on the record, i.e. the 1989 Settlement,

the Aide Memoire as well as the copies of other proceedings, about his entitlement to the

properties mentioned in the schedule to the plaint. The defendants, who have propounded

the will, have not yet proved that it was validly executed, and is binding on all concerned.

The defendants also do not dispute the execution of the 1989 settlement, and other

documents. Although the share of the plaintiff in relation to one property may be in

IA Nos.13808/06 & 9700/06 in CS(OS) 1673/2006 Page 18 dispute, the previous discussion pertaining to the share transfer agreement would show

that it prima facie does not conclude the issue, as is suggested by the defendants. The

court is also of the view that balance of convenience lies in favour of grant of injunction.

For these reasons, the parties are directed to maintain status quo, as regards title and

possession to the suit properties, till further orders.

24. In view of the conclusions recorded above, I.A. No. 13808/2006, is dismissed.

I.A. No. 9700/2006, for ad interim injunction is allowed, in the above terms.

CS(OS) 1673/2006

List for further proceedings on 3rd March, 2010.

December 04, 2009                                            (S.RAVINDRA BHAT)
                                                                   JUDGE




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