Sh. Bishwajeet Singh vs Sh. Bikramjit Singh & Ors. D+
2009 Latest Caselaw 4563 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                         Reserved on :08.10.2009
                                                                      Pronounced on : 10.11.2009

+                      IA Nos. 6732-33/2009, 12882/2009 in CS (OS) 3235/1988

SH. BISHWAJEET SINGH                                            ..... Plaintiff

                       Through:        Mr. G.S. Rawal, Sr. Advocate with Mr. Kuljeet
                                       Rawal, Advocate.

                                               Versus

SH. BIKRAMJIT SINGH & ORS. D+                                  ..... Defendants

               Through:        Mr. Janendra Lal and Mr. M Lal, Advocates for
                               defendant No. 1.
                               Mr. A.K. Mata, Sr. Advocate with Ms. Amrit Kaur
                               Oberoi and Ms Momal Rawat Advocates for defendant
                               no. 2 alongwith Madhuri Singh, defendant no.2.
                               Mr. Sangram Vijay Singh, defendant no. 1B in person.
                               Ms. Deepshikha Kumari, defendant no. 1D in person.

Coram:
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.     The Court has considered the submissions of the parties in respect of the applications that

are the subject matter of the present order.




I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988                                    Page 1
 2.     Briefly the facts necessary for the purpose of deciding the applications are that the above

Suit (which had sought a decree of partition and separation of the plaintiff's 1/4th share) was

decreed by a judgment dated 09.12.1997, when the Court directed that the plaintiff was entitled

to 1/4th share in the premises being 54, Friends Colony; the first, second and third defendants

were held entitled to a similar 1/4th share in respect of the said property. The second defendant

Ms. Madhuri Singh concededly was claiming through her husband Shri Inderjit Singh, who died

during pendency of the proceedings. It is a matter of record that the plaintiff had relied upon an

earlier General Power of Attorney document dated 16.04.1977; the late Inderjit Singh had

challenged it by filing a Suit (Civil Suit No.304/1994). Apparently, that suit was disposed of as

withdrawn. The first defendant Bikramjit Singh had appealed to the Division Bench, against the

judgment and decree, in the present suit. The Division Bench disposed of the appeal (RFA (OS)

1/1999) on 12.08.2002, through the following orders: -

       "CM No.168/2002

       This is an application praying for early hearing of the appeal and its disposal in view of
       the subsequent developments which are stated to have been taken place. Allowed.
       Hearing expedited.

       The application stands disposed of.

       RFA (OS) 1/1999

       Learned counsel for the appellant says that amongst others the appellant‟s challenge to
       the impugned judgment and decree was also on the ground of the appellant having
       acquired right, title and interest to the undivided share of Shri Inderjeet Singh,
       respondent No.2, now represented by his widow Smt. Madhuri Singh on the basis of

relinquishment deed. There was a challenge to the relinquishment deed executed by Shri Inderjeet Singh in favour of the appellant during the pendency of the suit and it is now stated that during pendency of the appeal, in order to maintain cordeal relations, Smt. Madhuri Singh has accepted the correctness, legality and validity of the relinquishment deed dated 28.11.1988, therefore, in view of the subsequent development for which an application has already been filed by Smt. Madhuri Singh (I.A. No.3565/2002) in S. No.309/1994, the appellant is not interested in prosecuting this appeal and would take

I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988 Page 2 appropriate steps in getting the shares modified in the preliminary hearing. Smt. Madhuri Singh is also present in Court along with her counsel and admits these facts.

In view of the stand taken by the learned counsel for the appellant that due to subsequent developments, the appellant‟s claim has been satisfied and he is not interested in pursuing the appeal, the appeal is dismissed as withdrawn."

3. On 19.02.2003, in view of the subsequent developments, when it was represented to the

Court that after issuance of the preliminary decree, Late Inderjit Singh's share has been

purchased by Bikramjit Singh, a request for amendment in the decree enlarging Bikramjit

Singh's share to be 50% was made; it was allowed on 19.02.2003 in the following terms:-

"I.A.-11314/2002

There is no opposition to this application. It has been explained that subsequent to the passing of a preliminary decree the share of Defendant No.2 has been purchased by Defendant No.1 who now, therefore, has a half share in the property. It is prayed that the Decree be amended accordingly so as to reflect the share of Defendant No.1 to be 50 per cent of 54, Friends Colony (East), New Delhi - 110 065"

The application is allowed and the Decree be amended accordingly."

4. Ms. Madhuri Singh, widow of Late Inderjit Singh preferred an Application (I.A.-

4552/2008) for recalling the order by which the preliminary decree was amended. It was alleged

that the correct position had not been explained to the Division Bench and Ms. Madhuri Singh

was not aware of any compromise nor had agreed for withdrawal of the appeal. The application

averred that the Power of Attorney dated 16.04.1977 had been impugned and in these

circumstances, Bikramjit Singh could not have claimed the share that he did. Ms.Madhuri Singh

also mentioned about a family settlement dated 08.04.2002 whereby the parties had agreed to

settle their difference upon agreed terms. It was contended that neither the order of the Division

Bench dated 12.08.2002 nor the subsequent order amending the decree noticed these facts, which

clearly amount to the Court being misled into making such orders.

I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988 Page 3

5. In response, the non-applicants/other parties had urged that Ms. Madhuri Singh was in

fact present on 12.08.2002 as recorded by the Division Bench's order and that the subsequent

order amending the decree was only a consequential step.

6. I.A.-6732, 6733 & 12822/2009 have been filed by one Mr. Manchanda, who claims to

have purchased Ms. Madhuri Singh's 1/4th interest in the property by an Agreement to Sell

executed for the purpose. It is claimed that by virtue of the agreement, the said applicant had

paid substantial amounts to the Vendee/Ms. Madhuri Singh and consequently was entitled to step

into her shoes and, had therefore, acquired interest in the property which had to be considered by

the Court. It was contended that once the Court is made aware of the third party interest, it

should implead such an interested person and proceed to make equitable order.

7. Learned Senior counsel for Mr. Manchanda relied upon the decisions reported as Asha M.

Jain v. Canara Bank 94 (2001) DLT 841 (DB) to say that such transactions are recognized as

enforceable in law. Reliance was also placed upon the decisions reported as Jagjivan

Dhondiram Kirad v. Gopal Vinayak Joshi AIR 1955 Bom 397, for the submission that provisions

of Order-21, Rules-58 and 59 enable the Court to hear and make orders on applications by

persons interested in the suit property. Learned Senior counsel Mr. G.L. Rawal submitted that

copies of Agreement to Sell and Power of Attorney executed by Ms. Madhuri Singh have not

been disputed by her and are sufficient to enable the Court to pass a just and equitable order

protecting the third party's interest and that no formal attachment orders are necessary in this

regard.

8. Initially, arguments were heard on 17.09.2009 upon the applications. The matter was

again listed on 08.10.2009. On 06.10.2009, I.A.-12781/2009 was moved by Ms. Madhuri Singh

along with other non-applicants under Order-23, Rule-3 seeking permission to withdraw I.A.-

I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988 Page 4 4552/2008. Notice on the said application was issued to the other parties for the date fixed, i.e.

08.10.2009. On that date, the counsel appearing on behalf of the plaintiff, defendants -

(including Senior counsel appearing on behalf of Ms. Madhuri Singh) were heard. Learned

Senior counsel for Mr. Manchanda who had applied for protection of his interest was also heard.

9. In view of the contentions made in all pending applications particular I.A.-4552/2008,

this Court was of the opinion that it would be appropriate that Ms. Madhuri Singh's statement be

recorded, this was accordingly done. Her statement on oath recorded on 08.10.2009 reads as

follows: -

"I have seen the contents of I.A. No.12781/2009; I understand its contents having signed at point „A‟ by me. The previous relinquishment deed executed in favour of the late first defendant by my husband is confirmed in the application which also mentions about a settlement, dated 8.4.2002. I have also seen the affidavit and confirmed having signed at points „B‟ and „B1‟. I state that this Court may pass an order in terms of the claim in I.A. No.12781/2009 and record withdrawal of my objections and claims, contained in I.A. No.4552/2008"

10. I.A.-4552/2008 had alleged that the first defendant Bikramjit Singh had practiced fraud

upon Ms. Madhuri Singh to usurp share of her elder brother Late Inderjit Singh. Bikramjit Singh

had relied upon an Relinquishment Deed dated 28.11.1988, executed in his favour on the basis of

a Power of Attorney granted in 1977 by Inderjit Singh. Inderjit Singh had filed a Suit being CS

(OS)-309/1994 stating that he had never executed the said General Power of Attorney. Ms.

Madhuri Singh (wife of Inderjit Singh) alleged in I.A.-4554/2008 that sometime in 2002 with the

view of duping her, Mr. Bikramjit Singh had approached her for settling the disputes, through a

family settlement dated 08.04.2002 in terms of which, she was to be paid Rs. One crore within a

certain time-frame. It is further alleged that based on that family settlement, I.A.-3565/2002 was

moved in CS (OS)-309/1994 for withdrawal of that Suit which was accordingly done by the

order dated 19.02.2003. Thereafter Bikramjit Singh took consequential steps to consolidate his

I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988 Page 5 position (without fulfilling his obligation under the family settlement) including amendment of

the decree in this case. It is alleged that the family settlement dated 08.04.2002 was never

disclosed to the Division Bench on 12.08.2002, which disposed of the appeal and consequently

the order amending the decree had to be recalled. All these aspects had been urged in the Court

on 17.09.2009 when the pending applications were heard.

11. In I.A.-12781/2002, moved jointly by legal representatives - 1B - 1D (of Bikramnit

Singh) and Ms. Madhuri Singh, it is averred that pursuant to negotiations, an agreement reached,

whereby she agreed to receive and was paid Rs.75,00,000/- (Rs. Seventy five lakhs). The

applicants also urged that Ms. Madhuri Singh consequently agreed to withdraw her application

I.A.-4552/2008. The relevant averments which are duly supported by the affidavit of Ms.

Madhuri Singh and the other applicants read as follows: -

"7. That after a period of almost six years from the date on which Smt. Madhuri Singh made her statement before the Division Bench, an application was filed in this Hon‟ble Court being I.A. No.4552 of 2008 making reference to a Memorandum of Family Settlement between her and the Defendant No.1 dated 8th April, 2002 and seeking to retract from the amendment to the Preliminary decree and to restore to her one fourth share in the Suit property. The statement made before the Division Bench as also withdrawal of her Suit was claimed to be on the basis of a family settlement and in view of non implementation of the same, she sought to retract from her undertaking and statement before the Court. The said application as opposed by the Defendant No.1 and arguments were partly heard and the matter no stands adjourned to the 8th October, 2009.

8. That Defendant No.2, Smt. Madhuri Singh was in Delhi at the time of the hearing and had discussions with the Defendants No.1B and 1D and during the course of discussions the parties arrived at a mutual settlement wherein Smt. Madhuri Singh agreed to receive a further sum of Rs.75 Lacs (Rupees Seventy Five Lacs only) in full and final settlement of her claims under the alleged Memorandum of Family Settlement in addition to the share in the properties in Rajasthan earlier relinquished in her favour by the late father of the Defendants 1B to 1D. IN view of the aforesaid the said Smt. Madhuri Singh admits and reiterates the correctness, legality and validity of the Power of Attorney dated 16th April, 1977 and the Relinquishment Deed dated 28th November, 1988 as also her statement before the Division Bench on 12th August, 2002 as also withdrawal of her Suit No. 309 of 1994 to maintain cordial family relations. The said Smt. Madhuri

I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988 Page 6 Singh has also agreed and undertaken to withdraw I.A. No.4552 of 2008 and to record that she has received all amounts due under the Memorandum of Understanding and further that all litigation and disputes between her and the heirs of Defendant No.1 with regard to the Suit property as also all properties in Rajasthan which were given over to her would stand resolved and never be raised in future.

9. That the sum of Rs.75 Lacs (Rupees Seventy Five lacs only) has been paid over to the said Smt. Madhuri Singh vide cheque No.825502 dated 3rd October, 2009 drawn on Central Bank of India, New Delhi South Extension, New Delhi - 110 049 in full and final settlement of all her claims to the suit property including under the said alleged Memorandum of Family Settlement and she agrees and undertakes to withdraw the said I.A. No.4552 of 2008 and all claims whatsoever against Defendants 1B to 1D, agreeing and undertaking not to raise any dispute regarding the Relinquishment Deed dated 28th November, 1988 or to make any claim with regard to the suit property i.e. 54 Friends Colony, East, New Delhi in future.

10. In view of the aforesaid, it is submitted by the parties that the above compromise be taken on reco4rd and I.A. No.4554 of 2008 be dismissed as withdrawn since Smt. Madhuri Singh, Defendant No.2 confirms and abides by her statement dated 12th August, 2002 before the Division Bench and accepts the legality, validity and correctness of the Relinquishment Deed dated 28th November, 1988 and satisfaction of all claims under the Memorandum of Family Settlement and that she confirms and declares that she has no share, right, title or interest in the Suit property i.e. 54, Friends Colony, East, New Delhi.

12. That it is submitted that the said settlement arrived at is legal and valid and has been entered into without any fraud, coercion and/or undue influence."

12. The Court has carefully considered the submissions of all the parties. What Ms. Madhuri

Singh alleged initially in I.A.-4552/2008 was not so much that the orders of this Court were

tainted by fraud, as much as the emphasis that she was not paid the amounts agreed to by the first

defendant in terms of the family settlement dated 08.04.2002. Significantly, I.A.-4552/2008 does

not say that Suit No.309/1994 which was withdrawn on 10.04.2002 was done incorrectly or that it was

tainted by fraud. Though general allegations of mis-representation or fraud are made, the tenor of the

averments is such that Ms. Madhuri Singh was aggrieved because the amounts that were to be received by

her were not paid. This grievance, to an extent, was understandable - even though the language used

could not be justified. If one sees the entirety of circumstances from this perspective, the agreement

arrived at by the parties during the pendency of the hearing on I.A.-4552/2008 appears to be logical. The

I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988 Page 7 legal heirs (of defendant No.1) - who had died during the interregnum after 2002 - agreed to pay the

amounts to Ms. Madhuri Singh and in fact did so as recorded in I.A.-12781/2009. Having regard to these

facts and further that Ms. Madhuri Singh was present in the Court and affirmed statements made in the

application after duly identifying her signatures on the application and the affidavit, the Court is satisfied

that the claim in I.A.-12781/2009 is justified. Accordingly, I.A.-12781/2009 has to be allowed; I.A.-

4552/2008 is, therefore, to be dismissed as withdrawn.

13. So far as the third party's (Mr. Manchanda's) applications - I.A. Nos.6732, 6733 &

12822/2009 are concerned, they are premised upon his having entered into an agreement to

purchase 1/4th share of Ms. Madhuri Singh. The main application claims to be further to the

powers of the Court under Order-21, Rules-58 and 59. A close scrutiny of those provisions

would reveal that they apply in execution proceedings and not in the present circumstances.

That apart, the Court never attached the property so as to enable anyone to claim a grievance as

is sought to be done. This Court has to be mindful to the fact that the present civil action is one

claiming partition of family property in which concededly strangers were not allowed to

participate. The order sheet in this case reveals that a similar attempt by another third party

claiming to be purchaser in respect of the first defendant's share was rejected on 12.02.2009

when I.A. 2062/2009 was dismissed. As far as the judgments cited by Mr. Manchanda's learned

counsel are concerned, this Court is of the opinion that none of them are apt and in any event, the

circumstances in those cases cannot afford a parallel to the present situation. Admittedly, an ad

interim injunction exists and binds the parties - it was made on 21.01.1989 whereby third party

interest could not have been created.

14. During the submissions, it was contended that this Court has to balance the equities and

protect the interest of the third party who had paid valuable consideration to Ms. Madhuri Singh

while agreeing to purchase 1/4th share for a total amount of Rs. 2,25,000,00/- (Rs. Two crores

I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988 Page 8 twenty five lakhs) of which a substantial sum i.e. Rs.10,000,00/- (Rs. Ten lakhs) was paid.

Learned Senior counsel for Ms. Madhuri Singh did concede that this was the position and that in

all fairness that amount with such other restitutionary directions, as this Court would deem

appropriate, would be paid to Mr. Manchanda.

15. This Court has carefully considered the submissions. Apart from the fact that there was

no attachment of the property, the third party/vendee was aware of the status of the property - he

most certainly was aware that it is family property in respect of which even if the vendee

conveyed a fractional or undivided but determined share and had clear title, he could

nevertheless not be compelled to handover possession, for which independent litigation had to be

pursued. Besides the third party was aware of the present litigation and nowhere disputes this as

he sought for impleadment in this case. The record would establish that at least after 19.02.2003,

Ms. Madhuri Singh ceased to have any share as the decree was amended conferring 50% share

upon the first defendant. All these circumstances would show that the transaction whereby the

vendee (Mr. Manchanda) agreed to purchase 1/4th share was purely speculative and perhaps

premised upon a contingency of this Court recalling its previous order dated 19.02.2003. These

facts would ordinarily have been sufficient for the Court to decline passing any orders and

straightaway rejecting the said third party's applications. However, the Court is mindful of the

fact that Ms. Madhuri Singh did receive some amounts and that the third party to that extent

requires to be restituted by an appropriate order. Furthermore, Ms. Madhuri Singh along with

legal representatives of defendant No.1 has applied to the Court for withdrawal of her application

which had in the first instance resulted in hearings. In these circumstances, Ms. Madhuri Singh

is directed to return the said amount of Rs.10,000,00/- (Rs.Ten lakhs) to the applicant in

I.A.Nos.6732/2009, 6733/2009 and 12822/2009 (Mr. Manchanda) together with interest @ 9%

I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988 Page 9 per annum till 31.10.2009. The said amount shall be paid within six weeks from today and a

suitable affidavit agreeing to it shall filed by Ms. Madhuri Singh in this regard within two weeks

from today.

16. Accordingly, I.A. No. 12781/2009 is allowed; IA No. 4552/2008 is dismissed and IA

Nos.6732/2009, 6733/2009 and 12822/2009 are disposed of in the above terms.

CS(OS) No.3235/1988 & IA No.11439/2009

List the suit on 14th December, 2009.

November 10, 2009                                                  (S.RAVINDRA BHAT)
                                                                         JUDGE




I.A. Nos.5732, 6733 & 12882/2009 in CS(OS) No.3235/1988                                   Page 10