S.Hardev Singh Akoi & Anr vs S.Jasdev Singh & Ors.
2009 Latest Caselaw 3602 Del

*                     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          Reserved on : 12.08.2009
                                                       Pronounced on : 07.09.2009

+                       I.A. No. 2736/2007 (U/O 40 Rule 1 CPC) and
                        I.A. No.2737/2007 (U/O 39 Rule 1 & 2 CPC) in
                                       CS (OS) 439/2007

S.HARDEV SINGH AKOI & ANR                                     ...... PLAINTIFFS

                      Through : Dr. A.M. Singhvi, Sr. Advocate with Mr. Sudhir Chandra, Sr.
                      Advocate and Mr. Ajoy Bhushan Kalia, Advocate
                                             Vs.

S.JASDEV SINGH & ORS.                                         ....... DEFENDANTS

                      Through : Mr. A.S. Chandhiok, Sr. Advocate, Mr. Sanjiv Sachdeva,
                      Ms. Geetika Panwar and Ms. Benu Sodhi, Advocates for Defendant No.1.
                      Ms. Shawana Bari for Ms. Monica Garg, advocate for UOI.
                      Mr. Manik Dogra, Advocate for Defendant No.2.

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
       reported in the Digest?                                        Yes

HON'BLE MR. JUSTICE S.RAVINDRA BHAT

%

1. The plaintiffs (hereafter referred to as "Hardev" - i.e. Plaintiff No.1; "Adil", i.e. Plaintiff No.2) seek specific performance of undertakings and obligations given by the first defendant (hereafter referred to as "Jasdev"), in the Memorandum of Understanding (MoU) dated 06.12.2000 in respect of the property, being 2, Kasturba Gandhi Marg (hereafter referred to as "2, K.G. Marg"), and hand over physical possession of the areas (specified in the suit) to the said

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 1 Plaintiff No.1. An alternative decree for possession is sought whereby the defendants are asked to put the plaintiffs in actual physical possession of the ground floor of the "Badi Kothi" of the said property, i.e. 2, K.G. Marg. Permanent injunction to restrain Jasdev from transferring or alienating in any manner any portion of 2, K.G. Marg is also sought. A permanent injunction against Jasdev, directing him not to dispose of or pledge or transfer any interest in respect of 1825745 equity shares of Rai Bahadur Narain Singh Sugar Mills (hereafter called "R.B. Mills") is additionally claimed, with consequential mandatory injunction. In the alternative, the plaintiffs seek declaration that the Relinquishment Deed dated 19.01.2001 by which Hardev relinquished 50% share in No.4, Kasturba Gandhi Marg (hereafter called "4, Kasturba Gandhi Marg") is void and procured by misrepresentation and consequently, a decree for permanent injunction is sought.

2. This order proposes to disposed of I.A. Nos. 2736/2007 (Under Order 40 Rule 1 CPC) and 2737/2007 (Under Order 39 Rule 1 & 2 CPC), filed by the plaintiffs. Arguments to these applications were heard, on 12-08-2009 (pursuant to the order dated 16.07.2009),; the written submissions were too filed on behalf of plaintiff/applicant, in respect of both the applications on 10.08.2009. The Defendant No.2 filed written synopsis on 17.08.2009 in respect of both the applications. The Court had reserved orders on 12.08.2009 - while recording this erroneously, however, the order made no reference to I.A. No. 2736/2007, although with common consent of the counsel that application too had been heard on 12.08.2009.

3. The facts necessary for deciding the case are that Hardev and Jasdev are brothers and children of Sardar Rajdev Singh. The second defendant, i.e. Ms. Alape Kaur (hereafter called "Alape") is their sister. Rajdev Singh and his father - as indeed the forefathers of the parties - had acquired assets which were apparently increased by succeeding generations. S.B. Ranjit Singh, the father of Sardar Rajdev Singh (grandfather of Hardev as well as Jasdev) had gifted No. 4, K.G. Marg to Hardev and Jasdev on 02.12.1953 in equal proportions. Bibi Rajinder Kaur, wife of S.B. Ranjit Singh (and grandmother of Hardev as well as Jasdev) died on 18.10.1979, bequeathing her 50% share in the property, 8, Jantar Mantar Road, to Adil - who is Hardev's son.

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 2

4. The undisputed events which can be discerned from the pleadings are that on 31.03.2000, during the lifetime of S. Ranjit Singh, the Delhi Metro Rail Corporation (hereafter called "DMRC") acquired the entire plot of 8, Jantar Mantar Road; possession was also taken- over on 03.10.2000. The plaintiff refers to two MoUs said to have been entered into on 06.12.2000 between Hardev and Jasdev; copies of the said two documents have been placed on record by the plaintiff, in support of the suit. In one MoU (hereafter referred to as the "first MoU"), arrangements in respect of Nos. 2, and 4, K.G. Marg is referred to. The material portions of the first MoU are reproduced below:

"1. It is understood that when the Second Party has become the sole owner of No.4, Kasturba Gandhi Marg house and has successfully had the premises vacated from the present tenants then S. Jasdev Singh will shift to No.4, Kasturba Gandhi Marg or elsewhere. The house presently occupied by S. Jasdev Singh and his family will be vacated by him and the occupation of the same along with the servants' quarters presently used by him will be given over to Mr. Hardev Singh for the period their sister resides in the lower portion of the main house.

2. It is also known that S. Rajdev Singh; the father of both parties is the owner of No.2, Kasturba Gandhi Marg, New Delhi and currently occupies his own house along with his daughter Bibi Alape Kaur. It is understood and agreed by all that he wished and has requested Bibi Alape Kaur to continue residing in this house, as she does presently, for his, S. Rajdev Singh's life time and even subsequently until a suitable residence is bought, renovated and made available to Bibi Alape Kaur.

3. It is Sardar Rajdev Singh's desire and will that 5 crores rupees be gifted to Ms. Alape Kaur to enable her to buy herself an alternative residential house. This amount is to be collected/arranged and given within the year 2001 and its value will be based from this year. It is understood that immediate efforts will be made to purchase and renovate a suitable house of the value of Rs.5.00 crores (Rupees Five crores) at the earliest for the exclusive use and ownership of Bibi Alape Kaur. This will be done in the year 2001 and for any consequent delay there will be an interest paid at the rate of 12.5% per annum. Sardar Rajdev Singh will gift this sum of Rupees five crores to his daughter, and from this gift she will be responsible to purchase a suitable residential accommodation for herself.

XXXXXX XXXXXX XXXXXX

5. When Bibi Alape Kaur does move to her new house in Delhi, then S.

Hardev Singh will occupy the main house, also known as "Badi Kothi" with the exception of some rooms (Two rooms, bathrooms and a section of the front

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 3 verandah) as marked out on the accompanying plan. These rooms will be accessed from the annexe (chothi kothi" and over the intervening porch between the two plots/houses).

6. Hardev Singh will then immediately vacate the annexe and Servant Quarters and other rooms and give possession of the same to S. Jasdev Singh.

7. The two section of the house will be divided by the existing wall between the adjoining gates of the main (Badi Kothis) house and the annexe (choti kothi) and this line of the existing wall will be extended in a straight line to the house at the rear of No.2 Kasturba Gandhi Marg, (that is to the boundary of 20, Feroze Shah Road.) Everything to the Northwest of this line will be deemed as part of the Choti Kothi (annexe) and all that to the Southeast as main house (Badi Kothi) with the exception of the 2 rooms, one bathroom, w/c and passages and section of verandah as agreed upon.

XXXXXX XXXXXX XXXXXX

10. Nothing in this understanding will jeopardize or encumber in any manner whatsoever the rights of the ownership of the property now and forever more."

5. The other MoU (hereafter called the "second MoU") makes the arrangement in respect

of the compensation for the half share of No.8, Jantar Mantar Road, acquired by the DMRC. The

material portion of this second MoU reads as follows:

"MEMORANDUM OF UNDERSTANDING made on this 6th Day of December 2000 by and between:

1. Sardar Hardev Singh Akoi, son of Sardar Rajdev Singh aged about 54 years, resident of 2, Kasturba Gandhi Marg, New Delhi - 110 001 hereinafter called the First Party.

2. Sardar Jasdev Singh Akoi son of Sardar Rajdev Singh resident of 2, Kasturba Gandhi Marg, New Delhi - 110 001 aged about 51 years, hereinafter called the Second Part.

WHEREAS the First Party and the Second Party hereto are the joint owners of 4, Kasturba Gandhi Marg, New Delhi 110 001 having equal undivided shares admeasuring 0.914 acres. Their paternal grandfather - late S.B.S. Ranjit Singh, gifted the said property, vide gift deed dated 2nd December 1953.

AND WHEREAS 4, Kasturba Gandhi Marg was let out by the then landlord & owner S.B.S. Ranjit Singh to Shri Wazir Dayal and other tenants who are provided with protection under the provisions of The Delhi Rent Control Act.

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 4 The Landlords have disputed this tenancy and gone to the Court of Law for over 30 years.

Bibi Rajinder Kaur, grandmother of above parties bequeathed her holding (50%) in No.8, Jantar Mantar Road, New Delhi admeasuring 1.335 acres to the son of the First Party, Mr. Adil Singh. In lieu of this the First Party agreed to Gift his half share in No.4, Kasturba Gandhi Marg admeasuring 0.45 acres to the Second Party.

It was then envisaged that No.8, Jantar Mantar Road, would be developed in to a Group Housing Complex, subsequently, the concerned authorities prevaricated for years and eventually the said property was acquired by the Government/Metro Rail Corporation.

The First Party was thus denied the opportunity of developing this land and instead faces the authorities to get compensation.

The First Party is apprehensive that compensation paid out by the authorities may not be commensurate with the value of the property.

The above parties have thus entered and executed this memorandum to compensate if the need as explained arises for the uncertainties of the quantum of compensation that may be paid by the government in future.

1. The Second Party is the owner of 18,25,745 equity shares in a Limited Company, namely, Rai Bahadur Narain Singh Sugar Mills Ltd.

2. The Second Party pledges these shares to the First Party and will transfer such shares to the First Party if the accumulated gross compensation received by the First Party by 31.12.2009 is less than 25 crores.

3. If the gross compensation paid for half share of No.8, Jantar Mantar Road, New Delhi is less than 25 crores, then the balance amount will be paid either in cash or the shares of the said Party will be forfeited in favor of the Second Party to the extent of this difference.

4. In the eventuality further compensation is given after 31.12.2009 but before 31.12.2012 then the cash with 12% interest of shares will be returned proportionately to such amount."

6. The plaintiffs contend that after entering into the MoUs referred to, and with the view to effectuate its intention, Hardev executed Special Power of Attorney in favor of Ms. Mira Singh, (wife of Jasdev), and Gobind Singh Akoi, Jasdev's son. This document empowered the Power of Attorney holders to deal with No. 4, K.G. Marg. Extension of these documents are not disputed; later on in 19.01.2001, a Relinquishment/Release Deed was executed by Hardev,

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 5 acting through his Attorney, Ms. Mira Singh Akoi giving up all his right, title and interest in respect of the half share, in No. 4, K.G. Marg. The plaintiffs submit that S. Rajdev Singh died on 21.02.2002. They say that taken together, the parties understood by the two MoUs that in lieu of relinquishing his 50% share in No. 4, K.G. Marg to Jasdev and contributing equally to buy a house for Alape, Jasdev was to allow Hardev the unfettered use of specific portions of No.2, K.G. Marg, in perpetuity. In return, Hardev was to allow Jasdev use of specific portions of No.2 K.G. Marg, which it is submitted, constitutes the entire "Choti Kothi", and some specified portion of "Badi Kothi". It is also submitted that another part of the understanding was that Hardev's relinquishment of 50% share in No.4, K.G. Marg and contributing equally for buying a house for Alape imposed on Jasdev the obligation to compensate Hardev in cash or transferring his equity share holding in R.B. Mills limited, if the gross compensation received by Adil for the acquisition of 8, Jantar Mantar Road was less than Rs.25 crores, by the end of 31.12.2009. It is submitted that to guarantee this, Jasdev had agreed to pledge the entire equity shareholding as on 06.12.2000 in the R.B. Mills.

7. It is claimed that Hardev had complete faith in Jasdev and Alape and that he was in the process of moving his residence and office. It is submitted that the present position is that the gross compensation awarded for No.8, Jantar Mantar Road has been enhanced to Rs.59 crores by the reference Court, which has been appealed against by the DMRC. The plaintiffs contend that the execution of Special Power of Attorney and subsequently, the Relinquishment Deed in favor of Jasdev is indication that the parties had agreed to divide the properties in the manner provided for by the two MoUs. It is submitted that the title to No.2, K.G. Marg devolved equally upon Hardev and Jasdev when Sardar Rajdev Singh passed away on 21.02.2002. The plaintiffs argue in addition, that Hardev and Jasdev equally contributed to buy a house, No. 224, Jor Bagh, on 19.06.2002, into which Alape was to shift. It is further submitted that as a part of the effectuation of the agreement in 2002 itself, the property, being No.4, K.G. Marg, which was tenanted, was vacated and possession of it was taken-over completely by Jasdev.

8. Dr. A.M. Singhvi, learned senior counsel appearing on behalf of plaintiffs contends that all these events clearly show that the plaintiffs had performed what they agreed to under the

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 6 MoUs. It is further contended that the market value of the plaintiffs' 50% share in No.4, K.G. Marg in 2000 was itself Rs.100 crores. The further steps taken, i.e. relinquishment of 50% share, contributing in equal proportion, for the purchase of Alape's house in Jor Bagh and also cooperating in the vacation of tenants from No.4, K.G. Marg, demonstrated the plaintiffs' bona fide intention of giving effect to the MoUs. Conversely, by taking-over the entire possession of No.4, K.G. Marg and contributing in equal shares to the purchase of Alape's property clearly signify that the MoU was binding upon Jasdev.

9. It is submitted on behalf of plaintiffs that the defendants in collusion with each other filed a suit for injunction before this Court, in which Jasdev was impleaded as second defendant; a restraint from dispossession from No.2, Kasturba Gandhi Marg till 21.02.2007 was sought. It is alleged that Alape did not disclose that a separate residential house had been purchased for her and that she had shifted there in terms of late Sardar Rajdev Singh's Will. The Court was unaware of these facts and, therefore, granted her an ex-parte interim order. It is submitted that on false representations, Jasdev induced Hardev to conceal to the requests made in the suit and consequently, Alape was held entitled to continue till 21.02.2007 in the ground floor. Thus CS (OS) 1732/2005 was decreed on 12.01.2006, entitling Alape to continue in the ground floor of the "Badi Kothi" in No. 2,K.G. Marg, till 21.02.2007. It is submitted that on 21.02.2007, when Hardev asked the defendants to honor the commitments, both resiled and denied execution of MoUs, alleging them to be forged.

10. Dr. A.M. Singhvi, learned senior counsel urges that the plea taken by the defendants that the MoUs were fabricated is itself false because they were both witnessed by a cousin of the parties to the suit, who has filed an affidavit. They also rely upon telephonic conversation and transcripts of SMSs exchanged between Hardev and Jasdev through mobile phones. It is contended that the most important circumstance about the veracity of the two MoUs is that if indeed it was fabricated, there was no reason why Hardev should have given himself only the right of residence in No. 2, K.G. Marg; he could have proceeded further. It is submitted that all these clearly establish that two MoUs and the consequential steps taken thereafter point to a family settlement which bound the parties, which the defendants are now seeking to resile

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 7 from. In the circumstances, the balance of convenience is in favour of injuncting the defendants; besides, urge the plaintiffs, the Court should make some arrangement in respect of the ground floor of the "Badi Kothi" in No.2, K.G. Marg and appoint them as Receivers.

11. The defendants, in their written statement do not deny the relationship between the parties and some of the common events referred to, such as that Hardev and Jasdev were given equal and undivided shares in No.4, K.G. Marg as well as special Power of Attorney and the Relinquishment Deed executed by Hardev. They deny the MoUs and allege that they are false and fabricated - even the originals have not been filed. It is submitted that the plaintiffs' plea that the MoUs were kept by Jasdev is not tenable. It is also urged besides that the title cannot be set-up through an unregistered document.

12. Mr. A.S. Chandhiok, learned senior counsel for the defendants urges that the second MoU records Hardev's apprehensions about the arrangement with regard to receipt of compensation for which allegedly provision was made pledging the entire equity shareholding of Jasdev in the R.B. Mills. It is argued that the pledge of a movable asset cannot be created except by delivery of the article. In this context, learned senior counsel urges that pledging of shares could have occurred only when they were handed over to the plaintiffs; concededly, this was not done. It is urged that in any event, assuming MoUs were valid - the suit for enforcement of the second MoU is pre-mature since it refers to a date or event yet to occur, i.e. 31.08.2009. Learned counsel submits that in any event, the judgment of the reference Court in the compensation claim has awarded sum of Rs.59 crores to Adil, who has claimed enhancement to approximately 200 crores.

13. Speaking about the first MoU, it is submitted that the parties allegedly executed it when their father was alive and was owner of No.2, K.G. Marg. Concededly, both parties had no right, title or share to the property. The defendants rely upon Clause-10 of the said MoU which stipulates that nothing in the document would jeopardize or encumber in any manner, right to ownership of property, then or for ever more. It is thus argued that at best, even if the MoU were considered genuine and binding, it creates a temporary living arrangement and does not affect or deal with ownership rights.

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 8

14. It is submitted that the exchange of different portions of No. 2, K.G. Marg is incorrectly recorded since Jasdev has no occupation and there is no question of Hardev ever being in occupation. It is submitted that Jasdev had been occupying the Choti Kothi for a very long time; Hardev, state the defendants, had always lived in luxurious house, after acquisition of No.8, Jantar Mantar Road and shifted to the first floor of 2, K.G. Marg, after the death of Rajdev Singh. It is urged that both Hardev and Jasdev jointly applied for conversion of property from leasehold to freehold through an application signed by both. The property was converted into freehold on 21.04.2006, thus demonstrating equal ownership. It is argued that since the plaintiffs do not dispute Jasdev's ownership rights to the extent of 50% in No.2, K.G. Marg, the claim for additional user rights as is sought by the suit cannot be granted.

15. It is pointed out that the plaintiffs have never sought alternative relief of possession in respect of No.4, K.G. Marg; learned senior counsel points out that significantly, only declaration is sought without any alternative relief, which is not maintainable. Mr. A.S. Chandhiok, learned senior counsel points out that fraud can never be pleaded in the alternative, as is being done in this case. It is urged that the alternative claim is also time-barred - like the main claim since the Relinquishment Deed is dated 19.01.2001. The relinquishment in this case was in the nature of a gift which once given can never be revoked. Learned senior counsel relies upon the terms of the Relinquishment Deed which states that Hardev's half share in No.4, K.G. Marg is relinquished and released to Jasdev, out of natural love and affection and without consideration. The defendants further rely upon the averments in a joint application for settling a suit with the erstwhile tenants of No.4, K.G. Marg, to which Hardev had deposed. The plaintiffs claim the statement that No.8, Jantar Mantar Road was given to Adil by Bibi Rajinder Kaur in lieu of Hardev agreeing to gift his share in No.4, K.G. Marg to Jasdev, is disputed. Reliance is placed upon letters dated 12.05.1983, 14.08.1985 and 05.10.1985 in support of this aspect.

16. The above discussion would show that between the parties some facts are not disputed; they are:

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 9

(a). The family owned three properties, which are the subject matter of this case, i.e. Nos. 2 and 4, K.G. Marg and No.8 Jantar Mantar Road.

(b) No. 4, K.G. Marg was bequeathed in equal shares by the paternal grandfather of Hardev and Jasdev, in 1953 to them.

(c) Bibi Rajinder Kaur, the grandmother of Hardev and Jasdev, owned half share in No. 8, Jantar Mantar Road. That was bequeathed to Adil by a Will dated 18.10.1979.

(d) The DMRC acquired the half share of No. 8, Jantar Mantar Road property in March 2000;

apparently, possession was taken over on 03.10.2000.

(e) Some tenants were in possession of No.4, K.G. Marg. Apparently, some of the parties to this proceeding, i.e. Hardev and Jasdev, along with their father, Rajdev had instituted a suit, for vacation of the tenants of No.4, K.G. Marg. A settlement was arrived at and recorded under Order 23 Rule 3, CPC.

(f) Hardev executed two documents in respect of No.4, K.G. Marg - the first constituted Jasdev's wife as his special Power of Attorney, dated 05.12.2000; and the second Relinquishment Deed dated 19.01.2001 whereby he relinquished his half share in favor of Jasdev.

(h) Sometime in 2003, Alape acquired property, being no. 224, Jor Bagh, New Delhi.

(i) Alape filed CS (OS) 1732/2005, seeking injunction against Hardev and Jasdev from restraining her right to continue in the premises - No.2, K.G. Marg, for a five year period commencing from the death of her father, Rajdev. That suit was disposed of by an order dated 12.01.2006, enabling her to continue till 20.01.2007.

(j) Neither the plaintiff, nor the defendants, owned No. 2, KG Marg, when the MOUs, relied on by the plaintiffs, were executed; it was owned by S. Rajdev Singh.

(k) The plaintiffs mainstay are the two MoUs and, what they term are consequential steps taken by them to effectuate the intention in these documents through special Power of

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 10 Attorney executed by Hardev on 05.12.2000 and the Relinquishment Deed dated 19.01.2001. It is submitted that these facts coupled with the uncertainty in regard to the amount of compensation that would be finally awarded in respect of No. 8, Jantar Mantar Road impelled, particularly, the parties, to enter into a second MoU whereby Jasdev guaranteed that in the event of the amount being less than Rs.25 crores, he would make good the shortfall and that he would entirely pledge his shareholding in R.B. Mills till that period.

17. The two MOUs are seriously disputed by the defendants; the plaintiff asserts them to be genuine documents. Now, there is no dispute about the fact that No. 4, KG Marg was relinquished in favour of Jasdev, through a registered deed dated 19 th January, 2001. That was preceded by a Special Power of Attorney, dated 5-12-2006, executed in favour of Jasdev's wife by Hardev. The relinquishment deed does not mention any family arrangement; it does not advert to the MOUs; it states that Hardev's share is given to Jasdev out of love and affection. Similarly, the special power of Attorney in favour of Jasdev's son and wife, is before the MOUs, which were executed on 6-12-2006. The first MOU, in its opening clause, reads as follows:

"It is understood that when the Second Party has become the sole owner of No.4, Kasturba Gandhi Marg house and has successfully had the premises vacated from the present tenants then S. Jasdev Singh will shift to No.4, Kasturba Gandhi Marg or elsewhere. The house presently occupied by S. Jasdev Singh and his family will be vacated by him and the occupation of the same along with the servants' quarters presently used by him will be given over to Mr. Hardev Singh for the period their sister resides in the lower portion of the main house."

The omission to mention anywhere, most importantly in the relinquishment, about the MOU, is in this court's opinion very significant, if viewed from the perspective of events that developed later.

18. Both parties do not deny that S. Rajdev Singh had permitted Alape to reside in a portion of the Badi Kothi, of No. 2 KG Marg, in his will. Indeed, the plaintiffs, in their list of documents, have produced a certified copy of this court's judgment in CS (OS) 1732/2005, dated 12-1-2006, which extracts the relevant portion of the said Will, as follows (page 186, List of Documents of plaintiff, in the suit):

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 11 " My daughter Alape Kaur is at present residing with her children on the Ground Floor of property No. 2, Kasturba Gandhi Marg, New Delhi. She can continue to live on the ground floor portion of the main Kothi No. 2, Kasturba Gandhi Marg, New Delhi, with her family for a period of FIVE YEARS after my demise free of any rent or charges but shall be liable to bear water, electricity and House Tax/ Property Tax payable in respect of the said portion occupied by her. She will not be dispossessed by my sons or their legal representatives during this period but this right is purely personal and shall come to an end and extinguished on acquisition of a RESIDENTIAL PROPERTY by Ms. Alape Kaur even during this period of FIVE YEARS."

Hardev had, apparently filed an application for vacation of the interim stay granted by this court in CS OS 1732/2005; a copy of that application has been placed on record by the defendants in their list of documents, (pages 79-87, Defendants' list of documents). This nowhere mentions about any MOU between the parties, dated 6-12-2000. These MOUs, according to the plaintiffs, were also witnessed, or executed by Ms. Alape Kaur. If that were the position, it would have been but natural for the plaintiffs, to mention about the MOUs, since the first MOU did record Alape's right to continue in the ground floor of the Badi Kothi, for five years, or till she acquired another property.

19. The plaintiffs' argument about some understanding, based on a facial reading of the two MOUs is attractive and even powerful. However, the absence of any mention of this document, in at least the relinquishment deed, executed on 19th January 2001 (which is questioned six years later, on the ground of fraud in the alternative) clouds the issue. No doubt, wherever courts see family arrangements or settlements, they must be supportive of them, and refrain from seeing the strict legal rights of parties, as long as the bargain points to a broad spirit of "give and take" and assures consensuality (See Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 that "The central idea in the approach made by the courts is that if by consent of parties a matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds." ). Yet, the court has to be satisfied that there was indeed a family settlement, or arrangement of the kind urged or relied upon. Here, one party asserts its existence; the two other parties, who are concerned, and are said to have executed and or witnessed it, deny its existence.

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 12

20. The court is not unmindful of the circumstance that when the MOUs in question were executed, as claimed by the plaintiff, the owner of the property in question, i.e No. 2, KG Marg, was alive. The MOU talks of Rajdev Singh "gifting" and making provision for Rs. 5 crores to ensure that a suitable house was purchased for Alape. S. Rajdev Singh's will, which is part of the record, makes no such assurance; all that it seems to suggest is that in the event of some property of the testator being sold, the proceeds would be available for Alape. The other important aspect is that both MOUs are unregistered documents. The plaintiff does not explicity state that these documents are a record of family settlement, arrived at by parties, earlier, and put down in writing for convenience. This reluctance is perhaps understandable, since at that time, the father (and owner of No. 2 KG Marg) was alive. In the circumstances, the document could not have created any rights. If the document is not a record of a family settlement, and it seeks to create some rights (as the plaintiff suggests, by stating that he is entitled to specific portions of the property, which he concededly was not in occupation of as on 6-12-2000), it was compulsorily registrable; that it is not, is a matter of record. Without going into issues of genuineness of the documents, it is apparent that if it is viewed as creating any rights, it cannot be prima facie, admissible in evidence.

21. Assuming that the MOU is, in some manner admissible, and enforceable, clause 10 of the first MOU categorically states that the stipulations would be without prejudice to the property rights of the parties. This clarifies the intention of the parties that the legal rights were to be kept apart, and viewed separately. Seen from this angle, once the estate of late Rajdev Singh opened for succession in accordance with his bequest, both brothers - Hardev and Jasdev, became undisputed joint, undivided owners of the said property, i.e No. 2 KG Marg, in 2002. In the circumstances, whatever be the plaintiffs' understanding about the inter se arrangements agreed to by the parties, under the MOU, both parties had the right to assert the full extent of ownership of the said property, after acquiring ownership. This would naturally extend Jasdev's right to claim undivided ownership of the half share, and if necessary, assert it through an action for partition. These, in the court's opinion are important grounds which cannot be ignored while considering the claim for interim injunction; they powerfully point to

IA Nos.2736 & 2737/07 in CS (OS) 439/2007 Page 13 the plaintiffs' lack of a strong prima facie case, on merits, which is what an injunction of such nature has to be grounded upon.

22. This court, in an order dated 21-2-2007 appointed a Local Commissioner to take over possession, in the previously disposed of suit, CS (OS) 1732/2005; the keys were deposited in the court.

23. In view of the above discussion, the court concludes that the plaintiffs have not been able to establish a prima facie case, meriting the interim orders claimed by them, or a direction for appointment of receiver. Accordingly, I.A. Nos. 2736/2007 (Under Order 40 Rule 1 CPC) and 2737/2007 (Under Order 39 Rule 1 & 2 CPC), are hereby dismissed. The plaintiffs shall bear the costs of these applications, quantified at Rs. 75,000/- each, to be paid equally to the first two defendants.

DATED: 7th September, 2009                                         (S. RAVINDRA BHAT)

                                                                          JUDGE




IA Nos.2736 & 2737/07 in CS (OS) 439/2007                                                Page 14