Mr. B.S. Oberoi vs Mr. P.S. Oberoi & Ors.
2010 Latest Caselaw 1963 Del

.*           HIGH COURT OF DELHI : NEW DELHI

+          I.A. No. 13474/2008 in CS (OS) No. 2320/2008

     Mr. B.S. Oberoi                                          ... Plaintiff
                        Through   : Mr. Sandeep Sethi, Sr. Adv. with
                                    Mr. Raman Kapur, Mr. Manish
                                    Kumar, Mr. Amit Kumar and
                                    Mr. Nitin Bhatia, Advs.

                                  Versus

     Mr. P.S. Oberoi & Ors.                                 ... Defendants
                     Through      : Mr. Sudhir Nandrajog, Sr. Adv. with
                                    Mr. Jasmeet Singh and Mr. Saurabh
                                    Tiwari, Advs. for D-1
                                    Mr. H.S. Phoolka, Sr. Adv. with
                                    Mr. Sharat Kapoor and Mr. Kanwar
                                    Faisal, Advs. for D-3
                                    Mr. Rajiv Nayar, Sr. Adv. with Mr.
                                    Tejas Karia, Adv. for D-9 to 12
                                    None for other defendants

Reserved on : December 18, 2009
Decided on : April 16, 2010

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       No

2. To be referred to Reporter or not?                    Yes

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

MANMOHAN SINGH, J.

1. The present suit pertains to the estate of late Mr. Bakshi Shiv

Charan Singh, Advocate who died on 14.1.1993. He left a Will dated

09.01.1974 which was witnessed by Justice Prakash Narain, a sitting

Judge of the Delhi High Court at the relevant time and Justice M.S.

Joshi, who, at that time was the Registrar General of Delhi High Court

and became a Judge thereafter.

2. The probate proceedings of the Will were instituted in 1996

by which time Justice Prakash Narain had passed away, however, the

other witness Justice M.S. Joshi was examined as a witness in the

probate proceedings. Justice Joshi, in his examination, testified that the

Will was witnessed by him and Justice Prakash Narain and the testator,

Mr. Bakshi Shiv Charan Singh had signed on the Will in the presence of

both of them.

3. In the said Will dated 09.01.1974, Mr. Bakshi Shiv Charan

Singh bequeathed his property Nos.22 and 23, Friends Colony (West)

and property No.7A Ring Road in favour of his elder son, Colonel Ravi

Inder Singh.

4. In the Will dated 09.01.1974 the testator bequeathed a sum of

Rs.10,000/- to his daughter, Mrs. Iqbal Oberoi, mother of the plaintiff.

The copy of the said Will is available on record in the present suit.

5. Later on, Mr. Bakshi Shiv Charan Singh executed another

Will on 24.03.1985 which was almost on same lines as the earlier Will

dated 09.01.1974. In the second Will, properties No.22 and 23, Friends

Colony (West) which are mentioned as item Nos.(ii) and (iii) in

paragraph 4 of the plaint were bequeathed to Col. Ravi Inder Singh. The

said Will dated 24.03.1985 was deposited by the testator with the

Registrar in a sealed cover, as was the earlier one also. After his death

all the legal heirs applied to the Registrar to open the envelopes and as

such on 06.05.1994 the Registrar opened the envelopes and found both

registered Wills i.e. Will dated 09.01.1974 and Will dated 24.03.1985.

6. By Will dated 24.03.1985 Mr. Bakshi Shiv Charan Singh

bequeathed an amount of Rs.2 lac each to his three daughters, including

Mrs. Iqbal Oberoi. Col. Ravi Inder Singh being the executor of both the

Wills filed a probate petition being No.397/1996. The legal heirs of the

deceased filed their objections to the probate. However, during the

pendency of the proceedings Col. Ravi Inder Singh died on 10.12.2004

and after his death his son Mr. Avininder Singh Puri filed an amended

probate petition being No.54/2005.

7. In the year 1987, the Memorandum of Family Settlement was

executed between the plaintiff on the one side and his father, mother

and brother on the other side which mentions that henceforth, the

plaintiff will not have any right or interest in any of the properties or

estate of his father or mother. Paragraphs 4 and 20 of the said

Memorandum of Family Settlement read as under :

"4. That on both „Group A‟ and „Group B‟ complying with the requirements of this settlement, neither group shall have any claim, right or interest, unless specifically stated to the contrary elsewhere in this deed, on the assets, property and business of the other and for purposes of this clause, „Group A‟ is deemed to include the children of P. Oberoi of „Group A‟ and similarly, „Group B‟ is deemed to include the children of „Group B‟.

20. In view of the fact that on this settlement being made each party hereto shall become the exclusive owner of the properties and assets under dispute as allocated to them in terms of this deed, Mr. P. Oberoi, Mr. R.S. Oberoi and Mrs. I. Oberoi of „Group A‟ desire that „Group B‟ should not have any claim thereon other than and to the extent on such assets including B406 NFC on which

„Group B‟ has acquired any interest whatsoever in terms of this agreement and in order not to enter into any further litigation at a later date, in accordance with the desire of Mr. K.S. Oberoi, Mr. P. Oberoi and Mrs. Oberoi, „Group B‟ agrees (and for purpose of this clause, „Group B‟ is deemed to include his spouse and children) not to claim any of the assets so vesting with Mr. K.S. Oberoi, Mr. P. Oberoi and Mrs. I Oberoi except to the extent and on such assets (including „B4066 NFC‟) on which „Group B‟ has acquired any interest whatsoever in terms of this deed, either during their lifetime or out of their estate. Correspondingly, „Group B‟ desires that Mr. K.S. Oberoi, Mr. P. Oberoi and Mrs. I Oberoi and the spouse and children of Mr. P. Oberoi should not be entitled to claim from the estate of „Group B‟ andy amount other than what is required to be paid in terms of this agreement and, Mr. K.S. Oberoi, Mr. P. Oberoi and Mrs. I. Oberoi and the spouse and children of Mr. P. Oberoi agree not to claim any of the estate of „Group B‟ except to the extent required for the compliance of this deed."

8. In view of the above-said terms, the plaintiff and his mother

and father settled the matter in suit no. 115/1987 titled Packmaster Pvt.

Ltd. Vs. B.S. Oberoi.

9. Later on, Mrs. Iqbal Oberoi and the family of her late brother,

Col. Ravi Inder Singh executed two Memorandums of Settlement along

with other family members. An oral understanding was entered in

1999. Under the said settlement, Col. Ravi Inder Singh gave a plot of

400 sq. yds. to Mrs. Iqbal Oberoi out of property No.22, Friends Colony

(West), which was bequeathed to him absolutely by his father in both the

Wills and a similar sized plot to his other two sisters. The right accrued

to Mrs. Iqbal Oberoi to get the plot of 400 sq. yds. from the estate of her

father by virtue of these two Memorandums of Settlement.

10. In the said probate petition, admittedly, Mrs. Iqbal Oberoi

filed a reply supported by an affidavit and accepted the Will and prayed

for grant of the probate filed by her brother, Col. Ravi Inder Singh. The

relevant extract of the reply is reproduced below :

"....Late Bakshi Shiv Charan Singh had told the answering relative when she visited him a few months before his death that he had ensured that the major properties owned by him especially the Friends Colony house had been bequeathed to the petitioner herein and he had not succumbed to the enormous pressure that had been put on him to change his Will.

.....The answering relative No.4 admits, confirms and accepts the Will dated 27.3.1985 as being the last Will and testament of the deceased lake Bakshi Charan Singh."

11. As per defendants, the properties of late Mr. Bakshi Shiv

Charan Singh were distributed as per Memorandums of Family

Settlement dated 2nd August, 2005 and 2nd June, 2006 which were

registered documents. According to the defendants, the family

settlement executed on 2nd June, 2006 was in continuation and

supersession of the Memorandum of Family Settlement dated 2nd

August, 2005.

12. An application under Order XXIII Rule 3 CPC was filed in

the Court of Smt. Bimla Makin, ADJ, Delhi on 03.06.2006 along with

Memorandum of Family Settlement as part of the application. The

judgment and decree was passed by Smt. Bimla Makin, ADJ, Delhi in

terms of the Memorandums of Settlement on 3rd July, 2006.

13. The plaintiff in the present suit challenged the above referred

Memorandums of settlement as well as decree passed in terms thereof

seeking a declaration that the same are void ab initio and be declared so

by this Court as per following prayers :

(A) pass a decree of cancellation of Court‟s decree dated

6.11.2006, passed in Suit no.171 of 2006 passed by learned ADJ (by converting the probate proceedings into a Civil Suit) and declare it as null and void „ab initio‟ and not being binding against the plaintiff, and/or (B) pass a decree for partition of the suit properties mentioned in para 4 and/or

i) firstly pass a preliminary decree of partition of the suit property appointing shares of the co sharers; granting the plaintiff 1/12th share of the entire estate of Late Bakshi Shiv Charan Singh through Late Smt. Iqbal Oberoi.

ii) appoint a local commissioner to visit the suit property and suggest ways and means to partitioning the said property.

iii) consider the report of the local commissioner and pass a final decree in terms thereof, or in modification thereof, as this Court may consider fit and appropriate;

iv) in the event it is found that the said suit property is not partitionable by metes and bounds, this Court may direct other modes of partition including sale of the suit premises and apportioning the sale proceeds as per share of the co sharers.

C) pass a preliminary decree for declaration holding and declaring that the defendants are liable to render accounts directing the defendants jointly and severally to render complete and honest account of the manner in which the properties and other movable assets forming part of the estate of Late Bakshi Shiv Charan Singh and Late Smt. Iqbal Oberoi have been dealt with since their death including all benefits derived therefrom and pursuant thereto appoint local commissioner before whom the defendants be directed to render full accounts. further, upon rendition of the accounts, this court may be pleased to pass a final decree for such sum in favour of the plaintiff and against the defendants as may be found due and payable.

Pass a decree commanding the defendants jointly and severally to deliver or caused to be delivered and filed in this court all documents of title instruments of title allotment and/or all relevant documentation pertaining to all and any movable assets in the nature of investments or shares, FDRs, NSCs, Units, Bonds etc. standing in the name and/or accruing to Late Bakshi Shiv Charan Singh and Late Smt. Iqbal Oberoi individually or jointly. D) pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged family settlement/s are null and void „ab initio‟ and are not binding against the plaintiff, and E) pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged agreement to sell

dated 2.6.2006 is null and void ab initio and is not binding against the plaintiff, and F) pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged memorandum of settlement dated 2.6.2006 is null and void ab initio and is not binding against the plaintiff, and G) pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged power of attorney dated 24.5.2006 is null and void ab initio and is not binding against the plaintiff, and H) a decree of permanent injunction thereby restraining the defendants from transferring, alienating, assigning, selling or otherwise parting with possession, carrying out additions and alternations or disposing of the suit properties or creating any charge/lien in respect of the suit property in favour of any other person.

14. Along with the suit, the plaintiff filed an interim application

which I shall dispose of by this order being I.A. No. 13474/2008 under

Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil

Procedure, 1908 wherein the plaintiff prayed for an interim order, inter

alia, (a) for maintenance of status quo with regard to the immovable and

movable properties listed hereinafter (referred to as the „suit properties‟)

and (b) a direction to the defendants to not create any third party interest

in the suit properties during the pendency of the proceedings. The

properties constituting the suit properties are listed hereinbelow :

(i) Ground floor at Messay Hall, YMCA, Jai Singh

Road, New Delhi - 110001 (1000 sq. ft.);

(ii) House no. 22, Friends Colony (West), Mathura

Road, New Delhi (4267 sq. yds.);

(iii) House no. 23, Friends Colony (West), Mathura

Road, New Delhi;

(iv) House no. 7A, Ring Road, Lajpat Nagar- IV, New

Delhi;

(v) Furniture and fittings lying and installed at house

no. 22, Friends Colony (West), Mathura Road,

New Delhi; and,

(vi) Shares/contents of bank accounts/ lockers of late

Mr. Bakshi Shiv Charan Singh

15. As per the plaint, the facts are that the plaintiff is the maternal

grandson of late Mr. Bakshi Shiv Charan Singh, who was the owner of

the suit properties in his lifetime. The deceased had two wives, the first

of which pre-deceased the deceased and had three daughters and one son

(including Mrs. Iqbal Oberoi, the mother of the plaintiff) and the second

who had one son and one daughter who are defendants herein.

16. It is the plaintiff‟s case that during the pendency of the

probate proceedings, in order to play fraud upon the plaintiff‟s mother

who was bed ridden and not in complete possession of her faculties,

defendant no. 1 (brother of the plaintiff, grandson of late Mr. Bakshi

Shiv Charan Singh) along with the other defendants purportedly entered

into an oral family agreement which was to the exclusion of the second

wife (and her children) of late Mr. Bakshi Shiv Charan Singh.

17. After the said agreement, the authenticity of which is doubted

and denied by the plaintiff, an agreement to sell was entered into

between defendant nos. 5 and 6 and the second wife of the deceased on

one hand and defendant no. 2 on the other hand. By virtue of the said

agreement, it was agreed upon by the parties that 1400 sq. yds. of the

property at 22-23 Friends Colony (West), Mathura Road, New Delhi

would be sold by the first three parties. The said Mrs. Iqbal Oberoi was

not party to the said settlement.

18. The Memorandum of Family Settlement (hereinafter referred

to as „MOU‟) was recorded between all the family members on

02.06.2006 and defendant no. 1 was acting on behalf of Mrs. Iqbal

Oberoi as her General Power of Attorney holder whereby defendant no.

1 agreed to take 400 sq. yds. land from the suit properties instead of 1/6 th

share of the entire estate, which was the actual share of Mrs. Iqbal

Oberoi. Further, even these 400 sq. yds have been sold by defendant no.

1 to defendant no. 11 by way of sale deed dated 14.11.2006, completely

depriving the plaintiff of any right whatsoever in the same.

19. The plaintiff has sought to bring to notice that the power of

attorney document was executed on 24.05.2006 i.e. 21 days before the

death of Mrs. Iqbal Oberoi, which occurred on 14.06.2006. It is the

plaintiff‟s submission that late Mrs. Iqbal Oberoi was unwell and was

suffering from forgetfulness and dementia, and her signatures were

obtained by defendant no. 1 by fraud as he took advantage of her ill

health.

20. The defendants appeared before the court of Ms. Bimla

Makin, ADJ on 03.06.2006 for recording their statements with regard to

the family settlement/ compromise in the probate case no. 397/1996. The

said statements were recorded by the learned ADJ and the matter was

reserved.

21. Subsequently, Mrs. Iqbal Oberoi died on 14.06.2006 which

fact was not brought to the learned ADJ‟s notice, despite all the parties

being aware of the same. On the basis of the settlement arrived at

between the parties, an order was passed on 03.07.2006 and a decree was

drawn up on 06.11.2006 whereby the probate case was converted into a

civil suit and numbered as suit no. 171/2006.

22. The grievances of the plaintiff, due to which he filed the

present suit, are enumerated hereinbelow :

(a) The plaintiff is not being recognized as the son and

therefore, the rightful heir of late Mrs. Iqbal Oberoi‟s portion

of the estate of late Mr. Bakshi Shiv Charan Singh as he was

never on cordial terms with defendant no. 1 and had

separated from the family as long back as in 1987;

(b) The order was reserved by the learned ADJ on

03.06.2006 but the same was pronounced after the death of

Mrs. Iqbal Oberoi, i.e. after the death of one of the parties to

the proceedings, which act is patently illegal and

subsequently, the plaintiff who is one of the legal heirs of late

Mrs. Iqbal Oberoi was not impleaded as a party to the

proceedings and in fact the probate abates on the death of the

sole executor;

(c) The probate court did not have the jurisdiction to convert

the on-going probate proceedings into a civil suit and

consequently, the decree dated 06.11.2006 is a nullity and

the probate court was not empowered to pass such a decree

and was not the competent court to decide the dispute of title.

23. In this application, the plaintiff has submitted that on the

demise of late Mrs. Iqbal Oberoi, defendant no. 1 immediately took

charge of her property-asset related documents. The plaintiff apprehends

that defendant no. 1 may have fraudulently obtained the signatures of

late Mrs. Iqbal Oberoi on papers in order to procure her assets. Despite

repeated requests on the plaintiff‟s part as regards the partition of the suit

properties, the defendants have refused to accept the plaintiff as the son

and heir of late Mrs. Iqbal Oberoi.

24. The plaintiff has further submitted that the defendants have

already created third party interest with respect to certain properties and

are seeking to create third party interest in some other properties also.

The defendants have been enjoying the benefits accruing from the estate

of late Mr. Bakshi Shiv Charan Singh as well as late Mrs. Iqbal Oberoi.

It is wrong on the defendants‟ behalf to attempt to dispose off the

properties forming part of the suit properties.

25. The plaintiff has contended that he shall suffer grave and

irreparable loss and damage in case the defendants are not restrained

from transferring, alienating or creating any third party interest in the

properties of late Mr. Bakshi Shiv Charan Singh as well as in the assets

of late Mrs. Iqbal Oberoi.

26. Defendants have replied to the plaintiff‟s applications with

several objections as regards the maintainability of the suit filed by the

plaintiff. The grounds of non-maintainability of the present suit, as

submitted by defendants have been enumerated hereinbelow :

(i) The plaintiff is seeking a declaration to the effect

that the MOU dated 02.06.2006 is null and void ab initio and

is not binding on the plaintiff. However, the agreement to sell

in the said MOU has culminated into a sale deed dated

14.11.2006 and the same is within the knowledge of the

plaintiff and has even been averred by him in the plaint as

well as in the application filed by him before Smt. Bimla

Maken, ADJ in probate no. 171/2006 wherein the plaintiff

has referred to defendant nos. 9 to 12 as the purchasers of the

same. Further, this court by order dated 05.02.2009 has

specifically held that the relief sought by the plaintiff in

paragraph (e) of the prayer clause has become infructuous in

view of the fact that the plaintiff challenged the agreement to

sell and not the sale deeds. The said order has been upheld by

a Division Bench of this court vide order dated 25.11.2009.

(ii) In probate no. 171/2006, late Mrs. Iqbal Oberoi

had filed an affidavit supporting late Mr. Bakshi Shiv Charan

Singh‟s two Wills being Will dated 27.03.1985 as well as

Will dated 09.01.1974. An MOU was executed on 02.08.2005

and registered on the same date at the office of the Sub-

Registrar, Chandigarh. Late Mrs. Iqbal Oberoi had executed a

power of attorney in favour of her son (defendant no. 1) in

2003 as well as in 2006, allowing him to execute all the

necessary documents in furtherance of the MOU signed by

her on 02.08.2005 in pursuance to which the MOU dated

02.06.2006 was registered in the office of the Sub-Registrar

VII, New Delhi on 06.06.2006. As per the Agreement to Sell

dated 02.06.2006 the 400 sq. yds. in the suit properties

belonging to late Mrs. Iqbal Oberoi were sold for an amount

of Rs. 3.12 Crores and late Mrs. Iqbal Oberoi received earnest

money amounting to Rs. 25 lac in lieu of the same during her

lifetime. The sale deed in lieu of the said property was

executed by late Mrs. Iqbal Oberoi‟s husband and other son,

for which they received the total consideration agreed upon.

(iii) The plaintiff is challenging the same document,

i.e. the MOU dated 02.06.2006 which accorded his mother

late Mrs. Iqbal Oberoi a share in the suit properties, i.e. 400

sq.yds. as under the Will admitted by late Mrs. Iqbal Oberoi,

she was given only Rs. 2 lac. In the face of nullity of the said

MOU the Will would operate, which would mean that the

plaintiff‟s mother (her legal heirs in this case, including him)

would receive their respective portions of the Rs. 2 lac

allowed to her.

(iv) The plaintiff has not valued the suit correctly for

purposes of court fee and suit valuation as the portion of the

suit properties in Friends Colony alone amount to around Rs.

66.50 Crores. The other properties are also under valued by

the plaintiff.

(v) It is not open to the plaintiff to seek partition of

the entire estate of late Mr. Bakshi Shiv Charan Singh as in

accordance with the provisions of the Hindu Succession Act,

the plaintiff can claim partition of only that portion of the suit

properties which fell into the share of the person through

whom he is claiming his right in the suit properties, therefore,

he can claim partition or re-partition, if at all, only of late

Mrs. Iqbal Oberoi‟s portion which is 400 sq. yds. of the

Friends Colony properties. It is submitted that all the

properties were self acquired properties of Bakshi Shiv

Sharan Singh and he was entitled to the same as per his own

choice.

(vi) In Suit No. 115/1987 titled Parkmaster Pvt. Ltd.

Vs. B.S. Oberoi, a family settlement was executed which

stated, inter alia, that the plaintiff would have no claim, right,

title or interest, unless specifically stated elsewhere to the

contrary, on the assets, properties and business of the other

group (including late Mrs. Iqbal Oberoi). The said family

settlement has been duly signed by the plaintiff, hence, the

plaintiff has no locus standi to file the present suit.

(vii) The plaintiff‟s suit is also barred by the law of res

judicata as the plaintiff sought the same relief in probate case

no. 171/2006 by filing applications under Order 1 Rule 10

and under Section 151 of the Code of Civil Procedure, 1908.

The said applications were dismissed by the learned ADJ

Smt. Bimla Maken vide order dated 24.04.2008. No appeal

has been filed by the plaintiff against the said order.

(viii) The mother of the plaintiff through whom he is

claiming his right in the suit properties i.e. late Mrs. Iqbal

Oberoi executed a Will dated 15.05.2003 which specifically

disinherited the plaintiff from receiving any part of her estate

including anything that she might obtain from the suit

properties. The reason for this specific disinheritance was that

the plaintiff never met his mother during her lifetime after

1987 and never enquired as to her health or her general well-

being till her death. In view of this specific disinheritance, it

is submitted that the plaintiff has no locus standi to file the

present suit.

(ix) The plaintiff converted to Islam in 1987 and hence

cannot seek to inherit or partition any property under the

Hindu Succession Act as the same does not apply to him.

(x) The plaintiff has failed to produce any document

supporting his statement that late Mrs. Iqbal Oberoi was

mentally unstable and not in control of her faculties at the

time of the MOU dated 02.06.2006. The only document

shown by the plaintiff is a medical discharge slip which

shows that late Mrs. Iqbal Oberoi was suffering from minor

depression and that she had fully recovered. Further, the said

document is of the year 2002, though both the family

agreements were arrived at in 2005-2006. Defendant no. 3

has submitted that in fact, late Mrs. Iqbal Oberoi was present

before the Sub-Registrar on 02.08.2005 for registration of the

MOU dated the same as well as on 25.05.2006 at the time of

execution of the Power of Attorney.

(xi) The plaintiff‟s suit is also submitted to be barred

by the provisions of Order XXIII Rule 3A of the CPC as he

has challenged the decree of the learned ADJ in the same

court. The said application of objection/ challenge was

dismissed by Smt. Bimla Maken, learned ADJ vide order

dated 24.04.2008.

(xii) The plaintiff had knowledge about the execution

of the sale deed as he had filed an application under Order I

Rule 10 in the Court of Ms. Bimla Maken on 19.03.2007

wherein he filed all the relevant documents and details about

the purchase of the property but he has not challenged,

therefore, reliefs claimed are not maintainable.

27. The counsel for defendant no. 3 has submitted that if the

injunction granted by this court is confirmed or continued, the

defendants shall face irreparable loss and injury as huge investments

have been made on their behalf in the suit properties. Various members

of the family have sold their respective portions of the suit properties

and as such, various third party interests have been created. It is claimed

that in such circumstances, the balance of convenience lies heavily in

favour of the defendants and against the plaintiff.

28. Defendant nos. 9 to 12 have argued that they are bona fide

purchasers of the property constituting the suit properties being house

no. 22, Friends Colony (West), Mathura Road, New Delhi admeasuring

4267.5 sq. yds. The defendant nos. 9 to 12 purchased the said property

for valuable consideration of Rs. 33.26 Crores by execution of a duly

registered sale deed dated 14.11.2006.

29. It is contended that the plaintiff has no rights as alleged by

him in the property no. 22, Friends Colony (West), Mathura Road, New

Delhi. Without prejudice to their rights and interest in the said property,

as per the said defendants, any dispute or grievance of the plaintiff qua

the property at no. 22, Friends Colony (West), Mathura Road, New

Delhi would lie only against the other family members i.e. against

defendant nos. 1 to 8 and defendant no. 13.

30. As per defendant Nos. 9 to 12, they had searched for the title

of the property in question at the time of the execution of the sale deed,

however, at that time there was no evidence of any purported claim of

the plaintiff with regard to the said property. The said disputes seem to

have arisen much after the execution of the sale deed dated 14.11.2006.

It has further been submitted by defendant nos. 9 to 12 that at the time of

purchasing the property at no. 22, Friends Colony (West), Mathura

Road, New Delhi, the said defendants with due diligence satisfied

themselves as to the good title of defendant nos. 1 to 8 and 13 with

regard to the said property.

31. The title of the said defendants is claimed to have been

established in the Memorandum of Family Settlement dated 06.06.2006

which is a duly registered document registered as Document No. 1884 in

Book No. 4, Volume No. 1263 at pages 1 to 4 with the Sub-Registrar,

New Delhi.

32. With regard to the position of a bona fide purchaser, Mr.

Rajiv Nayar, Senior counsel appearing on behalf of defendant Nos. 9 to

12 has submitted the judgment in Desh Bandhu Gupta Vs. N.L. Anand,

(1994) 1 SCC 131 wherein it was held that the rights of a bona fide

purchaser who purchased the property in ignorance of the pending

litigation in its regard ought to be protected. However, the purchaser

must be a bona fide purchaser who bought the property for adequate

price.

33. Defendant nos. 9 to 12 have also referred Section 55 of the

Transfer of Property Act, 1882 as well as the case of Ram Avadh & Ors.

Vs. Ram Das & Ors., (2008) 8 SCC 58 in this regard.

34. Further, defendant nos. 9 to 12 have submitted that the

plaintiff‟s contention that the death of Mrs. Iqbal Oberoi after hearing of

the matter but before pronouncement thereof renders the judgment and

decree a nullity is baseless and frivolous in view of the provision

contained in Order XXII Rule 6 of CPC, which expressly provides that

there shall be no abatement of suit by reason of death of either party

between the conclusion of the hearing and the pronouncing of the

judgment and the judgment in such a case may be pronounced

notwithstanding the death.

35. Mr. Rajiv Nayar, Senior counsel has argued that in view of

the express stipulation contained in the Code of Civil Procedure Code, it

is stated by defendant nos. 9 to 12 that the interim relief of injunction

was obtained by the plaintiff by suppression of material facts and if the

same is continued, the bona fide purchasers would suffer irreparable

injury and loss.

36. Before discussing the submission of the parties, there appear

to be some other admitted facts between the parties, the details of which

are given as under :

(a) Admittedly, during the life time of Mrs. Iqbal Oberoi, the

plaintiff had no right and Mrs. Iqbal Oberoi was fully competent to

deal with her share of the properties received from the estate of her

late father.

(b) Mrs. Iqbal Oberoi confirmed and accepted the Will of her

father, late Mr. Bakshi Shiv Charan Singh in her reply in the

probate proceedings and has never raised any objection nor had she,

at any stage, challenged the Will of her father till her death.

(c) There is no averment in the plaint that in the year 1997, Mrs.

Iqbal Oberoi was not mentally sound as the plaintiff has produced

just one document of the year 2002 i.e. a discharge slip of the

hospital, on the basis of which, it is claimed that in the year 2002

his mother was not of sound mind, though the said slip indicates

that when she was discharged from the hospital, she was in a

satisfactory condition.

(d) The father of the plaintiff has filed an affidavit stating that the

plaintiff‟s mother, Mrs. Iqbal Oberoi, was in perfect mental state

and she was not of unsound mind. Mrs. Iqabal Oberoi died four

years after the date of the said discharge slip i.e. in June, 2006. In

his affidavit in the Court of Ms. Bimla Maken, ADJ, Delhi he stated

that in the year 1987, the plaintiff had filed a complaint with the

police against him and his own mother and the plaintiff even got

his mother and his father arrested by the police.

(e) The plaintiff‟s brother has filed affidavits stating that Mrs.

Iqbal Oberoi was of perfectly sound mind.

(f) Three weeks prior to her death, Mrs. Iqbal Oberoi appeared

before the Sub-Registrar, Chandigarh and registered a GPA.

(g) The mother of the plaintiff executed Will dated 15.01.2002

wherein she specifically disinherited and ousted the plaintiff from

her estate. The said Will is on the record. Paragraphs 6 and 7 of

the said Will read as under :

"6. My younger son Balwinder Singh separated from the family after creating a dispute. A settlement was reached and Hon‟ble Mr. Justice G.C. Jain of Delhi High Court granted a decree on the 6th of May, 1987 in the Suit No.115 of 1987 then pending in the High Court of Delhi. In this settlement Balwinder Singh was given a full share

of the property and business. He is as such not entitled to claim any share from the estate of his parents. He gave up all claims of any sort that he may have in their estates and their businesses and all or any of the properties that they may own or come to own.

7. That keeping in mind the fact that my son Balwinder Singh had separated from the family I specifically exclude him from receiving any part of my estate including any money or property that I may be entitled to receive from the estate of my late father."

(h) The judgment and decree passed by Ms. Bimla Maken dated

03.07.2006 attained finality.

(i) Admittedly, the plaintiff filed the objections before the

probate court and his application has been rejected by the Court and

it has not been alleged that any appeal against the said order dated

24.04.2008 is pending.

37. From the above referred facts, it is doubtful if the plaintiff is

not entitled to inherit any part of the estate of his mother. This fact is

also established from the Memorandum of Family Settlement and the

decree passed on 06.05.1987 in suit no. 115/1987 wherein it has been

reiterated by the mother of the plaintiff in her Will dated 15.1.2002. The

plaintiff at no point of time has challenged the said Will of his mother.

38. It is also doubtful as to whether the plaintiff has locus standi

to file the present suit or whether he is even entitled to allege that any

fraud has been played on his mother or that she was not given her due

share of the properties and is entitled to raise the pleas as mentioned in

the present case.

39. One of the claims of the plaintiff is that the Will cannot acted

upon because the family settlement has been executed which is void ab

initio as his mother was entitled to get 1/7th share from the estate of her

father under the law of inheritance. The plea of the plaintiff appears to

be without any merit as even if the plaintiff succeeds in obtaining a

declaration that the Memorandum of Settlement is void ab initio, the

effect of the same would be that the said document would be deemed to

never have existed. Under those circumstances, the Will would operate

and the estate would be distributed in accordance with the Will, which

has already been accepted and confirmed by the mother of the plaintiff

in the judicial proceedings.

40. Admittedly, two family settlements were executed by the

family. Under both these settlements, Mrs. Iqbal Oberoi was to get a plot

of 400 sq. yds. The first Memorandum of Family Settlement is dated

02.08.2005 and is signed by Mrs. Iqbal Oberoi and registered with the

Sub Registrar, Chandigarh on the same day. The second family

settlement is dated 02.06.2006 and is executed by Mrs. Iqbal Oberoi,

through attorney holder, her son, defendant No.1 and is registered on

05.06.2006. Mrs. Iqbal Oberoi, the plaintiff‟s mother received her plot

of 400 sq. yds. acting upon the said family settlement and entered into

Agreement to Sell for sale of the said plot on 02.06.2006 and received

earnest money of Rs. 25,00,000/- at the time of execution of the sale

deed. The sale deed of the said plot was executed by the plaintiff‟s

brother and his father, after the death of Mrs. Iqbal Oberoi by receiving

the full sale consideration. After the plaintiff‟s brother and father

received the full consideration of Rs.3.12 crores, it appears that the

plaintiff raised a dispute claiming a share from the whole estate of his

grandfather as if the latter had died intestate. In any case if the plaintiff

has a claim, he can claim his share out of the money received by his

brother and father.

It is submitted by the defendants that as a part of the process

of finalizing the family settlement, defendants No. 5 and 6 had insisted

on selling their share of 1400 sq. yds. and insisted on making Mrs.

Tejinder Puri, defendant No.2 herein the intermediary, who would

secure their payment for them. The whole family comprising

defendants No.2 to 8 as well as Mrs. Iqbal Oberoi and mrs. Gurcharan

Kaur had decided to sell their share in plot no.22, Friends Colony

(West), New Delhi in favour of defendants No.9 to 12 herein. A

method was evolved whereby defendants No.5, 6, 7 and 8 alongwith

Mrs. Iqbal Oberoi and Mrs. Gurcharan Kaur entered into agreements to

sell their share to defendant No.2 herein and defendant No.2 was

empowered to assign those agreements in favour of any third party. In

terms of the Memorandum of Family Settlement, strict penalties were

put in to ensure completion of the transaction on or before 15.11.2006.

It is further submitted that defendants no.5, 6, 7 and 8 alongwith Mrs.

Gurcharan Kaur and Mrs. Iqbal Oberoi received earnest money

payment from Mrs. Tejinder Puri, defendant No.2 herein, at the time of

signing of the said agreements to sell, which were done back to back

with the execution of the Memorandum of Family Settlement dated

2.6.2006.

41. As rightly alleged by the defendants, the plaintiff had the

knowledge about the execution of the sale deeds as the plaintiff himself

filed an application under Order 1 Rule 10 CPC in the Court of Ms.

Bimla Maken on 19.03.2007. Paragraphs 19 and 20 of the said

application read as under :

"19. That it has further been learnt that soon after fraudulently obtaining the decree, the properties which were subject matter of the settlement and probate has been sold to the following persons by the parties. The details of the purchaser are furnished below :

1. Mr. Rajiv kumar S/o Late Shri Satya Pal R/o E-1A, Maharani Bagh, New Delhi

2. Mrs. Sunita Devi W/o Sh. Rajiv Kumar R/o E-1A, Maharani Bagh, New Delhi-65

3. Mrs. Rita Kumari W/o Sh. Ravinder Kumar R/o E-1A, Maharani Bagh, New Delhi-65

4. Mr. Ravinder Kumar S/o Late Sh. Satyapal R/o E-1A, Maharani Bagh, New Delhi

20. That the sale deed concerning properties 22-23, Friends Colony, New Delhi are registered in the name of above persons. There are two sale deeds in the name of Sunita Devi."

42. From the above mentioned fact, it is clear that the plaintiff

knew about the execution of the sale deeds. In the plaint the plaintiff has

merely challenged the validity of the Agreement to Sell dated

02.06.2006 and not the sale deeds, as a result of which the relief claimed

by the plaintiff in prayer (e) of the plaint is not available in the present

case. Further, in order dated 05.02.2009, this court has observed that the

said relief sought by the plaintiff in prayer (e) has become infructuous.

The said finding of the Court has been upheld by the Division Bench

in the appeal filed by the plaintiff, vide its order dated 25.11.2009. No

application for amendment of plaint as of today has been filed by the

plaintiff.

43. The other objection raised by the defendants is that the

plaintiff has not valued the suit property and the requisite court fee has

not been paid on the value of the properties sought to be partitioned. The

counsel for the plaintiff after completion of arguments has mentioned

that the plaintiff has deposited the court fee as per order passed by the

Division Bench in FAO (OS) No.103/2009 although the plaintiff‟s

Special Leave Petition before the Supreme Court against the order of

Division Bench is pending. In view of this statement, I think that this

objection about the court fee raised by defendants can be considered at

the later stage of the proceedings.

44. The next objection of the defendants is that the suit filed by

plaintiff is not maintainable and is barred by Order XXIII Rule 3A of the

CPC. Of course the plaintiff had filed the objections before the court of

Smt. Bimla Maken, ADJ. The said objections were dismissed by order

dated 24.04.2008.

45. This Court in the case of Master Pulkit Vs. Smt. Kamlesh

and Ors., reported as 2003 (105) DLT 313 has held that the settlement

recorded in the Probate Court has to be challenged by the plaintiff in the

same court. The court also observed that the plaintiff in that case had

exercised his option to challenge the decree in the same court before

filing the suit. The court held the suit to be barred by Order XXIII Rule

3A. A similar view was taken by this Court in another case of Joginder

Singh Bedi Vs. Bawa Darbara Singh & Ors., 39 (1989) DLT 270.

46. The learned counsel for the plaintiff has referred a few

decisions in support of his submission in this regard. On a similar point,

this Court has considered some decisions referred by the plaintiff which

have been distinguished in the case of Rajwanti & Anr. vs. Kishan

Chand Shehrawat & Ors., 2009 (160) DLT 185, in paragraph 17. The

same reads as under:

"17. The senior counsel for the plaintiff to meet the bar of Order 23 Rule 3A of the CPC referred to:-

(A) Dadu Dayal Mahasabha Vs. Sukhdev Arya, (1990) 1 SCC

189. In this case the suit had been dismissed as withdrawn on the application of the plaintiff. Subsequently an application was filed for recalling of the said order. It was contended that the person who had represented to be the secretary of the plaintiff/appellant in that case and withdrawn the suit was in fact not the secretary and was thus not competent to withdraw the suit. In that context, the Apex Court drew a distinction between the fraud practised on a party and the fraud practised on the court and in the facts of that case having found a fraud to have been practised on the court, held that such fraudulent act can be recalled by the court at any time. It was held that if a consent decree is challenged on the ground that the party did not give the consent, then the court has duty to set aside the decree if finds that the court was induced into passing the decree on a fraudulent representation; however if the case of the party challenging the consent decree is that he was in fact a party to the compromise but his consent had been procured by fraud, the court passing the consent decree has no inherent power to investigate the matter and the only remedy is to institute a suit. The provision of Order 23 Rule 3 or Rule 3A introduced by the 1976 amendment of CPC were not for discussion in that judgment and in fact the

withdrawal of suit and application for restoration were both of prior to the coming into force of 1976 amendment. (B) URI Civil Contractor AB Vs. Mrs. Pampa Mukherjee, 56 (1994) DLT 608. In this case the Court passing the compromise decree had on an application for setting aside the same, framed issues. Revision was preferred to this court against that order. This Court found that on averments in the application, no case of fraud practised on Court was made out and thus the Court passing the compromise decree had no power to entertain an application for setting aside the compromise decree. The senior counsel for the plaintiff has contended that where a fraud has been practised on the court, the bar of Section 3A will not come in the way and a independent suit would be maintainable to set aside a compromise decree on the said ground. However, I am unable to find the said proposition flowing from this judgment. On the contrary, this judgment expressly notices Rule 3A of Order 23 and reiterates that the only remedy for seeking setting aside of the compromise judgment is by applying to the court which had passed the judgment. In fact, this judgment purports to narrow down the scope of inquiry in the said application also only to the cases where a case of fraud practised on the court is made out and the application to the same court also being not maintainable where the case is of a fraud practised on the other party.

(C) Ram Kishan Vs. Smt. Sardari Devi, MANU/PH/0544/2002 where a single judge of the Punjab High Court following a Division Bench of that court held an independent suit to be maintainable. It must however be noticed that the single judge while holding so expressed reservations about the correctness of the law laid down by the Division Bench of Punjab High Court, in view of Order 23 Rule 3A CPC.

With respect, I am unable to follow the dicta in view of express provision of law (D) Pushpa Devi Bhagat Vs. Rajinder Singh, (2006) 5 SCC 566 only for the purposes of reference thereto being made in the next judgment cited below. This judgment otherwise is concerned with nature of consent decree and appealability thereof and not with Order 23 Rule 3A.

(E) Gopal Mohan Vadhera Vs. Jagdish Rai Vadhera, 2008 (100) DRJ 371. In this case an application was filed for setting aside of a consent decree passed by this Court. A Single Judge of this Court noticed the observations of the Apex Court in Dadu Dayal Mahasabha (supra) that where there was no fraud on the court, the remedy of party challenging the consent decree was to institute a suit; and also the observations of Apex Court in Pushpa Devi Bhagat (supra) that only remedy of challenge to the consent decree was by filing an application to the court passing the compromise decree, under the proviso to Order 23; it was

observed by the Court that there was an apparent conflict between the two decisions of the Apex Court. I may however, with respect, observe that there is no conflict. As held by me above, Dadu Dayal Mahasabha was not a case of consent decree, further that related to a case of prior to induction of Rule 3A in Order 23 by the 1976 amendment. Then, an independent suit was of course possible. However, after the said amendment it is barred, as held in Pushpa Devi Bhagat."

47. In the present case, the plaintiff after passing the judgment

and decree had filed the objections which were dismissed on 24 th April,

2008 and no appeal is stated to has been filed by the plaintiff. Thus,

there is force in the submission of the defendants. As this Court at this

stage is only dealing with the interim application of the plaintiff, it is

therefore appropriate that the plea about the maintainability of the suit

raised by the defendants may be considered by the Court at the stage of

framing of issues.

48. It is argued by the plaintiff that the Judgment and Decree

passed by the learned ADJ accepting the memorandum of family

settlement is a nullity as the defendants have concealed the material fact

of Mrs. Iqbal Oberoi‟s death from the said Court. As discussed earlier as

regards the plea raised by the plaintiff, it is necessary to refer the

provision of Order XXII Rule 6 of Code of Civil Procedure, 1908 which

reads as under :

"No Abatement by reason of death after hearing : Notwithstanding anything contained in the forgoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same effect as if it has been pronounced before the death took place."

The probate proceedings before the Additional District Court,

Delhi were concluded on 03.06.2006 and the matter was fixed for

pronouncement of the order on 03.07.2006. Mrs. Iqbal Oberoi expired

on 14th June, 2006 during the interregnum. As per the provisions of

Order XXII Rule 6 of CPC as referred above, the matter does not abate

upon the death of Mrs. Iqbal Oberoi. Thus, the plea of the plaintiff is

without any merit and cannot be accepted.

49. The next submission of the plaintiff is that the decree was

without jurisdiction as the probate court is not empowered to convert the

probate proceedings into a regular suit. The probate court cannot

decide the question of title. The counsel has also referred decisions in

support of his submission. Further, the plaintiff was not a party to the

proceedings. Admittedly, no rights under the memorandum of

settlements flow from the compromise decree in favour of the plaintiff,

thus the plea of the plaintiff to challenge the invalidity of the judgment

and decree prima facie is not tenable.

50. Prima facie, it appears that the procedure adopted by the

probate court was not against the law as the decree has been passed after

converting the probate case into a civil suit. Firstly, it is a matter of fact

that the Probate Court did not decide the title of the suit property. The

title of the suit property was already determined by the parties

themselves by way of Memorandum of Settlements which was filed

along with the application under Oder 23 Rule 3 CPC.

51. Secondly, the plaintiff himself has filed the objections after

passing of the decree raising the same objections, and the said pleas

were rejected by the probate court by dismissing the plaintiff‟s

application. Thirdly, the question of his locus standi is in dispute as the

plaintiff has not challenged the Will of his mother dated 15.01.2001 nor

it is the case of the plaintiff that his mother Mrs. Iqbal Oberoi died

intestate. Whatever share his mother got out of the properties of her

father who had self acquired properties. His mother was entitled to deal

with the said properties as per her own will. The plaintiff‟s mother in

fact has confirmed and accepted both the Wills of her father and has also

accepted the family settlement and execution thereof and as per these

documents, no portion of it fell to the share of the plaintiff, thus, it is

prima facie not possible at this stage to come to the conclusion that it is

opened to the plaintiff to challenge the same. Therefore, none of the

decisions referred by the plaintiff has any bearing in the facts of the

present matter.

52. This court is of the view that the plaintiff has no prima facie

case in his favour vis-à-vis the title of the suit property, all the

objections as regards fraud, concealment of facts and procedural lapse as

alleged become totally irrelevant as the plaintiff has not been able to

make a case for grant of injunction.

53. The balance of convenience, in view of the aforesaid reason

is in favour of the defendants and against the plaintiff. Admittedly, third

party interests have been created. Prima facie it appears that the

defendant Nos. 9 to 12 are bona fide purchasers of the suit property on

the basis of a registered document as they bought the same in good faith

and took possession after paying full consideration. The sale deeds have

been duly executed in their favour. There is no prayer in the plaint for

cancellation of the sale-deeds despite the plaintiff having full knowledge

of the same before filing of the suit. All parties in the settlement have

accepted and acted upon the partition in accordance with the family

settlement. Therefore, I am of the considered view that the plaintiff is

not entitled to the relief prayed for, otherwise the defendants would

suffer irreparable loss and injury which cannot be compensated in terms

of money.

54. In view of the above, the plaintiff‟s application being IA

No.13474/2008 is dismissed with cost of Rs.25,000/- which shall be

deposited by the plaintiff with the Delhi High Court Legal Aid Society

within two weeks from today. The interim order granted on 16.04.2009

is vacated.

55. It is needless to say that the prima facie view taken by me in

the present case and any observations made herein shall be treated as

tentative in nature and shall not constitute any expression of final

opinion on the issues involved in the matter and shall have no bearing

on the final outcome of the case.

56. List the matter before the Regular Bench on 3rd May, 2010

for further proceedings.

MANMOHAN SINGH, J.

APRIL 16, 2010 jk