Delhi High Court

Shri Mahendra Kumar Gupta vs Shri Desh Raj Gupta & Ors. on 23 February, 2010

Author: Manmohan Singh

.*             HIGH COURT OF DELHI : NEW DELHI

+          I.A. No. 7207/2009 in CS (OS) No. 1308/2002

Shri Mahendra Kumar Gupta                                    ...Plaintiff
                   Through : Mr. P.S. Bindra, Adv.

                                 Versus

Shri Desh Raj Gupta & Ors                              ...Defendants
                    Through : Mr. Sudhir Chandra Agarwal, Sr.
                              Adv. with Mr. G.K. Misra and Mr.
                              Rajesh Pandit, Advs. for D1 & D2
                              Mr. Vikas Dhawan with Mr.
                              Abhimanyu Mahajan, Advs. for D3
                              Mr. Manish Kumar with Mr. Amit
                              Kumar, Advs. for D4 & D5
                              Mr. Virender Goswami with Mr.
                              Vaibhav Kumar, Advs. for D6

Decided on: February 23, 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?                               No

3. Whether the judgment should be reported                          No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I shall dispose of I.A. No.7207/2009 filed by

defendant Nos. 1 and 2 under Section 151 of the Code of Civil

Procedure, 1908 seeking suitable directions with regard to the valuation

of all the joint properties as included in the order dated 16th September,

2006.

2. The present suit has been filed for partition, separate

possession, rendition of accounts and mesne profits. Brief facts are that

the property bearing No. 3, Amrita Shergil Marg, New Delhi - 110003

(old address being 39, Block-I, Ratendone Road, New Delhi - 110003

and hereinafter referred to as the „suit property‟) was granted to late Sh.

Lala Hansraj Gupta vide a perpetual lease deed on 6th May, 1936 duly

registered with the Sub-Registrar, Delhi.

3. A residential property was erected thereon and the same was

made part of an HUF by the name of M/s Hansraj Gupta & Sons on 1st

July, 1972. The members of this HUF were the Karta‟s i.e. late Sh.

Hansraj Gupta‟s wife and his four sons being defendant Nos. 1, 3 and 6

as well as the plaintiff. Defendant Nos. 4 and 5 are the daughters of late

Sh. Hansraj Gupta. Defendant No. 2 is the son of defendant No. 1. Sh.

Hansraj Gupta expired on 3rd July, 1985 and left behind seven heirs. He

also left behind a Will, the same having been executed on 28th July,

1985. The said Will has been supported by the plaintiff but is being

alleged to be false by defendants 3 and 6 and the same is the subject of

probate petition No. 62/1985 pending in this court.

4. The suit property had been leased out to a company by the

name of Hansraj Gupta & Co. Pvt. Ltd. and late Sh. Hansraj Gupta used

the same as his residence in the capacity of the CEO of the said

company. After the death of Sh. Hansraj Gupta, the company allotted the

residence to no one. At the time of his death, the occupants of the suit

property were his widow (now deceased), defendant No. 1 and the

children of defendant No. 1 and Mr. Raviraj Gupta. Defendant No. 1

proclaimed himself the Karta of the HUF and continued to reside in the

suit property without the consent of all the other coparceners as to his

Karta status.

5. The company surrendered the tenancy pursuant to the

resolution passed by the Board of Directors on 12th January, 2002.

Though defendant No. 1 never had the right of occupation of the suit

property as Karta of the HUF, now especially after surrender of the

tenancy by the company, he has absolutely no right to use or occupy the

suit property. Hence the present suit was filed for partition etc. of the suit

property.

6. This court passed an order dated 16th September, 2006

enumerating the properties which formed part of the estate of late Sh.

Hansraj Gupta and so deserved to be partitioned in the present

proceedings. An adjournment was granted to the parties to file affidavits

in support the above-stated position. By the next order dated 22nd

September, 2006 it was observed that affidavits of defendant Nos. 1, 2

and 6 and of the plaintiff were filed. Defendant No. 3 was to file his

affidavit in two days. Defendant Nos. 4 and 5 wished to dwell on the

matter a little further. The remaining affidavits were not filed eventually.

7. In the present application, defendant Nos. 1 and 2 have

prayed that as contained in the order dated 16th September, 2006, all the

properties that combine to form the estate of late Sh. Hansraj Gupta may

be valued together and the share of all the parties be determined based

on the same.

8. Defendant No. 1 has submitted that he is the Karta of the

HUF and has been residing in the suit property since the last three

decades. It is the wish of defendant No. 1 to retain the suit property. He

has submitted that he has a share in the suit property as well as in the

other joint properties forming part of the HUF and in case the value of

the suit property turns out to be more than his and defendant No. 2‟s

joint share (yet to be determined) in the same, defendant Nos. 1 and 2

are willing to compensate the other coparceners with the differential

amount.

9. This court has allowed the other defendants to value the suit

property and the applicants have stated that they have no objection to

such valuation. It is submitted that if each property of the joint properties

are taken up for partition separately, there would be more litigation and

struggle. Further, despite the existence of other properties, a suit for

partition of only the suit property was filed with the sole intention of

dispossessing the defendant Nos. 1 and 2 from there.

10. Therefore, it has been prayed that this court pass directions

with regard to valuation of all the joint properties stated in the order

dated 16th September, 2006 and determination of each coparcener‟s

share therein as otherwise, if a separate suit has to be filed for

partitioning each and every property, the process would be long drawn,

cumbersome and would involve multiple litigation.

11. Further, by way of this application defendant Nos. 1 and 2

have also brought forward the fact that a partition suit regarding property

No. 20, Barakhamba Road, New Delhi labelled CS (OS) No. 1284/2002

is already pending before this court. The said property has been included

in the list of joint properties of the HUF in the order dated 16th

September, 2006. It has been prayed that the said suit may be clubbed

with the present suit.

12. I have perused the application of defendant Nos. 1 and 2. The

application filed by the defendant Nos. 1 and 2 is strongly opposed by

the plaintiff and defendant No. 3. On 6th July, 2009 this Court granted

defendant No. 3 two weeks time as the last opportunity to file a reply to

the application under consideration. On 27th August, 2009 counsel for

defendant No. 3 stated that the reply filed by defendant Nos. 1 to 3 may

be ignored and treated as not filed. However, counsel for defendant No.

3 has made an oral submission to the effect that as far as the suit

property is concerned, defendant No. 3 has no objection if orders as

regards this are passed.

13. The relevant portion of order dated 16th September, 2006 can

be read as under :

"Be that as it may, the parties are agreed on the properties and businesses which would form part of the estate of Late Lala Hansraj Gupta which deserves to be partitioned in the present proceedings.

With the consent of all the parties, the same are detailed hereafter:-

1. 3, Amrita Shergill Marg, New Delhi

2. 20, Barakhamba Road, New Delhi

3. The following assets and properties held in the name of Hansraj Gupta and Co. Pvt. Ltd.:-

(i) Rudrapur

(ii) Kolhu assets

(iii) Misc. Godowns

(iv) Bijwasan

(v) D-179 Okhla Industrial Area Ph. I

(vi) 20 Netaji Subhash Marg

(vii) Sitapur - Land and Building

(viii) Ajmerigate Property No. 4634

(ix) Godown Lakhimpur

(x) Godown Dadri

(xi) Meerut Town Building

4. Property on the Meerut Delhi Road

5. Property held in the name of Raghushree-

Madhoram Budh Singh firm

6. Land at Mehrauli

7. Chawri Bazar Properties:-

(i) Farashkhanna, Delhi

(ii) 510 Raghumall Gali, Chawri Bazar

(iii) 3543 Chawri Bazaar, Delhi

(iv) 3544 Chawri Bazaar, Delhi

(v) 3545 Chawri Bazaar, Delhi

(vi) 3546 Chawri Bazaar, Delhi

(vii) 4759 Chawri Bazaar, Delhi

(viii) 3760 Chawri Bazaar, Delhi

(ix) 69 Chawri Bazaar, Delhi

8. Land at Haryana:-

(i) Lakharpur

(ii) Anagpur

9. Property in Kolkata:-

77/7 Mahatma Gandhi Road, Kolkata

10. Mussorie Property ? (i) Hotel Raghu Shree

(ii) Madho Bhawan

(iii) Raghu Niwas

11. Property held by Bharat Cable and property at Ajmeri Gate

It is stated by Mr. Mahendra Kumar Gupta, plaintiff herein, that so far as property at Sr. No. 10 above mentioned is concerned, the same has already been directed to be partitioned by a court order in some other proceedings and he shall produce the court order in respect thereof."

14. In the same order, it was also observed that defendant Nos. 3,

6 and the plaintiff would have no objection to parting with 1/42 of the

suit property and the same could be given to their two sisters being

defendant Nos. 4 and 5. Further, if the other defendants were willing,

defendant no. 3 had no objection to parting with 4/140 share of the value

of 50% of the sale proceeds of property bearing No. 20, Barakhamba

Road, New Delhi. Counsel for defendant Nos. 4 and 5 submitted that he

would take instructions from his clients as to whether they would forego

their claim with respect to the other properties in light of this settlement

offered.

15. All the parties were directed to file affidavits stating their „no

objection‟ to the contents of the order. The following persons have filed

their respective affidavits stating as under :

(I) Mahendra Kumar Gupta, Plaintiff has filed an affidavit

stating that he has no objection if 1/42 share in the suit

property is given to each sister. Further, he has stated that he

has no objection if the properties as mentioned in the order are

partitioned.

(II) Desh Raj Gupta, Defendant No. 1 has filed an affidavit

stating that he has no objection if 1/42 share in the suit

property is given to each sister provided they undertake to (a)

forego all their claims in all other assets of late Hans Raj

Gupta and (b) all the objectors to the Will withdraw their

objections and allow it to be probated. He has further stated

that he has no objection if the properties as mentioned in the

order are partitioned.

(III) Rajendra Kumar Gupta, defendant No. 6 has filed an

affidavit stating that he has no objection if 1/42 share in the

suit property is given to each sister provided they forego their

claim in respect of other assets of late Hans Raj Gupta.

Further, he has stated that he has no objection if the properties

as mentioned in the order are partitioned.

16. No affidavit has been filed on behalf of defendant Nos. 4 and

5 in fact, in their written statement the said two defendants have stated

the following aspects which seem pertinent :

(I) Defendant Nos. 4 and 5 will not give up their rights, title

and claim in any of the properties belonging to late Hans Raj

Gupta as they have a legitimate share in the same;

(II) In order dated 16th September, 2006 the parties have

admitted that defendant Nos. 4 and 5 have rights, title and

interest in the assets of late Hans Raj Gupta; and,

(III) Defendant Nos. 4 and 5 have filed a substantive suit for

partition of all the properties held by late Hans Raj Gupta

which is CS (OS) No. 106/2007 which is pending

adjudication and in view of which the present suit, confined

to one of the various properties which are subject matter of

the other suit is non-maintainable.

17. During the course of hearing, it was brought to the notice of

this Court that the various properties mentioned in order dated 16th

September, 2006 are embroiled in several separate litigations. In lieu of

this, an objection was raised by defendant No. 3 stating that the

properties sought by defendant Nos. 1 and 2 to be valued together cannot

be valued together as individual proceedings are on-going with respect to

the same. A list of these properties with the pending suits/ status is given

below :

Sr. Property included in Annexure 'D-2' Remarks No.

1. 3, Amrita Shergill Marg The present suit pertains to this property.

2. 20 Barakhamba Road A suit bearing No.1284/2002 has already been instituted for partition and/or development of this property and the same is pending before this Court. Further, in this property 50% ownership of undivided and undefined portion of the property vested in a third party, i.e. United Towers Limited.

Further third party rights have been created even in respect of this property. This property cannot be introduced in the present litigation. Further, the property as owned between the members of the family already stands divided by virtue of Memorandum of Understanding dated 7th March, 1995 executed between the parties.

3. M/s. H.G. Gupta & Sons This was a partnership firm, which has since been dissolved and a 31 Shivaji Marg, Najafgarh, ND receiver has been appointed by the orders of this Court passed in Suit 34 Shivaji Marg, Najafgarh, ND No.1794/1985. Partition has already taken place and the properties have been directed to be sold and the realization has been

directed to be distributed and/or appropriated as per the orders of the court.

4. Hansraj Gupta & Co. Private The properties mentioned under Limited this head (except properties namely, Rudrapur 20, Netaji Subhash Marg, Sitapur-

Land and Building, Meerut Town Kolhu Assets Building-treated separately) are owned by the company which has Misc. Godowns been incorporated under the Indian Companies Act, 1913 and is a Bijwasan separate legal entity from its members. Further, the said D-179, Okhla Indl. Area Ph.I company has not been wound up and has a number of equity 20, Netaji Subhash Marg shareholders apart from the parties to the suit.

Sitapur-Land and Building Accordingly, by no stretch of Ajmeri Gate Property No.4634 imagination, the properties of the company incorporated under the Godown Lakhimpur Indian Companies Act can be introduced in this litigation.

Godown Dadri

Meerut Town Building

5. Meerut-Delhi Road Together with properties being 20 Netaji Subhash Marg, Meerut Town Building and Sitapur Land and Building were exclusively owned by late Lala Hansraj Gupta in his individual capacity and were not jointly owned by the parties to the present suit. In any event, the division of these properties is dependent on the outcome of the probate proceedings bearing PR No.62/1985.

As per the will propounded by defendant No.l, these properties, alongwith various other properties, are held individually by late Lala Hansraj Gupta and the division of the said properties as per the will propounded by defendant No.1, if upheld would vest in public charitable trust.

6. Raghushree Madhoram Budh Singh This is a partnership firm and a suit bearing No.518/1993 for dissolution and rendition of accounts is pending before the district court. Apart from plaintiff, defendant Nos.1, 3 and 4, a company by the name Raj Gupta Building Construction Private

Limited is also a partner.

Accordingly, this property can also not be included in the present proceedings.

7. Land at Mehrauli Same as at (v) above.

8. Chawri Bazaar Properties The properties namely, 3543 Farashkhanna, Delhi Chawri Bazaar, Delhi; 3544 Chawri Bazaar Delhi; 3545, Chawri 510, Raghumali Gali Chawri Bazaar Bazaar, Delhi; and 3546 Chawri Bazaar, Delhi are not owned by any 3543 Chawri Bazaar, Delhi of the party to the present litigation.

3544, Chawri Bazaar, Delhi These properties were exclusively owned by late Lala Hansraj Gupta 3545, Chawri Bazaar, Delhi in his individual capacity and were not jointly owned by the parties to 3546, Chawri Bazaar, Delhi the present suit. In any event, the division of these properties is 4759 Chawri Bazaar dependent on the outcome of the probate proceedings bearing PR 3760 Chawri Bazaar No.62/1985. As per the will propounded by defendant No.1, 69, Chawri Bazaar, Delhi these properties, alongwith various other properties, are held individually by late Lala Hansraj Gupta and the division of the said properties as per the will propounded by defendant No.1, if upheld would vest in public charitable trust.

The properties, namely, Farashkhanna, Delhi; 510, Raghumali Gali Chawri Bazaar;

4759 Chawri Bazaar; 3760 Chawri Bazaar and 69, Chawri Bazaar Delhi are entirely tenanted and not even jointly owned by all the parties to this suit. Accordingly, the same cannot be made available for partition in the present proceedings.

9. Land at Lakharpur, Haryana These pertain to leasehold rights which are outside the jurisdiction of Land at Anangpur, Haryana this Court, and, therefore, it is neither convenient nor permissible to introduce these properties to the present litigation.

Further, the patta rights in these properties already stand divided in the name of all the parties to the suit.

10. Calcutta Property This property is jointly owned by

77/7 Mahatma Gandhi Road, Kolkata and 4 is outside the jurisdiction of

this Court and is neither convenient nor permissible to introduce this property in the present proceedings.

Further, the property is under occupation of the tenants and accordingly cannot be included in the present proceedings.

11. Mussoorie Property-Hotel Raghu Again, this properties is outside the Shree jurisdiction of this court and is owned by the partnership firm viz.

Madho Bhawan M/s. Hotel Raghushree in which late Smt. Angira Devi i.e. mother Raghu Niwas of the parties was also a partner.

12. Raj Enamel The property owned by this company has already been sold and the matters pertaining to this have been settled.

13. Mrs. Angira Gupta properties These properties are not joint K.G. Marg in Kavi Nagar property and some of the properties are outside the jurisdiction of this Raghu Ganj, Chawri Bazaar court.

911 Gali Inderwali, Kucha Pati Ram

Godown at Lakhimpur

50% Shares in partnership -

Hotel Raghushree at Mussorrie

14. Bharat Cables Even though disputed by answering defendant, defendant Ajmeri Gate No.1 is claiming to be absolute owner of this property.

Moreover, these are only the tenancy rights in the properties.

15. Residential properties given to MKG In these properties, Hansraj Gutpa and RKG by M/s. HRG and Co. Pvt. and Co. Pvt. Ltd. is the tenant and Ltd. accordingly cannot be included in the present proceedings.

16-B Mathura Road, N.D.

R-235, Greater Kailash, Part-I

16. M/s. Central Distillery Ltd. As is obvious by their description, these pertain to limited companies M/s. Rampur Engineering Co. Ltd. incorporated under the Companies Act, and, therefore, cannot, by any stretch of imagination, be called joint property or joint family property of the parties to the present litigation.

Moreover, the members of the family do not have any joint,

existing claim over these companies.

18. It is clear from the above-mentioned list and various

documents on record that there are very many suits are pending inter-se

between the parties, including the present suit. All these suits are at

different stages of proceedings and have as their subject different subject

matters for instance, certain suits are for partitioning properties, some are

for declaration with respect to Hans Raj Gupta & Co., some are as

regards arbitration matters and some are for dissolution of the various

firms. Further, the suits are pending in this Court as well as in Tees

Hazari Courts. In light of these facts and circumstances, it appears to be

confoundedly unreasonable to club the valuation of all the properties to