Joycee Satinder Makhani vs Mp Singh & Ors.
2011 Latest Caselaw 6065 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+       RFA(OS) 23/2011

        JOYCEE SATINDER MAKHANI          ..... Appellant
                 Through: Mr.R.P.Sharma with Mr.Parul Sharma,
                          Advocates

                                versus

        MP SINGH & ORS                         ..... Respondents
                 Through:       Mr.Vikas Mahajan, Advocate for R-1

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE S.P.GARG

PRADEEP NANDRAJOG, J. (Oral)

1. Smt.Mohinder Kaur died but after having executed, during her lifetime a will dated 08.12.1986 bequeathing property No.9/21, East Patel Nagar, New Delhi to her two sons Sh.J.S.Makhani and Dr.M.P.Singh and her daughter Smt.Inderjit Kaur.

2. Albeit belatedly, probate of the will was obtained.

3. Sh.J.S.Makhani having died and being survived by his wife Smt.Joycee Satinder Makhani, three sons and a daughter, the children having executed a Relinquishment Deed in favour of their mother, his 1/3rd share in the property No.9/21, East Patel Nagar, New Delhi 110008 was inherited by his wife Joycee Satinder Makhani. Thus, as of today the three joint owners of the property are: (i) Mrs.Joycee Satinder Makhani, (ii) Dr.M.P.Singh and, (iii) Smt.Inderjit Kaur.

4. Whereas Joycee Satinder Makhani executed an Agreement to Sell with Vinay Chhabra; Dr.M.P.Singh and Smt.Inderjit Kaur executed an Agreement to Sell in favour of Vinay Chhabra and Vinay Sharda. In this manner the three entered into Agreement(s) to Sell under which the entire property was to be sold to Vinay Chhabra and Vinay Sharda.

5. Without partitioning the property, Joycee Satinder Makhani executed a General Power of Attorney in favour of Vinay Chhabra and received the entire sale consideration but could not put him in possession of the ground floor of the house which was in her occupation inasmuch as Dr.M.P.Singh filed a suit praying that Vinay Sharda and Vinay Chhabra be restrained from entering into possession in any portion of the house bearing Municipal No.9/21, East Patel Nagar, New Delhi.

6. Admitting in the plaint the execution of three Agreements to Sell in favour of Vinay Chhabra and Vinay Sharda it is asserted that they defaulted in making payment to Dr.M.P.Singh and thus he was not liable to stand by his commitment. Pleading that as long as the property was joint, a co-owner could not transfer possession of a specific portion of the property to a stranger, suit was filed.

7. The learned Single Judge has held that till the property was not partitioned, possession of no portion of the property, much less the ground floor could be handed over by Joycee Satinder Makhani to any person.

8. The view taken by the learned Single Judge is in conformity with the law declared by the Supreme Court reported

as 2009 (7) SCC 444 Ramdass Vs. Sita Bai & Ors.

9. The judgment and decree dated October 19, 2010 is in challenge.

10. It is apparent that it is only Joycee Satinder Makhani who is acquiescing to her 1/3rd rights in the subject property in favour of Vinay Chhabra and Vinay Sharda. It is a matter of fact that she was in occupation and continues to be in occupation of the ground floor of the property, but is no longer residing therein.

11. It is serving nobody's purpose by keeping vacant the ground floor of the house and since injunction is a discretionary relief, a court of equity can always appropriately mould the relief.

12. Joycee Satinder Makhani has received full money pertaining to her 1/3rd share in the property from Vinay Chhabra and Vinay Sharda. She being in possession of the ground floor of the property, we hold that said two persons would be permitted to enter upon the said ground floor but not in their capacity as co-owners, they would so do as licensee without obligation to pay any license fee under orders and authority of this court and would, save and except take physical possession of the ground floor, neither occupy the same nor permit anyone to occupy the same for purposes of residence or any other purpose inasmuch as amongst joint owners who have not severed jointness of possession, strangers would not be permitted to occupy residential accommodations since the privacy of the family is adversely affected. The said two persons

would be free to seek partition of the property and we advise them to sue seeking partition without wasting any further time.

13. We highlight that we have modified the impugned decree keeping in view the fact that if not repaired and kept under lock and key, as it is currently, the ground floor of the property would deteriorate and this would be to the detriment of all the joint owners thereof.

14. The appeal stands disposed of modifying the impugned decree as per para 12 above. The suit filed by Dr.M.P.Singh stands disposed of as per the decree passed today.

PRADEEP NANDRAJOG, J.

S.P.GARG, J.

DECEMBER 12, 2011 mm