Dayawati Khanna vs Suman Mehra & Ors.
2011 Latest Caselaw 1440 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%           Judgment Pronounced on: 11th March, 2011

+           I.A. No. 5998/2004 in CS(OS) No. 547/2003

DAYAWATI KHANNA                          .....Plaintiff

                            - versus -

SUMAN MEHRA & ORS.                       .....Defendants

Advocates who appeared in this case:
For the Plaintiff: Mr. Jagdeep Kishore, Adv.
For the Defendant: Mr. Sanjeev Anand with Mr. Dibya
                     Nishant, Advs. for def. nos. 2, 5 and 6
                     Mr. Manish K. Jha and Ms. Nidhi Sidana,
                      Advs. for def. nos. 1 and 3
                      Mr. Sanjay Gupta, Adv. for def. no. 4

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

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

2. To be referred to the Reporter or not?                     No.

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

V.K. JAIN, J (ORAL)

1. This is an application filed by defendant no. 6 for

permission (i) to let out the second and third floor of the suit

property which is a duplex unit, (ii) to restrain the plaintiff

and defendant no. 4 and anyone else claiming through them

from interfering in his use and enjoyment of the aforesaid

portions of the property and to have access to all the

portions of the property and (iii) to restrain them and

anyone claiming through them, from interfering in use of

the basement of the aforesaid property by him.

2. The plaintiff, who is stated to be aged about 80

years, is the wife of defendant no. 6, who is stated to be

about 86 years old, whereas defendant nos. 1 to 5 are their

daughters. Property no. 21A, Aurangzeb Lane, New Delhi

was owned by an HUF consisting of defendant No.6 Shri

T.N. Khanna and his three brothers namely Bhola Nath,

Mahadev Prasha and Santosh Kumar. A partition took

place amongst the members of the aforesaid HUF and in

that partition, Unit no. 4 in the aforesaid property fell to the

share of Shri T.N. Khanna, HUF. This partition was

affirmed by an arbitrator who was appointed to adjudicate

on certain disputes which had arisen amongst Shri T.N.

Khanna and his three brothers.

3. As per the award rendered by Justice M.L. Verma

on 25th May, 1995, a sum of Rs. 7,12,710/- was to be paid

by Shri T.N. Khanna, HUF, to Bhola Nath Brothers, HUF.

The case of the plaintiff is that the aforesaid amount of Rs.

7,12,710/- was paid by her to Bhola Nath Brothers, HUF,

through T.N. Khanna, HUF and also that she surrendered

her entire shareholding in the company Eastern

International Hotels Ltd. and 50% shareholding in another

company Devraha Investments Pvt. Ltd. It was also agreed

by the family members that the entire shareholding in DIPL

would be equally divided amongst the five daughters of the

plaintiff and defendant No.6 and the Articles of Association

of the aforesaid company were altered accordingly. 25%

shareholding in Claridges Hotel Pvt. Ltd., held by one of the

brothers of defendant No.6, who was given 50% interest in

EIHL was agreed to be transferred directly in favour of DIPL

in which the plaintiff had relinquished her interest.

According to the plaintiff 30,000 shares, which she held in

EIHL had intrinsic value of over Rs.2 Crores but were

valued at Rs.1/- each in the award. According to her DIPL

received 1,000 shares in Claridges Hotel Pvt. Ltd. in

exchange for 19.43% shareholding held by the family by

T.N. Khanna group in EIHL and those shares of Claridges

Hotel Pvt. Ltd. were sold in April 2003 for Rs.24 Crores. It

is also alleged that the plaintiff held substantial

shareholding in another company Mukta Enterprises Pvt.

Ltd. which held about 1,14,700 shares in EIHL worth about

Rs.8 Crores. It is also the case of the plaintiff that on

making the aforesaid payment and in view of the sacrifices

she claims to have made in the aforesaid manner, she was

to acquire rights in Unit No. 4 of the property no. 21-A,

Aurangzeb Lane, New Delhi. In nutshell, the case of the

plaintiff, thus, is that under an understanding which she

had with the other members of the family, and, in view of

surrendering her financial interest in various companies

and making of payment of Rs. 7,12,710/- to Bhola Nath

Brothers, HUF, she was to become the sole owner of Unit

No. 4 in the property no. 21-A, Aurangzeb Lane, New Delhi.

The plaintiff has, besides some other reliefs, sought a

declaration that she is the owner of Unit No.4 in property

No.21-A, Aurangzeb Road, New Delhi.

4. The case of the defendant no. 6, however, is that

there was no such understanding/agreement as is claimed

by the plaintiff. He has also claimed that the suit is barred

by limitation.

5. Admittedly, there is no document evidencing the

understanding/agreement pleaded by the plaintiff. The

understanding is alleged to have been arrived in the year

1995. However, in her Will executed on 25th October, 2000,

the plaintiff herself referred to Unit No. 4 in the property no.

21-A, Aurangzeb Lane, New Delhi as the property of Shri

T.N.Khanna, HUF.

6. Assuming however that the plaintiff had made

payments and sacrificed financial interests as claimed by

her, prima facie, to my mind that would not confer absolute

ownership rights on the plaintiff in Unit No. 4 in the

property no. 21-A, Aurangzeb Lane, New Delhi. The

payment, if any, made by her on behalf of T.N. Khanna,

HUF, of which she also is a member, may though amount

only to a loan from her to the HUF. The ownership rights in

an immovable property cannot be transferred by way of

such oral understandings. This can be done only by

executing a registered instrument evidencing transfer of

ownership from one person/entity to another person.

Therefore, prima facie, it is difficult to accept that the

plaintiff is the sole owner of Unit No. 4 in the property no.

21-A, Aurangzeb Lane, New Delhi.

7. It is an admitted case that the second and third

floor of the aforesaid property which is a duplex unit was let

out for about four years between the period 1998 and 2002.

The situation at present is that the defendant nos. 2, 5 and

6 want the second and third floor units to be let out

whereas the plaintiff and defendant nos. 1, 3 and 4 are

opposing the proposed letting out.

8. A perusal of the photographs filed today in the

court by the plaintiff would show that on entering the

property through the main entrance, there are stairs on the

left side and the lift is next to the stairs. On the right side,

there is a door leading to the kitchen and two other doors,

one leading to the drawing/dining room and the other to the

bathroom. There is yet another door which opens in a guest

toilet. It appears to me that when constructed, this

property was not meant for letting out but the fact remains

that it was let out for as many as four years without

objections from the other members of the family.

9. It transpires during arguments that, at present,

defendant no. 6 occupies the basement where he is running

an office and a bed room on the ground floor whereas the

kitchen, drawing/dining room etc. on the ground floor are in

the joint possession of the parties. As regards the bed

rooms on the first floor, it appears that they are being used

only by the plaintiff, though the case of the defendant no. 6

is that only one bed room on the first floor is in exclusive

use of the plaintiff and he has right to use the other two

remaining rooms on the first floor.

10. However, for the purpose of deciding this

application, I need not go into the question as to who is

using which portion of the ground and the first floor of the

property. What is material is that the property, prima facie,

appears to be owned by Shri T.N. Khanna, HUF and if it is

divided, the parties to the suit will have 1/7 th share each in

it.

11. In view of the objections from the plaintiff and

defendant nos. 1, 3 and 4 and considering that fact that

induction of a tenant, who must necessarily pass through

the lobby on the ground floor where the doors of kitchen,

drawing/dining and toilet abut, and therefore, the privacy of

the plaintiff is likely to be disturbed on account of use of the

lobby by the tenant and his visitors, I do not deem it

appropriate to permit letting out of the second and third

floor of the unit at this stage. It is however directed that at

the time of final decision of the suit, the Court would take

into account the fact that the plaintiff and defendant nos. 1,

3 and 4 had opposed the letting out of the aforesaid units

and thereby blocked the income which could have been

accrued to HUF from letting out the aforesaid unit. If the

Court later on, at the time of disposal, finds that the

plaintiff is not the sole owner of Unit No. 4 in the property

no. 21-A, Aurangzeb Lane, New Delhi and the plaintiff and

defendant nos. 1, 3 and 4 had no justification to oppose the

proposed letting out, the Court may then while passing the

final decree, make direct appropriate payments to other

members of the HUF, if so deemed appropriate at that time.

12. If the property in question is owned by an HUF in

which the plaintiff and defendants 1, 3 and 4 have only

1/7th share each, I fail to appreciate how in the absence of a

partition of the property can any co-owner of the property be

retrained from having access to any part of the property

which he wants to use along with the other co-owner(s). All

the co-owners of a property are entitled to joint use and

possession of the property owned by them and unless any

particular part of the property is in exclusive possession of

one of the co-owners so as to amount to complete ouster of

the other co-owner(s), all of them have a legal right to use

and enjoyment of each and every portion of the joint

property and possession of one co-owner shall be deemed to

be on behalf of all the co-owners. This is more so when the

co-owners/joint owners of the property also happen to be

members of the same family. In the facts and

circumstances of the case, it is difficult to say that the

plaintiff is in exclusive possession of the first floor and

defendant No.6 is in exclusive possession of the basement to

the complete exclusion of the other co-owner(s), amounting

to their ouster from possession of the aforesaid portions. It

transpires during arguments that it is the only the plaintiff

and defendant No.6 who are residing in this property.

When husband and wife are residing under the same roof, it

is difficult to accept that they are in exclusive possession of

different portions of the property owned by an HUF of which

both of them are members to such an extent that it

amounts to complete ouster of the other spouse. Since

prima facie, the property is owned by Shri T.N. Khanna,

HUF, it is made clear that all the members of the HUF will

have an unhindered access to each and every portion of the

suit property, including the basement and first floor.

13. The application stands disposed of accordingly.

I.A. No. 703/2006 (Order 39 Rule 1 and 2)

The applicant is given liberty to file medical

opinion/advice from her doctor to the effect that

tower/antenna installed on the terrace is likely to be

detrimental to her health.

The defendants will also be entitled to submit medical

opinion to rebut the opinion, if any, filed by the plaintiff.

List this application for consideration on 29 th August,

2011.

(V.K. JAIN) JUDGE MARCH 11, 2011 Sd