Santosh Tuli vs C.L. Chopra And Ors.
2011 Latest Caselaw 2593 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                       Date of decision: 13.05.2011

+      REV. PET. 128/2009


       SANTOSH TULI                                               ..... Petitioner
                               Through : Sh. Sunil Malhotra, Advocate.

                      versus


       C.L. CHOPRA AND ORS. F+                            ..... Respondents

Through : Sh. Parinay. D. Shah and Ms. Supriya Juneja, Advocates, for Defendant No.2/Review Petitioner.

+

CORAM:

       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                        Yes.
       reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT, J. (OPEN COURT)

%

REV. PET. 128/2009, I.A. NO. 3529/2009 IN CS (OS) 1284/1998, I.A. NO. 12937/2000

1. The petitioner seeks a review of an order of this Court dated 15.07.2008 in which directions were issued to draw a decree in terms of a joint application presented by the plaintiff and Defendant Nos. 3, 4 and 6. The ordersheet in respect of the present proceedings would disclose that after issuance of notice, the respondents/Defendant Nos. 3, 4 and 6 were directed, by an order dated 30.08.2010, to file an affidavit disclosing the amounts received by them as sale consideration in respect of the property sold, after the decree was drawn. The Court had also directed them to disclose on affidavit the amounts received and enclose copies of bank statements, reflecting receipt of the consideration obtained by them, pursuant to the sale made,

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00 Page 1 after the decree was drawn. The subsequent orders would reveal that the said Defendant Nos. 3 and 6 (hereafter referred to as "the contesting parties") did not comply with the directions. The ordersheets also reveal that adjournments were sought on behalf of the Defendant Nos. 3 and 6. Further, they were not represented regularly and no appearance was caused on their behalf on 18.02.2011 and 18.03.2011.

2. Having regard to these circumstances and the other facts emerging from the record, this Court heard counsel for the parties, i.e. the plaintiff and the Review Petitioner (Defendant No.2).

3. Briefly, the facts are that the plaintiff and the contesting parties (except Defendant No.6) are the children of late Sh. H.R. Chopra and late Smt. Viran Devi Chopra. The plaintiff (their daughter) sought a decree, claiming 1/6th share in the properties of the said parents. This included two immovable properties; one located in Pahar Ganj and the other in Rajouri Garden, particulars of which were detailed in the suit and the documents annexed along with it. After summons were issued, some of the defendants entered appearance. Defendant Nos. 1 and 5 filed a common written statement, choosing not to contest the plaintiff with the suit claim for 1/6 th share in the properties of the deceased. However, Defendant Nos. 3 and 6 (Defendant No.3 being the brother of the plaintiff) and Defendants Nos. 1, 2, 4 and 5, and his son (Defendant No.6) took the position, in the written statement, that the late Sh. H.R. Chopra had desired or bequeathed the Rajouri Garden property to Defendant No.3. The common written statement of the said contesting parties also says that late Smt. Viran Devi Chopra, who owned the Pahar Ganj property, had bequeathed the property to the sixth defendant by Will dated 04.02.1982. The suit proceeded on the basis of the rival contentions of the parties. In the meanwhile, the second defendant did not enter appearance and was set-down ex-parte, and the Court did not permit him to file a written statement since there were repeated defaults. The right to defend the suit was closed on 09.11.2001. On 15.07.2008, the contesting parties as well as the plaintiff moved an application - I.A. No. 8163/2008 - a joint application, stating that they had "compromised the suit". A copy of the Memo of Compromise was also filed along with the application, which was supported by the affidavit of the parties who moved it.

4. It would be relevant at this stage to extract the material portions of the said family settlement, which are as follows:

       "XXXXXX                        XXXXXX                         XXXXXX

       THIS DEED OF COMPROMISE IS WITNESSETH AS UNDER

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00                   Page 2

1. That the parties have been agreed that 1/6th share of ownership right will devolve upon Smt. Santosh Tuli and Smt. Kaushalya Malik each in respect of the properties bearing No. 3317-3321, Baghichi Habib Baksh, Paharganj, New Delhi measuring 200 Sq. Yards and in this manner Smt. Santosh Tuli and Smt. Kaushalya Malik shall be the owners of 2/6th undivided share in the aforesaid property and a decree be passed accordingly. The remaining 4/6th undivided shares with the property shall devolve in favour of Sh. Surender Kumar Chopra and Sh. Surender Kumar Chopra shall be absolute owner of 4/6 share in the said property bearing no. 3317-3321, Baghichi Habib Baksh, Pahargarnj, Delhi measuring 200 sq. yards including the inclusive owner of entire left over portion in the property bearing no. J-8/77 N, Nehru Market, Rajouri Garden, New Delhi. The decree be drawn accordingly.

2. That after the passing of the decree as stated hereinabove, the Second Party shall undertake to sell the property bearing No. 3317-3321 Bagichi Habib Baksh, Paharganj, New Delhi alongwith First Party i.e. Smt. Santosh Tuli and Smt. Kaushalaya Malik and out of the said sale proceeds, Rs. 25 Lacs shall be paid to Smt. Santosh Tuli and Rs. 25 Lacs to Smt. Kaushalaya Malik. The First Party shall not be entitled to receive more share in the proceeds even if the sale proceeds of their 2/6th share is more than Rs. 50 Lacs. In case, it is sold at a lower price, even then, the First party shall be entitled to Rs. 50 Lacs in total i.e. Rs. 25 Lacs each of the First Party. The First Party undertake to sign without any hindrance and objection all sale documents pertaining to the said property in favour of buyer without any delay as and when called by the Second Party before Sub-Registrar office, New Delhi. If the First Party fails to execute and attend the Sub-Registrar Office for execution of sale papers, then the First Party shall not be entitled to the amount of Rs. 25 Lacs each as stated hereinabove from the Second Party.

3. That in case the sale in respect of the property bearing No. 3317-3321, Bagichi Habib Baksh, Paharganj, New Delhi measuring 200 Sq. Yards is not completed in three months after the passing of the decree by this Hon'ble Court, the Second Party shall pay interest 12% per annum on Rs. 50 Lacs to the First Party after the expiry of these three months till the property is finally sold and out of the sale proceeds Rs. 50 Lacs is to be paid to the First Party.

4. That in case any of the party to the suit or legal heirs or any other party approach this Hon'ble Court for setting aside this decree within three months from the date of the decree, till the proceedings are pending in the Court, the Second Party will not be liable to pay any interest to the First Party as agreed @ 12% per annum between the First Party and Second Party.

       XXXXXX                         XXXXXX                          XXXXXX"




Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00                       Page 3

5. It is evident from the above that the plaintiff sought for 1/6th share and Defendant No.4 was satisfied with the 1/6th share in the property at Paharganj. They gave-up the claim vis-à-vis the other immovable property. The compromise proceeded on the footing as though all other legal heirs had consented to it.

6. The Court recorded the statements of the parties to the joint application and since there was no opposition to it, proceeded to dispose of the suit with the direction to draw a decree in terms of the Compromise Deed, which was exhibited as Ex. P-1. The order of the Court dated 15.07.2008 reads as follows:

       "XXXXXX                          XXXXXX                      XXXXXX

       IA     No.    8163/08       (Application   under   O.   XXIII    Rule    1    CPC)

Counsel for the parties seek liberty to place on record a joint application for recording of compromise under Order XXIII Rule 1 CPC.

Request allowed. The application is taken on the record. Let the same be registered.

The applicants state that by virtue of a deed of compromise dated 15.7.2008 they have settled their disputes. A copy of the said deed has been annexed along with the application. The application has been signed by the plaintiff, on the one hand, and defendant Nos. 3,4 and 6. The said application is supported by affidavits of the plaintiff and the said defendants.

Learned counsel for the plaintiff submits that the claim in the suit so far as the other defendants are concerned would not be pressed.

Having considered the submissions and the averments in the application supported by the affidavits, the court is of the opinion that the parties have entered into a lawful compromise and settlement. The application is accordingly allowed.

CS(OS)1284/1998

The parties have today presented an application for disposal of the suit in terms of the compromise deed dated 15.7.2008. In terms of the said compromise deed -- which shall be hereby taken on record as Ex. P-1-- the plaintiff and Smt. Kaushalya Malik, defendant No.4 are entitled to 1/6th share each (2/6th undivided share) in property No. 3317-3321, Baghichi Habib Baksh, Paharaganj, New Delhi measuring 200 sq. yards. The parties have in the said compromise deed recognized the rights of defendant No.3 in respect of the balance 4/6th share in that property No.3317-3321, Baghichi Habib

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00 Page 4 Baksh, Paharaganj, New Delhi measuring 200 sq. yards. The said defendant No.3 has been recognized as exclusive owner of J-8/77 N, Nehru Market, Rajouri Garden, New Delhi.

The plaintiff and defendant No.4 shall have 1/6 share each and defendant No.3 shall have 4/6 share in 3317-3321, Baghichi Habib Baksh, Paharganj, New Delhi. The other terms entitling to the plaintiff and defendant No.4 to specific amounts of money have been set out in the said deed of compromise. The statement of the plaintiff, defendant nos.3,4 and 6 have been record separately. The said deed of compromise is Ex. P-1. Let decree be drawn in terms of the compromise subject to payment of court fee .

XXXXXX XXXXXX XXXXXX"

7. The Review Petitioner is aggrieved by the circumstance that even though the plaintiff had sought 1/6th share in the properties - a claim which was supported by at least two defendants, the Court ignored that fact altogether, and proceeded to divide the shares in the properties only as between the applicant in I.A. No. 8163/2008. It is contended that in a partition suit, regardless of the claim or assertion of one party or the other, each party stands in the position of a plaintiff and that where the suit is contested firmly through written statement or not, due care has to be exercised while recording a compromise; in the absence of one or more parties, the interests are likely to be vitally affected by it. The Review Petitioner argues in this regard that his exclusion from any share in the properties - concededly the Estate comprising of two immovable properties, besides other immovable properties, is contrary to law and, therefore, warrants review of the order dated 15.07.2008.

8. Learned counsel for the Review Petitioner relies upon the ruling of the Division Bench of the Karnataka High Court reported as Smt. Gowramma v. Nanjappa and Ors. ILR 2001 Kar 4853, where, relying upon a previous ruling in Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel AIR 1925 (Bom) 425, the Court emphasized that the plaintiff - or the defendant cannot be permitted to withdraw from a legal proceeding or deal with the proceeding in such manner as to divide the rights or claims of other parties. He also relied upon the ruling of the Supreme Court reported as Ram Chandra Singh v. Savitri Devi and Others 2003 (8) SCC 319.

9. Learned counsel for the plaintiff submitted that the Court drew the decree and accepted the application of parties and directed the drawing of decree in view of the act that an acceptable solution or compromise had been arrived at by those who were contesting the proceedings and,

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00 Page 5 therefore, parties to I.A. No. 8163/2008. He, however, did not dispute the circumstance that the Review Petitioner was excluded entirely from the division of the properties. It was also argued that a probate proceeding had been originally filed by the contesting parties, i.e. Defendant Nos. 3 and 6 but that the same was later withdrawn in terms of the compromise recorded on 15.07.2008. The contesting parties, in their reply, objected to the maintainability of the Review Petition, arguing that it is belated. It is contended in their reply that the Review Petitioner/second defendant was not permitted to contest the suit and was in fact proceeded "ex-parte" by order dated 09.11.2001. It is further stated that the second defendant is not illiterate and had even moved an application for appointment of Local Commissioner. Since the Review Petitioner has averred in these proceedings that he was kept in the dark about the compromise, the contesting parties deny that submission and further state that it was always open to the second defendant (Review Petitioner) to have found the correct state of facts. It would be relevant at this stage to extract the material portion of the contesting parties' reply to the review petition:

"XXXXXX XXXXXX XXXXXX

4. That the contents of para 4 of the application are correct to the extent it speaks about legal heirs of Late Sh. Haveli Ram Chopra and Smt. Viran Devi. However, it is specifically denied that defendant no.2/applicant was having any cordial relations with his brothers and sisters.

XXXXXX XXXXXX XXXXXX

6. That the contents of para 6 of the application are absolutely wrong, incorrect, hence specifically denied. The allegations as alleged pertaining to the documents like family settlement etc. are absolutely vague, baseless and with an intention to confuse this Hon'ble Court and nothing else. However, it is submitted that the documents as alleged in this para were in the knowledge of the defendant no.2/applicant and he had ample opportunity to putforth his case before the Hon'ble Court when he put his appearance before the Hon'ble Court, but he choose not to contest the said suit for his vested interests. The documents as alleged in this para have no relevance in the present scenario, when suit has already been decreed. However, the contents and averments of preliminary objections are reaffirmed and reiterated.

XXXXXX XXXXXX XXXXXX"

10. It is thus clear from the above discussion that the suit claim as originally led before the Court was for preliminary decree of 1/6 share in the properties, forming the Estate of late Sh. H.R. Chopra and his wife. Concededly, the parties, i.e. the first five defendants were children of

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00 Page 6 the said Sh. H.R. Chopra and his wife. The sixth defendant is the son of the third defendant. Defendant Nos. 1 and 5 have supported the plaintiff for 1/6th share. They too claim a similar share. The discordant note was further taken by the third and sixth defendants, who set-up a bequest - one through a Will dated 04.02.1982, said to have been executed by late Smt. Viran Devi Chopra - precise origin of which is obscure, allegedly made by late Sh. H.R. Chopra. The sum and substance of these bequests were that the only two immovable properties, which belonged to the joint property of late Sh. H.R. Chopra and his wife, were to go to the branch of the third defendant, and shared by him and his son to the exclusion of all others forming part of the joint family of Sh. H.R. Chopra. Significantly, the plaintiff as well as Defendant Nos. 1 and 5 did not sit to the bequest sought jointly by the third and sixth defendants in the written statement. The plaintiff has also filed replication. The written statement denied such disposition of the immovable properties. Furthermore, the written statement of Defendant Nos. 3 and 6 sit on some probate proceedings which were pending at the relevant time. These circumstances point to their being dispute about the bequests and the fact that but for their being propounded, there could have been no dispute that the plaintiff and first and fifth defendants could have been entitled to 1/6th share in all the properties.

11. If one sees the averments in I.A. No. 8163/2008, it is apparent that the Court was informed that a legally binding and acceptable settlement had been arrived at by the parties. On the basis of this averment, and having regard to the compromise deed, the Court proceeded to direct a decree to be drawn, and disposed of the suit. The order dated 15.07.2008, however, does not reflect that the Court's notice was ever brought to the circumstance that the second defendant's rights had to be dealt with.

12. In a partition suit involving members of a Hindu Undivided Family, the law in our country is that no single co-owner has the right to withdraw the suit. The correct legal position is that all parties are deemed to be plaintiffs and the Court has to adjudicate the rival claim, both about the extent of the share, as well as the status of the properties. If one bears this reality in mind, it is not open to one or set of parties to exclude the participation of others, who are members of the joint family from a compromise, particularly when a suit is filed and pending, and in which the Court has to adjudicate the rival claims as to shares. The Review Petitioner's grievance on this score appears to be genuine. In this regard, the decision of the Supreme Court in Ram Chandra Singh (supra) is apt. The Court had there held as follows:

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00                    Page 7
        XXXXXX                         XXXXXX                         XXXXXX

35. The consent order, as is well known, is an agreement between the parties with the seal of the court superadded to it. The appellant herein in the review application categorically stated that the parties to the appeal had suppressed the auction-sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of the first appeal resulting in creation of a third-party right was bound to be taken into consideration by the High Court. A third-party right cannot be set at naught by consent. The High Court, therefore, was required to consider the contention of the appellant in its proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order.

XXXXXX XXXXXX XXXXXX"

13. Equally, the decision in Smt. Gowramma (supra) is also appropriate. In it, the Karnataka High Court had relied on a previous ruling of the Bombay High Court in Tukaram Mahadu Tandel (supra) to state that in a partition suit, the defendant seeking share is in the side of the plaintiff and one plaintiff cannot withdraw the suit without the permission of the other. In the facts of this case, the plaintiff has not sought to withdraw but sought a complete disposal of the suit on the basis of decree which in effect extinguished the rights of the Review Petitioner.

14. There is yet one more circumstance which persuades this Court to accept the Review Petitioner's arguments. A compromise stands on the same footing as contract or agreement. Therefore, the consent order, which is based on a compromise only has the seal of approval of the Court superadded to it. As held in some previous Supreme Court rulings, this does not afford the order a "judicial amulet" conforming immunity from challenge. If the contract or agreement is invalid or illegal and can be challenged, the principle imposed by the Court then is of no avail (refer to State of Punjab and Ors. v. Amar Singh and Anr. 1974 (2) SCC 70). An oft quoted legal maxim is that actus curiae neminem gravabit - the act of Court shall not injure anyone.

15. The objections of the contesting parties to the Review Petition, in the opinion of the Court, are unmerited. There is no doubt that the review jurisdiction of the Court is circumscribed and limited; the Court can self-exercise its powers only when there is error apparent on the face of the record or there is sufficient cause for it to recall a previous order. Equally, the Court cannot discover new grounds for review and exercise and enlarge powers which in effect would be an appellate one (Parsion Devi & Ors. v. Sumitri Devi and Ors. 1997 (8) SCC 715 referred to by the contesting parties in this case). Further, facts of this case and preceding discussion would

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00 Page 8 reveal an important circumstance which went to the root and which were not brought to the notice of the Court when the suit was disposed of on 15.07.2008,i.e. that not all parties were represented or parties to the compromise or that interests of the third parties/second defendant Review Petitioner had been taken care of. In these set of circumstances, this Court has no doubt in mind that the order suffered from a vital infirmity which the Court is duty-bound to correct in due exercise of its review powers.

16. Before disposing of the Review Petition, it would be appropriate to recollect that by the previous order of 30.08.2010, the contesting parties were directed to comply with certain directions with regard to the transfer of some of the properties made after the suit was decreed on 15.07.2008. Neither the reply discloses the particulars sought by the Court nor were the contesting parties represented in the hearing today and on some previous hearings. The parties have not till date also disputed that the properties were sold pursuant to orders of 30.08.2010, and in fact, the affidavit filed by the fourth defendant would disclose that she received Rs. 25 lakhs as part of the consideration agreed upon by the parties to I.A. No. 8163/2008. In these circumstances, it would be fit and appropriate that suo motu action is initiated against the contesting parties, i.e. Defendant Nos. 3 and 6.

17. Issue notice to the said Defendant Nos. 3 and 6 as to why contempt proceedings ought not to be initiated against them for non-compliance of orders dated 30.08.2010, returnable on 05.08.2011. The Registry is directed to separately register the same as Suo motu contempt proceedings.

18. The Review Petition is allowed in the above terms. Consequently the order of 15.07.2008 and decree drawn pursuant of it are hereby recalled. In the circumstances of the case, Defendant Nos. 3 and 6 are directed to bear the costs of this proceedings, quantified at Rs. 55,000/-, to be paid to the Review Petitioner (Defendant No.2), within four weeks. In view of the orders made today in the Review Petition, I.A. No. 3529/2009 stands disposed of. CS (OS) 1284/1998, I.A. NO. 12937/2000

19. This Court has today, by an order allowed the Review Petition, setting aside the order dated 15.07.2008, disposing of the suit. Consequently, the decree drawn pursuant to the order also stands recalled. The Court had by previous order dated 30.08.2010 directed the parties to maintain status quo vis-à-vis the property bearing no. J-8/77N, Rajouri Garden. The parties to the suit are directed to maintain status quo both with regard to possession and title in respect of the

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00 Page 9 property as on date, till appropriate orders are passed by the Regular Bench.

List before the Regular Bench on 07.07.2011.

Order dasti.

S. RAVINDRA BHAT (JUDGE) MAY 13, 2011 'ajk'

Rev. Pet. 128/09, I.A. No. 3529/2009 in CS (OS) 1284/98, I.A. No. 12937/00 Page 10