Delhi High Court

Subodh Bhushan Srivastava vs Suresh Srivastava & Anr. on 31 August, 2012

Author: Valmiki J. Mehta

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) 1351/2002 & CS(OS) 1013/2004

%                                                     31st August, 2012
+        CS(OS) 1351/2002


         SURESH SRIVASTAVA                                ..... Plaintiff
                      Through:           Mr. N.K.Khetrapal, Adv.


                      versus


         SUBODH SRIVASTAVA AND ORS. C+ F+ ..... Defendants
                      Through: Mr. Alok Kumar with
                               Mr. Neeraj Gupta, Advs. for D-1.
                               Mr. Vimal Srivastava, Adv. for D-2.

                               &


+        CS(OS) 1013/2004


         SUBODH BHUSHAN SRIVASTAVA                    ..... Plaintiff
                     Through: Mr. Alok Kumar with
                              Mr. Neeraj Gupta, Advs.

                      versus

         SURESH SRIVASTAVA & ANR.               ..... Defendants
                      Through: Mr. N.K.Khetrapal, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?                          Yes.
CS(OS) 1351/2002 & CS(OS) 1013/2004                              Page 1 of 14
 VALMIKI J. MEHTA, J (ORAL)

IA No.7098/2011(u/O.12 R.6 CPC)

1.

This application under order 12 Rule 6 CPC has been filed by

the defendant no.2 in a suit for partition with respect to the suit property

bearing no.C-194, Vivek Vihar, New Delhi-95. The property is constructed

on two floors i.e. ground floor and first floor and is situated on a plot of land

admeasuring 220 sq. yds. There were originally four parties to the suit.

Plaintiff and the defendants no. 1 and 2 are brothers, the defendant no.3 was

the father of the plaintiffs and defendants no. 1 and 2, who expired

admittedly intestate during the pendency of the suit. The plaintiff supports

the application of the defendant no.2. The application is only opposed by

the defendant no.1.

2. As per the plaint though the suit property stood in the records of

the DDA in the name of the defendant no.1, however, all the parties to the

suit i.e. the brothers and the father had entered into an agreement on

27.9.1978 recording the fact that the different parties had invested different

amounts in this property and therefore this property is a joint property of all

the parties. The agreement dated 27.9.1978 was followed by two other

documents, one being a family settlement dated 3.2.1994 in which it is stated

that all the parties have a 1/4th share in the suit property, and an affidavit of

the defendant no.1 of the same date to the same effect.

3. Defendant no.1 has filed reply to the present application

reiterating the stand in the written statement. In the written statement, the

following defences are raised, and which are the defences which have been

argued before me, and in addition an aspect that the suit requires trial after

framing of issues on 30.8.2005 and therefore the application under Order 12

Rule 6 CPC should be dismissed. The defences which have been raised by

the defendant no.1, contesting non-applicant, in his written statement are as

under:-

i) The agreement dated 27.9.1978 was got signed in good faith

from the defendant no.1 because of representation made by the

plaintiff that the same will help for house tax purposes.

ii) The family settlement dated 3.2.1994 cannot be looked into in

law because it amounts to a partition deed, and therefore in the

absence of the same being stamped and registered, no rights can be

created thereunder. Similar is the stand even with respect to the

earlier agreement dated 27.9.1978.

iii) The suit property stands in the name of the defendant no.1 and

therefore without a properly stamped document rights in an

immovable property cannot be transferred by means of the

documentation dated 27.9.1978 and 3.2.1994.

4. Before proceeding ahead, I must note that the execution of the

documents dated 27.9.1978 and 3.2.1994 is not denied by the defendant

no.1. The issue is only of alleged misrepresentation and of legal

ineffectiveness of such documents.

5. In order to appreciate the plea of misrepresentation as urged by

the defendant no.1, it is necessary to reproduce para 6 of the preliminary

objections in the written statement of the defendant no.1 and which reads as

under:-

"6. The plaintiff is an Income Tax Practitioner. He completed his law studied in 1969 or thereabout. He started his taxation practice in 1970. The other parties to the suit had faith in the plaintiff. The plaintiff handled the financial affairs of Defendant No.1. It was on his advise and representation that it was convenient to execute certain documents which were required for property tax and other purposes, that documents included (a) alleged deed of agreement dated 27.9.1978 (b) alleged family settlement deed of 3.2.1994 (c) alleged affidavit of 28.12.1994 and (d) letter to DDA for transfer of suit property in the joint name of parties were executed.

That the alleged documents were got prepared by the plaintiff and have been filed by him alongwith the plaint. The said documents were signed by the answering defendant on the representation of the Plaintiff that they were required for property tax and other taxation matters and there was never any intention to transfer or to share the title of the suit property with any other party to this suit.

It was on the asking of the Plaintiff on the alleged reasoning of tax benefit that the Defendant No.1 wrote a letter to the Delhi Development Authority for including the Plaintiff's name and the names of Defendants No.2 and 3 in the title papers of the suit property. However, the said matter was never followed up and the title continues to be vested in the answering defendant exclusively."

6. The plea of the defendant no.1 therefore is that he signed the

agreement dated 27.9.1978 in good faith for property tax purpose. It must

be however noted that the defendant no.1 has not taken up a stand in the

written statement that he never had with him even a photocopy or copy of

this agreement dated 27.9.1978. Similarly in the written statement it is not

stated that the defendant no.1 did not have copies of the family settlement

dated 3.2.1994. Therefore, from the date of execution of these documents

i.e. from 27.9.1978 and 3.2.1994, copies of these documents are very much

with the defendant no.1.

7. Let us now examine the contents of the documents dated

27.9.1978 and 3.2.1994. So far as the agreement dated 27.9.1978 is

concerned, it mentions the factum with respect to the different brothers

having invested different amounts in the suit property and therefore the

property is declared as a joint property of all the parties to the agreement.

This document further specifically provides that the transfer in the name of

the different brothers as on that date i.e 27.9.1978 was not possible because

there are amounts outstanding to DDA. The agreement recites that when it

will be possible, the house would be transferred in the joint names of all the

parties. The agreement further provides that the defendant no.1 will not be

entitled to sell, mortgage or dispose of etc the suit property and nor any

portion of the property will be given on rent without the consent of other

parties to the suit.

8. So far as the family settlement deed dated 3.2.1994 is

concerned, the said family settlement crystallizes the shares of each of the

parties as 1/4th, inasmuch as the earlier document dated 27.9.1978 only

mentions the property as a joint property without specifying the specific

shares of each of the parties.

9. At this stage, I must before proceeding ahead deal with the

contention raised on behalf of the defendant no.1 that once issues have been

framed, and there is a plea of misrepresentation, trial must necessarily take

place, and the suit cannot be disposed of by applying the provisions of Order

12 Rule 6 CPC. In my opinion, this argument which is raised on behalf of

the defendant no.1 is wholly misconceived inasmuch as for disposing of the

present application under Order 12 Rule 6 CPC, I am proceeding on the

basis that there has been misrepresentation upon the defendant no.1. The

question is that even if there is a misrepresentation upon the defendant no.1,

yet, is the trial necessary? I must note that this plea of invalidity of the

documents dated 27.9.1978 and 3.2.1994 has been raised for the first time

after filing of the present suit and through the written statement of the

defendant no.1 in the year 2002. From 1994 till 2002, the family settlement

deed dated 3.2.1994 has never been challenged or endeavoured to be set

aside in any legal proceedings. Article 59 of the Limitation Act, 1963 is

relevant at this stage to show that challenge to the documents dated

27.9.1978 and 3.2.1994 was clearly time barred as on the date of filing of the

written statement by the defendant no.1. I may note that judgment will also

result in dismissal of the connected suit being CS(OS) 1013/2004 where the

defendant no.1 is the plaintiff in that suit for possession against the plaintiff

and defendant no.2 in this suit and who are the defendants in that suit.

Article 59 of the Limitation Act, 1963 reads as under:

           Description of suit      Period      of Time from which
                                    limitation     period begins to run
          To cancel or set aside an Three years    When the facts
      59. instrument or decree or                  entitling the plaintiff
          for the rescission of a                  to      have       the
          contract                                 instrument or decree
                                                   cancelled or set
                                                   aside or the contract
                                                   rescinded         first
                                                   become known to
                                                   him.

10. As per the aforesaid Article 59, if a person seeks cancellation of

a document, he must file a suit within three years of having knowledge of

the document which is sought to be cancelled. I have already stated above

that the defendant no.1 is very much aware of the execution of the

documents dated 27.9.1978 and 3.2.1994 from above very dates inasmuch as

the documents are admittedly signed by the defendant no.1, copies of such

documents are with him and the only stand is of alleged misrepresentation.

Besides the fact that CS(OS) 1013/2004 is being decided by this judgment

and in which suit the defendant no.1 is the plaintiff, in law in a partition suit,

every person is both a plaintiff and a defendant. A person is a plaintiff to the

extent of the share which comes to him and is a defendant to the extent of

the remaining shares of the others. The defendant no.1 cannot by means of

the written statement or the suit CS(OS) 1013/2004 seek cancellation of the

documents of the year 1994 in the year 2002. Such a challenge in the year

2002 is clearly barred by time as per the Article 59 of the Limitation Act,

1963.

11. The Hon'ble Supreme Court in the case of Prem Singh & Ors.

vs. Birbal & Ors., 2006 (5) SCC 353, has dealt with the provisions of

Section 31 of the Specific Relief Act, 1963 and Article 59 of the Limitation

Act, 1963. Section 31 of the Specific Relief Act, 1963 provides the

entitlement to seek cancellation of the documents. The Supreme Court in

the case of Prem Singh (supra) has held that there are two types of

documents; one is a void document and the second is a voidable document.

So far as the void documents are concerned, for such documents there need

not be filed any suit for cancellation under Section 31 of the Specific Relief

Act, 1963, however so far as the voidable documents are concerned such

documents have to be got cancelled as per Section 31 of the Specific Relief

Act, 1963. Since the plea of the defendant No.1 is that the documents in

question to which he is a party were got signed on misrepresentation, the

documents are therefore only voidable and not void, the defendant no.1 was

therefore bound to seek cancellation of such documents within three years

as per Article 59 of the Limitation Act, 1963 so that no rights could flow

from these documents. Having not so done the agreement dated 27.9.1978

and the family settlement dated 3.2.1994 achieve finality, subject to issues of

registration and stamping.

12. Of course, I would agree with the counsel for the defendant that

the agreement dated 27.9.1978, is bad for want of stamping and registration

inasmuch as the effect of such document is to extinguish the right of the

defendant no.1 in the suit property, and create rights in favour of the other

parties to the suit in the suit property, however, this argument will not

sustain so far as the family settlement deed dated 3.2.1994 is concerned. In

order to appreciate that the family settlement deed is in fact a settlement

deed and not a partition deed, I would like to reproduce the relevant paras of

the family settlement deed, which read as under:

"That it is mutually agreed upon by the party of the first part that he has only a limited un-specified 1/4th share in the above said property and Sh. Ishwar Dayal Srivastava is also having un-specified 1/4th share in the above said property and Sh. Vinod Bhushan Srivastava is also having 1/4th un- specified share in the above said property and Sh. Suresh Kumar Srivastava is also having 1/4th share un-specified in the above said property.

That it is mutually agreed upon between the parties to this agreement that the above mentioned property is a joint property in the name of all the above mentioned members of the family and shall continue remain so and in the event of sale, mortgage and disposing off in any other manner the above said property, the consent of all the four members of this agreement is necessary and no member of this agreement can never dispose-off, sale or mortgage the above said property with the consent of all the other signatories to this family agreement."

13. A reading of the aforesaid paras of the family settlement deed

shows that there is no specific language that it is only and only by virtue of

the family settlement deed dated 3.2.1994 that the rights have been created.

The language of the document shows mentioning of existing rights. For

example, in the first part aforesaid, the expression used is "he has only a

limited un-specified 1/4th share ......" this is a language by reference to the

past transactions and not of creating rights under the subject document dated

3.2.1994. Even in the next para, the language is "that the above mentioned

property is a joint property in the name of all the above mentioned members

of the family and shall continue to remain so .....". Once again this

language is a reference to an existing state of affair and not for a new state of

affair coming into existence by virtue of the family settlement dated

3.2.1994.

14. The Supreme Court in the judgment reported as Roshan Singh

and Ors. Vs. Zile Singh, AIR 1988 SC 881 has held the following document

to be a family settlement:-

"Today after discussion, it has been mutually agreed and decided that house rihaishi (residential) and the area towards its West which is lying open i.e., the area on the back of the rihaishi (residential) house has come to the share of Chaudhary Pooran Singh Zaildar.

2. House Baithak has come to the share of Chaudhary Soonda. The shortage in area as compared to the house rihaishi and the open area referred to, will be made good to Chaudhary Sunda from the field and gitwar in the Eastern Side.

3. Rest of the area of the field and gitwar will be half and half of each of co-sharers. The area towards West will be given to Chaudhary Pooran Singh and towards East will be given to Chaudhary Soonda.

4. Since house rihaishi has come to the share of Chaudhary Pooran Singh, therefore, he will pay Rs. 3,000/- to Chaudhary Soonda.

5. A copy of this agreement has been given to each of the co-sharers.

         Sd/- (in Hindi)                                          D/3-8-1955
         Pooran Singh Zaildar                                     L. T. I.
                                                                  Ch. Soonda."

If the Supreme Court does consider the document in the

aforesaid judgment to be a family settlement, a fortiori the family settlement

deed dated 3.2.1994 in the present case is a family settlement.

15. I must at this stage state that Courts have repeatedly observed

that family settlements which settle the disputes between the parties, bring

family peace, and therefore peace in the community must be endeavoured to

be upheld and not to be set aside. I think this rationale squarely applies in

the facts of the present case. That a family settlement is not required to be

stamped or registered is now well settled law and reference can be made to

the celebrated judgment in the case of Kale & Ors. Vs. Dy. Director of

Consolidation & Ors. AIR 1976 SC 807.

16. The up-shot of the above discussion is as under:-

i) The challenge by the defendant no.1 to the family settlement

deed dated 3.2.1994 is barred as per Article 59 of the Limitation Act,

1963 read with the judgment of the Supreme Court in the case of Prem

Singh (supra). Once the challenge to the same is barred, even if we

take the case of misrepresentation, as urged, true, yet, the document

being the family settlement deed dated 3.2.1994 is final.

ii) Once the family settlement deed dated 3.2.1994 is final, each of

the parties will have a 1/4th share in the suit property.

(iii) Since the father Sh.Ishwar Dayal Srivastava has died, and

admittedly intestate, the three brothers who are now the remaining three

parties to the suit will have a 1/3rd share each in the suit property.

17. I must note that the legislative intendment behind the Order 12

Rule 6 CPC is to see that there should not be unnecessary delay in the

conclusion of the suit once certain admitted facts emerge on record which

can lead to disposal of the suit. The stand of the defendant no.1 that the

parties must necessarily undergo rigours of a trial and tribulations of decades

of litigation has to be undergone by the plaintiff and defendant no.2, is an

argument , I reject in limine in view of the intendment of Order 12 Rule 6

CPC.

18. In view of the above, application under Order 12 Rule 6 CPC is

allowed. Suit of the plaintiff is decreed for partition by passing of

preliminary decree declaring that each of the plaintiff and the defendants no.

1 & 2 have a 1/3rd undivided interest in the suit property. Let the