Delhi High Court
Mrs. Lata Seth & Ors. vs Narinder Nath Seth & Ors. on 13 December, 2012
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : November 22, 2012
Judgment Pronounced on : December 13, 2012
+ RFA(OS) 41/2012
MRS. LATA SETH & ORS. .....Appellants
Represented by: Mr.Jatinder Kumar Sethi, Advocate.
versus
NARINDER NATH SETH & ORS. ..... Respondents
Represented by: Mr.Gaurav Puri, Ms.Geeta Anand and
Mr.Harsh Gupta, Advocates for R-1 to R-4.
Mr.K.B.Thakur, Proxy Counsel for R-5(a) to (d).
None for R-6(a) to (f) (service dispensed with vide
order dated April 20, 2012)
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J.
1. The ancestry of the litigating parties may be noted. The pedigree
table is as under:-
Lakshmi Narain Seth
I
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I I I I
Kedar Nath Seth Manmohan Seth Krishan Lal Seth Kamla Chopra
Son Son Son Daughter
Defendant No.6 Defendant No.7
Kedar Nath Seth
I
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I I I I
Rekha Seth Narinder Nath Seth Yogender Seth Bindu Mohindru
Wife Son Son Daughter
Plaintiff No.4 Plaintiff No.1 Plaintiff No.2 Plaintiff No.3
Manmohan Seth
I
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I I I I I
Lata Seth Rajiv Seth Rajesh Seth Renu Seth Monika Seth
Wife Son Son Daughter Daughter
Defendant No.1 Defendant No.2 Defendant No.3 Defendant No.4 Defendant No.5
Krishan Lal Seth
I
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I I I I
Kamlesh Seth Sandeep Seth Indu Sharma Sangeeta Malhan
Wife Son Daughter Daughter
Defendant No.6(a) Defendant No.6(b) Defendant No.6(c) Defendant No.6(d)
2. The table would reveal that Lakshmi Narain Seth was blessed with
three sons named Kedar Nath, Manmohan and Krishan Lal and a daughter
named Kamla. When the suit was filed i.e. the litigation was commenced
by the wife, sons and daughter of Kedar Nath, since Manmohan was also
dead, his wife, sons and daughters were impleaded as defendants No.1 to 5;
and being alive Krishan Lal was impleaded as defendant No.6. On his
death, his wife, sons and daughters were substituted as defendants No.6(a)
to 6(d). Kamla Chopra was impleaded as defendant No.7. We shall be
referring to the parties as plaintiffs and defendants as afore-said.
3. In the year 1999 the plaintiffs filed a suit against the defendants
praying that house bearing Municipal No.33/5, East Punjabi Bagh, New
Delhi and the shop bearing Municipal No.48, Khursheed Market, Sadar
Bazar, Delhi be partitioned on the plea that Late Sh.Lakshmi Narain Seth
(hereinafter referred to as „the deceased‟) was the owner of the said two
properties and he died intestate on February 24, 1967, leaving behind three
sons named, Kedar Nath Seth, Manmohan Seth and Krishan Lal Seth and a
daughter Kamla Chopra as his legal heirs. It was pleaded that Kamla
Chopra did not claim any right, title or interest in the said properties and
thus the sons of the deceased are entitled to 1/3rd share each in the two
properties as per the provisions of Section 8 of the Hindu Succession Act,
1956. It was pleaded that the eldest son, Kedar Nath died intestate on May
23, 1989, leaving behind his wife Rekha (plaintiff No.4), 2 sons named
Narinder Nath Seth (plaintiff No.1) and Yogender Seth (plaintiff No.2) and
a daughter Bindu Mohindru (plaintiff No.3) as his legal heirs. It was further
pleaded that Manmohan Seth died intestate on June 21, 1990 leaving
behind his wife Lata Seth (defendant No.1), 2 sons named Rajiv Seth
(defendant No.2) and Rajesh Seth (defendant No.3) and 2 daughters named
Renu Seth (defendant No.4) and Monika Seth (defendant No.5) as his legal
heirs. The third son Krishan Lal Seth was impleaded as defendant No.6.
Kamla Chopra was impleaded as defendant No.7.
4. Soon after the suit was instituted, defendant No.7 Kamla Chopra
expired and her legal heirs were brought on record but they chose not to
appear and contest the suit and hence were proceeded against ex-parte.
5. In the written statement filed by defendants Nos.1 to 5 i.e. the heirs
of Manmohan Seth, it was pleaded that besides the two properties
mentioned in the plaint, the deceased was also the owner of a shop bearing
Municipal No.123, Khursheed Market, Sadar Bazar, Delhi, which fact was
stated to have been concealed by the plaintiffs. It was pleaded that during
the lifetime of the deceased, Manmohan Seth was running a business from
the said shop i.e. bearing Municipal No.123, Khursheed Market, Sadar
Bazar, Delhi under the name and style „M/s.Angura Industrial
Corporation‟. Around the year 1968 the deceased partitioned the three
properties owned by him between his three sons by way of a family
settlement, which settlement was signed by the three sons of the deceased.
It was pleaded that as per the family settlement, the shop bearing Municipal
No.48 fell to the share of Manmohan Seth and Shop No.123 fell to the
share of Kedar Nath Seth. As regards the property pertaining to property
bearing Municipal No.33/5, East Punjabi Bagh, New Delhi, it was pleaded
that as per the family settlement each son of the deceased got three rooms
in the property. Whereas Kedar Nath Seth and Krishan Lal Seth got three
rooms each on the ground floor, Manmohan Seth got three rooms on the
first floor. It was pleaded that since the third son of the deceased, Krishan
Lal Seth, had no interest in business, the deceased did not give any share to
him in the two shops owned by him but recompensed him by giving him
cash and jewelry. Regarding the daughter of the deceased i.e. Kamla
Chopra, it was pleaded that since the deceased had spent huge sum on her
marriage he did not give any share to her in the properties owned by him. It
was pleaded that pursuant to the family settlement, on February 24, 1967
Manmohan Seth, Krishan Lal Seth and Kamla Chopra signed no objection
certificates to enable Kedar Nath to get transferred ownership of shop
bearing Municipal No.123, Khursheed Market, Sadar Bazar, Delhi in his
name and based thereon the shop was mutated in the name of Kedar Nath,
who either in the year 1972 or 1973 took possession thereof from
Manmohan and handed over possession of Shop No.48 to Manmohan. It
was pleaded that Kedar Nath Seth, and after his death his family, did not
honour the family settlement and did not sign the no objection certificates
to enable Manmohan Seth to obtain transfer of ownership of shop No.48 in
his name. They pleaded that the original papers pertaining to the
settlement were with Kedar Nath Seth since he was the eldest son and
made a grievance that the plaintiffs were retaining the same. This is a
condensed extract of the written statement filed, but we feel that pleadings
in para 8 of the preliminary submissions in the written statements and
relevant parts of the reply on merits to paras 1, 3 and 7 of the plaint need to
be extracted. They read as under:-
"8. That the plaintiffs cannot be allow to take
advantages of their own wrongs and harass the defendant
No.1 to 5 by concealing the material documents of
Family Settlement and other original papers in their
power and possession through their father late Sh. Kidar
Nath Seth, being the eldest son of the deceased Laxmi
Narain and was controlling the entire affairs of the
properties left by Sh. Laxmi Narain Seth since during his
life time and now blackmailing the answering defendants
with their dictates and malafide designs. Hence the suit is
malafide and is untenable under the law, till the original
documents are placed on record.
.....
ON MERITS:
1. .....The said Family Settlement was signed by all the
parties and the original documents were in possession of
Late Sh. Kedar Nath Seth - the predecessor-in-interests
of plaintiffs and as such they are taking undue advantage
of the said documents in their power and possession, and
detrimental to the interest of other defendant No.1 to 5
and seeking repartition of the given properties to claim
more share into that despite having lion‟s share already in
their possession than other defendants.....
xxxx
3. Para 3 of the plaint is replied in this way that the
plaintiff with clever designs have not included the
property No.123, Khursheed Mkt., Sadar Bazar, Delhi, of
the market value of more than Rs.26 lakh nor filed its
Site Plan, for the purpose of repartition of the properties
owned and left by deceased Sh. Laxmi Narain Seth at the
time of his death on 24.2.1967, which have already been
divided by the deceased Laxmi Narain during his lifetime
through Family Settlement, the documents of which are
in power and possession of plaintiffs through Sh. Kedar
Nath Seth - the father of plaintiff No.1 to 3 and husband
of plaintiff No.4 and the schedule of properties are thus
incomplete till property No.123, Khursheed Mkt., is
pooled and the cash and jewelry given to defendant No.6
are put together given in lieu of commercial property to
him, and mentioned in the said Family Settlement. The
plaintiffs be directed to place on record the said Family
Settlement affected by late Sh. Laxmi Narain Seth and
signed by the parties in token of its acceptance.
xxxx
7. Para 7 of the plaint as stated is wrong and denied. The
answering defendants have repeatedly requested the
plaintiffs to supply copy of the said Family Settlement
time and again, but the plaintiffs flatly requested to
oblige the answering defendants, to have separate
assessment of H. Tax and other legal formalities but to no
effect, and that is the main ground of animosity between
the plaintiff and the answering defendants. The property
is possessed individually in respect of separate portions
under the Family Settlement but the whole of the
property is till-date stand recorded in the name of late Sh.
Laxmi Narain Seth since after his death on 24.2.1967."
6. In the written statement filed by defendant No.6, he pleaded that
besides the two properties mentioned in the plaint, the deceased was also
the owner of shops bearing Municipal Nos.17, 123 and 123-A, Khursheed
Market, Sadar Bazar, Delhi, which fact was alleged to have been concealed
by the plaintiffs. It was stated that all the properties owned by the deceased
including the shops bearing Municipal Nos.17, 123 and 123-A, Khursheed
Market, Sadar Bazar, Delhi should be partitioned between the parties as per
the provisions of Hindu Succession Act, 1956.
7. It would be relevant to highlight that defendant No.6 made no
reference to any family settlement arrived at, as was pleaded by defendants
No.1 to 5 i.e. the heirs of Manmohan Seth, but pleaded that the dispute
pertaining to partition of the estate of the deceased had been referred to
arbitration and that an award was published, which record was stated to be
in the possession of the plaintiffs. We highlight the stand pleaded in
paragraph 2 of the written statement, which reads as under:-
"2. That the plaintiff has otherwise not come to this
Hon‟ble Court with clean hands and has suppressed facts
in regard to the arbitration proceedings and certain
awards which are in his custody and control and for this
reason also, the suit is not maintainable."
8. The plaintiffs chose not to file replication(s) to the written statements
filed by defendants Nos.1 to 6.
9. Relevant would it be to state that as per the plaintiffs, the estate of
the deceased consisted of a residential house bearing Municipal No.33/5,
East Punjabi Bagh, New Delhi and a shop bearing No.48, Khursheed
Market, Sadar Bazar, Delhi and that the same required to be partitioned
amongst the three sons of the deceased and with each branch of the three
sons being entitled to one-third share each. Defendants No.1 to 5, the
successors-in-interest of Manmohan Seth pleaded that apart from the two
properties referred to in the plaint there was a third property being Shop
No.123, Khursheed Market, Sadar Bazar, Delhi and pleaded a partition
under a family settlement during the life time of the deceased, and as per
their stand the suit had to be dismissed. The third son of the deceased i.e.
Krishan Lal stated that the estate of the deceased comprised, not two, not
three but four properties being three shops bearing Nos.7, 123 and 123A
Khursheed Market, Sadar Bazar as also the residential house at Punjabi
Bagh. He spoke about the dispute being settled before an Arbitrator, but
made it clear that he had no documents to support the same alleging that
the record was with his eldest brother i.e. Kedar Nath and hence with the
plaintiffs since Kedar Nath had died. His plea therefore was that all four
properties be partitioned.
10. On the basis of pleadings of the parties, vide order dated February
25, 2007 following issues were settled by the learned Single Judge:-
"1. Whether there was a family partition and
settlement between the parties about 32 years before or
not? OPD (1 to 5)
2. Whether late Sh. Lakshmi Narain Seth left
behind other properties than those mentioned in the
plaint, if so, whether they are liable to be partitioned or
not? OPD (1 to 6)
3. Whether the plaintiff is entitled to partition of
the properties mentioned in the suit? OPP
4. Whether the parties had acted upon the family
settlement, if any, and whether the parties are in
possession of their respective shares? OPD (1 to 5)"
11. In support of their case, the plaintiffs examined plaintiff No.1
Narinder Nath Seth as PW-1; and the sole witness.
12. In his testimony PW-1 essentially reiterated the averments made in
the plaint. Additionally, he deposed that no family settlement was ever
arrived at between the parties. With respect to shop bearing Municipal
No.123, Khursheed Market, Sadar Bazar, Delhi he deposed that though the
ownership of said shop earlier stood recorded in the name of the deceased
Laxmi Narain Seth but his father was the true owner of said shop since the
sale consideration for the said shop was paid by his father from his own
funds. He deposed that after the demise of the deceased, his legal heirs
issued no objection certificates to enable transfer of ownership of the said
shop in the name of Kedar Nath Seth. He deposed that in view of the no
objection certificates issued, on February 13, 1967 the ownership of the
said shop was transferred in the name of his father Kedar Nath Seth.
13. PW-1 was cross-examined by the legal heirs of defendant No.6 and it
would be relevant to note the following portion of his cross-examination:-
"It is wrong to suggest that there was any other family
property No.123, Khursheed Market, Sadar Bazar, Delhi.
This property was owned by my late father Sh.Kedar
Nath Seth. My late father Sh. Kedar Nath Seth purchased
this property in the year 1969. My late father was self
employed during his life time. He was doing business
with his younger brother Sh. Man Mohan Seth at shop
No.48, Khursheed Market, Sadar Bazar, Delhi.
I do not know exactly but the property No.17,
Khursheed Market, Sadar Bazar, Delhi was under the
ownership of late Sh. Man Mohan Seth.
Parties to suit residing at 33/5 Punjabi Bagh, Delhi are
not possessing independent portions and the arrangement
is haphazard. No arrangement has been made between
the parties to occupy their separate portions in 33/5
Punjabi Bagh, Delhi.
After the demise of my grandfather in the year 1967,
there was no settlement and the house was used
commonly and jointly by all the families.
Q. Who was doing the business from the shop at 48,
Khursheed Market, Sadar Bazar after the death of your
father in the year 1989?
A. The shop was occupied and worked by defendant
No.1 to 5 and their families.
Q. Did you ever or your brother sit on that shop?
A. No.
Q. What happened to the shop after the death of your
uncle in the year 1990?
A. The family members of Mr.Manmohan Lal Seth
continued the work on that said shop.
Presently family of defendant No.1 to 5 is occupying
the said shop. The partnership firm by the name of
S.L.Narang & Sons was operated till 1978-79 under the
partnership of my father and uncle. The shop was
purchased in the mid 1950‟s or 60‟s."
14. PW-1 was also cross-examined by the legal heirs of the defendants
Nos.1 to 5 and it would be relevant to note the following portion of his
cross-examination:-
"Q. Is it true that you have no personal knowledge
about the family partition which took place during the
lifetime of your grandfather except what has been told to
you by your father?
A. It is wrong. Vol. I am having documents to show that
no family partition took place ever.
I am relying upon Lease Deed of the house in the
name of my grandfather. It is correct that Lease Deed is
of 1961. Again said, it is a Sale Deed. It is wrong to
suggest that any family partition took place of the house
in the year 1966 during the lifetime of my grandfather.
Q. Do you have any knowledge of any partition in the
year 1966 in respect of the house.
A. No partition took place.
Q. What properties were left behind by your grand father
when he died in the year 1967?
A. one property at 48, Khursheed Market, Sadar Bazar,
Delhi and another property 33/5 East Punjabi Bagh,
Delhi.
Q. Whether any other property was left behind beside the
abovesaid properties by your grandfather?
A. As per my knowledge, no other property was left
behind except the abovesaid.
Q. I suggest it to you that your grandfather also left
behind one property at 123, Khursheed Market, Sadar
Bazar, Delhi. What have you to say?
A. According to my knowledge, this property was
purchased by my father but the same could not be in his
name, hence it was purchased in the name of my
grandfather which was later on transferred in the name of
my father and all other partners relinquished their shares.
Q. When the property 123, Khursheed Market, Sadar
Bazar was purchased?
A. It was purchased in the early 1960‟s.
Q. Do you remember when this property was transferred
in the name of your father?
A. It was transferred in the year 1967.
Q. Whether this transfer was effected during the lifetime
of your grandfather or after his death?
A. It was transferred subsequent to the death of my
grandfather.
Q. What was the reason in the family for transferring this
property in the name of your father?
A. As it was purchased by my father and it was not in his
name earlier, hence it was got transferred in the year
1967.
Q. Why the property was not got transferred before the
death of your grandfather?
A. There were some reasons that the property could not
be transferred in the name of my father before the death
of my grandfather.
Q. Can you give and explain the reasons?
A. I cannot.
It is wrong to suggest that the property No.123,
Khursheed Market, Sadar Bazar, Delhi was not
purchased by my grandfather. It is also wrong to suggest
that this property was purchased by my grandfather. The
shop bearing No.48, Khursheed Market was purchased
by my grandfather in the late 1950‟s and was in his
name. it is correct that according to lease deed, which is
now exhibited as Ex.PW1/D5, this property was acquired
by my grandfather in the year 1964. The property No.48,
Khursheed Market, Sadar Bazar is in the possession of
defendant no 1 to 5. Still this property in the name of my
grandfather.
Q. I suggest it to you that a family partition took place
during the lifetime of your grandfather and as per the
partition, property No.48, Khursheed Market was given
to predecessors of defendant No.1 to 5 and the property
No.123, was given to your father. What have you to say?
A. It is wrong to suggest.
Q. I suggest it to you that in furtherance of family
settlement, property No.123, Khursheed Market was
transferred in the name of your father on the basis of
Ex.PW1/D1 to ExPW1/D4. What have you to say?
A. It was not transferred in furtherance of family
settlement but otherwise. Vol. Had it been the case, then
48 Khursheed Market could have also been transferred in
the name of predecessors of defendant No.1 to 5.
We have sold property No.123, Khursheed Market,
Sadar Bazar, Delhi in the year 2003. I am not possessing
any original document of family settlement because no
such family settlement was arrived at between the parties
at any time. It is wrong to suggest that the family
settlement was reduced in writing and it was retained by
my father being the elder member of the family. It is
correct that I am possessing original papers of 48,
Khursheed Market.
Q. What your father was doing in his lifetime?
A. He was self employed and was doing business and
trading activities.
Q. Can you tell the details of the business, which he was
doing?
A. He was doing business of general merchandise.
Q. In which year, your father started business?
A. I do not remember the year but I have seen my father
doing business since my childhood.
Q. What your grandfather was doing in his lifetime?
A. He was also doing business with my father and it was
a joint business.
Q. Can you tell from which premises or shop number, the
aforesaid business was being done?
A. It was being run from 48, Khursheed Market, Delhi.
Q. Do you remember the name of the firm?
A. It was M/s S.L. Narain & Sons.
Q. Do you remember what business late Sh. Manmohan
Seth, predecessor of defendant No.1-5 was doing?
A. late Sh. Manmohan Seth was also doing business with
my father and grandfather.
Q. Do you remember from which premises, Mr.
Manmohan Seth was doing business?
A. From the same shop i.e. 48, Khursheed Market, Sadar
Bazar, Delhi.
Q. I put it to you that late Sh. Manmohan Seth was not
doing his business from 48, Khursheed Market, Sadar
Bazar but was doing his business from 123, Khursheed
Market under the name and style of Angura Industrial
Corporation. What have you to say?
A. I do not know about that.
Q. Do you know who was doing business and of what
type in 123, Khursheed Market, Sadar Bazar, Delhi?
A. From the year 1978, I have been doing my all
business in that shop.
Q. Who was doing business in this shop before 1978?
A. I do not remember.
Q. I suggest it to you that upto 1972-73 Mr. Manmohan
Seth was doing business in this ship under the name and
style of Angura Industrial Corporation. What have you to
say?
A. I do not know anything about that.
Q. I put it to you that in the year 1972-93, the
possessions of shops No.123, Khursheed Market and
Shop No.48, Khursheed Market were exchanged between
your father Mr. Kedar Nath Seth and your uncle Mr.
Manmohan Seth. What have you to say?
A. No. It is wrong. The shop No.123, Khursheed Market
was under the ownership of my father since late 60‟s.
Q. I suggest it to you that the shop No.123, Khursheed
Market, Sadar Bazar, Delhi remained in possession of
Mr. Manmohan Seth since the date when it was
purchased by Mr. Laxmi Narain Seth till the possession
of the same was given to your father. What have you to
say?
A. I do not know anything about that.
Q. Do you know who was in possession of the shop
No.123, Khursheed Market, Sadar Bazar, Delhi?
A. I know only that my father was the owner of this shop
since late 60‟s and the shop was in his possession.
Q. What was your father was doing in shop No.123,
Khursheed Market, Sadar Bazar, Delhi if the possession
of the same was with your father as stated by you?
A. I do not know anything about that.
Q. I put it to you that in the year 1972-73, the
possessions of shops No.123, Khursheed Market and
Shop No.48, Khursheed Market were exchanged between
your father Mr. Kedar Nath Seth and your uncle Mr.
Manmohan Seth and this exchange took place in view of
the family settlement wherein shop No.123, Khursheed
Market had fallen into the share of your father and shop
No.48, Khursheed Market had fallen in the share of
Mr.Manmohan Seth. What have you to say?
A. It is wrong. Vol. No family settlement was arrived at
all. Had it been then 48, Khursheed Market also could
have been in the name of Mr. Manmohan Seth. My father
owned shop No.123, Khursheed Market since late 60‟s.
Q. I put it to you that the shop No.48 Khursheed Market
could not have been transferred in the name of Mr.
Manmohan Seth since your father had himself and also
influenced other family members not to give NOC for
effecting the transfer of title in favor of Mr.Manmohan
Seth. What have you to say?
A. I do not know about that but if it had been settled,
both the properties would have been transferred."
15. As regards documentary evidence, amongst other documents, PW-1
proved four affidavits dated August 19, 1967, Ex.PW-1/D1, Ex.PW-1/D2,
Ex.PW-1/D3 and Ex.PW-1/D4 executed by Dhanwati Seth, the wife of the
deceased, Kamla Chopra, the daughter of the deceased, Man Mohan Seth
and Krishan Lal Seth, the sons of the deceased, respectively, which
affidavits record that the deponent(s) are relinquishing their share in the
shop bearing No.123, Khursheed Market, Sadar Bazar, Delhi in favor of
Kedar Nath Seth.
16. Defendants No.1 to 5 examined defendant No.2, Rajeev Seth as DW-
1, who in his testimony essentially reiterated the averments made in the
written statement filed by defendants No.1 to 5, but it would be relevant to
note following portion of his examination-in-chief:-
"11. I state that the said Family Settlement was
signed by all the parties and the original documents in
relation to the said family settlement were in possession
of Late Sh.Kedar Nath Seth, the predecessor-in-interest
of plaintiffs.
12. I state that the plaintiffs have concealed the
material documents of Family Settlement and other
original papers in their power and possession. Late Shri
Kidar Nath Seth, being the eldest son of the deceased
Laxmi Narain and was controlling the entire affairs of the
properties left by Sh.Laxmi Narain Seth and was given
all the said documents of family settlement.
13. I state that the defendants No.1 to 5, have
repeatedly requested the plaintiffs to supply copy of the
said Family Settlement time and again, but the plaintiffs
flatly refused to oblige the said defendants."
17. DW-1 was cross-examined by the plaintiffs and it would be relevant
to note the following portion of his cross-examination:-
"Q. Who informed you about the family settlement of the
year 1966?
A. My father Sh. Manmohan Lal Seth, Kishan Lal Seth
and Mr. Kedar Nath Seth.
Q. What all did they inform you about the alleged family
settlement?
A. They told me that the shop No.48, Khursheed Market
is in the share of defendant No.1 to 5 and the shop
No.123 and 123A, Khursheed Market, Delhi is of the
plaintiff. The ground floor of the property 33/5 East
Punjabi Bagh, Delhi is of plaintiff and defendant No.6
(half each). The first floor and above and the roof is of
defendant No.1 to 5. Defendant No.6 received cash and
jewelry from grandfather Sh. Laxmi Narain Seth.
Nothing was given to defendant No.7 as sufficient money
was spent on her marriage.
Q. Is it correct that nothing else was told to you except
the above as replied by you?
A It is correct.
Q. What do you mean by „family settlement‟?
A It means that the properties were distributed among
the parties.
Q. Was this family settlement in writing or oral?
A. It was oral.
Q. Did late Sh. Manmohan Seth file income tax and
wealth tax?
A. He used to file both.
Q. Did he disclose that the properties were partitioned, in
the income tax and wealth tax documents?
A. I do not know.
Q. Do you file wealth tax and income tax?
A. I file only income tax returns.
Q. Have you disclosed the partition of property in
income tax returns?
A. No.
Q. Is it correct that the shop No.123, Khursheed Market
was initially allotted in the name of Sh. Laxmi Narain
Seth and after his death, the shop was transferred in the
name of Sh. Kedar Nath Seth?
A. This shop was transferred in the name of Sh. Kedar
Nath Seth on the basis of NOC given and signed by all
the parties and similarly such NOC was given for shop
no 48, Khursheed Market, Delhi.
Q. Why the shop No.48, Khursheed Market, New Delhi
was not mutated in the year 1967 when the shop No.123,
Khursheed Market, Delhi was mutated at the same time?
A. Because all the documents were in possession of
plaintiff‟s father.
Q. Can you tell the source of income of Sh. Kishan Lal
Seth during his lifetime?
A. He was in service.
Q. Whether you were informed by both of your uncle and
your father about the distribution of assets and profits of
the partnership business of late Sh. Laxmi Narain Seth
alongwith the family settlement?
A. When I was informed in the year 1978, everything
had already been distributed.
Q. Is it correct that since you were not born in the year
1966 so whatsoever you say is hear-se?
A. The facts were told to me by my father and my uncle
verbally.
Q. Whether you were informed as to in whose presence,
the family settlement was arrived?
A. I was told that Sh. Laxmi Narain Seth had decided so
and all were bound with the same." (Emphasis Supplied)
18. DW-1 was cross-examined by the legal heirs of defendant No.6 and
it would be relevant to note the following portion of his cross-
examination:-
"Q. Please see para No.7 of your affidavit in
evidence of DW1/A and tell, how the defendant No.6
was compensated in terms of alleged family settlement?
A. Jewelry and cash were given to defendant No.6 in
terms of family settlement.
Q. Can you tell, what was the total value of the cash and
jewelry which were given to defendant No.6 as
compensation in terms of alleged family settlement?
A. I do not know.
Q. Is it correct that your father relinquished his rights in
the property No.123, Khursheed Market, Sadar Bazar,
Delhi?
A. It is correct.
Q. Please see documents regarding appointment of an
Arbitrator, dated 17.07.1978 and tell whether this
document bears signature of your father?
A. (Witness has replied the question after going through
the document.) I cannot say whether the signature
appearing at point X-1 are of my father but name of my
father is appearing at point X-2. The same is marked as
Mark X.
Q. Please see Ex.PW1/D-3 and tell whether this
document bears the signature of your father?
A. (Witness has replied the question after going through
the document.) I am unable to identify the signatures of
my father on this document.
Q. At this stage, attention of witness has been drawn to
the para No.11 of his affidavit of evidence Ex. DW1/A
and he has been asked as to whether the averments in
para No.11 are correct?
A. It is correct.
The family settlement was not in writing."
(Emphasis Supplied)
19. We highlight that DW-1 proved exhibits D-1 and D-2 as also DW-
1/1 to Ex.DW-1/12, and put in a tabular form, the description and
particulars of the documents would be as under:-
S. Description of Document Particulars of Document
No.
1. Assessment order dated The order records that
March 14, 1988 Ex.DW- M/s Monica Enterprises
1/2 passed in respect of (firm of Late Manmohan
the shop bearing Seth) is carrying on
Municipal No.48, business in the said shop.
Khursheed Market, Sadar
Bazar, Delhi.
2. Notice dated September The notice records that
26, 1984 Ex.D-1 issued Late Manmohan Seth is
by Sales Tax Officer in carrying on business in
respect of the shop the said shop.
bearing Municipal No.48,
Khursheed Market, Sadar
Bazar, Delhi.
3. Notice Ex.D-2 issued by The notice records that
Sales Tax Office in the M/s S.L. Narain & Sons
year 1984 respect of the is carrying on business in
shop bearing Municipal the said shop.
No.48, Khursheed
Market, Sadar Bazar,
Delhi.
4. Telephone bill dated July The bill records that a
1, 1985 Ex.DW-1/1. telephone was installed in
the name of wife of Late
Manmohan Seth in the
shop bearing Municipal
No.48, Khursheed
Market, Sadar Bazar,
Delhi.
5. Registration Certificate The certificate records
dated January 19, 1980 that Lata Seth, wife of
Ex.DW-1/3 Late Manmohan Seth is
the occupier of the shop
bearing Municipal No.48,
Khursheed Market, Sadar
Bazar, Delhi.
6. A demand letter Ex.DW- The letter records that a
1/4 issued by MTNL to telephone is installed in
Lata Seth, the wife of the name of wife of
Manmohan Seth. Manmohan Seth in the
shop bearing Municipal
No.48, Khursheed
Market, Sadar Bazar,
Delhi.
7. A communication The communication
Ex.DW-1/9 issued by records that Manmohan
MCD Seth is the occupier of the
property bearing
Municipal No.3/55, East
Punjabi Bagh, New
Delhi.
8. Water and electricity bills The bills record that the
Ex.DW-1/10, DW-1/11 wife of Manmohan Seth
and Ex.DW-1/12 is the occupier of the said
respectively issued in property.
respect of the property
bearing Municipal
No.3/55, East Punjabi
Bagh, New Delhi.
9. A property tax receipt The receipt records that
dated March 21, 2005 the wife of Manmohan
Ex.DW-1/6 issued in Seth is the occupier of the
respect of the shop said shop.
bearing Municipal No.48,
Khursheed Market, Sadar
Bazar, Delhi.
20. The legal heirs of deceased defendant No.6 examined Sandeep Sethi
[defendant No.6(b)] as DW-2 who in his testimony essentially reiterated
the averments made in the written statement filed by defendants No.6.
Additionally, he deposed that since the ownership of shop bearing
Municipal No.123, Khursheed Market, Sadar Bazar, Delhi owned by the
deceased was transferred in the name of Kedar Nath Seth, on July 10, 1978
Kedar Nath Seth wrote letter Ex.DW-6/2 wherein he declared that he does
not want any other property out of the estate of the deceased. He deposed
that thereafter vide deed dated July 17/27, 1978, Ex.DW-6/1, the three sons
of the deceased referred the disputes relating to division of the estate of the
deceased to a sole arbitrator. On January 5, 1979 an arbitral award Ex.DW-
1/3 was pronounced by the arbitrator pertaining to the division of the estate
of the deceased between his three sons but stated that said award was not
acted upon by the parties. He deposed that on August 16, 1984 the
President executed a reconveyance deed Ex.DW-6/4 (also exhibited as
Ex.D-8) in respect of the property bearing Municipal No.3/55, East Punjabi
Bagh, New Delhi in favor of Kedar Nath Seth, expressly recording that this
was because of he being the 'Karta of HUF'. On September 12, 1988
Krishan Lal Seth wrote a letter Ex.DW-6/6 to the arbitrator regarding
implementation of the award dated January 5, 1979. The three sons of the
deceased had also entered into a deed of agreement Ex.DW-6/7 regarding
the division of estate of the deceased, which deed was never acted upon by
them i.e. 3 sons of the deceased.
21. DW-2 was cross-examined by the plaintiffs and it would be relevant
to note the following portion of his cross-examination:-
"I did not file any execution petition after the award of
the Arbitrator. To my knowledge, objections were not
filed by any of the parties.
At this stage, attention of the witness has been drawn
to the document Ex.PW1/D4 and the witness is asked as
to whether the same bears the signature of his father at
points "A" and "B". The witness has replied in
affirmative stating that the same are his father‟s
signatures."
22. It needs to be highlighted that the plaintiffs did not put any question
or suggestion to the witness regarding the letters dated July 10, 1978
Ex.DW-6/2, deed dated July 17/27, 1978 Ex.DW-6/1 and deed of
agreement Ex.DW-6/7 and thus the testimony of the witness with respect to
said document remains unchallenged.
23. DW-2 was also cross-examined by defendants Nos.1 to 5 and it
would be relevant to note the following portion of his cross-examination:-
"My father gave me the documents relating to the
Arbitration Award referred by me in my affidavit. I do
not remember as to in which year the said documents
were given to me by my father. So far as I have learnt,
my father participated in the Arbitration proceedings. I
learnt this through my father as well as after going
through the documents. I do not remember if the
documents relating to the Arbitration proceedings have
been reflected in the written statement filed by my father
or that the same were relied upon by him or not. It is
incorrect to suggest that I am deposing falsely.
Q. It is put to you that the documents relating to the
arbitration proceedings were never with your father but
the same were with the plaintiffs. What have you to say?
A. I have seen the document with my father as well as
with the plaintiff.
Q. Why did you give up your families claim and claim of
all the legal heirs of defendant No.6 for their share in
property No.123 & 123A, Khursheed Market, Sadar
Bazar, Delhi?
Ans. Because I saw a document that relinquishes the
defendant No.6‟s right for the property No.123 & 123A,
Khursheed Market, Sadar Bazaar, Delhi.
Q. In what all properties, you are claiming, 1/3 share of
your family?
A. H.No.33/5, Punjabi Bagh, Delhi, (2) Shop No.48,
Khursheed Market, Delhi and (3) Shop No.17,
Khursheed Market, Delhi.
My family including my mother and two sisters
and given up their share in property No.123 & 123A,
Khursheed Market, Sadar Bazar, Delhi. I do not think
whether any consideration was received by us for giving
up our share in the said two properties i.e., 123 & 123A,
Khursheed Market, Delhi"
24. As regards the documentary evidence, DW-2 proved Ex.DW-6/1 to
Ex.DW-6/7 and put in a tabular form highlighting the description of the
documents and the particulars thereof, the chart would read as under:-
S. Description of Particulars of Document
No. Document
1. A handwritten note The note records that
dated July 10, 1978 'Kedar Nath Seth
Ex.DW-6/2 relinquishes all his rights
purportedly written by in the estate of the
Kedar Nath Seth deceased'.
2. An agreement for The contents of said
appointment of agreement shall be noted
arbitrator dated July in detail in the subsequent
17/27, 1978 Ex.DW- part of the judgment.
6/1 purportedly
executed by the 3 sons
of the deceased.
3. A reconveyance deed The deed records that the
dated June 16, 1984 President has reconveyed
Ex.DW-6/4 (also the property in question
exhibited as Ex.D-8) in favor of 'Kedar Nath
executed in respect of Seth, Karta of HUF'.
the property bearing
Municipal No.3/55,
East Punjabi Bagh,
New Delhi.
4. A letter dated The letter records that
September 12, 1988 Krishan Lal Seth is
Ex.DW-6/6 written by aggrieved with the award
Krishan Lal Seth to dated January 5, 1979
I.R. Chopra, the sole passed by the arbitrator
arbitrator. and thus the arbitrator
should file the award in
the court for the purposes
of making it rule of the
court.
5. A deed of agreement The deed is largely
Ex.DW-6/7 regarding illegible and its date is
division of estate of also not discernible. But
the deceased executed it would show that the
by 3 sons of the three brothers have
deceased. referred to Shop No.17,
48 and 123 Khursheed
Market and the house at
Punjabi Bagh as the
subject matter of
dispute and
acknowledges that Shop
No.17 in the name of
Manmohan and Shop
No.123 in the name of
Kedar Nath Seth are
properties of the joint
family requiring to be
partitioned.
6. An arbitral award The contents of said
dated January 5, 1979 award shall be noted in
Ex.DW-6/3 passed by detail in the subsequent
I.R. Chopra, sole part of the judgment.
arbitrator.
25. Vide impugned judgment and decree dated February 8, 2012, the
learned Single Judge has held that the plaintiffs are entitled to properties
bearing municipal No.3-55, East Punjabi Bagh, New Delhi and shop
No.48, Khursheed Market, Sadar Bazar, Delhi to be partitioned and that the
share of the three branches of the three sons of late Lakshmi Narain Seth
was 1/3rd each. A preliminary decree has been passed to said effect.
26. In reaching the conclusion, with respect to the evidence led the
learned Single Judge has held :-
(i) Whereas the case set up by defendants Nos.1 to 5, as discernible from
the written statement filed by them and the examination-in-chief of their
witness Rajeev Seth DW-1 (defendant No.2), was that a family settlement
was arrived at between the 3 sons of the deceased around the year 1966 and
the same was signed by the 3 sons of the deceased; Rajeev Seth DW-1
stated, at a variance therewith, in his cross-examination by stating that an
oral family settlement was arrived at between the 3 sons of the deceased;
which discrepancy completely falsifies the case pleaded by defendants
Nos.1 to 5 that a family settlement was arrived at between the 3 sons of the
deceased;
(ii) The fact that the witness of the defendants Nos.1 to 5 i.e. Rajeev Seth
DW-1 (defendant No.2) had no personal knowledge about the alleged
family settlement but claimed to have derived knowledge about the same
from his father and uncle and that Rajeev Seth pleaded ignorance when
questioned whether his father Manmohan Seth had disclosed the factum of
division of the estate of the deceased by way of family settlement to the
income-tax and wealth-tax authorities, belied the case of defendants No.1
to 5 that a family settlement was arrived between the 3 sons of the deceased
around the year 1966;
(iii) The reconveyance deed dated June 16, 1984, Ex.DW-6/4, which
records that the property bearing Municipal No.3/55, East Punjabi Bagh,
New Delhi has been reconveyed in favor of Kedar Nath Seth in his
capacity as Karta of HUF coupled with the fact that the witness of the
defendant No.6/legal heirs of defendant No.6, Sandeep Seth DW-2
(defendant No.6(b)) admitted that his father Kishan Lal Seth had executed
an affidavit relinquishing his rights in the shop bearing Municipal No.123,
Khursheed Market, Sadar Bazar, Delhi and that defendants Nos.1 to 5 did
not produce a single document to establish that a family settlement was
arrived between the 3 sons of the deceased, falsifies the case set up by
defendants Nos.1 to 5;
(iv) Had any family settlement been arrived at between the 3 sons of the
deceased, there was no occasion for the parties to sign the relinquishment
deeds in respect of property bearing No.123, Khursheed Market, Sadar
Bazar, Delhi in favor of Kedar Nath Seth;
(v) Had there been any family settlement between the 3 sons of the
deceased as claimed by defendants Nos1 to 5 the parties would have
executed relinquishment deeds in respect of property bearing Municipal
No.48, Khursheed Market, Sadar Bazar, Delhi in favor of Manmohan Lal;
but the same was not done;
(vi) The mere fact that the parties have been living in different portions in
property bearing Municipal No.3/55, East Punjabi Bagh, New Delhi since
last several decades is not sufficient to establish that a family settlement
was arrived at between the 3 sons of the deceased; particularly when the
alleged family settlement as alleged was wholly inequitable; and
(vii) The claim made by the defendant No.6/legal heirs of defendant No.6
that the deceased was the owner of property bearing Municipal No.17,
Khursheed Market, Sadar Bazar, New Delhi at the time of his death had to
fail in view of the fact that no evidence was led by the defendant No.6/legal
heirs of defendant No.6 to prove the ownership of the deceased of the said
property and no suggestion to said effect was given to the witnesses of the
plaintiffs and defendants Nos.1 to 5 in their cross-examination.
27. Aggrieved by the impugned judgment and decree dated February 8,
2012 passed by the learned Single Judge the defendants Nos.1 to 5 have
filed the present appeal under Section 96 of the Code of Civil Procedure.
28. In support of the present appeal, learned counsel for the defendants
Nos.1 to 5 had argued that:-
A) That the conclusion arrived at by the learned Single Judge that no
family settlement was arrived at between the 3 sons of the deceased around
the year 1966 is erroneous since it is based upon faulty appreciation of
evidence led by the parties. It was argued that the learned Single Judge
failed to appreciate the fact that the factum of execution of relinquishment
deeds by the legal heirs of the deceased in respect of the shop bearing
Municipal No.123, Khursheed Market, Sadar Bazar, Delhi in favor of
Kedar Nath Seth in the year 1967 pursuant to which the ownership of said
shop was transferred in the name of Kedar Nath Seth is a clear pointer to
the fact that a family settlement was arrived at between the 3 sons of the
deceased around the year 1966 as per which shop bearing Municipal
No.123, Khursheed Market, Sadar Bazar, Delhi fell to the share of Kedar
Nath Seth, particularly when no evidence was led by the plaintiffs to
establish that the deceased was a benami owner of said shop and Kedar
Nath Seth was the true owner of the said shop. Counsel highlighted that the
learned Single Judge has ignored the evidence that said shop was with
Manmohan Seth and shop No.48 Khursheed Market, Sadar Bazar was with
Kedar Nath Seth and the two brothers had exchanged possession of the
shops, which would only be possible if there was a family settlement as
alleged.
B) Alternatively, it was argued by learned counsel for the defendants
Nos.1 to 5 that the learned Single Judge ought to have held the deceased to
be as the owner of the shop bearing Municipal No.123, Khursheed Market,
Sadar Bazar, Delhi and directed partition of said shop in 3 equal shares
between the plaintiffs, defendants Nos.1 to 5 and legal heirs of defendant
No.6 in view of the fact that the deceased was earlier the recorded owner of
said shop and the plaintiffs had led no evidence whatsoever to establish that
the deceased was the benami owner of said shop and Kedar Nath Seth was
the true owner of the shop having paid sale consideration thereof.
29. Per contra, learned counsel for the plaintiffs contended that the
impugned judgment and decree dated February 8, 2012 passed by the
learned Single Judge is perfectly legal and valid which plea was supported
by the legal heirs of deceased defendant No.6.
30. As noted by us in paragraph 9 above, as per the plaintiffs the estate
of late Shri Laxmi Narain Seth consisted of a residential house No.33/5,
East Punjabi Bagh, New Delhi and shop No.48, Khursheed Market, Sadar
Bazar and that the same were liable to be partitioned amongst the branches
of his three sons. As per defendants No.1 to 5, the successors-in-interest of
Manmohan Seth, they pleaded that apart from the said two properties, Shop
No.123 Khursheed Market, Sadar Bazar, Delhi was also owned by the
deceased and that the estate had been partitioned in the year 1966. The
third son i.e. Krishan Lal pleaded that apart from the residential house and
Shop No.48 Khursheed Market, the deceased also owned Shop No.17, 123
and 123A Khursheed Market, Sadar Bazar and pleaded that the disputed
had been settled before an Arbitrator and simultaneously highlighted that
he could not make good the plea since he had no papers relating to
arbitration; thus he pleaded that not two, not three, but four properties be
partitioned.
31. It is unfortunate that neither before the learned Single Judge nor
before us, and for which we have proof through the medium of the written
submissions filed by learned counsel for the three warring groups, Ex.DW-
6/1 and Ex.DW-6/3, which are very vital documents were not even referred
to. Similarly, nobody referred to Ex.DW-6/7 which is also a vital
document, but unfortunately is in tatters, but whatever can be read therein
would be relevant.
32. Ex.DW-6/1 dated July 17/27, 1978 reads as under:-
"APPOINTMENT OF ARBITRATOR
WE, the three brothers, Sarvashri Kidar Nath Seth,
Kishan Lal Seth and Man Mohan Lal Seth sons of Late
L. Lachhmi Narain Seth and carrying on business in the
name of Messers. S.L. Naran & Sons, Khursheed Market,
Sadar Bazar, Delhi - 110 006.
AND WHEREAS certain disputes in business have
arisen and all the three brothers named above have
decided to part company and have decided to appoint
Shri Amar Nath Khanna, r/o 562, KatraNeel, Delhi - 110
006 as the sole arbitrator in connection with the under
noted disputed matters :-
i) Dissolution of H.U.F.
ii) Checking of accounts of business being carried on by
the firm.
iii) Division of undernoted property/ies inherited from
our late father L. Lachhmi Narain Ji Seth, namely:-
a. One house situated at 33/5, Punjabi Bagh, New Delhi
- 110 006.
b. Two shops situated at 48 and 123, Khursheed Market,
Sadar Bazar, Delhi - 110 006.
c. One shop situated at 17, Galli Burnawali, Sadar
Bazar, DELHI- 110 006.
3. THAT THE AWARD OF Shri Amar Nath, Sole
Arbitrator should be final and binding on all the three
brothers named above."(Emphasis Supplied)
33. The relevant portion of the arbitral award dated January 5, 1979
Ex.DW-6/3 reads as under:-
"ARBITRATION CASE
In the matter of Arbitration between
Shri Kidar Nath Seth s/o. Late Shri Lachhmi Narain Seth,
Resident of 33/5, Punjabi Bagh, New Delhi
...Party No.1.
Vs.
Shri Man Mohan Lal Seth s/o. Late Shri Lachhmi Narain
Seth, Resident of 33/5, Punjabi Bagh, New Delhi
...Party No.2.
and
Shri K.L. Seth s/o. Late Shri Lachhmi Narain Seth,
Resident of 33/5, Punjabi Bagh, New Delhi
...Party No.3.
WHEREAS dispute having arisen between the parties,
Shri Kidar Nath Seth s/o. Late Shri Lachhmi Narain Seth
referred the same for Arbitration of Shri I.R. Chopra on
9.10.78. Shri Man Mohanlal Seth s/o. Late Shri Lachhmi
Narain Seth and Shri K.L. Seth s/o. Late Shri Lachhmi
Narain Seth also consented vide Court Paper of Rs.2/-
brought by Shri Narinder Seth s/o Shri Kidar Nath Seth
signed by all of them on 12.10.78 and 13.10.78.
I, I.R. Chopra, the Arbitrator in the dispute fixed hearing
dates to which all the three consenting parties
scrupulously complied. Last hearing date was fixed on 8th
November, 1978 when all the concerned parties were
present. All evidence produced before me was examined.
Having fully considered the matter in dispute and all oral
and documentary evidence produced before my the
Plaintiff and the Defendants, I hold that Shri Kidar Nath
Seth will keep the firm with him in his individual
capacity. Mr. Man Mohanlal Seth and Shri K.L. Seth will
therefore sign a dissolution deed and Shri Kidar Nath
Seth will be responsible to deposit dissolution deed with
the appropriate authorities. The entire liabilities of the
firm: M/s S.L. Narain & Sons shall be undertaken by the
Plaintiff. To discharge such liabilities he is allowed to
retain shop No.123 & 123A and Shop No.17. (For Shop
No.17: transfer deed shall be signed in favor of the
Plaintiff by the 1st Defendant).
The 1st Defendant is presently the sole owner of the Shop
No.17, which ultimately belonged to the HUF. The
Plaintiff shall have to exclusive right to enjoy, mortgage,
alienate or sell this property. The first Defendant, his
successors, attorneys or representatives shall not cause
any hindrance or otherwise to the exclusive use of this
property by the Plaintiff or his successors.
The Plaintiff and the 1st Defendant shall vacate their part
of the House at 33/5, Punjabi Bagh by 20th January, 1979.
They will relinquish all their rights in this property in
favor of IInd Defendant. The Second Defendant shall
have the exclusive ownership right to this property.
Shop No.48, Khursheed Market, Sadar Bazar, Delhi is
given to Shri Manmohan Lal Seth, the 1st Defendant. The
Plaintiff and the IInd Defendant will relinquish all their
rights in this property in favor of Ist Defendant. The Ist
defendant shall have the exclusive ownership right to use
this shop, alienate it, give the whole or part of it on rent,
mortgage it or sell it." (Emphasis Supplied)
34. As regards Ex.DW-6/7, which bears a date, but unfortunately over
which, while putting the exhibit mark an overwriting has taken place
thereby resulting in the date being illegible, we find that the document is in
tatters, but its caption records that it is a deed of agreement executed
between Kedar Nath Seth, Manmohan Seth and Krishan Lal Seth. Para 1
notes that Shops No.17, 48 and 123 Khursheed Market, Sadar Bazar and
House No.33/5 Punjabi Bagh are the joint properties and that Shop No.17
is in the name of Manmohan and Shop No.123 is in the name of Kedar
Nath, but have to be treated as joint properties belonging to the co-
parceners. The document appears to be a memorandum of a family
partition and certainly suggests that the three brothers agreed that Shop
No.48 Khursheed Market would be the exclusive property of Manmohan
Seth and Shops No.17 and 123 Khursheed Market shall be those of Kedar
Nath Seth. But unfortunately since the document has got damages and
mutilated and there is no clarity with respect to what the brothers agreed
with respect to the property at Punjabi Bagh, we would be constrained to
hold that it would be unsafe to rely upon the document as conclusive proof
that the brothers had partitioned the joint family properties. However,
reference can be made to the document with respect to the admissions that
three shops No.17, 48, and 123 and the house at Punjabi Bagh were to be
partitioned.
35. The finding returned by the learned Single Judge that there is no
evidence to establish that the deceased owned Shop No.17 is a result of
learned counsel for the parties not drawing the attention of the learned
Single Judge, and unfortunately even before the Division Bench, that as
late as July 1978, evidenced by Ex.DW-6/1 the three sons of the deceased
had made a reference to the Arbitrator and therein had clearly indicated that
the estate of the deceased which had to be partitioned consisted of House
No.33/5 East Punjabi Bagh, New Delhi, Shop No.17, 48 and 123,
Khursheed Market, Sadar Bazar, Delhi. Even the award Ex.DW-6/3 made
a reference to the three shops and the house and the manner in which the
same would be partitioned. Ex.DW-6/7 has also been overlooked.
36. Now, the plaintiffs did not dispute that Kedar Nath Seth was
carrying on business from Shop No.48 and Manmohan Seth was carrying
on business from Shop No.123 and that the two brothers exchanged
possession somewhere around the year 1972 or 1973. Prior thereto the No
Objection Certificates signed by Manmohan Seth and Krishan Lal Seth
were used by Kedar Nath to get mutated in his name Shop No.123.
Something did happen within the family occasioning the two brothers to
exchange possession of the respective shops in their occupation.
Something happened within the family which led to the No Objection
Certificates being issued. There is evidence that the brothers did discuss
something pertaining to the estate of their father, but the evidence is
scattered and hazy. It is fuzzy and therefore a judicial eye is unable to
discern what exactly was decided amongst the brothers. However, one
thing is clear. There being no evidence that Kedar Nath Seth had paid the
sale consideration when Shop No.123 Khursheed Market was purchased in
the name of Laxmi Narain Seth, the plea set up by the plaintiffs that the
relinquishment deeds/No Objection Certificates were executed because
Kedar Nath Seth was the benami owner of the said shop cannot hold true.
37. As noted by us hereinabove defendant No.6 in his written statement
had referred to the disputes being referred to arbitration. The plaintiffs did
not rebut the plea by filing a written statement. Defendant No.6(b),
Sandeep Sethi, who appeared as DW-2 deposed that the three sons of the
deceased had referred the dispute to arbitration as per reference document
Ex.DW-6/1 dated July 17/27, 1978 resulting in the award Ex.DW-6/3 being
pronounced on January 05, 1979. Neither the plaintiffs who cross-
examined him nor the other defendants challenged his testimony nor the
genuineness of the two exhibits proved by him.
38. The said two documents would evidence that the dispute between the
brothers pertaining to the partition of the estate of their father kept on
simmering till the year 1978 and the three brothers, while making the
reference clearly acknowledged that their father owned Shop No.17, 48 and
123 and the residential house bearing No.33/5 East Punjabi Bagh, New
Delhi. We find that the award deals with the three properties.
39. It may be true that the award cannot be enforced because it was not
made a Rule of the Court, a requirement under the Arbitration Act 1940,
but the contents of the award and the letter referring the dispute to
arbitration establish beyond reasonable doubt that three shops and a
residential house was admitted by the three sons as belonging to their
father, requiring the same to be partitioned.
40. It cannot be lost sight of that Kedar Nath was the eldest brother and
thus there is a grain of truth in the stand taken by defendants No.1 to 5 that
he had been selectively using documents to suit his convenience.
41. We apply the rule of the last conduct of the parties as good evidence
of what the parties acknowledged inter-se each other. Had Shop No.123
been conveyed in the name of Kedar Nath Seth on account of the
relinquishment deeds/No Objection Certificates signed by his brothers in
acknowledgment of he being a benami owner thereof, we see no reason
why in the year 1978 Kedar Nath Seth would join in signing Ex.DW-6/1 in
July 1978. What about his note Ex.DW-6/2 dated July 10, 1978 in which
he wrote that he relinquishes all his rights in the estate of the deceased?
Now, the reconveyance deed Ex.DW-6/4 dated July 16, 1984 makes a
reference to the reconveyance deed in favour of Kedar Nath Seth, Karta of
HUF. But, which HUF? The larger one when his father was alive or the
lesser consisting of he and his sons? These are unanswered questions
because, as already noted by us, the evidence is scattered, hazy and fuzzy.
42. The latest conduct of the three brothers of the year 1978 to refer the
matter to arbitration consists of unequivocal admissions that neither the
residential house nor three shops were partitioned to the satisfaction of the
three brothers, and Ex.DW-6/1 as also Ex.DW-6/3 shine like bright stars,
guiding the Court to the destination, which obviously is that the estate of
the deceased which requires to be partitioned is the one pleaded by
defendant No.6 and we highlight that Ex.DW-6/1, the document appointing
an arbitrator makes reference to the arbitrator to partition Shops No.17, 48,
and 123 and House No.33/5 East Punjabi Bagh, New Delhi.
43. The appeal stands disposed of modifying the impugned judgment
and decree dated February 08, 2012. With respect to Issue No.2 it is held
that late Shri Laxmi Narain Seth left behind properties No.17, 48 and 123
Khursheed Market, Sadar Bazar, Delhi which are shops and a residential
house bearing No.33/5 East Punjabi Bagh, New Delhi. On Issue No.1 the
finding returned by the learned Single Judge is affirmed and so is the
decision with respect to Issue No.4 i.e. that evidence does not establish a
partition or the brothers having acted there-under. But with respect to the
conclusion arrived at, the impugned judgment and decree is modified :
declaring that the estate of the deceased consisting of Shop No.17, 48 and
123 Khursheed Market, Sadar Bazar, Delhi and House No.33/5 East
Punjabi Bagh, New Delhi is liable to be partitioned and that share of the
plaintiffs therein is jointly one-third; the share of defendants No.1 to 5
jointly therein is one-third and that of defendants No.6(a) to 6(d) jointly
therein is one-third. We reinforce our reasoning with reference to Ex.DW-
6/7, a truncated document, but whatever survives is throwing good light on
the subject and which aspect has been discussed by us herein above in
paragraph 34.
44. We note that a stand has been taken by PW-1 that Shop No.123,
Khursheed Market, Sadar Bazar, Delhi has been sold by the plaintiffs after
the suit was instituted resulting in third party rights being created, and thus
we declare that while partitioning the estate, since the current values of the
properties would be identified/determined by the learned Local
Commissioner whom we propose to appoint, the value of the said property
would be assigned to the share of the plaintiffs.
45. A preliminary decree be drawn as per our decision.
46. We appoint Ms.Saahila Lamba, Advocate, Mobile No.9818153010
as the Local Commissioner to record evidence pertaining to the valuation
of the three shops and the residential house and submit a report regarding
the same as also to submit a report whether the three properties which are
within the family can be partitioned by metes and bounds in a manner
where after satisfying the value of Shop No.123 Khursheed Market, Sadar
Bazar, Delhi assignable to the plaintiffs, the remainder three can be
partitioned by metes and bounds.
47. The report shall be submitted in the suit within a period of six
months from today. The parties are directed to co-operate before the
learned Local Commissioner whose fee is fixed at `1,50,000/- (Rupees One
Lakh Fifty Thousand only) to be paid in equal share by the three branches
of the sons of late Lakshmi Narain Seth. Other out of pocket expenses
incurred by the learned Local Commissioner shall be borne by the parties
in equal proportion as aforesaid.
48. Parties shall bear their own costs in the appeal.
(PRADEEP NANDRAJOG)
JUDGE
(MANMOHAN SINGH)
JUDGE
DECEMBER 13, 2012
dk
