Delhi High Court
Mrs. Madhur Bhargava And Ors. vs Ms. Arati Bhargava And Ors. on 30 January, 2013
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 24.04.2012
PRONOUNCED ON: 30.01.2013
+ RFA 732/2003, C.M. APPL. 1696/2003, 6452/2004, 11416/2004,
13190-13191/2004, 13877/2008 & 10055/2010
MRS. MADHUR BHARGAVA AND ORS. .......Appellants
Versus
MS. ARATI BHARGAVA AND ORS. ......Respondents
RFA 855/2003, C.M. APPL. 2099/2003, 2182/2003, 4688/2004,
13259/2006, 10056/2010 & 5670/2012
MS. ARATI BHARGAVA AND ANR. .......Appellants
Versus
MRS. MADHUR BHARGAVA AND ORS. ......Respondents
RFA 878/2003, C.M. APPL. 2144/2003
M/S. EKTA AGRO INDUSTRIES LTD. .......Appellant
Versus
MRS. MADHUR BHARGAVA AND ORS. ......Respondents
RFA 912/2003, C.M. APPL. 2235/2003
MR. AJAY SANGHI .......Appellant
Versus
MRS. MADHUR BHARGAVA AND ORS. ......Respondents
RFA-732/2003,855/2003,878/2003 &912/03 Page 1
Appearance: Sh. Ram Jethmalani, Sr.
Advocate with Sh. Alok Kumar, Ms. Lata
Krishnamurti, Sh. Karan Kalia, Sh. Ashish
and Sh. Pranav Diesh, Advocates, for
appellants in RFA 855/2003 and for
respondents in RFA 732/2003, RFA
878/2003 & RFA 912/2003.
Sh. Kailash Vasdev, Sr. Advocate with Ms.
Shraddha Bhargava and Ms. Richa Kapoor,
Advocates.
Sh. Virender Goswami with Ms. Soni Singh
and Sh. Sankalp Sharma, Advocates, for
appellant in RFA 912/2003.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P. GARG
MR. JUSTICE S.RAVINDRA BHAT
%
1. This common judgment will dispose of four first appeals (RFA Nos.
732, 855, 878 and 912 of 2003) which challenge the judgment dated
23.08.2003 of the learned Additional District Judge (hereafter "the Trial
Court") in Suit no 188 of 2000. The suit, was instituted by Ms. Madhur
Bhargava, Ms. Gayatari Bhargava and Ms. Shraddha Bhargav; (hereafter
"the plaintiffs"); the defendants were Arati Bhargava, Bharati Bhargava,
(hereafter referred to as D-1 and D-2 or collectively as "the sisters") and
Ajay Sanghi (third defendant) and Ekta Agro Industries Ltd. (fourth
RFA-732/2003,855/2003,878/2003 &912/03 Page 2
defendant) (hereafter referred to as "the tenants" or "D-3" and "D-4"). The
plaintiffs' appeal (RFA No. 732/2003) is restricted to the denial of mesne
profits. The sisters' appeal (RFA 855/2003) challenges the findings and
decree of the trial court denying their title to the suit property as well as the
decree for possession; whereas the tenants' appeals (RFA NOs. 878/03 and
912/03) challenge the decree for possession granted to the plaintiffs, against
them.
2. The plaintiffs sought a decree for possession and mesne profits in
respect of the second floor terrace with construction thereon of Property no.
2522/X (i.e. front and hind portions on the 3rd floor) on plot no. 3/13-B,
Asaf Ali Road New Delhi (hereinafter referred to as "suit property"). The
suit was decreed partially to the extent that the claim for recovery of
possession was allowed, and the claim for recovery of mesne profits was
denied.
3. The facts emerging from the pleadings and admitted at the stage of
the appeals by the parties are that one Mrs. Savitri Devi Bhargava ("Savitri
Devi") married one Shri Dularey Lal Bhargava ("Dularey Lal") in 1940/
1941. Their marriage did not work out and Savitri Devi left the matrimonial
house at Lucknow. She took her eldest child and at that time only son, Kavi
Kumar Bhargava (referred to as "Kavi Kumar" or "the son") with her. At
the time of separation, Savitri Devi's mother-in-law gave her substantial
cash and jewellery. While the plaintiffs claim that the cash and jewellery
were given to Savitri Devi as her Stridhan, the sisters assert that these were
given for creating a trust in favour of the children (of Savitri Devi and
Dularey Lal). Even after leaving Lucknow, Savitri Devi stayed on and off
with her husband Dularey Lal. They had two daughters, first in 1950 and
RFA-732/2003,855/2003,878/2003 &912/03 Page 3
then in 1952 (D-2 Bharti, and D-1 Arti,). Using this jewellery, Savitri Devi
made prudent investments and bought the following properties in the years
1953-54:
(1) Commercial plot measuring 44.44 sq. yards being No. 3/13-B, Asaf
Ali Road, Delhi from the Delhi Improvement Trust. A three storeyed
construction on this plot (ground, first and second floor) and a basement
was completed;
(2) A two storeyed residential built up property No. E-15, 16, Nizamudin
West, New Delhi and a barsati. This was acquired on September 1, 1959
with the help of a loan raised from bank.
4. The son and the two daughters were brought up by Savitri Devi. Kavi
Kumar, the son, on completion of his college education joined Indian
Police Service and some time thereafter married the first plaintiff, daughter
of a member of Delhi Higher Judicial Service on 21st April 1969. This
marriage, allege the Plaintiffs, however, did not carry the approval of
Savitri Devi and on that count serious differences arose between the son
and his wife on the one hand, and the mother, on the other. The plaintiffs
alleged that the sisters exploited the situation for their personal gain.
5. Kavi Kumar and his wife (the first plaintiff) had a girl child, Pooja,
who unfortunately did not survive; her birth was not taken too kindly by
Savitri Devi. The suit alleges that this was followed by an era of abortions/
miscarriages suffered by the first plaintiff for a period of about ten years
and she (i.e. the daughter in law) could neither win love nor sympathy of
Savitri Devi despite her being respectful and courteous to her through-out.
Savitri Devi was too headstrong and domineering to reconcile with her son
RFA-732/2003,855/2003,878/2003 &912/03 Page 4
and daughter in law. A few years later, she stopped giving Kavi Kumar his
share of the income from the trust properties of which he was one of the
beneficiaries. His sisters, after graduation were gainfully employed as
journalists in leading daily newspapers, Indian Express and Hindustan
Times and were enjoying a luxurious life with their mother. In order to
keep a firm hold over Kavi Kumar, his mother told him bluntly that she was
the exclusive owner of the properties which she herself had purchased and
they stood in her name (although that was so only on account of her
children being minors at that time), and declared that she possessed an
absolute right of disposal over them.
6. The suit alleged that by reason of his mother's irksome utterances
and conduct, Kavi Kumar, who knew the truth about acquisition of the said
properties, instituted Suit No. 477 of 1974 ("the previous suit") for partition
and rendition of accounts against Savitri Devi and his sisters in July,1974
narrating how he had become suspicious about the intentions of her mother
and was seeking separation of his share in the two properties by metes and
bounds and also for the rendition of accounts. In the suit, the plaintiff (Kavi
Kumar) alleged that the cash and jewellery given by her grandmother to his
mother was for the creation of a trust for the maintenance and education of
the children (i.e. himself and his two sisters). His mother, Savitri Devi, on
the other hand, argued that the cash and jewellery had been given to her as
her stridhan and she was the absolute owner of all the properties purchased
from its proceeds. During the course of the suit, the parties agreed to refer
the disputes to arbitration by the (Retired) Chief Justice of India B. P.
Sinha. He made his award on 28.03.1975 whereby it was held that the cash
and jewellery had been given for the benefit of all, and thus "each one of
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the four persons should, in law and equity, have one-fourth share each".
The award, (hereafter called "the award") which has a bearing on the issues
in this case, reads as follows:
"Award (dated March 28 1975)
This unfortunate dispute between very close relations is
pending decision in the High Court. Parties have been well
advised to have the matters in dispute settled through
Arbitration. By consent of the parties, the High Court has
referred the whole case to me as the sole Arbitrator. I have
heard the parties, as also the counsel for the plaintiffs and
heard the parties, as also the counsel for the plaintiff, and
recorded the summary of their statements, in support of their
respective cases.
2. The Crucial issue between the parties is whether the
properties in dispute consisting of (1) the commercial building
on near Ali Road, New Delhi, and (2) the residential house in
Nizamuddin West, New Delhi, are the exclusive properties of
the first defendant , the mother of the plaintiff, and the second
and the third defendants, its claimed by her or are the joint
properties of all the four persons as asserted on the other side.
After considering all the facts and circumstances of the case, I
have come to the conclusion that the properties in question
were required for the benefit of all to them.
3. As it is a suit for partition, my award is that each one of
the four persons should, in law and equity, have one-fourth
share each.
4. As the properties in suit are not capable of division by
metes and bounds, they have to the divided in such a way that
there should be the least possibility of friction in the future, in
the enjoyment of their respective shares. Accordingly, I make
the following allotments.
(a) The Plaintiff (Shri Kumar Bhagava) is allotted the
first floor of the property NO. 3/13-B, Asaf
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Ali Road, New Delhi as absolute owner from 31st
March, 1975 and the second floor of the said Asaf Ali
Road, property, and the residential house at 15 & 16
E Nizamuddin West, New Delhi, subject to the life
interest of the first defendant, Smt. Savitri Bhargava,
who shall continue to possess and enjoy the aforesaid
second floor of the property at Asaf Ali Road and the
Nizamuddin Property aforesaid, after the demise of
the first defendants.
(b) The first defendant Smt. Savitri Bhargava is allotted a
life interest in the second floor of the property at
3/13-B, Asaf Ali Road, New Delhi at 15 & 16-E,
Nizamuddin West, New Delhi, which on her demise
will become the absolute property of the plaintiff.
(c) The second defendant, Kumar Bharati Bhargava, is
allotted the ground floor of the property at 3/13-B
Asaf Ali Road, New Delhi in absolute right as the full
owner.
(d) Finally, the third defendant, Kumar Arati Bhargava,
is allotted the Basement of the property at 3/13-B,
Asaf Ali Road, New Delhi in absolute right as the full
owner.
5. The aforesaid allotments shall effect on he night of 31 st
March, 1975. The tenants occupying portions of the aforesaid
Asaf Ali Road, Property, shall become respectively the tenants
of the party allotted that portion, with effect the tenants of the
party allotted that portion, with effect from 1st of April, 1975,
i.e. the first defendant will continue to realize rent of the
premises as hither before until the end of March 1975.
6. As the property at the Asaf Ali Road has common
staircases passages, corridors and other amenities of common
convenience, those will remain the joint property of all the
shares and the parties shall be entitled to use them as here to
fore, and be responsible for the proper maintenance and
repairs of those common conveniences. In respect of the
portions allotted as aforesaid to each one of the parties, they
will be entitled to realize rent from their respective tenants
RFA-732/2003,855/2003,878/2003 &912/03 Page 7
from 1st April, 1975 and be responsible for payment of the
proportionate share of ground rent, income tax wealth tax,
other municipal taxes and all other public demands in respect
of the portions of the properties allotted to them. Be it noted
that all the outstanding dues for the aforesaid properties upto
31st March 1975 shall be paid by all the parties
proportionately, i.e. one for the share each. It follows hat each
party will be entitled to have its name separately registered in
the Municipal Records, the records of separately registered in
the Municipal Records, the records of Delhi Development
Authority and other public bodies concerned with the
property. A portion of the residential house at Nizamuddin
West is in occupation of a tenant. The first defendant shall
continue to realize the rent thereof during her life time even as
she will be entitled to the full use and occupation of the
Nizamuddin Property. She will be liable for the payment of
ground rent and other public demands in respect of this
property.
7. There is a claim for accounts against the first defendant.
I see no reason to make her responsible for rendition of
accounts and accordingly disallow that part of the claim.
8. A further question was raised by the first defendant of to
the valuation of the suit properties. After taking into
consideration the latest valuation report made by an approved
Valuer, I fix the value of the property at 3/13-B, Asaf Ali Road,
New Delhi in round figures at Rs.5,75,000/- and that of the
property at 15 & 16 -E Nizamuddin West, New Delhi at
Rs.1,25,000/- This being a suit for partition, the award has
been engrossed on non-judicial stamp papers valued at
Rs.5,300/- which I understand is sufficient, if there is any
deficiency, the same shall be made good by the parties in
equal shares.
10. In this circumstances of the case, there shall be no order
as to costs. "
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7. The award remained unchallenged by all the parties; consequently it
was made a rule of court, and a decree was drawn, by this Court, in its
terms. The said decree- dated 15th May, 1975, reads as follows:
"DECREE DATED 15.05.1975
"The four parties to the suit shall have ¼ share in the
properties in the suit in the following manner.
a) The plaintiff Sh. Ravi Kumar Bhargava shall be the
owner in possession of the first floor of the property bearing
No. 2/12-B, Asaf Ali Road, New Delhi as from the midnight of
31st of March 1975, and he shall also be the absolute owner of
the second floor of the said building and the residential house
at 15 and 16-E, Nizamuddin West, New Delhi subject to the
life interest of Smt. Savitri Devi Bhargava who shall continue
to possess and enjoy the aforesaid second floor of the property
at Asaf Ali Road and the house at 15 and 16E, Nizamuddin
West, New Delhi, during her life time.
b) The Second defendant Kumar Bharti Bhargava shall be
the absolute owner with possession of the ground floor of
property at 2/12-E, Asaf Ali Road, New Delhi and the shall be
deemed to be the owner of that property as from the midnight
of 31st March 1975.
C) The third defendant Kumari Arati Bhargava shall be the
absolute owner of the basement of the property at 2/12-B. Asaf
Ali Road, New Delhi and th4e shall enjoy the rights as full
owner in that property as from the midnight of 31 st March,
1975.
It is further ordered that the tenants occupying portions
of the properties, mentioned above, shall attorn to the
respective owners as determined by this decree. The owners
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shall be entitled to realize rents from the tenants as from the
31st April, 1975. The common stair cases, passages corridors
as well as other amenities of common convenience, which the
property as Asaf Ali Road, shall remain the joint property of
all the parities to the litigations, who are very clearly related.
It is further ordered that those who have become
absolute owners in terms of this decree shall be responsible
for proportionate payments of the ground rent, income taxi,
wealth tax, house tax and other municipal taxes as well as all
other public demands in respects of the portions of the
properties of which they have become the owners. It is further
ordered that in case it is found that there are any outstanding
dues, the parties to this suit shall pay to the extent of 1/4 th
share each so as to satisfy the dues. Each of the person to
whom she ownership has been decreed shall be entitled to get
his/her ownership registered with the Municipal Corporation
of Delhi and all other authorities where it may be essential to
get it noticed of registered a portion of the residential house at
Nizamuddin West is in the occupation of a tenant. Defendant
No. 1 Smt. Savitri Devi Bhargava who is the mother of the rest
of the parties to this litigation, shall continue to realize the
rent during her life time and shall be entitled to full and
occupation of the Nizamuddin Property, and the shall be
liable for the payment or ground rent and other public
demands in respect of that property.
It is further ordered that shall be no decree fro rendition
of accounts. It is hereby lastly ordered that the parties shall
bear their own costs. "
8. After the award, and the decree arising out of it, on 9th June 1983, a
Deed of Family Arrangement was entered into between Kavi Kumar,
Savitri Devi, and the daughters, Bharti and Arti. In that, the parties agreed
that the top portion i.e. the terrace of the Asaf Ali Road property would be
RFA-732/2003,855/2003,878/2003 &912/03 Page 10
divided into two parts. The front part was to belong to Bharti (D-1) and the
rear part was agreed to belong to Arti (D2). The deed further stated that the
daughters shall be the absolute owners of the share allotted to them, and
that Kavi Kumar and Savitri Devi had thereby waived all their rights in the
portion allotted to the said two sisters. The deed,- after reciting the previous
dispute leading up to the award and the decree arising out of it (in which
the first party was Savitri Devi, the second party was Kavi Kumar, and the
third and fourth parties were Arti and Bharti)- recorded as follows:
"AND WHEREAS the sole arbitrator made an award which
was accepted by the parties and was ultimately made a decree
of the court.
AND WHEREAS the parties having accepted the award and
the decree of the court, are in possession of the respective
shares as allotted by the decree of the court.
And Whereas parties one and two are residing in their
respective shares in the house, difficulty may arise in future in
respect of parties Three and Four.
And Whereas all the parties as to this deed realise that the
parties Three and Four may experience difficulty in future and
they therefore approached the First and Second parties to
agree to an arrangement, by way of family settlement for
providing additional source of income to parties Three and
Four and they have very generously agreed to the following
arrangement for the benefit of parties Three and Four:
Wherefore, all the parties to this deed of family
settlement have agreed to make the following provision for the
benefit of parties Three and Four:-
1. The top portion of the house, the terrace, on 03/13-B, Asaf
Ali Road, New Delhi, which belongs to party No. Two
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subject to the life interest of party No. One, shall be divided
into two parts as follows:
The First part, that is to say between the staircase and
facing the main Asaf Ali Road (Front Portion) measuring
approximately 1200 sq. Ft. should be allotted in absolute
right to Miss. Arati Bhargava, Party No. Four. And the
rear half that is to say between the staircase and the back
of the building (Back portion) measuring approximately
1165 sq. Ft allotted in absolute right to Ms. Bharati
Bhargava, party No. Three.
2. Parties Three and Four will enjoy the respective allotted
portions as aforesaid as absolute owners.
3. Parties Three and Four will have the right to use the
property in any way convenient to them including the right
to build upon their respective portions.
The parties one and two have hereby waived whatever
rights they had or have in future in the portions allotted to the
parties Three and Four as aforesaid.
All the parties to this deed have agreed to the aforesaid
terms of this deed for family settlement after considering all
the pros and cons, with a view of removing the difficulty felt by
the parties Three and Four.
The value of this deed of family settlement is put at `
5000 for the purpose of registration."
9. The plaintiffs - who filed the suit, on 25-09-2000- claimed that D-2
(Bharati) married one of her colleagues while in London in 1977, without
incurring any conventional marriages expenditure and thereafter returned to
India. Her husband was well settled in life being the only son in his family
(besides one sister) which owns moveable and immovable properties of
considerable value in Mumbai and Hyderabad. Arti, the D-1 preferred to
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remain single. She is a senior journalist working with the Hindustan Times
since May 1984 and holds huge deposits. The suit alleges that she got her
name added to the Bank deposits and accounts of Savitri Devi and
appropriated to herself all the money left by her. Besides this, she
appropriated to herself a large range of expensive items of furniture,
jewelery and clothing etc, in fact everything that her mother had acquired
and saved in her life time. The plaintiffs contended that after the arbitral
award (which was made a rule/decree of Court) there was nothing left
undivided which could have been the subject matter of a family
arrangement The suit further alleged that:
"In 1983 defendant 1 and 2 and Mrs. Savitri Devi Bhargava
entered into a criminal conspiracy to grab the terrace of the
second floor on he plot NO. 3-13-B, Asaf Ali Road, which had
fallen to the share of Mr. KK Bhargava subject to life interest
of Mrs. Savitri Devi Bhargava to possess and enjoy the same
during her life time. the instigation having come from
defendants 1 and 2 Mrs. Savitri Devi Bhargava made
misrepresentations about the extent of her rights and powers
in the terrace rights of Mr. KK Bhargava and perpetrated
fraud by exercise of undue influence and even coercion on him
as to be detailed hereinafter, and got his signature on typed
draft of family arrangement dated 9th May 1983, which had
been got prepared through an advocate known to defendant
No.1
According to the alleged deed of family arrangement, the
terrace on the second floor of property on plot no. 3/13-B Asaf
Ali Road, New Delhi, which was the absolute property of Mr.
KK Bhargava subject only to the life interest of Mrs. Savitri
Devi Bhargava to possess and enjoy during her life time was
split up into portions measuring 1200 sq. feet in the front and
1165 sq., ft on the hind for defendants 1 and 2 respectively,
with right to posses and enjoy and raise such construction as
sanctioned for the benefit of he defendants 1 and 2 may
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experience difficulty in future. Some thing patently false,
frivolous and them.
13. The aforesaid alleged family arrangement is not a
family arrangement at all in the eye of law. It is void, nonest
and ineffective on the undisputable rights acquired by Mr.
K.K. Bhargava and declared by the Hon'ble High Court of
Delhi and after his untimely demise in 1993, vested in the
plaintiffs as only legal heirs representative..."
10. The plaintiffs also alleged that in 1984, when Savitri Devi was
seventy years, a chronic diabetic and heart patient, she actually suffered
two heart attacks during the period from 1984 to 1986 and remained in the
National Heart Foundation, an institute of repute, in East of Kailash New
Delhi at the cost of Kavi Kumar, she was under the undue influence of the
sisters especially D-1 who was always scheming and planning to grab the
properties (of Kavi Kumar) by using the mother as a tool. On 22nd July
1984 D-1 got a fictitious lease deed prepared purporting to be executed by
her mother in respect of the first floor and the barasati floor of house No.
F- 15-16 Nizamuddin West, on monthly rental of a ridiculous and repulsive
figure of Rs.500/- against the then prevailing market rent of more than
Rs.15,000/- per month in her favour through ex-parte hands and got it
signed by her mother but kept it as a closely guarded secret. It came to
notice only in September 1990 after the demise of Savitri Devi Bhargava
when D-1 secured an ad-interim ex-parte injunction order against her
brother in this Court restraining him from dispossessing her from the floors
of the Nizamuddin House by mis-stating facts, since Savitri Devi's life
interest had ended with her death on 7th March 1990. Thereafter, she
delayed the proceedings of that suit in several ways including forging of
documents containing fictitious admissions of Kavi Kumar that she was a
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tenant on payment of Rs.500/- per month in respect of the first and Barsati
floors and that the said tenancy propounded by her was protected by the
provisions of the Delhi Rent Control Act, 1958. On these pleadings, the
plaintiffs sought a decree for possession and mesne profits. The suit
impleaded the tenants, because they had been let into the portions which
had fallen to the share of the sisters. The relief sought against them too was
a decree for possession in respect of the concerned portions under their
occupation.
11. The daughters contended, in their written statements, that by a
Family Arrangement between their mother, their brother (predecessor in
interest of the plaintiffs,) and themselves, they were given portions of
terrace floor demarcated in that deed (family arrangement). The sisters
argued that the predecessor in interest of the plaintiffs was privy and party
to the arrangement with respect to the terrace and it was voluntary and they
cannot be dispossessed of the same after having invested their resources
therein and having enjoyed the same all these years as owners thereof. The
preliminary objections have also been taken with respect to the valuation of
the suit as well as to the jurisdiction of the civil court. They also urged to
having acquired ownership by adverse possession. They contend that the
plaintiffs are not entitled to any of the reliefs claimed in this suit and that
the suit was time barred (to say this, it would appear that the sister's case
was that the suit, for questioning the legality of the settlement was barred
by limitation, as it was filed 7 years after the death of Kavi Kumar, who
expired in 1993. Savitri Devi had died in 1990) .
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12. The other defendants' (D-3 and D-4) plea is that they are tenants in
occupation of respective portions under D-1 and D-2 respectively and they
are not concerned with dispute, if any between their landlords and the
plaintiffs and they cannot be called upon to vacate their respective premises
or to pay any damages to the plaintiffs.
13. After considering the pleadings, the Trial Court framed the following
issues:
1. Whether the document dated 9th June, 1983 relied upon by defendant
no. 1 and 2 is not a family arrangement as recognized by Hindu law
and marriage?
2. If Issue no. 1 is found not affirmative whether the said family
settlement is initiated by conspiracy and fraud, undue influence and
action etc as alleged in the plaint?
3. Whether the suit is barred by time?
4. Whether terrace on second floor was included in the judgment and
decree of suit no. 477 decided on 15th May, 1975 by the Hon'ble High
Court of Delhi?
5. Whether defendant no. 1 and 2 were estopped from taking the contrary
plea mentioned in Issue 4?
6. Whether construction on the terrace was made by defendant no. 1 and
2 at their expense, if so it effects on plaintiff?
7. Whether defendant no. 1 and 2 and defendant no. 3 and 4 are liable to
pay damages to plaintiffs, if so for what amount?
8. Whether the suit is not correctly valued for the purposes of court fees
and jurisdiction?
9. Whether this court has jurisdiction to try the suit?
10.Whether defendant no. 1 and 2 have become owners of the property in
possession by adverse possession and whether this plea is available to
them?
11.Whether para no. 6, 10, 11 and 14 are liable to be struck down from
the pleadings in view of Order 6 Rule 16 CPC?
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12.Relief.
14. The first plaintiffs, examined herself; the two sisters, D1 and D2
examined themselves as witnesses to support their case. Ajay Sanghi (D-3)
examined himself, and for D-4, one T. C. Chandel was examined. After
considering the arguments and the material on record, the Trial Court
decreed the suit in favour of the plaintiffs. Issue 1, 3, 4, 5, 6, 8, 9 and 10
were answered in favour of the plaintiffs. Issue 7 and 11 were answered in
the affirmative. The Trial Court held that the terrace of the Asaf Ali Road
property was given by Kavi Kumar to his two sisters as a license. It was
reasoned that since the sisters had known and understood that the suit
property belonged to him, there was no question or any possible dispute
concerning the title to the suit property- being the basis of a family
arrangement. The Trial Court held that since Issue No.1 had been answered
to the effect that the family arrangement was not recognized under Hindu
law, there was no need to make a finding on Issue 2. The relevant findings
of the Trial Court are as follows:
"XXX XXX XXX
24. The certified copy of the decree in the partition suit No.
477/1974 is Ex. C-7 and C- 6, the judgment on the basis of
which the decree is drawn up is Ex. C-5 the award on the basis
of the which the suit was decree is Ex. C-4 Ex. C-3 is the
certified copy of the written statement of defendants 1 and 2 in
that suit wherein they are defendants 2 and 3. The certified
copy of the written statement of defendant No.1, who was the
mother of the plaintiff and defendants 2 and 3 is Ex. C- 7 Ex.
DW 2/ P1 is the certified copy of the plaint in the partition suit
from the aforesaid documents and in particular the certified
copy of the judgment and the decree there is no scope for any
argument that any part of the suit property situated at Asaf Ali
Road, was left undivided. There was no third floor as such
RFA-732/2003,855/2003,878/2003 &912/03 Page 17
when the decree was drawn up and it was for that reason only
that the terrace floor as it is now being described was actually
a part of the second floor of the building which fail to the
share of predecessor in interest of plaintiffs. I have no
hesitation, therefore, to hold that the terrace on the second
floor of the property situated suit has been filed was definitely
included in the judgment and decree of the suit no 477/74
decided on 15.5.75 by the Hon'ble High Court of Delhi. This
issue is, therefore, answered in affirmative.
XXXX XXXX XXXX
28. In view of my findings on issue no. 4 above, Kavi
namely the brother of defendants 1 and 2 was the absolute
owner of the suit property by virtue of the decree in the
partition suit on 15.05.1975 and was clearly understood by all
the parties to that suit thereafter as well and in any case
atleast till 9th June 1983 there was no suit by any of the parties
to that partition suit seeking to re open the decree in the
circumstances in which it was voluntarily suffered by all the
parties to the partition suit.
29. As on 9th June 1993 when the impugned arrangement,
which is the subject matter of controversy in the present suit,
was arrived at, the document itself speaks as to what was
understood by the parties as on 09.06.1983. The document in
question namely Ex. PW1/ DX, which is also exhibited as Ex.
C- 8, clearly records that the top position of the house, the
terrace, on the Asaf Ali Road, property belongs to party No. 2
and the party no.2 is described as Kavi Kumar Bhargav
namely the brother of the defendants 1 and 2. Thus, there is no
scope for argument that as on 9.6.83 the parties to the
document of that date had any illusion as to who owned the
second floor including the terrace of the second floor and it
was clearly understood by defendants 1 and 2, their brother
and their mother as well that the property belonged to Kavi.
30. By virtue of the said document there has been no
transfer of any interest in the immovable property to defendant
1 and 2 within the meaning of the term transfer of property
under the transfer of property Act. 1887.
RFA-732/2003,855/2003,878/2003 &912/03 Page 18
31. This document can only be construed to be a licence,
namely a permission for Kavi to his two sisters Arti and
Bharti, to do something which, but, for this permission would
have entailed civil and penal consequences it is pertinent that
Smt. Savitri Devi purports to give nothing by way of this
document and her presence in the document appears to be a
facilitator for the concession from her son to her daughters.
Defendants 1 and 2 were, therefore permitted to enjoy the
fruits, if any, from out of the terrace floor so long as the
aforesaid concession subsisted which this court considers to
be nothing more than a licence. Being a licence by the very
nature of it the same was revocable at any time during the
lifetime of the grant or namely the predecessor in interest of
the plaintiffs and after his death by the plaintiffs and the filing
of the present suit is a stick towards the recall of the aforesaid
arrangement."
15. The present appeals were preferred, by the defendants; the plaintiffs
filed an appeal insofar as the Trial Court denied mesne profits. During the
hearing of these appeals from the impugned judgment, this Court, - on an
application made, by its order dated 25-8-2004, remanded the matter with a
direction that the Trial Court should return its finding on Issue No. 2 (i.e
"whether the said family settlement is initiated (sic vitiated) by conspiracy
and fraud, undue influence and action etc as alleged in the plaint"). By
order dated 24.9.2004, the Trial Court (after such remand) answered the
issue in favour of the defendants, holding that the plaintiff was unable to
prove that the family settlement was vitiated by conspiracy and fraud,
undue influence and action etc as alleged in the plaint. The relevant
findings of the Trial Court's, on this aspect, are as follows:
"PW-1 Smt. Madhur Bhargava is wife of Shri. K.K. Bhargava.
She deposes that her mother in law Smt. Savitri Devi
Bhargava knew number of influential people (persons) in
Delhi and Sheri K.K. Bhargava used to shiver under her
RFA-732/2003,855/2003,878/2003 &912/03 Page 19
threats specially at the time of making so called family
arrangement. Mrs. Savitri Bhargava had in the presence of
witness and otherwise repeatedly been saying not to talk about
this so called family settlement to her father (witnesses' father)
because in case Shri. K.K. Bhargava and the witness spoke to
the father of the witness about this, she (Mrs. Savitri
Bhargava) would reopen the case and put both the properties
in litigation forever. Her husband was left with no choice but
to scumble (sic succumb) to her wishes.
7. In cross examination, it is denied that no coercion or fraud
was applied by Smt. Savitri Bhargava in the execution of the
family settlement.
8. It is worth noting that PW1 Smt. Madhur Bhargava, in cross
examination, deposes that the family settlement was signed by
Shri K.K. Bhargava before the Sub-Registrar. Document Ex.
PW1/DX bears the signatures of Shri. K.K. Bhargava at point
A on all the pages. Further PW1 Smt. Madhur Bhargava
deposes that her husband is B.A. Hons and LLB from Delhi
University. After completing his education he joined the IPS
cadre of police and he rose to the post of Suptd of Police and
subsequently to Inspector General of police. It is worth noting
that PW1 deposes in her evidence that her husband filed a suit
in 1994 against his mother and sisters.
9. In view of the admission by PW-1 about the signatures
of Shri. K.K. Bhargava on all the pages of the deed of family
arrangement dated 9.9.1983, in view of educational
qualification of Shri. K.K. Bhargava and also in view of the
fact that Shri K.K. Bhargava filed a suit for partition against
his mother and sisters, I am of the considered view that family
settlement was not initiated by conspiracy, fraud, undue
influence and action, etc as alleged in the plaint. Accordingly,
issue No. 2 is decided against the plaintiffs and in favour of
defendant Nos 1 and 2."
16. The plaintiffs had complained that the order deciding Issue No. 2
was made without hearing them. They filed CM No. 13191/2004, i.e
objections against the order, and sought that it be set aside. Later, they
RFA-732/2003,855/2003,878/2003 &912/03 Page 20
moved an application (CM. 13877/2004) stating that the Issue No. 2 itself
be struck off. It was contended, by the plaintiff, in the said latter application
(CM 13877/2008, in their appeal RFA No. 732/2003, which was affirmed
by Ms. Madhur Bhargava) that:
" The Plaintiffs-Appellants herein moved CM No. 13191
of 2004 praying that proceedings may be set aside in the
entirely and fresh finding be procured through some other
learned Additional District Judge. This application was taken
up by this Hon'ble Court and during the course of hearing of
RFA No. 855 of 2003 query was made if it was really desired
to have a fresh finding to which it was submitted on behalf of
the Appellants that Issue No. 1 alone required being framed in
as much as Kale's case (supra) after review of a large number
of decided cases 12 principles were enunciated at Page 813
out of which the first two, are:
(i) That the Family settlement must be a bona fide one as to
resolve family disputes and rival claims by a fair and equitable
division or allotment of properties between the various
members of the family;
(ii) The settlement must be voluntary and should not be
induced by fraud, coercion ir undue influence.
The absence of vitiating elements like fraud and undue
influence is vital and essential for holding Family Settlement
as valid. It is something implicit and it was on this
consideration that issue No.2 was held to be redundant in view
of the finding recorded in the affirmative under issue No.1. In
the peculiar facts and circumstances of the case where right to
construct over the terrace of the floor of the property was not
included in the grant nor procured subsequently there could
be no giving or taking of right /property.
In the premises, it is humbly prayed that the Finding recorded
by the learned Trial Judge under issue No.2 be upheld and
issue No.2 be taken as having been answered as stated in the
RFA-732/2003,855/2003,878/2003 &912/03 Page 21
impugned judgment or appropriate order as may be deemed
just and expedient may be pass to keep the record straight."
17. During the hearing of the appeal, arguments were addressed on all
issues except Issue 8, 9 and 11. This court proposes to record its findings on
the basis of the arguments addressed by the parties.
Analysis and findings
Issue 1: Whether the document dated 9th June, 1983 relied upon by
defendant no. 1 and 2 is not a family arrangement as recognized by Hindu
law and marriage?
18. Learned senior counsel for D1 and D2, (the appellants in RFA
855/2003) Mr. Jethmalani contended that the family arrangement was valid
and enforceable under law. He placed reliance on Sahu Madho Das and
Ors. v. Mukand Ram and Anr., AIR 1955 SC 481 Ram Charan Das v.
Girjanandini Devi and Ors. AIR1966 SC 323; Kale and Ors. v. Deputy
Director of Consolidation and Ors., AIR 1976 SC 807. It was urged that
these cases recognize love and affection as a sufficient cause for an
arrangement. It was asserted that the concept of family
settlement/arrangement is not necessarily restricted to Hindu law. Counsel
submitted that the Trial Court fell into an obvious error in holding that once
division took place as a result of an award, which resulted in a decree, the
parties knew their shares, took charge of it, leaving no scope for a future
family arrangement. It was submitted that the award in substance directed
partition by metes and bounds; it left no grey area for future disputes. In
these circumstances, the question of the parties entering into a settlement in
regard to their disputes, did not arise.
RFA-732/2003,855/2003,878/2003 &912/03 Page 22
19. Counsel for the plaintiffs, on the other hand, contended that after the
partition pursuant to the decree in the 1975, there was no joint family which
had ceased to exist. Furthermore, argued Counsel, that there was no Hindu
family in 1983 of which Kavi Kumar, D1 and D2 were members.
Therefore, there was no question of entering into any family arrangement.
It was argued that at the relevant time in 1983, D1 and D2 were well-off,
and were not likely to experience any financial difficulty. None of the
parties, i.e Savitri Devi, or D-1 and D-2 had any antecedent title in respect
of the portions of the property that was subject matter of the family
arrangement. Savitri Devi no doubt, had a life interest, but on account of
the award and decree, the daughters had none. On the other hand, Kavi
Kumar had title - subject to his mother's interest. Therefore, in the absence
of any dispute or claim, or antecedent title, or a potential dispute over a
matter left out from the award and decree, which effected a complete
partition, there could be no valid and binding family settlement, as claimed
by the sisters, that conferred any interest upon them. For their arguments,
the plaintiffs placed reliance on Ramesh Chand v. Raj Kumar JT 2002 (5)
SC 69, Potti Lakshmi Perumallu v. Potti Krishnavenamm AIR 1965 SC
825. It was held in the latter decision (Potti Lakshmi Perumallu) that:
"No doubt, a family arrangement which is for the benefit of the
family generally can be enforced in a court of law. But before
the court would do so, it must be shown that there was an
occasion for effecting a family arrangement and that it was
acted upon. It is quite clear that there is complete absence of
evidence to show that there was such an occasion or the
arrangement indicated in the will was acted upon. The letter
Ex. B12 upon which reliance was placed before the High
Court on behalf of the defendant has not been found by it to be
RFA-732/2003,855/2003,878/2003 &912/03 Page 23
genuine. The defendant had also pleaded that the provisions
under the will were given effect to but no satisfactory evidence
has been adduced to prove that the plaintiff was in enjoyment
of the properties allotted to her under the will."
In Ramesh Chand, the Supreme Court held that:
"16. Coming to the question, whether the document exhibit-P-
4 can be said to be a family arrangement/family settlement we
are of the view that in stricto senso it cannot be said to be a
family arrangement/settlement for the simple reason that all
the members of the family are not signatories to the document.
Nothing has been indicated therein that the arrangement was
purportedly to settle any existing dispute or apprehended
dispute amongst members of the family."
20. This Court has considered the arguments. The Supreme Court has,
starting from the decision in Madho Das (supra) to Kale (supra) and
subsequently in Hansa Industries (Ltd) v. Kidar Sons (P) Ltd. 2006 (8)
SCC 531, has consistently ruled on the sanctity of family arrangements.
The following extracts from Kale (supra) briefly sums up the position:
"9.... A family arrangement is an agreement between members
of the same family, intended to be generally and reasonably for
the benefit of the family either by compromising doubtful or
disputed rights or by preserving the family property or the
peace and security of the family by avoiding litigation or by
saving its honour...
Family arrangements are governed by principles which are not
applicable to dealings between strangers. The Court, when
deciding the rights of parties under family arrangements or
claims to upset such arrangements, considers what in the
broadest view of the matter is most for the interest of families,
and has regard to considerations which, in dealing with
transactions between persons not members of the same family,
would not be taken into account. Matters which would be fatal
RFA-732/2003,855/2003,878/2003 &912/03 Page 24
to the validity of similar transactions between strangers are not
objections to the binding effect of family arrangements.
10. In other words to put the binding effect and the essentials of
a family settlement in a concretized form, the matter may be
educed into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to
resolve family disputes and rival claims by a fair and equitable
division or allotment of properties between the various
members of the family;
(2) The said settlement must be voluntary and should not be
induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no
registration is necessary;
(4) It is well settled that registration would be necessary only if
the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document
containing the terms and recitals of a family arrangement made
under the document and a mere memorandum prepared after
the family arrangement had already been made either for the
purpose of the record or for information of the Court for
making necessary mutation. In such a case the memorandum
itself does not create or extinguish any rights in Immovable
properties and therefore does not fall within the mischief of
Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act
and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement
must have some antecedent title, claim or interest even a
possible claim in the property which is acknowledged by the
parties to the settlement. Even if one of the parties to the
settlement has no title but under the arrangement the other
party relinquishes all its claims or titles in favour of such a
person and acknowledges him to be the sole owner, then the
antecedent title must be assumed and the family arrangement
will be upheld, and the Courts will find no difficulty in giving
assent to the same;
RFA-732/2003,855/2003,878/2003 &912/03 Page 25
(6) Even if bona fide disputes, present or possible, which may
not involve legal claims are settled by a bona fide family
arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement.
13. In Sahu Madho Das v. Mukand Ram AIR 1955 SC 481 , this
Court appears to have amplified the doctrine of validity of the
family arrangement to the farthest possible extent, where Bose,
J. Speaking for the Court, observed as follows:
"It is well settled that a compromise or family arrangement is
based on the assumption that there is an antecedent title of
some sort in the parties and the agreement acknowledges and
defines what that title is, each party relinquishing all claims to
property other than that falling to his share and recognising the
right of the others, as they had previously asserted it, to the
portions allotted to them respectively. That explains why no
conveyance is required in these cases to pass the title from the
one in whom it resides to the person receiving it under the
family arrangement. It is assumed that the title claimed by the
person receiving the property under the arrangement had
always resided in him or her so far as the property falling to his
or her share is concerned and therefore no conveyance is
necessary. But, in our opinion, the principle can be carried
further and so strongly do the Courts lean in favour of family
arrangements that bring about harmony in a family and do
justice to its various members and avoid in anticipation, future
disputes which might ruin them all, and we have no hesitation
in taking the next step (fraud apart) and upholding an
arrangement under which one set of members abandons all
claim to all title and interest in all the properties in dispute and
acknowledges that the sole and absolute title to all the
properties resides in only one of their number (provided he or
she had claimed the whole and made such an assertion of title)
and are content to take such properties as are assigned to their
shares as gifts pure and simple from him or her, or as a
conveyance for consideration when consideration is present."
RFA-732/2003,855/2003,878/2003 &912/03 Page 26
13.In Ram Charan Das v. Girjanandini Devi [1965]3SCR841 this
Court observed as follows:
"Courts give effect to a family settlement upon the broad and
general ground that its object is to settle existing or future
disputes regarding property amongst members of a family. The
word 'family' in the context is not to be understood in a narrow
sense of being a group of persons who are recognised in law as
having a right of succession or having a claim to a share in the
property in dispute....The consideration for such a settlement, if
one may put it that way, is the expectation that such a
settlement will result in establishing or ensuring amity and
goodwill amongst persons bearing relationship with one
another. That consideration having been passed by each of the
disputants the settlement consisting of recognition of the right
asserted by each other cannot be permitted to be impeached
thereafter. " (emphasis supplied)"
This Court also recollects the ruling in Maturi Pullaiah and Anr. v. Maturi
Narasimham and ors.(AIR 1966 SC 1836) that even if there was no conflict
of legal claims but the settlement was a bona fide one it could be sustained
by the Court. Similarly it has also held that even the disputes based upon
ignorance of the parties as to their rights were sufficient to sustain the
family arrangement. In this connection the Court observed as follows: -
"It will be seen from the said passage that a family
arrangement resolves family disputes, and that even disputes
based upon ignorance of parties as to their rights may afford a
sufficient ground to sustain it.
*****
Briefly stated, though conflict of legal claims in praesenti or in
future is generally a condition for the validity of a family
arrangement, it is not necessarily so. Even bona fide disputes,
present or possible, which may not involve legal claims will
suffice. Members of a joint Hindu family may, to maintain
peace or to bring about harmony in the family..."
RFA-732/2003,855/2003,878/2003 &912/03 Page 27
The crucial proposition in Kale on this aspect may once again be underlined,
namely that "Even if one of the parties to the settlement has no title but
under the arrangement the other party relinquishes all its claims or titles in
favour of such a person and acknowledges him to be the sole owner, then the
antecedent title must be assumed and the family arrangement will be upheld,
and the Courts will find no difficulty in giving assent to the same."
21. In the present case, it is clear that the parties to the family
arrangement had antecedent claim to interest/title in the suit property. Kavi
Kumar claimed that the properties were to be held in trust by his mother, and
sought partition. The previous suit led to a reference to an Arbitrator, an
award, which was embodied in a decree of court. That decree no doubt, spelt
out the rights of parties. The subject matter of the family settlement however
was not only Kavi Kumar's share. His share, (first floor of the Asaf Ali
Road property and absolute title to the second floor subject to his mother's
life interest) remained undisturbed. The position remains that antecedent
interest in the suit property was held amongst the parties to the family
arrangement only and none else. The decision in Ram Charan clarifies that
the expression "family" would have to be understood broadly. Merely
because there had been partition of properties between the parties earlier
would not imply that the same parties (mother and her children) would not
constitute a family for the purposes of executing a family arrangement. It is
also clarified that the concept of family arrangement is not exclusive to
Hindu law. As explained in the extract quoted above, their purpose is to
avert/compromise disputes, present or future, and to maintain harmony
RFA-732/2003,855/2003,878/2003 &912/03 Page 28
within the members of the family. This being so, there exists no reason why
the same would be applicable only under Hindu law. Kale clarifies beyond
any doubt that the most important ingredient is the existence of bona fides of
the parties to the family settlement. If this were to be satisfied, even if one of
the parties to the settlement has no title "but under the arrangement the
other party relinquishes all its claims or titles in favour of such a person and
acknowledges him to be the sole owner, then the antecedent title must be
assumed and the family arrangement will be upheld".
22. The Plaintiffs relied on two decisions, Ramesh Chand (supra) and
Potti Lakshmi Perumallu (supra). The former case held that before the court
enforces a family arrangement, it must be satisfied that there was an
occasion for effecting a family arrangement, and that it was acted upon.
The plaintiffs, during the appeal, contended that the purported reason (of
the family settlement of 1983) being amelioration of the financial position
of D1 and D2, was actually not correct. On this score, this is what the
recitals in the document had to say:
"And Whereas parties one and two are residing in their
respective shares in the house, difficulty may arise in future in
respect of parties Three and Four.
And Whereas all the parties as to this deed realise that the
parties Three and Four may experience difficulty in future and
they therefore approached the First and Second parties to
agree to an arrangement, by way of family settlement for
providing additional source of income to parties Three and
Four and they have very generously agreed to the following
arrangement for the benefit of parties Three and Four.."
RFA-732/2003,855/2003,878/2003 &912/03 Page 29
23. The plaintiffs argued that the provision made in the award and
decree, which was understood and accepted unreservedly by the sisters
implied that there was no occasion for them to complain of inadequacy of
the portions or shares falling to them. Furthermore, after the decree was
drawn, and parties took charge of their shares, there was nothing to
establish that the sisters were facing hardship, or financial constraints, to
lead the parties to agree to the family arrangement. There was no new
development that resulted in the basis of the award being rendered
iniquitous or onerous to the sisters, requiring the family to revisit their
shares. They too did not lead any evidence on this point. Consequently, the
court should go behind the document and see that it was not bona fide.
24. This Court discerns a palpable fallacy in the argument of the
plaintiffs. The law governing the binding nature of family settlements, as
noticed earlier, is clear that judges would be circumspect to place
themselves in the shoes of the family members who enter into such deeds
or arrangements. Therefore, facts such as adequacy or otherwise, of the
shares given in a previous arrangement, whether final consensually or
through decree of court, cannot be gone into. In any event, the plaintiffs, if
they were so minded, had the opportunity of leading evidence to show that
the document was a sham, and that the apprehension of future difficulty or
hardship, arising from the award, to the sisters, was not bona fide. Nothing
worthwhile in the form of objective material was brought on record.
Therefore, it cannot be said that the premise of the family settlement, i.e
that the shares given to the sisters could possibly lead to their financial
difficulty during later years, was baseless or unfounded. This Court cannot
therefore engage in a fact finding exercise on the likelihood of the
RFA-732/2003,855/2003,878/2003 &912/03 Page 30
difficulty, had there been no family arrangement in which D1 and D2 were
made beneficiaries. The Court is mindful of the position that family
arrangements may be executed for purposes other than settling present or
future legal disputes. Even bringing harmony in a family, doing justice to
its various members, and avoiding, in anticipation, future disputes which
may ruin them all, are accepted and recognised purposes of a family
arrangement (Sahu Madho Das). The consideration for such a settlement, if
one may put so, is the expectation that such a settlement will result in
establishing or ensuring amity and goodwill amongst persons bearing
relationship with one another. Keeping this in mind, this Court is of the
opinion that the observation made in Ramesh Chand does not assist the
plaintiffs.
25. In the second decision relied upon by the plaintiffs, i.e. Potti Lakshmi
Perumallu, the Court had observed that the joint-ness in the Hindu family
comes to an end when a partition is proved. This observation was made in a
case where the plaintiffs-appellants claimed partition. The defendants' case
was that there had already been a partition between the parties, and
therefore, the suit was maintainable; their view being accepted by the courts
till the appeal before the Supreme Court. In this Court's opinion, the
observations in Potti Lakshmi cannot be made applicable to the case at hand
since the observation there was made specifically with regard to a setting
where upon partition, the joint nature of the family, ceased. A prior
partition, as in this case, would not debar the parties - as long as the
settlement is bona fide - from anticipating a future conflict. The matter
could also be looked at in another way. In the facts of the present case,
there was no mention of the rights of any of the parties regarding terrace
RFA-732/2003,855/2003,878/2003 &912/03 Page 31
rights (over the second floor of the Asaf Ali Road property). Seen from the
backdrop of the circumstance that the sisters were allotted the basement and
first floor of the said property, and the son was given first floor rights
absolutely and the second floor, subject to his mother's life interest, besides
the Nizamuddin property, there is no reason to doubt the bona fides of the
apprehension felt by the sisters as well as the need for additional income.
At any rate, the Court cannot substitute its judgment, to conclude whether
such needs were justified or otherwise. These are, at the best of times, left
to the wisdom of the parties concerned.
26. Further, arguendo, assuming that the family arrangement were
invalid, it was argued on behalf of D1 and D2 that they had become owners
of the suit property. In support of this argument, it urged that the suit
property had become absolute property of Savitri Devi since she had been
granted a life interest in the second floor and the said interest stood
enlarged due to operation of section 14, Hindu Succession Act, 1956.
Reliance was placed on the decision in V. Tulasamma and Ors. v. Sesha
Reddy (Dead) by Lrs. [1977] 3 SCR 261. The plaintiffs, in response to this
argument, asserted that the case fell within the ambit of sub-section (2) of
section 14, Hindu Succession Act.
27. Section 14 of the Hindu Succession Act reads as:
"14. Property of a female Hindu to be her absolute property
(1) Any property possessed by a Female Hindu, whether
acquired before or after the commencement of this Act, shall
be held by her as full owner thereof and not as a limited
owner.
RFA-732/2003,855/2003,878/2003 &912/03 Page 32
Explanation: In this sub-section, "property" includes both
movable and immovable property acquired by a female Hindu
by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any
such property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under
an award where the terms of the gift, will or other instrument
or the decree, order or award prescribe a restricted estate in
such property.
28. It is undeniable that the decree in the 1974 suit created a life interest
in favour of Savitri Devi in the second floor of the Asaf Ali Road property.
The terrace of the suit property at that time of the award in the 1974 suit
was not expressly provided for. It could therefore be argued that it was left
undivided as joint property of Kavi Kumar, Savitri Devi, and the sisters. In
this light, the question whether or not the estate of Savitri Devi (in respect
of the suit property) stood enlarged by virtue of section 14 of the Hindu
Succession Act, 1956 does not arise. This court is mindful that this aspect
was not explored in detail, or argued elaborately and therefore rests its
findings on the above reasoning.
29. In view of the above discussion, it is held that the first issue has to be
answered in favour of the first two defendants, i.e the sisters, and against
the plaintiffs. The issue is answered accordingly; the findings of the Trial
Court, on this score are set aside.
RFA-732/2003,855/2003,878/2003 &912/03 Page 33
Issue 2: If Issue no. 1 is found not affirmative whether the said family
settlement is initiated by conspiracy and fraud, undue influence and action
etc as alleged in the plaint?
30. At the outset, the Court hereby records that the counsel for the
plaintiffs did not advance arguments on this issue, though a faint attempt
was made to say that the findings of the Trial Court recorded after remand
cannot be sustained. The counsel for the sisters, on the other hand, pointed
out the pleadings in 13877/2008 stating that the Issue No. 2 itself be struck
off. The Court nevertheless, proposes to deal with the issue, on the basis of
the pleadings and the materials on record.
31. The 1983 family arrangement was challenged on the ground that it
was induced by misrepresentation, fraud, coercion and undue influence.
This family arrangement was entered into between the mother, the son
(Kavi Kumar) and his sisters, under which the former two parties waived
their share/rights in the terrace in favour of the latter two parties, who were
made the absolute owners of separate parts (front and rear) of the terrace.
The basis for the waiver, as per the Family Arrangement, was that Kavi
Kumar and his mother (Savitri Devi) realized that D1 and D2 may
experience difficulties in future, and thus intended to provide additional
source of income to them.
32. PW-1 Smt Madhur Bhargav, wife of Kavi Kumar, deposed during
the trial of the suit that Savitri Devi used to know several influential people,
and Kavi Kumar used to shiver under her threats, especially at the time
when the family arrangement was made. She further stated that due to
Savitri Devi's threats, her husband was left with no choice but to succumb
to her wishes. In her cross-examination, she denied that any coercion or
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fraud was applied by her mother in law in the execution of the family
arrangement. She identified the signature of her husband, Kavi Kumar, on
the family arrangement at all the pages. Undeniably, that Kavi Kumar
completed his BA (Hons) and LLB from Delhi University, and had joined
the IPS cadre rising to the post of Superintendent of Police, subsequently to
Inspector General of Police. It is also an admitted fact that in 1994, he filed
a suit against his mother and sisters. It is also a matter of record that Savitri
Devi died in 1990, and Kavi Kumar lived for three years after his mother's
death but there was no challenge made to the validity of the family
arrangement during his lifetime. D1 and D2 relied on these facts to
discredit the allegations made by the plaintiffs.
33. The plaintiffs, on the other hand, argued that both D1 and D2 had
Marriage Insurance Policies in the sum of Rs. 35,000/- each which they
duly realized upon attaining maturity. The Plaintiffs re-iterated their
allegations in the suit that both D1 and D2 had been gainfully employed
after their graduation as journalists. It was also argued that in 1984, Savitri
Devi had been a heart patient, and suffered two severe heart attacks during
1984-1986. It was further pointed out even if Kavi Kumar did sign some
document, the same was done under immense pressure and undue influence
from his mother whom he had always held in awe since childhood. It was
emphasized that the son, Kavi Kumar had put his signature believing that
his rights which were absolute would, on the demise of his mother, not be
effected. Lastly, it was pointed out that after the mother's demise, Kavi
Kumar requested D1 and D2 to vacate the third floor; they evaded for some
time, and eventually D1 filed a suit for injunction to restrain Kavi Kumar
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from evicting her contending that she was a lawful tenant (of the mother by
virtue of Lease Deed dated 27.7.1984)
34. The burden of proving invalidity of a family arrangement lies on the
party who alleges it; in this case it lay upon the plaintiffs. Kavi Kumar was
an educated person, who joined the IPS cadre and was promoted to the post
of Inspector General. Moreover, during his lifetime the family arrangement
was never challenged on the ground of being induced by fraud, undue
influence, misrepresentation or coercion. Previously, Kavi Kumar had
instituted the 1974 suit against his mother. Even PW-1 Smt Madhur
Bhargava identified his signatures on the family arrangement. Had he been
aggrieved by the terms of the family settlement, there was no reason why
during his life time, he did not impeach it. Instead, he accepted it, and
expired 10 years after its execution, in 1993. It is a settled principle of law
that even pleadings in relation to fraud, undue influence or
misrepresentation have to be specific; the party alleging it also has a
responsibility of proving it. Order VI, Rule 4 of the Code of Civil
Procedure reads as under:
"4. Particulars to be given where necessary In all cases in
which the party pleading relies on any misrepresentation,
fraud, breach of trust, wilful default, or undue influence, and
in all other cases in which particulars may be necessary
beyond such as are exemplified in the forms aforesaid,
particulars (with dates and items if necessary) shall be stated
in the pleading."
The Supreme Court underlined this requirement, in A.C. Ananthaswamy v.
Boraiah [(2004) 8 SCC 588], in the following observations:
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"Fraud is to be pleaded and proved. To prove fraud, it must be
proved that representation made was false to the knowledge of
the party making such representation or that the party could
have no reasonable belief that it was true. The level of proof
required in such cases is extremely higher. An ambiguous
statement cannot per se make the representor guilty of fraud.
To prove a case of fraud, it must be proved that the
representation made was false to the knowledge of the party
making such representation. [See: Pollock & Mulla on Indian
Contract & Specific Relief Acts _ (2001) 12th Edition page
489]."
35. In the present case, there was no specific pleading how the plaintiffs'
predecessor in title, Kavi Kumar was coerced, or fraud played on him.
Neither was there any such pleading in regard to those vitiating
circumstances as far as Savitri Devi was concerned. Indeed, the plaintiffs'
case was that Kavi Kumar was prevailed upon to execute the family
arrangement. Therefore, to say that Savitri Devi too was subjected to undue
influence or coercion would have been inconsistent. In any case, the suit
alleges that Savitri Devi was a chronic diabetic, and was hospitalized in the
National Heart Institute, in 1984, which is after the family arrangement was
entered into. During the evidence too, no material to establish that either
Kavi Kumar was prevailed upon, or coerced, or undue influence was brought
to bear on him, or that he was the victim of a fraud, was brought on record.
In light of these circumstances, the Court is of the opinion that the plaintiffs
did not discharge their burden of proving that Kavi Kumar (the first
plaintiff's husband and the father of the other plaintiffs) was made to enter
into the family arrangement under coercion, fraud, misrepresentation or
undue influence.
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36. The plaintiffs had sought to challenge those findings, on the ground
inter alia, that they were not given a hearing on this aspect after the remand.
This is one of the important grounds urged in CM 13191/2004. It was
contended, by the plaintiff, in a subsequent application (CM 13877/2008, in
their appeal RFA No. 732/2003, which was affirmed by Ms. Madhur
Bhargava), inter alia, that:
"...The absence of vitiating elements like fraud and undue
influence is vital and essential for holding Family Settlement
as valid. It is something implicit and it was on this
consideration that issue No.2 was held to be redundant in view
of the finding recorded in the affirmative under issue No.1. In
the peculiar facts and circumstances of the case where right to
construct over the terrace of the floor of the property was not
included in the grant nor procured subsequently there could
be no giving or taking of right /property.
In the premises, it is humbly prayed that the Finding
recorded by the learned Trial Judge under issue No.2 be
upheld and issue No.2 be taken as having been answered as
stated in the impugned judgment or appropriate order as may
be deemed just and expedient may be pass to keep the record
straight."
This Court would be justified in concluding the above issue, regarding lack
of hearing on the basis of the above averments alone. Yet, in order to satisfy
its conscience, the court examined the Trial Court records, especially the
proceedings after remand, in 2004. The order sheet of the Trial Court
discloses that after receipt of this court's order on 10-9-2004, the matter was
directed to be transferred to another judge. The District Judge, on 14 th
September, 2004, was directed to be listed back to the concerned Additional
District Judge, who on the next day, i.e 15th September, 2004, initially
recorded that none of the parties were present. Later, the same day, the third
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plaintiff, Ms. Shraddha Bhargava (who is also a counsel) appeared; the Trial
court directed the office to receive back the file from this court, and listed
the suit for compliance of his directions, the next day, i.e 16 th September,
2004. The suit was again listed on 16-9-2004. That day, the plaintiff was
unrepresented; the matter was again listed on 20-9-2004. On the latter date
of hearing, the plaintiffs were unrepresented. The court waited for the
appearance of counsel for plaintiff and later heard arguments. The Court
directed the matter to be listed for orders on 24 th September, 2004. On that
day, the order was pronounced. The plaintiffs were aware that the matter had
been remanded for recording finding on Issue No. 2 (by the order of this
Court dated 25-8-2004); the third plaintiff was in fact present, when the case
was listed on 15-9-2004; the next date of hearing was made known to her.
The plaintiffs chose not to appear on the subsequent dates of hearing, or
ensure their appearance through counsel. In these circumstances, they cannot
complain of denial of right to hearing.
37. This Court, consequently is in agreement with the finding of the Trial
Court in the order dated 24.9.2004 that the plaintiffs were unable to prove
issue No. 2. The said issue is accordingly answered against the plaintiffs,
and in favour of the first two defendants/sisters.
Issue Nos 3: Whether the suit is barred by time?
Issue No.10 Whether defendant no. 1 and 2 have become owners of the
property in possession by adverse possession and whether this plea is
available to them?
Issue No. 6: Whether construction on the terrace was made by defendant no.
1 and 2 at their expense, if so it effects on plaintiff?
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38. The sisters, D1 and D2 contended that the suit was barred due to
limitation. this claim was based on firstly, the 1983 Family Agreement, and
secondly, on their continuous and exclusive possession of the suit property.
They contended that for a declaration that the 1983 family arrangement was
invalid in law and therefore unenforceable, the limitation period was of only
three years. Since the suit was filed much after the expiry of 3 years, it was
barred by limitation. They urged that Article 59 of the Schedule to the
Limitation Act applied. Additionally, it was argued that if Article 59 is
assumed to be inapplicable, then Article 65 would be applicable, and thus,
the suit was barred, nevertheless, as D1 and D2 had become owners of the
terrace by way of adverse possession for more than 12 years. It was argued
that it is an admitted position that the sisters took over possession of the suit
property (ie the terrace to the Asaf Ali Marg property) in 1984, subsequently
let it out to D3 and D4. Thus, it was asserted that the sisters, D1 and D2 have
been in exclusive and continuous possession of front and hind portions of
the suit properties respectively since 1984.
39. On the issue of limitation, the plaintiffs firstly contended that since the
1983 family arrangement was void ab intitio (being induced by fraud,
coercion, undue influence and misrepresentation), there was no need to seek
a declaration to this effect. Thus, no limitation period would be applicable to
such a suit. In this connection, reliance was placed on Prem Singh v. Birbal
(2006) 5 SCC 353. Furthermore, relying on the decision State of
Maharashtra v. Pravin Jethalal Kamdar (dead) by Lrs. AIR 2000 SC 1099,
it was contended that when possession is taken under a void document, then
suit for recovery of possession simpliciter can be filed, without the need to
seek a declaration about invalidity of the documents. Moreover, even if such
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relief of declaration is sought along with the relief of decree for possession,
it would be governed by Article 65 and not Article 58. It was further
contended that Kavi Kumar's right to sue for recovery of possession of the
suit property arose only upon the death of Savitri Devi, on 7.3.1990 since
during her lifetime, she had a life interest in it. To support this argument,
plaintiffs placed reliance on M.V.S. Manikayala Rao v. M. Narasimhaswami
and others AIR 1966 SC 470 stating that adverse possession begins only
when the plaintiff becomes entitled to possession. To support the contention
that Article 65 would apply to the case at hand, plaintiffs also relied on
Ramiah v. N. Narayana Reddy (dead) by Lrs. (2004) 7 SCC 541. Lastly, in
response to the defendants' claim of title based on adverse possession, the
plaintiffs relied on T. Anjanappa and Ors v. Somalingappa and Anr. (2006)
7 SCC 570 to contend that the defendants were required to show by clear
and unequivocal evidence that their possession was hostile to the real owner
and amounted to denial of their title to the property claimed.
40. The suit from which appeals have been preferred was one for recovery
of possession and mesne profits. The plaintiff's basis for recovery of
possession has been that the title in the suit property vested in their
predecessor-in-interest, Kavi Kumar. This title was based on the decree in
the previous suit under which ownership rights over the second floor were
conferred on him subject to the life interest of Savitri Devi, his mother.
Thus, the question that arises is what, if any would be the period of
limitation applicable for the present suit. It is pertinent to reproduce the
relevant provisions:
"Limitation Act, 1963:
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27. Extinguishments of right to property - At the determination of the
period hereby limited to any person for instituting a suit for possession of
any property, his right to such property shall be extinguished.
ARTICLE DESCRIPTION OF PERIOD OF TIME FROM
NO. LIMITATION WHICH PERIOD
SUIT
BEGINS TO RUN
59 To cancel or set aside Three years When the facts
an instrument or entitling the plaintiff to
decree or for the have the instrument or
rescission of a decree cancelled or set
contract. aside or the contract
rescinded first
becomes known to
him.
65 For possession of Twelve When the possession of
immovable property years the defendant becomes
or any interest therein adverse to the plaintiff.
based on title.
Provisions of the Specific Relief Act, 1963.
"31. When cancellation may be ordered. (1) Any person
against whom a written instrument is void or voidable, and
who has reasonable apprehension that such instrument, if left
outstanding may cause him serious injury, may sue to have it
adjudged void or voidable; and the court may, in its
discretion, so adjudge it and order it to be delivered up and
cancelled.
(2) If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also send a
copy of its decree to the officer in whose office the instrument
has been so registered; and such-officer shall not on the copy
of the instrument contained in his books the fact of its
cancellation."
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41. It is trite that to decide a question whether the suit is barred by
limitation, averments in the plaint have to be read without looking into the
defence. It is averred in the suit that Kavi Kumar was induced by coercion,
undue influence, misrepresentation and fraud to enter into the family
arrangement. A family arrangement is no doubt an agreement. Section 19
and 19-A of the Indian Contract Act, 1872 provide that an agreement
consent to which is obtained by any of the aforementioned four means is
voidable at the option of the party whose consent was so caused. Thus, the
family arrangement was voidable, in the terms of the pleadings in the suit,
at the option of Kavi Kumar. Section 31 of the Specific Relief Act provides
for a relief of a cancellation of an instrument which is void or voidable.
Article 59 restricts the period for cancelling an instrument as 3 years
starting from the time of the plaintiff's knowledge of the facts entitling
cancellation. Plaintiffs relied on the Supreme Court's decision in Prem
Singh (supra) to contend that when a transaction/instrument is void ab intio,
there is no need for a declaration stating so. However, the Court in Prem
Singh also held that the Limitation Act would continue to apply in case of a
plaintiff who, due to a void transaction, is not in possession of his property.
It held that the Limitation Act would continue to apply since a right by
reason of adverse possession may still be claimed. Here too, the facts
present a similar situation. However, it must be noticed that the allegation
that the family arrangement was induced by coercion, undue influence,
misrepresentation and fraud, if assumed to be correct, causes the agreement
(family arrangement) to be voidable at only Kavi Kumar's instance. The
family arrangement would not become void ab initio. Therefore, the three
year limitation period to get the family arrangement cancelled would still
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apply. The plaint states that the cause of action first arose upon the death of
Savitri Devi who had a life interest in the suit property. Thus, it can be
assumed that Kavi Kumar had knowledge about the voidability of the
family arrangement in 1990. The suit, which was instituted in 2000, was,
thus, beyond the limitation period envisaged in Article 59, and therefore
barred by time.
42. The plaintiffs relied on the decision in Pravin Jethalal Kamdar to
contend that in such a case, the suit would be governed by Article 65, and
not Articles 58/59. However, in that case, the transaction (a decree) in
question was void, and considering that the Court held since same was a
nullity, there was no need to seek a declaration about its invalidity. The
Court concluded that instead of Article 58, Article 65 would apply. Thus,
since the transaction therein was void, the case is of no assistance to the
plaintiffs. In this case, the time from which the period begins to run would
have to be determined. The suit property in 1984, when the sisters (D1 and
D2) first took over possession (of the terrace) was either a joint property of
the mother, Savitri Devi and her children, or its ownership rights belonged
to Kavi Kumar subject to the life interest of the mother. Savitri Devi passed
away in 1990. In both the cases, the intention of the sisters D1 and D2
would be relevant.
43. Interestingly, the plaintiffs aver, in the suit (Para 14) that during
Savitri Devi's lifetime, after the family arrangement, the existing tenant,
Sheri Daulat Ram Prem, vacated the portion over the second floor of the
Asaf Ali Property. After this, state the plaintiffs,
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"It would be sufficient to mention only one fact by way of
demonstration that at or about the same time Defendant No. 2
let out the hind flat poorly built with constructed area of 550
sq. Feet and that too on the 3rd Floor at Rs. 5500/- per month
with 10 per cent increase after every three years..."
The written statement of the sisters states as follows:
"14. The said family settlement settling the terrace of the said
property in favour of the sisters was given effect to. The
defendants No. 1 and 2 the charge of the respective portions
assigned to them of the said top floor. They have been leasing
out the property, realising rents, paying taxes and exercising
all other incidents of ownership in the said suit property, right
from 1983 till date peacefully, continuously and without any
objection from anybody including the plaintiffs.
15. The plaintiffs owned the first and second floors of the
said property. The terrace floor is above the second floor of
the property. The assertion and exercise ownership rights in
the terrace tops floor by the defendants No. 1 and 2 had
always been in the knowledge of the plaintiffs.
16. Thus, the defendants No.1 and 2 categorically state that
by virtue of the said registered family settlement Institute and
by their brother, the husband of plaintiff no. 1 and the mother
in 1983, they had become and continue to be the absolute
owners of the portions of the suit property respectively allotted
to them."
PW-1, Ms. Madhur Bhargava, in deposition during cross examination,
stated that:
"It is correct that M.G. Motors was inducted as tenant in the
premises in suit by Arti Bhargav in the year 1986. It is also
correct that the tenancy was created during the lifetime of Sh.
K.K. Bhargav. My husband Sh. K.K. Bhargav raised an
objection to the creation of tenancy by Arti Bhargav in the
year 1986. No letter or notice was given by my husband to Arti
Bhargav or to M.G. Motors objecting to the creation of
tenancy in the year 1986. My husband did not initiate any
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action objecting to the creation of tenancy...My husband raised
objection to the creation of tenancy by Arti Bhargav with
discussions to her.."
She further deposed that:
" Mrs. Savitri Bhargava died on 7-3-1990. Mr. K.K. Bhargav
expoired on 29-5-1993. It is correct that the suit property was
let out the defendant no. 04 during the lifetime of Savitri
Bhargava with the consent and knowledge of Sh. K.K.
Bhargav... I did protest against letting to defendant no. 04
after the death of Sh. K.K. Bhargav. I am not placed on record
any document of protest against defendant no. 04 in view of
whatever as stated above..."
The affidavit evidence of the sisters (D-1 and D-2) that they asserted
ownership rights in respect of their portions of the terrace went
unchallenged. In fact, during the cross examination of DW-1 (Arti)
specifically she was asked whether the previous partition after the decree
included ownership to the terrace; she deposed that such portion was not
included. She also explained, later, in the cross examination, that the family
arrangement was necessary because she had turned 31, and her mother was
70 and there was need for more income. The cross examination also shows
that the value of the Nizamuddin Property at the time of partition (1975)
was Rs. 1,25,000/- (it fell to the share of the brother) and the total value of
the Asaf Ali Road property was a little more than Rs. 4 lakhs. DW-4, Ajai
Sanghi, partner of the fourth defendant, stated that the said defendant was a
tenant of the plaintiffs in the second floor, and had a tenancy in respect of
the terrace portion of the third floor. Possession of the third floor premises
by the sisters, during the lifetime of their mother and brother, (during which
time even tenants were inducted and leases created afresh), clearly
established that all these events were within the knowledge of the others.
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This clearly amounted to asserting title. The leasing out of premises -
unless by a lessee or person authorized by the owner to sub-lease or create
an interest to third parties, is quintessentially an act of asserting ownership
and title to the property; in this case, the two portions of the terrace. As to
what are the necessary ingredients to prove adverse possession was
explained thus, in Karnataka Board of Wakf v. Government of India and
Ors. (2004) 10 SCC 779 by the Supreme Court:
"11. In the eye of the law, an owner would be deemed to be in
possession of a property so long as there is no intrusion. Non-
use of the property by the owner even for a long time won't
affect his title. But the position will be altered when another
person takes possession of the property and asserts a right
over it. Adverse possession is a hostile possession by clearly
asserting hostile title in denial of the title of the true owner. It
is a well-settled principle that a party claiming adverse
possession must prove that his possession is "nec vi, nec clam,
nec precario", that is, peaceful, open and continuous. The
possession must be adequate in continuity, in publicity and in
extent to show that their possession is adverse to the true
owner. It must start with a wrongful disposition of the rightful
owner and be actual, visible, exclusive, hostile and continued
over the statutory period. (See S.M. Karim v. Bibi Sakina AIR
1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N.
Venkatarayappa v. State of Karnataka (1997) 7 SCC 567)
Physical fact of exclusive possession and the animus
possidendi to hold as owner in exclusion to the actual owner
are the most important factors that are to be accounted in
cases of this nature. Plea of adverse possession is not a pure
question of law but a blended one of fact and law. Therefore, a
person who claims adverse possession should show: (a) on
what date he came into possession, (b) what was the nature of
his possession, (c) whether the factum of possession was
known to the other party, (d) how long his possession has
continued, and (e) his possession was open and undisturbed. A
person pleading adverse possession has no equities in his
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favour. Since he is trying to defeat the rights of the true owner,
it is for him to clearly plead and establish all facts necessary to
establish his adverse possession. Mahesh Chand Sharma (Dr.)
v. Raj Kumari Sharma : (1996) 8 SCC 128."
44. In view of the above discussion, it is held that the suit for possession,
on the basis that the family arrangement was void and inoperative, was
clearly time barred. The defendants have also been able to establish that they
enjoyed open, hostile and continuous possession in respect of the portions of
the third floor/terrace of the Asaf Ali Road property, pursuant to the family
arrangement of 1983. They could clearly assert - and have proved title by
adverse possession. Issue Nos. 3 and 10 are answered in favour of the
sisters, the first two defendants and against the plaintiffs. The findings in the
impugned judgment and decree, to this extent, are set aside.
45. The discussion on issue No. 6 by the Trial Court and its findings were
hinged largely on the findings recorded about legality and efficacy of the
family settlement/arrangement. It held that the sisters did not prove that they
had spent money and built the structures on the third floor.
46. In two affidavits in evidence dated 8th July 2002, affirmed by Arti and
Bharti, respectively, they affirmed that the structures on the second floor had
existed before the Plan for the area came into force and that they renovated
or repaired the structure, as that had become dilapidated due to passage of
time. This is to be seen in Para 30 (of Arti's affidavit) and Para 28 (Bharti's
affidavit). The plaintiffs did not challenge the sisters' assertion during cross
examination. Even otherwise, the evidence on record suggests that tenants
were inducted in the terrace portion as early as 1986, during the lifetime of
both Savitri Devi and Kavi Kumar.
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47. In view of the findings recorded regarding efficacy and legality of the
family arrangement, and the discussion above, it is held that Issue No. 6 too
has to be answered in favour of the sisters, i.e the first two defendants. The
findings of the Trial Court on this issue are accordingly set aside.
Issue 4: Whether terrace on second floor was included in the judgment and
decree of suit no. 477 decided on 15th May, 1975 by the Hon'ble High Court
of Delhi?
Issue 5: Whether defendant no. 1 and 2 were estopped from taking the
contrary plea mentioned in Issue 4?
48. The plaintiffs contended that the decree in the 1974 suit conferred the
ownership rights over the suit properties to Kavi Kumar, subject to the life
interest of Savitri Devi. Counsel for the plaintiffs contended that the subject
matter of roof rights was unknown to the parties because the 1952 Lease
entered into with the Central Government confined the grant (or the demise)
to those portions. The sisters, D1 and D2 contended that the rights in the suit
property were not specifically divided by the decree in the 1974 suit, and
thus the suit property (of this suit) had remained the joint property of all four
parties to the 1974 suit.
49. The 1974 suit resulted in an arbitral award in terms of which the
properties in question were divided in specific terms to Savitri Devi, her
daughters and her son. Savitri Devi was conferred life interest in the second
floor of the Asaf Ali Road property, and after her death, the property was to
devolve absolutely upon the son, Kavi Kumar. D1 was given ownership of
the basement, D2 was made the absolute owner of the ground floor of the
Asaf Ali Road property. The Nizammudin West property went in entirely to
the son, Kavi Kumar. The award - (and consequently the decree arising out
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of it), makes no mention of the terrace rights. However, the basis for the
Arbitrator's decision was that the properties therein in question had been
acquired for the common benefit of all. The arbitrator thus, divided the
property equally in the aforementioned manner. The plaintiffs had
strenuously argued that at the time of making the award, the Delhi Ajmeri
Gate Scheme (pg. 1138 of the Trial Court records) permitted construction of
only three storeyed (i.e. ground, first and second floor) buildings and thus,
though in 1984 a floor above the second one was built, it may have been the
case that at the time of the award, a third floor was not permissible due to the
then bye-laws, and therefore the learned arbitrator did not deem it necessary
to mention the terrace rights in the division. This Court cannot comment on
the legality of the constructions above the second floor.
50. A plain construction of the award reveals that there is no mention of
any rights over the terrace. This absence, has to be seen in the light of the
other rights, which the Award conferred on all members of the family,
equally:
"6. As the property at the Asaf Ali Road has common
staircase, corridors and other amenities of common
convenience, these will remain the joint property of all the
sharers and each of the parties shall be entitled to use them as
heretofore, and be responsible for the proper maintenance and
repairs of those common conveniences."
51. All the parties to the 1974 suit consented to the award, and a decree
was made in terms of the award partitioning the properties in question
therein in the aforementioned manner. The silence, on the one hand, and
clause 6 (of the award) in one sense led to ambiguity which could have
potentially been a source of future conflict. This Court holds therefore, that
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the terrace was not separately given to any of the parties to the 1974 suit.
Instead it remained the joint property of Savitri Devi and her children (Kavi
Kumar, and D1 and D2). Even if the finding were to be otherwise, and
Savitri Devi, as life owner (and after her, Kavi Kumar) were to be owners of
terrace rights, as the owner(s) of the second floor, this issue would
nevertheless be answered in favour of the sisters (Defendant Nos. 1and 2)
because the family settlement was lawfully entered into, and bound Savitri
Devi as well as Kavi Kumar, who gave up such rights.
52. The plaintiffs contended that since the family arrangement itself states
that the suit property fell to the share of Kavi Kumar subject to the life
interest of Savitri Devi, D1 and D2 are estopped from taking a contrary plea.
The relevant extract of the family arrangement is extracted below:
"And whereas all the parties to this deed realize that the
parties Three and Four may experience difficulty in future and
they therefore approached the First and Second parties to
agree to an arrangement, by way of family settlement for
providing additional source of income to parties Three and
Four and they have generously agreed to the following
arrangement for the benefit of parties Three and Four:
***
1. The top portion of the house, the terrace, on 3/13-B Asaf
Ali Road, New Delhi, which belongs to party no Two subject to
the life interest of party No. One, shall be divided into two
parts as follows:
*** ***
Parties One and Two have hereby waived whatever rights they
had or have in future in portions allotted to parties Three and
Four as aforesaid.
(emphasis supplied)
RFA-732/2003,855/2003,878/2003 &912/03 Page 51
53. The above reveals that at the time of execution of the family
arrangement, all the parties (including D1 and D2) believed Kavi Kumar to
be the owner of the suit property subject to the life interest of the mother.
This recital of course binds the parties, particularly D1 and D2. However,
the question of estoppel does not arise, because even though at the time of
execution of the family settlement, the understanding might have been that
the brother had unfettered rights to the terrace subject to the mother's life
interest, nevertheless the parties were clear that the brother would give up
those rights, in order to assure his sisters (D-1 and D-2) additional income;
he did so by executing the deed of family arrangement. As this court has
already held, in respect of Issue No. 1 that the family arrangement was valid
and binding and further, in regard to Issue No. 2 that the plaintiffs could not
prove that the document was vitiated by fraud, undue influence, or coercion,
the question of the first two defendants (i.e the sisters) being estopped in any
manner, does not arise. Issue No. 5 is accordingly answered against the
plaintiffs and in favour of the defendants; the findings of the Trial Court are
hereby set aside.
Issue No. 7 Whether defendant no. 1 and 2 and defendant no. 3 and 4 are
liable to pay damages to plaintiffs, if so for what amount.
54. The issue of damages was struck at the behest of the plaintiffs, in view
of the relief of decree for possession, damages and mesne profits claimed by
them. However, this court, as held in the previous discussion, has recorded
findings to the effect that the sisters - as well as Kavi Kumar and Savitri
Devi, had acted on the family arrangement which is valid and binding. The
court has further held that the suit as brought by the plaintiffs, is time barred.
RFA-732/2003,855/2003,878/2003 &912/03 Page 52
Therefore, the plaintiffs' claim for damages has to fail. In any case, the Trial
Court had not granted this relief. The issue is accordingly held in favour of
the defendants and against the plaintiffs.
Issue Nos 8,9 and 11
55. As noticed at the outset, the parties had not made any arguments on
these issues. There is no need to address the same.
56. In view of the above findings, the Court holds that the suit filed was
not maintainable; it is accordingly dismissed. The plaintiffs' appeal, RFA
No. 732/2003 is dismissed. The appeals of the defendants (RFA Nos.
855/03, 878/03 and 912/03) have to succeed, in view of the findings
recorded by this court. They are accordingly allowed. The Plaintiffs shall
bear the costs of each appeal, quantified at Rs. 50,000/-. The costs shall be
shared by all defendants in equal shares.
S. RAVINDRA BHAT
(JUDGE)
S.P. GARG
(JUDGE)
JANUARY 30, 2013
RFA-732/2003,855/2003,878/2003 &912/03 Page 53
