Sh. Prem Prakash vs Smt. Champa Devi & Ors.
2013 Latest Caselaw 45 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CS (OS) No.2153/1989

%                                                       January 04, 2013

SH. PREM PRAKASH                                           ...... Plaintiff
                            Through:      None.


                            VERSUS


SMT. CHAMPA DEVI & ORS.                               ...... Respondents

Through: Mr. Ravi Gupta, Senior Advocate with Mr. Ankit Jain, Advocate, Ms. Rupali Sharma, Advocate and Mr. Ajay Gulati, Advocate for defendant Nos.2 to 8.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

I.A. No.22931/2012 (exemption)

Exemption allowed subject to just exceptions.

I.A. stands disposed of.

I.A. No.22924/2012 (condonation of delay)

For the reasons stated in the application, delay of 116 days in

filing the review application is condoned subject to just exceptions.

I.A. stands disposed of.

+ Review Application No.731/2012

1. This review application seeks review of the judgment and

decree of this Court dated 26.7.2012 whereby a preliminary decree was

passed declaring the plaintiff to be 2/3rd owner of the property bearing

No.1729, Naya Bazar, Delhi-6. Plaintiff had 1/3rd share as the son of late

Lala Gobind Sahai, and another 1/3rd share came to the plaintiff by virtue of

the registered Will dated 8.10.1997 (Ex.PW1/9) of the respondent

No.1/mother giving her 1/3rd share in the suit property to the plaintiff. The

review petitioners/defendant Nos.2 to 8 have been held entitled to 1/3rd share

of the suit property.

2. The review petition is predicated on three grounds.

(i) The family settlement dated 31.5.1972 relied upon by review

petitioners to claim exclusive ownership of the suit property is proved by the

fact that the plaintiff received another property being 47/35, Punjabi Bagh,

New Delhi and thus Sh. Om Prakash, brother of plaintiff and the

predecessor-in-interest of defendant Nos.2 to 8 under the family settlement

received the suit property. It is asserted that this aspect is not dealt with in

the judgment dated 26.7.2012.

(ii) The second ground which is urged to seek review is that there

are no pleadings of the plaintiff with respect to the registered Will dated

8.10.1997 (Ex.PW1/9) in favour of the plaintiff and therefore such evidence

of proof of the Will cannot be looked into and the plaintiff cannot be granted

1/3rd share of the mother by relying upon the said Will.

(iii) This Court has not dealt with the testimony of Sh. Anil

Mahajani (DW2) in the judgment dated 26.7.2012 and which testimony

showed that in the year 1972 the plaintiff, Om Prakash-predecessor-in-

interest of defendant Nos.2 to 8 and Sh. Surinder Kumar had contacted DW-

2 and told that the properties have been partitioned whereby the suit property

had fallen to the share of Sh. Om Prakash/the predecessor-in-interest of

defendant Nos.2 to 8.

3. So far as the first aspect that the Court has not considered the

fact that partition is proved because by the partition another property bearing

No.47/35, Punjabi Bagh, New Delhi was given to the plaintiff, this argument

is quite clearly misconceived for the reason that this aspect has been touched

upon in para 10(ii) of the judgment dated 26.7.2012 and which reads as

under:-

"10(ii) There was no reason why there should not be a written document of the stated family settlement dated 31.5.1972 inasmuch as on the same date parties being the plaintiff, defendant no.1 and late Sh. Om Prakash entered into a written dissolution deed with respect to their partnership-M/s. Prakash Oil Marketing Company in which they were partners. It does not stand to reason that if for a dissolution of partnership a written document could be entered why there is no written document evidencing an extremely important fact of exclusive ownership in the suit property being vested with late Sh.Om Prakash under an alleged family arrangement."

In order to appreciate para 10(ii) of the judgment dated

26.7.2012, one has to understand the fact that the property bearing No.47/35,

Punjabi Bagh, New Delhi was not the property of late Lala Gobind Sahai

and whose properties were the subject matter of this suit for partition, but

was of a partnership firm M/s. Prakash Oil Marketing Company in which

plaintiff, defendant No.1, late Sh. Om Prakash (predecessor-in-interest of

defendant Nos.2 to 8) and defendant No.2/Sh. Surinder Kumar were

partners. Therefore the property of a partnership firm was not the property

of late Lala Gobind Sahai and the only property of late Lala Gobind Sahai

was the one which was the subject matter of the present suit for partition.

Also argument that the property of the partnership firm was exclusively

given to the plaintiff and by the family settlement dated 31.5.1972 the suit

property was given to late Sh. Om Prakash (predecessor-in-interest of

defendant Nos.2 to 8) lacks merit inasmuch as the dissolution deed was filed

on record alongwith the written statement of sister defendant No.11 (who

however did not appear thereafter and contest the case) and which does not

at all remotely state this. In fact, since the admitted case of the parties at the

time of hearing of final arguments was that there was a dissolution deed of

the partnership M/s. Parkash Oil Marketing Company, the review petitioners

ought to have filed that dissolution deed and which would have buttressed

their case if it was correct that the property of partnership bearing No.47/35,

Punjabi Bagh, New Delhi was given to the plaintiff because of a family

settlement and under which family settlement the review petitioners'

predecessor-in-interest, namely Sh. Om Prakash got the suit property.

Obviously, the review petitioners deliberately did not file this dissolution

deed inasmuch as this dissolution deed did not contain any reference

whatsoever to the suit property. In fact, if the contention of the review

petitioners was correct that the property at Punjabi Bagh was given to the

plaintiff simultaneous to the execution of the dissolution deed, then, surely

this aspect would have found mention not only in the dissolution deed but

also in other contemporaneous documents of the same or nearby date. Para

10(ii) of the judgment dated 26.7.2012 deals with this aspect and the

reasoning for not accepting the alleged family settlement of 1972 is also

contained in the other sub-paras of para 10 of the judgment.

It is for aforesaid reasons including others and all of which have

been given in detail in various sub-paras of para 10 of the judgment dated

26.7.2012, that this Court did not accept the plea of a family settlement

dated 31.5.1972 as pleaded on behalf of the review petitioners.

4. The contention that this argument of the property at Punjabi

Bagh was not dealt with in the judgment dated 26.7.2012 is only correct at

the first blush because though the Punjabi Bagh property is not stated by

specific number in the judgment, however, there is reference to the issue of

partnership in para 10(ii) of the judgment. In any case, even if the argument

is now allowed to be urged that the family settlement should be taken as

proved on the basis of the fact that the Punjabi Bagh property went to the

plaintiff, even this argument has no legs to stand upon because it is a pure

oral assertion on behalf of the defendant Nos.2 to 8 and is not even

supported by the dissolution deed of M/s. Prakash Oil Marketing Company

or any other documentary evidence. As already held in the judgment dated

26.7.2012, rights of a person/plaintiff in an immovable property cannot be

extinguished on the basis of oral evidence especially when there is

documentary evidence with respect to dissolution of the partnership M/s.

Prakash Oil Marketing Company not saying so.

5. So far as the second argument that there is an error apparent on

the face of the record because this Court could not have given a finding as to

the validity of the Will Ex.PW1/9 of the respondent No.1/mother giving her

1/3rd share to the plaintiff, once again this argument is without merit because

this aspect has been duly referred to in para 14 of the judgment wherein

reference is made to the Supreme Court judgment in the case of Phool

Chand & Anr. Vs. Gopal Lal AIR 1967 SC 1470. The judgment in the case

of Phool Chand (supra) holds that if shares in the properties of which

partition is sought are altered because of circumstances which arise during

the pendency of the suit i.e subsequent events, Courts are bound to take note

of the same and decide the case on the basis of facts as existing at the time of

passing of the decree. I am constrained to note that the argument that the

Will Ex.PW1/9 should not be considered for enhancing the share of the

plaintiff from 1/3rd to 2/3rd was not argued before this Court at the time of

final arguments. I have quite a clear re-collection of this, and all that I can

say is that litigants want to state facts only to suit their convenience although

such facts would be incorrect.

In any case, even on this aspect I have heard today the learned

senior counsel for the review petitioners. The main contention on behalf of

the review petitioners is that since the Will Ex.PW1/9 was not put in the

form of pleadings, therefore, no amount of evidence on the same can be

looked into. Firstly, and as stated above, if this really was an objection this

would have been the first aspect to be argued at the time of final arguments

when the issue of proof of the Will was being heard, but which was not

done. In any case, what is argued on behalf of review petitioners that they

objected to leading of evidence on the ground of Will Ex.PW1/9

immediately when the Will was filed by PW1/plaintiff, is an argument

which is against the record because this Will was exhibited in the affidavit

by way of evidence of PW-1 and which was taken on record on 29.5.2007.

When we refer to the objections on this date (29.5.2007) of the counsel for

the defendant Nos.2 to 8 (and who is the counsel who had argued the suit

before me at the time of final arguments) it is shown that all that is stated in

the objection statement dated 29.5.2007 on behalf of defendant Nos.2 to 8 is

that cross-examination cannot be conducted because certain documents

being Ex.PW1/10 to Ex.PW1/14 have been put for the first time today and

therefore he would conduct cross-examination subsequently. I thus do not

find any objection in this statement recorded on behalf of defendant Nos.2 to

8 on 29.5.2007 qua the aspect of not considering the evidence of PW1 as

regards the Will. Though there is no objection, but only a statement on

behalf of defendant Nos.2 to 8 on 29.5.2007 but even if we treat the

statement as an objection, the objection is only to the documents Ex.PW1/10

to Ex.PW1/14 and not to the document Ex.PW1/9/ Will and for which

arguments are being raised before me today. Further, the cross-examination

of PW-1 thereafter commenced on 3.7.2007 on behalf of defendant Nos.2 to

8 without recording any statement that the affidavit by way of evidence to

the extent the same proves the Will Ex.PW1/9 cannot be looked into. It is

only in the middle of cross-examination that this thought of taking an

objection to the Will came upon the defendant Nos.2 to 8 who thereafter got

an objection recorded that the issue with respect to Will Ex.PW1/9 was

beyond the pleadings.

6. I may also further add that if the review petitioners were really

having a grievance with respect to the Will having been proved, nothing

prevented them from filing an application to strike out the portions of the

affidavit of PW-1 with respect to the Will or for not taking on record the

affidavit by way of evidence of the attesting witness PW-3, Dr. Rita Vohra,

and also of PW-1 on this aspect, however, this was not done. Further, the

defendant Nos.2 to 8 in the affidavit by way of evidence of defendant No.2

Sh. Surinder Kumar as DW-2 led affirmative evidence that the Will is a

forged and fabricated document. It is settled law that if parties are aware of

the respective cases of the parties which are not found in the pleadings and

the issues, and the parties lead evidence on such aspect and cross-examine

the witnesses of the other side, then, it is not open to them to urge that the

issue was not part of pleadings and therefore the same cannot be looked into

or decided and thereafter the review petitioners were bound to object as

regards proof of the Will before commencing cross-examination of PW-1

and which they did not.

7. In view of all the aforesaid reasons given: lack of arguments on

this aspect when the judgment was pronounced on 26.7.2012, the fact that

the Supreme Court in the case of Phool Chand & Anr. (supra) has required

the subsequent events to be noted to alter the share of the parties, and the

fact that before commencement of cross-examination of PW-1 when the

Will was propounded for the first time no objection was raised, no

application was ever filed for striking of evidence as regards the Will, I am

of the opinion that there is no merit in this argument that the judgment dated

26.7.2012 needs to be reviewed because the plaintiff should not be given

1/3rd additional share which belongs to the defendant No.1/mother.

8. The final point which is urged in the review petition is that this

Court has not considered the testimony of DW-2. It is urged that this

testimony of DW-2 shows that there was a family settlement of the year

1972. The affidavit by way of evidence of Sh. Anil Mahajani, DW-2 is of

four paragraphs and in which all that is stated is that Sh. Prem

Prakash/plaintiff, Sh. Om Prakash (predecessor-in-interest of defendant

Nos.2 to 8) and Sh. Surinder Kumar (defendant No.2) orally told him that

there were partitions of the properties whereby the suit property fell to the

share of late Sh. Om Prakash and that the rent was collected by Sh. Om

Prakash who was dealing with the property till his death and thereafter by

defendant Nos.2 to 8.

9. Once again, I have a clear re-collection that this affidavit was

not referred to at the time of final arguments on behalf of defendant Nos.2 to

8 but be it as it may, this evidence of DW-2 will at best show an oral self-

serving statement that there was a partition of the year 1972 whereby late

Sh. Om Prakash got the suit property. In my opinion, oral evidence cannot

in such a case be of such great weight so as to dislodge the various reasons

and grounds given by me in as many as five sub-paras of para 10 in the

judgment dated 26.7.2012 for holding that it cannot be held that there was

any settlement of the year 1972 as alleged by defendant Nos.2 to 8.

10. In view of the above, I do not find any merit in the review

application which is accordingly dismissed. No costs.

VALMIKI J. MEHTA, J JANUARY 04, 2013 Ne