Saroj Aggarwal And Anr. vs Shakuntala Aggarwal
2013 Latest Caselaw 89 Del

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          *      IN THE HIGH COURT OF DELHI AT NEW DELHI


+     IA No. 13807/2011 (O.39 R.1 & 2 CPC) & IA No.7876/2011 (O.39 R. 4 CPC) In
      CS(OS) 617/2011


                        Judgment delivered on: 07th January, 2013


      SAROJ AGGARWAL AND ANR                              ..... Plaintiffs
                               Through Mr.Rajeev Nayyar&Mr.Nidhesh Gupta, Sr. Advs.
                               with Mr.TejasKaria, Mr.DeepeshAneja,
                               Mr.AradhanaLakhtakia, Mr.Karan Mehra, Mr.Manavendra
                               Mishra, Advs.
                  Versus


      SHAKUNTALA AGGARWAL                               ..... Defendant
                               Through Mr.SandeepSethi, Sr. Adv. with Rajesh Gupta
                               and Mr.HarpreetSingh, Advs.


      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR


1.

By this order I propose to dispose of application filed by the plaintiffs under Order

39 Rule 1 & 2, CPC and the application filed by the defendant under Order 39 Rule 4 read

with Section 151, CPC to seek vacation of restraint order dated 7.4.2011 and for

modification of order dated 14.3.2011.

2. Vide an ex-parte order dated 14.3.2011, the defendant was restrained from parting

with possession of any part of the property or creating any third party interest in the

property bearing number 12, Road No.42, West Punjabi Bagh, New Delhi. This court also

directed that the defendant will not occupy any portion of the suit property without prior

permission of the court. Vide order dated 7.4.2011, the defendant was also restrained from

carrying out further construction in the property till further orders.

3. Addressing arguments on behalf of the defendant, Sr.Advocate Mr. SandeepSethi

submitted that defendant has been seriously prejudiced by the order dated 14.3.2011

whereby he has been restrained to occupy any portion of the suit property and order dated

7.4.2011 whereby defendant has been restrained from carrying out further construction in

the suit property. Counsel submitted that plaintiffs, with dishonest intentions, have

suppressed material facts from this court so as to obtain the said stay orders and had the

plaintiffs placed true facts before this court then this court would not have granted the said

stay orders in their favour. As per the counsel for the defendant, the plaintiffs have

concealed from this court that the parties to the suit are related to each other being wives of

three brothers and these three brothers alongwith their brother Mr. Sanjay Aggarwal are the

members of joint family of Late Shri Ram SharanAggarwal. Counsel further submitted that

the said joint family had various joint family businesses and out of the earnings of such

joint family businesses only various properties were purchased from time to time in

individual names for the use and benefit of the joint family. Counsel further submitted that

another important concealment on the part of the plaintiffs is that in or about October 2000,

an oral family settlement had taken place between the parties and under the said oral

settlement, the parties had divided some of the joint properties in a manner so as to enable

each of the four sons of late Shri Ram SharanAggarwal to have one separate residential

property and one separate commercial office each. Counsel further submitted that the said

family settlement was duly acted upon by all the parties and in furtherance thereof,

Mr.Kailash Chand Aggarwal, husband of plaintiff No.2, got residential property bearing

number S-399, Greater Kailash-II, New Delhi; Mr.VinodAggarwal, husband of plaintiff

No.1, got the property bearing number 7/42, West Punjabi Bagh, New Delhi;

Mr.SanjayAggarwal got property bearing number 54/43, West Punjabi Bagh, New Delhi

and Shri Ashok Kumar Aggarwal, husband of defendant, got the suit property i.e. property

bearing number 12/42, West Punjabi Bagh, New Delhi. Counsel thus submitted that the

suit property had fallen to the exclusive share of Mr.Ashok Kumar Aggarwal and none of

the other brothers or the plaintiffs have got any right, title or interest in the said Punjabi

Bagh property as they have already got their respective properties out of the properties

purchased from the joint family funds.

4. Counsel further submitted that in 2008-09, Mr. Ashok Kumar Aggarwal decided to

start construction in the suit property so as to reside in the said property alongwith his

family members and to enable Mr.Ashok Kumar Aggarwal to raise construction in the said

property, the members of the joint family whole heartedly came in support of his said

decision. Mr. Ashok Aggarwal then approached Mr.RasikBehl, Architect for preparing the

site plan for construction of the residence and in September 2009 the plans were approved

by the MCD and since then the construction in the said plot had commenced. Counsel

further submitted that in July 2009, the other co-owners of the property had also signed

drawings and completed other formalities for getting the necessary approval from MCD.

Counsel further submitted that a mere glance at the sanctioned plan of the said property

would amply show that the agreed construction and building plan is meant for use of one

single family only and there is no concept of floor wise division or partition of the said

building as per the case set up by the plaintiffs in the present suit. Counsel further

submitted that the construction of the suit property is being carried out by the defendant

with the knowledge, consent and approval of the joint family and the entire expenses of the

construction of the property including the payment made to the Architect etc. are being

borne by the defendant alone.

5. Learned counsel for the defendant further submitted that the daughters of Late Shri

Ram SharanAggarwal, in their affidavits dated 20.4.2011, have also clearly deposed that

the suit property exclusively fell to the share of ShriAshokKumarAggarwal and the filing

of the said affidavits clearly prove the fact of family settlement having taken place between

the members of the family.

6. Counsel further submitted that an amount of Rs.8,24,000was paid by the defendant

to the plaintiff No.2, Ms.RajniAggarwal by way of two separate cheques and the relevant

record slip of the cheque book of the bank account of the defendant and the pass-book of

the said account of the defendant carry an insertion against the said two cheques dated

15.3.2001 as "relinquishment of right in property due to family settlement". Counsel

further submitted that the said amount of Rs.8,24,000 is equivalent to the share value of

plaintiff no.2 in the suit property and therefore plaintiff no.2 cannot dispute the receipt of

the said payment towards her share in the suit property.

7. Counsel further submitted that even the Architect, Mr. RasikBehl, had issued a

certificate dated 28.3.2011 thereby certifying the fact that all his fee in terms of the

contract dated 12.3.2009 had been paid by the defendant alone. The Architect has further

certified that in the drawing/maps no floor wise planning was done so as to accommodate

any other family in the suit property. The Architect has also certified that he had not met

any of the co-owners of the property or had discussed any plans for the construction of the

said house with them. The contention raised by counsel for the defendant is that the

certificate issued by the said Architect, who is not an interested person in present litigation,

further proves the fact that plaintiffs have no right in the suit property.

8. Counsel also submitted that it is the defendant alone in whose name the temporary

electricity connection stands and who alone has been paying the electricity charges as per

the consumption shown in various electricity bills received by her.

9. Counsel also submitted that through the letter dated 22.9.2010 addressed by the

defendant to the office of the Sub Registrar, Punjabi Bagh, District West, the defendant

made a request to the office of the Sub-Registrar not to register any document with regard

to the sale purchase of the said house/plot without written permission from the defendant.

Counsel further submitted that a complaint dated 28.1.2011 was also lodged by the

defendant with the area SHO against the husbands of the plaintiffs and one Mr.Pawan

Kumar who had abused and manhandled the labourers present at the construction site.

10. Counsel further placed reliance on the two balance sheets of the defendant, placed

on record by the defendant, for the year ending 31.3.2000 and 31.3.2001 in support of his

argument that the amount indicated against the house property under the heading „assets‟

was Rs.8,22,000 in the balance sheet of 31.3.2000 and the said figure increased to

Rs.16,46,000 in the balance sheet of the next year and by this fact it is clearly established

that a family settlement between the parties had taken place and the suit property came to

the exclusive share of the defendant.

11. Counsel further submitted that defendant has already purchased various items

including fittings, fixtures, kitchen items, glass items etc. to be fitted and installed in the

suit property and has also placed orders for many of the items and in case the defendant is

not permitted to complete the contract then there is every chance of the material being

spoiled and rendered useless. Counsel also submitted that the defendant has entered time

bound contract with the Architect, Mr. RasikBehl and various other contractors and the

continuation of the restraint order would seriously affect the said time bound contracts and

would lead to cause insurmountable difficulties and financial implications. Counsel also

submitted that the labour contractors and technicians etc. are also sitting ideal on account

of the continuation of the said stay orders and the defendant is already facing threat of

litigation from various contractors on account of the delay in the completion of the

construction due to the operation of the said stay orders. Counsel also submitted that the

structure which exists at the site sans boundary wall is totally unprotected and there is

serious apprehension that the material stored at the site may be stolen.

12. Learned counsel for the defendant submitted that the defendant may be permitted to

carry out the complete construction in the suit property and so far the apprehension of the

plaintiffs that the defendant may sell out or create any third party interest in the suit

property is concerned, the defendant is ready to give an undertaking that she will not

alienate, sell or create any third party interest in the suit property so that no prejudice is

caused to the alleged rights of the plaintiffs in the suit property.

13. On the other hand, the case set up by the plaintiffs is that in July 2009, the plaintiffs,

defendant and Mr. Sanjay Aggarwal had taken a decision to demolish the old structure as

existed in the suit property so as to raise a residential building so that all the family

members could live together in the same house. As per the plaintiffs, it was also agreed

between the parties that the basement would be used for joint and common purposes by all

the brothers, while the ground and second floor would be used by the plaintiffs and the first

floor would be used by the defendant. As per the plaintiffs, it was also agreed that right to

construct and use the third floor would lie with Mr. Sanjay Aggarwal, the fourth brother, as

he was not interested in constructing the third floor at that time.

14. It is further the case of the plaintiffs that they had jointly engaged the services of an

Architect, Mr.RasikBehlfor preparing the building plan and for supervising the

construction of the residential building. According to the plaintiffs, they jointly submitted

an application to the MCD for obtaining necessary approvals for the construction of the

residential building and necessary affidavits, undertaking, indemnity bonds etc. were

jointly signed by all the parties. It is also the case of the plaintiffs that defendant was

permitted to supervise the construction of the proposed building till the structure level. It is

also the case of the plaintiffs that the cost of the entire construction was to be shared by the

plaintiffs and defendant, but despite repeated requests made by them, the defendant did not

come forward to give details of the expenses incurred by her towards construction of the

said property.

15. It is also the case of the plaintiffs that Mr.Sanjayout of natural love and affection,

had gifted away portion owned by him in the suit property in favour of plaintiff No.1 vide

registered Gift Deed dated 21.6.2010 and with the said gifting of share by

Mr.SanjayAggarwal, the plaintiffs became absolute owners of approximately 74% of the

total area in the suit property.

16. It is also the case of the plaintiffs that on account of the failure of the defendant to

come forward to give the details of the expenses incurred by him, the defendant was

requested by the plaintiffs not to raise further construction till the settlement of accounts,

but instead of acceding to the request of the plaintiffs, the defendant continued with the

construction on the suit property in full swing. It is also the case of the plaintiffs that

apprehending that defendant may sell, alienate or transfer the said property in favour of

some third party, the plaintiffs were left with no option but to approach this court to seek

partition of the said property and to seek relief of permanent injunction to restrain the

defendant from continuing with the construction of the building and also to restrain him

from selling, transferring or creating any third party right in the suit property.

17. Refuting the arguments advanced by the counsel for the defendant, Sr. Advocate Mr.

Nidhesh Gupta appearing for the plaintiffs submitted that the defendant has set up a new

defence during the course of her arguments, which she has not pleaded in her written

statement. He contended that it is not averred in the written statement filed by the

defendant that she had paid an amount of Rs. 8,24,000 to the plaintiff No. 2 towards full

and final satisfaction of her share in the Punjabi Bagh property. Inviting attention of this

Court to Para 15 of the written statement, Counsel submitted that the only defence raised

by the defendant in the written statement is that Mr. Ashok opted for the suit property in

terms of the family settlement arrived at between the parties in the year 2000 and in

furtherance of such a decision, Mr. Kailash principally agreed and gave up his wife‟s share

(plaintiff No. 2‟s paper share) in suit property in the favour of wife of Mr. Ashok

(defendantherein) and in turn opted to shift out of the joint residence and stay separately at

S-399, Greater Kailash - II, New Delhi. Counsel thus stated that nowhere in the written

statement the defendant has raised the said defence of having paid the share of the plaintiff

no. 2.

18. Counsel for the plaintiffs has also invited attention of this Court to the copy of the

letter dated 22nd September, 2010 sent by the defendant to the office of the Sub-Registrar,

Punjabi Bagh, District West, New Delhi wherein she has claimed that the Punjabi Bagh

property was given to her in the year 2008 as per the verbal mutual agreement amongst all

the co-owners, which is a statement contrary to what she avers in the written statement that

the oral settlement took place in the year 2000. In the said letter, the defendant further took

a stand that it was verbally agreed by other co-owners to give their shares in the said

property in favour of the defendant on completion of the house. The defendant in the said

letter has further taken a stand that co-owners had divided and transferred their entitled

share in the said house without her consent. Contention raised by the counsel for the

plaintiffs is that even in this letter the defendant has not set up the defence of having paid

an amount of Rs. 8,24,000 towards the share of the plaintiff No. 2 in the said Punjabi Bagh

property. Counsel thus stated that there are inherent contradictions in the stand taken by the

defendant in the written statement and the stand taken by the defendant through her

counsel during the course of his arguments.

19. Counsel also submitted that even as per defendant‟s own case, there was an oral

family settlement and such an oral settlement was never reduced into writing and in the

absence of any oral settlement being reduced into writing, this theory of oral settlement to

divide the share in the immovable properties does not satisfy the legal requirements and the

same cannot be believed even theoretically.

20. Counsel also submitted that even the said amount of Rs. 8,24,000 is not equivalent

to the amount of the share of plaintiff No. 2 in the suit property and in fact the said

payment of Rs. 8,24,000 with break ups of Rs. 4,00,000 and 4,24,000 was paid by the

defendant towards the share of plaintiff No. 2 for giving up her share in SatyaNiketan

property.

21. Counsel also argued that 19 separate sale deeds were executed in respect of the

Punjabi Bagh property and this by itself amply demonstrates that all the co-owners had

taken a decision to have independent title of their respective shares in the said Punjabi

Baghproperty.

22. Counsel also submitted that all the co-owners have separate ration cards, separate

gas connectionsin respect of the property in which they presently stay in and all the other

documents including affidavit etc. which have been placed on record by the plaintiffs

clearly goon to show that all throughout these parties have been corresponding with the

concerned authorities in their capacity of co-owners and at no stage they have

acknowledged the defendant to be the sole owner of the said property.

23. Counsel also submitted that even in the registered gift deed dated 26.9.2010,

executed by Mr. Sanjay in favour of plaintiff No. 1, there is no reference to any family

settlement.

24. Counsel further submitted that even the legal notice sent by Mr. Sanjay establishes

the fact that there was no family settlement arrived at between the parties at any stage.

25. Counsel also reiterated his argument that insertion in the records slips of the cheque

books of the defendant is not counter signed by plaintiff No. 2 or even by the defendant

himself and on bare perusal of the same it is quite evident that the same has been inserted

by the defendant to give strength to hisowndefence.

26. I have heard learned counsel for the parties at considerable length and given my

thoughtful and anxious consideration to the arguments advanced by them.

27. The plaintiffs have filed the present suit for permanent injunction, partition and

rendition of accounts. It is not in dispute between the parties that the suit property was

purchased by the plaintiffs and defendant alongwith Mr. Sanjay Aggarwal through 19 sale

deeds which were registered in the respective names of the parties. The total area of the

plot is measuring 1088.79 sq. yds. The plaintiffs and the defendant are wives of respective

three brothers i.e. Mr. VinodAggarwal, Mr. KailashAggarwal and Mr.AshokAggarwal. All

these three brothers and Sanjay Aggarwal are the sons of late Shri Ram SharanAggarwal.

Late Shri Ram SharanAggarwalalso left behind him three daughters besides the said four

sons.

28. It is a settled legal position that at the interim stage the court has not to weigh the

merits of the case set up by both the partiesin a fine scale. The court has to see whether the

plaintiff has made out a strong prima-facie case for the grant of ad-interim injunction and

the court‟s interference is necessary to protect him from that species of injury which the

court calls irreparable, before his legal right can be established on trial. The other

important principle required to be considered at the interim stage is as to whether

comparative mischief or inconvenience which is likely to be caused to the plaintiff by

withholding the injunction will be greater than that which is likely to arise from granting it.

29. The plaintiffs in the present case have claimed 74% share in the suit property and as

per them no oral family settlement had taken place in the year 2000 and the parties are

individual owners based on sale deeds executed in their favour. The defendant, who

otherwise is the owner of 26% share in the suit property as per the Sale Deed executed in

her favour, claims that by virtue of the oral partition which had taken place in the year

2000, she became exclusive owner of the suit property.

30. Documentary material has also been placed on record by both the sides to

substantiate their oral pleas.

31. To support their plea that plaintiffs are co-owners of the subject property and there

was no oral family settlement amongst the co-owners and the subject property was being

constructed for the benefit of all the co-owners with their consent and approval, the

plaintiffs have placed reliance mainly on the following:-

a) Copy of various sale deeds executed in favour of co-owners individually for

transfer ofspecificshares in the suit property;

b) Copy of the affidavits dated 27.7.2009 submitted with the MCD by plaintiffs,

defendant and Mr. Sanjay Aggarwal regarding engagement of architect, non-

claim of equity, co-ownership, entitlement to construct, construction as per

sanction plan, deposit of FAR chargesetc.with respect tothe suit property;

c) Copy of indemnity bond submitted with theMCD by plaintiffs, defendant and Mr.

Sanjay Aggarwal;

d) Copy of sanction letter addressed to all co-owners dated 17.9.2009;

e) Copy of the Registered Gift Deed dated 21.6.2010 executed by Mr. Sanjay

Aggarwal in favour of Plaintiff no. 1 containing no such statement regarding oral

family settlement having taken place between the brothers;

f) Copy of letter dated 22.9.2010 from Defendant to Sub-registrar, Punjabi Bagh,

New Delhi stating co-ownership as well as claiming that the suit property was

given to her as per the oral family settlement having taken place in the year 2008,

as opposed to what she avers in the written statement that the family settlement

took place in 2001;

g) Copy of letter dated 5.8.2010,confirming mutation of property, from MCD

addressed to plaintiff no. 1 and also signed byplaintiffs and the defendant;

h) Receipts of the property tax paid by plaintiff no. 1 in respect of the suit property

for the years 2004-2011;

i) Copy of Balance sheets of plaintiff no. 2 for the years 2001 to 2006, showing that

there was no variation in the amount of assets held by the plaintiff no. 2 under the

heading „House Property‟ and supporting their argument that plaintiff no. 2 had

never relinquished her share in the suit property in lieu of consideration from the

defendant;

j) In addition to above,

1) Copy of bill for an independent gas connection of Mr. KailashAggarwal,

husband of plaintiff no. 2, dated 1.08.1991;

2) Copy of ration card dated 29.9.92 of Mr. KailashAggarwal for his nuclear

family for House No. 277 SatyaNiketan, Delhi;

3) Copy of ration card dated 22.6.1994 of Mr. VinodAggarwal, husband of

plaintiff no. 1, for his nuclear family for House No. 277, SatyaNiketan,

Delhi;

4) Copies of separate electricity bills in the name of Mr. KailashAggarwal,

husband of plaintiff no. 2 and Mr. Ashok Aggarwal, husband of the

defendant, from 1993-2001 with respect of their independent electricity

connections in House No. 277 SatyaNiketan, Delhi

to support their claim that the brothers were livingtogether but there never existed

any HUF ever.

32. On the other hand, defendant with a view to prove the oral family settlement having

taken place in the year 2000 and her exclusive ownership of the subject property, has

placed reliance mainly on the following-

a) Affidavits dated20.4.2011, of defendant‟s sisters in law namely Ms. Meera Jain

and Ms. ManjuAggarwal, and a family friend,ShriNityanadBansaland affidavit

dated 3.8.2011 of Mrs. GomtiDevi, mother of the brothers, whothereby concur

with the fact of mutual family settlement having taken place between the brothers

as a result whereof the suit property came under the share and exclusive

possession of the defendant;

b) Copy of relevant record slips of the cheque book of the bank account of the

defendant having the entry „relinquishment of right in property due to family

settlement‟;

c) Copy of the two cheques dated 15.3.2001 drawn by the defendant in favour of

plaintiff no. 2;

d) Copy of the balance sheet of the defendant‟s account for the years 2000 and 2001

thereby showing a two-fold increase in the amount of ger assets under the

heading „House Property‟ because of such entitlement of the share in the suit

property due to family settlement having taken place in 2000;

e) Contract dated 12.3.2009 of defendant with the Architect for the construction of

the suit property;

f) Certificate dated 28.3.2011 issued by the Architect himself, thereby

acknowledging the fact that the residential house at the subject land was being

built for the exclusive use of the defendant‟s family only and that he had never

even met the other brothers of the husband of the defendant;

g) Electricity bills in respect of the suit property which are in the name of the

defendant;

h) The fact that the approved building plan consists of only one kitchen in the suit

property suitable for the residential use by the defendant‟s family only; etc.

33. In the light of the above material placed on record, it is difficult to give any final

view, at this stage of the case,on the vexed issue i.e. whether an oral family settlement had

taken place in the year 2000 or the parties continueto remain individual owners in respect

of their shares in the suit property. Such a contentious issue can be decided by the court

only after trial.

34. Having said this, it is an admitted case between the parties that defendant alone has

been carrying on construction of the suit property and she alone has incurred all the

expenses towards the construction. Also, there has not been any sort of interference from

the side of the plaintiffs to the sanction plan or the design of the structure and before the

filing of the present suit also,there was no interference from the side of the plaintiffs in the

raising of the said structure by the defendant.

35. In my considered view, therefore,if defendant is allowed to complete the entire

construction of the said property, no prejudice will be caused to the rights of the plaintiffs

as restraining the defendant from completing the said construction will certainly lead to

more complications be it on financial front or be it because of various contracts having

being entered into by the defendant with the contractors/architects etc. Raising of the

construction by the defendant also in any case will not defeat the rights of the plaintiffs

either in the said building or in their title, if they ultimately succeed in the present case.

36. To balance the equities between the parties, the ex-parte stay order granted by this

court vide order dated 14.3.2011, is therefore made absolute till the final disposal of the

present case. The defendant is restrained from creating any third party right or interest in

any manner whatsoever till the final disposal of the suit. The defendant shall also not

occupy any portion of the suit property without seeking prior permission of this court. So

far the order dated 7.4.2011 restraining the defendant from carrying out further

construction over the suit property is concerned, it is hereby vacated. Let the defendant

continue with the remaining construction of the residential house as per the sanction plan

of the building.

37. It is however made clear that raising of the said residential building by the defendant

will not create any kind of special equity in favour of the defendant.

38. The defendant is also directed to place on record all the expenses so far incurred by

her in raising the construction of the said house by filing an affidavit along with supporting

documents within a period of one month from the date of this order. The defendant shall

also continue to place on record similar affidavits alongwith supporting documents for

showing further expenses that she incurs in raising construction and renovation of the said

house in every three months.

39. With the above directions both the present IA‟s are disposed of.

                                                                 KAILASH GAMBHIR, J

January     07, 2013