Bharat Wadhwa & Anr vs Sushma Arora & Ors.
2013 Latest Caselaw 2824 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 8th July, 2013.

+      CS(OS) 353/2012 & IA No.2716/2012 (of the plaintiffs u/O-39 R-
       1&2).

       BHARAT WADHWA & ANR                        .... Plaintiffs
                  Through: Mr. Ratan K. Singh with Mr. Rajnesh
                           Kumar, Advs.
                  versus

       SUSHMA ARORA & ORS.                       ..... Defendants
                    Through: Mr. T.R. Arora, Adv. for D-1.
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                               JUDGMENT

%

1. Though the hearing on 22 nd May, 2013 commenced on the application

of the plaintiffs for interim relief and for the purpose of elucidating the issues

arising for adjudication, but doubts having arisen as to the very

maintainability of the suit, the counsels were heard on the said aspect also

and orders reserved.

2. The two plaintiffs have instituted this suit pleading - (a) that Shri Om

Prakash, paternal grandfather of the plaintiff No.2 Smt. Asha Wadhwa

(plaintiff No.1 is the husband of the plaintiff No.2) was the owner of half

portion i.e. 100 sq. yds. of property No.D-36, Moti Nagar, New Delhi

admeasuring 200 sq. yds; (b) that Shri Om Prakash died in the year 1990

leaving behind four sons namely Shri Ram Kumar Budhiraja (defendant

No.2 in this suit and who is/was the father of the plaintiff No.2), Shri Jeet

Kumar Budhiraja (i.e. the predecessor of the defendant No.3 to 8 in this suit),

Shri Budish Chand (i.e. the predecessor of the defendants 9 to 11 in this suit)

and Shri Surinder (i.e. the predecessor of defendant No.12 in the suit) and

one daughter (i.e. the defendant No.1 in this suit); (c) that Shri Om Prakash

however vide registered Will dated 4th February, 1981 bequeathed the

aforesaid portion of property D-36, Moti Nagar, New Delhi exclusively in

favour of his son Ram Kumar Budhiraja (i.e. the defendant No.2 herein); (d)

that the said defendant No.2 on 18 th May, 1998 executed a registered general

power of attorney, a registered Will and an agreement to sell etc. with respect

to the said property in favour of the plaintiff No.2 and put the plaintiff No.2

into possession of the said property and the plaintiff No.2 since then is in

possession of the said property as owner thereof; that on 1 st May, 2011 the

plaintiffs learnt from the defendant No.4 herein of a suit filed by the

defendant No.1 in the District Court for partition of the said property and

another property left by Shri Om Prakash; (e) that the plaintiffs on making

further inquiries learnt that the defendant No.2 had in written statement filed

in the said suit taken a plea of Shri Om Prakash having executed the Will

dated 4th February, 1981 supra with respect to the said property in his favour;

(f) however none of the defendants in the aforesaid suit for partition

disclosed about the sale of the said property by defendant No.2 in favour of

the plaintiff No.2 herein and the plaintiffs thus remained oblivious of the said

suit; (g) that after the filing of the written statement in the said suit for

partition, the defendant No.2 went missing since 22 nd November, 2006 and a

complaint dated 26th November, 2006 to that effect was lodged with PS

Uttam Nagar, Delhi; (h) that the factum of the defendant No.2 herein having

gone missing was also not disclosed in the partition suit; (i) that for the said

reason the defendant No.2 could not contest the suit for partition and could

not lead evidence of the Will therein and in the said circumstances a

preliminary decree for partition of the said property as well as the other

property subject matter of that suit was passed on 6 th October, 2010; (j) that

though the defendants No. 3 and 4 herein filed RFA No. 20/2011 against the

said preliminary decree but the same was dismissed by this Court vide order

dated 18th March, 2011; (k) that the plaintiffs thereafter filed an application

for impleadment in the suit for partition but the said application was

dismissed by the Court of the Additional District Judge where the

proceedings for final decree in the suit for partition were pending, vide order

dated 5th May, 2011; (l) that the plaintiffs filed CM(M) against the said order

before this Court but which was dismissed as withdrawn on 31 st January,

2012.

The plaintiffs thereafter filed this suit -

(a) for declaration that the judgment and preliminary decree dated 6th

October, 2010 in the suit for partition aforesaid is null and void; (b) for

declaration that the plaintiffs are the owners of the said property; and,

(c) for permanent injunction restraining the defendants from creating

any third party interest in the property.

3. The plaintiffs alongwith the suit have filed this application for interim

relief restraining the defendants from pressing for final decree in pursuance

to the preliminary decree in the suit for partition and for restraining the

defendants from creating any third party rights in the property.

4. Summons of the suit and notice of the application for interim relief

were issued though no ex parte ad interim relief has been granted till now.

The defendant No.1 has filed a written statement contesting the suit; the

defendants No. 2 and 5 to 12 were proceeded against ex parte on 7th May,

2012; though the counsel for the defendants No. 3 and 4 had appeared and

subsequently claimed to have filed written statement on behalf of the

defendant No.4 but neither any written statement is found on record nor did

the defendants No. 3 and 4 appear thereafter and they also were proceeded

against ex parte on 6th March, 2013.

5. Needless to state that the defendant No.1 controverts the Will dated 4 th

February, 1981 of her father Shri Om Prakash in favour of her brother

defendant No.2. It is also her contention (i) that it has already been decided

in the suit for partition to which the predecessor of the plaintiff No.2 is a

party that Shri Om Prakash died intestate; (ii) that though the predecessor of

the plaintiff No.2 namely the defendant No.2 herein, in the suit for partition

took a plea of Shri Om Prakash having left a Will dated 4 th February, 1981

but the said plea was dismissed and the said finding has been affirmed in the

appeal preferred to this Court and cannot now be revisited; (iii) that the

mother and brother of the plaintiff No.2 have been participating in the suit

for partition; (iv) that the alleged transfer in favour of the plaintiff No.2 was

never disclosed in the suit for partition; (v) that the attempt of the plaintiffs to

join in the suit for partition has also been dismissed; (vi) that the allegation of

the transfer of the property in favour of the plaintiffs is belied from the

summons of the suit for partition having been served on the defendant No.2

i.e., the father of the plaintiff No.2 at the said property in the year 2006 and

the Local Commissioner appointed in the said suit for partition having also

reported having met the mother of the plaintiff in the suit property; (vii) that

the plaintiffs were throughout aware of the suit for partition and having failed

to prove the Will dated 4th February, 1981 of Shri Om Prakash in the suit for

partition, cannot have a second round by way of this suit and nothing remains

for adjudication qua the said Will.

6. There being only a power of attorney accompanied by agreement to

sell and not a sale deed with respect to the property in favour of the plaintiffs,

doubts as to the maintainability of the suit were raised during the hearing, on

the ground of whether the plaintiffs are bound by the finding in the suit for

partition qua the Will of 4 th February, 1981 of Shri Om Prakash and which

forms the fulcrum of the case of the plaintiffs. It was also inquired from the

counsel for the plaintiffs whether the plaintiffs had lodged any FIR against

the defendant No.2 for the reason of having not disclosed about the suit for

partition to the plaintiffs or for the reason of having not disclosed in the suit

for partition about the transfer of the property to the plaintiffs. No FIR is

stated to have been lodged. It was also inquired whether the plaintiffs had

lodged any FIR against the brother of the plaintiff No.2 who was appearing

in the suit for partition. No FIR against him also was informed to have been

lodged. It was yet further inquired whether the plaintiffs had any dispute

with the father of the plaintiff No.2. It was fairly conceded that there were

no disputes.

7. The counsel for the plaintiffs relied on -

(i) Fatima Fouzia Vs. Walashan Prince Moazzam Jah Bahadur

AIR 1980 Andhra Pradesh 315 to contend that when a decree is

attacked as having been obtained by fraud, it is open to the Court

to grant a temporary injunction restraining the decree holder from

executing the decree pending disposal of the suit.

(ii) Kasa Krishna Ghorpade Vs. Vinayak Gangadhar AIR 1948

Bombay 193 to contend that a transferee is not estopped by a

decree obtained in a suit against the transferor, commenced after

the date of transfer.

(iii) Nagamma Shedthi Vs. Korathu Hengsu AIR 1950 Mad 546 to

contend that even Explanation VI to Section 11 of the CPC

attracts the principle of res judicata only where the persons

'litigate bona fide' in respect of a right claimed in common and to

further contend that it can be established only in trial whether the

plaintiff knew of the suit for partition or not.

(iv) Talluri Venkata Seshayya Vs. Thadikonda Kotiswara Rao AIR

1937 PC 1 in support of the contention that the pleas of bona fides

and collusion have to be tested only in trial.

(v) In Re: Goods of Mrs. Lillan Singh AIR 1943 Calcutta 93 in

support of the proposition that injunction can be granted

restraining a person from proceeding with an application in Court.

8. Per contra, the counsel for the defendant No.1 has argued that the

plaintiffs have not challenged the decree for partition which has attained

finality; that in the said decree for partition the plea of Shri Om Prakash

having executed the Will dated 4th February, 1981 has already been decided;

that the said plea cannot be decided afresh; that with the withdrawal by the

plaintiffs of the CM(M) petition preferred against the dismissal of their

application for impleadment in the suit for partition, the said order of

dismissal holding that the issue about the Will dated 4 th February, 1981 is res

judicata, has also attained finality; that though the plaintiffs had sought to

withdraw the CM(M) petition with liberty to take appropriate legal remedy

but the Court only dismissed the petition as withdrawn and did not grant any

liberty to pursue any other proceeding; that the defendant No.2 through

whom the plaintiffs claim was specifically directed in the partition suit to

produce the original documents and did not deny that the original documents

are in his possession and thus the plaintiffs cannot now be heard to state that

the original Will dated 4 th February, 1981 of Shri Om Prakash was in their

possession and thus could not have been produced by the defendant No.2 in

the suit for partition.

9. I will first deal with the aspect of maintainability of the suit qua which

doubts were expressed during the hearing. The question, as aforesaid, is

whether the plaintiffs who as per their own claim are at best agreement

purchasers from the defendant No.2, can be given a chance to prove the Will

dated 4th February, 1981 of Shri Om Prakash when the defendant No.2 has

lost the opportunity to prove the said Will.

10. The plaintiffs were not a party to the suit for partition and applied for

impleadment after a preliminary decree for partition had been passed and

appeal there against had been dismissed. A person is not bound by a decree

in a proceeding to which he is not a party. The only difference here is that

the plaintiffs are closely related to the defendant No.2 and are not transferees

from the defendant No.2 in the strict sense, being only agreement purchasers

and it being a settled position in law that an agreement to sell does not

transfer any right in the property [see Jiwan Das Vs. Narain Das AIR 1981

Delhi 291 followed in Sunil Kapoor Vs. Himmat Singh 167 (2010) DLT

806]. Recently the Supreme Court in Suraj Lamp and Industries Pvt. Ltd.

Vs. State of Haryana (2012) 1 SCC 656 has also held so. However the fact

remains that land underneath the subject property is lease hold, lease whereof

(a copy of which is on record) prohibits transfer or alienation without prior

permission and this Court in Asha M. Jain v. Canara Bank 94 (2001) DLT

841 has held that judicial notice is to be taken of transactions vide general

power of attorney, Will and agreement to sell. Even though the Supreme

Court in Suraj Lamp & Industries (supra) over ruled the dicta of Asha M.

Jain but only prospectively, without affecting the transaction of dates prior

thereto. The transaction alleged by the plaintiffs is of prior to the dicta in

Suraj Lamp & Industries and thus will continue to be governed by Asha

M.Jain (supra).

11. As far as the close relationship of the plaintiffs with the defendant

No.2 is concerned, it is the plea of the plaintiffs that the defendant No.2

herein filed his written statement in the suit for partition on 16 th May, 2006

and went missing soon thereafter w.e.f. 22 nd November, 2006 and no

intimation of the said fact was given to the Court and thus was not proceeded

against ex parte but for this reason could not prove the Will dated 4 th

February, 1981 of Shri Om Prakash. The defendant No.1 in her written

statement in this suit though has generally denied the plea of defendant No.2

herein having gone missing but has at the same time not pleaded that he is

still available or living or residing where. As far as the plea of the defendant

No.1 herein of the son of the defendant No.2 (who is the brother of the

plaintiff No.2 herein) having continued to participate in the suit for partition,

again in law, the effect thereof will depend upon the nature of the

participation. It will have to be decided whether the son of the defendant

No.2 without being substituted in place of the defendant No.2 in the suit for

partition, could be said to be authorized to represent the defendant No.2.

Further, the statutory period, only after which a missing person can be

presumed to be dead is also not over qua defendant no.2 as yet. The Court

cannot thus presume the defendant No.2 to be dead as yet. As far as the

challenge to sale in favour of plaintiff no.2 is concerned, it cannot be lost

sight of that the GPA and Will executed by defendant no.2 in favour of

plaintiff no.2 are registered documents, of a date much prior to the institution

of suit for partition by defendant no.1 and there is no plea of the said

documents having been executed and registered at that time owing to any

simmering disputes or to take unfair advantage in any litigation. All these

facts would require evidence to be led. It would also require evidence to be

adduced whether the plaintiff was aware of the suit for partition or not and

the effect of such awareness on the independent right in property as

agreement purchaser asserted by the plaintiffs. As far as the argument of the

counsel for the defendants of the plaintiffs having not pleaded any

particulars of fraud within the meaning of Order VI Rule 4 CPC is

concerned, it may be noted that the case of the plaintiffs is not based on any

fraud having been practiced by the defendant No.2 but on the premise of the

plaintiffs being not bound by the judgment and decree if any against the

defendant No.2.

12. Though the judgments in Asha M. Jain and Suraj Lamp & Industries

find mention in the order dated 16th December, 2011 of the learned

Additional District Judge dismissing the applications of the plaintiffs for

impleadment and though the said order also holds that the matter pertaining

to the right of the predecessor in interest of the plaintiffs to the property in

question was directly and substantially in issue in the suit for partition and

the finding with respect thereto had attainted finality and operates as res

judicata but I am of the view that the principles of res judicata are attracted

only when earlier proceeding is between the same party or between the

parties under whom they or any of them are claiming. Here the plaintiff

No.2 though a daughter of the defendant No.2 who was a party to the earlier

suit for partition, is not claiming as a heir of defendant No.2 but is claiming

as an agreement purchaser of the property from the defendant No.2. The

position of a transferee of immovable property, as the plaintiff No.2 would

be on the basis of the dicta in Asha M. Jain and having rights under Section

53A of the Transfer of Property Act, would be different from the position of

a heir. Section 11 of the CPC when uses the expression "between parties

under whom they or any of them claim" can include only a heir or a

transferee pendente lite or subsequent to the earlier proceedings and not a

transferee prior to the institution of the earlier proceedings. A person, after

effecting transfer of property ceases to have any right thereto and contest by

such person of a proceeding with respect to the property which has already

been transferred cannot bind the transferee. Reference in this regard can be

made to Beli Ram & Brothers Vs. Chaudri Mohammad Afzal AIR 1948

PC 168 and to Vibhuti Singh Vs. Damari Lal AIR 1978 All 370.

13. I am prima facie also of the opinion that the observations in the order in the partition

suit dismissing the application of the plaintiffs for impleadment, would not come in the way

of the plaintiffs in this suit. The Supreme Court in Ragho Prasad Gupta Vs. Shri Krishna

Poddar AIR 1969 SC 316 observed that the expression of opinion, while dismissing an

application for impleadment, that the applicant seeking impleadment would not be bound by

the decree cannot operate as res judicata as the question whether the applicant would be

bound by the decree or not is not in issue while deciding the impleadment. Similarly in

Bishwanath Prasad Singh Vs. Rajendra Prasad (2006) 4 SCC 432, it was held that the

observations/finding in a proceeding which is procedural in nature cannot constitute res

judicata as nothing is heard and finally decided in the said proceeding. Moreover, the said

observations are on legal issues and qua which in any case there is no res judicata.

14. I thus prima facie hold the plaintiffs to be not bound by the decree in the suit for

partition. It is also worthwhile to mention that the judgment and decree in the suit for partition

holds Shri Om Prakash to have died intestate for the reason of the defendant No.2 herein who

as a defendant in that suit had set up the plea of the Will dated 4th February, 1981 of Shri Om

Prakash having failed to produce the original Will or to prove the same. It is

thus not as if it has been held that the document dated 4th February, 1981 was not executed by

or is not the Will of Shri Om Prakash.

15. Once the suit is prima facie found to be maintainable, and the plaintiffs

are found entitled to an opportunity to prove the registered Will dated 4 th

February, 1981 of Shri Om Prakash, the principles of grant of interim

injunction require a status quo to be maintainable with respect to the

property. The plaintiffs are thus found entitled to the interim relief restraining

the defendants from dealing with the said property. As far as the other

interim relief claimed by the plaintiffs of restraining the defendant

particularly the defendant No.1 from pursuing for the final decree in the suit

for partition is concerned it cannot be lost sight of that the suit for partition,

besides with respect to the subject property, is also with respect to another

property. Thus the stay if any of proceedings therein will have the impact of

staying the partition of the other property qua which there is no challenge.

That relief thus cannot be granted. However at the same time the subject

property cannot be allowed to be partitioned or sold in the decree for

partition till the adjudication of the claims of the plaintiff. In the

circumstance it is deemed appropriate to direct that the execution of the

decree for partition qua the subject property only and not qua the other

property, would be subject to the outcome of the present suit.

16. The application for interim injunction is thus disposed of restraining

the plaintiffs as well as the defendants from alienating, encumbering or

parting with possession or otherwise dealing with the portion aforesaid of

property no. D-36, Moti Nagar, New Delhi till the decision of the present suit

and by further ordering that final decree for partition in the suit for partition

filed by the defendant No.1herein, with respect to this property, shall be

subject to the outcome of the present suit.

17. Needless to state that nothing contained herein shall be deemed to be

an expression on merits of the case at the time of final adjudication.

RAJIV SAHAI ENDLAW, J

JULY 8, 2013 M.