Delhi High Court
Lt.Col.B.M.Khosla vs Col.S.K.Khosla (Retd.) & Ors. on 21 February, 2014
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : February 21, 2014
+ RFA (OS) 53/2013
Lt.COL.B.M.KHOSLA .....Appellant
Represented by: Appellant in person
versus
COL.S.K.KHOSLA (RETD.) & ORS. .....Respondents
Represented by: Mr.Rajiv K.Garg, Advocate with
Mr.Ashish Garg, Advocate for R-1
Mr.G.Kandpal, Advocate with
Mr.G.Joshi, Advocate for R-3
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.
1. The undernoted chart is indicative of the litigative attitude of the
appellant. He has lost at every stage. But his appetite for litigation does not
come to an end. The chart we have just referred to would be as under:-
Case No. Particulars Date of
disposal
C.R.P.No.621/2001 B.M.K.Khosla vs.Trustees 13.9.2001
Employees Provident Fund
C.R.P.No.622/201 B.M.K.Khosla vs.Trustees 13.9.2001
Employees Provident Fund
C.R.P.No.623/2001 B.M.K.Khosla vs.Trustees 13.9.2001
Employees Provident Fund
C.R.P.No.624/2001 B.M.K.Khosla vs.Trustees 13.9.2001
Employees Provident Fund
C.R.P.No.625/2001 B.M.K.Khosla vs.Trustees 13.9.2001
Employees Provident Fund
FAO(OS) 296/2003 B.M.K.Khosla vs.Raj 22.10.2003
Kumar Khosla
FAO(OS) 257/204 Lt.Col.B.M.K.Khosla 29.11.2004
vs.Raj Kumar Khosla
FAO(OS) 55/204 Lt.Col.B.M.K.Khosla 6.4.2004
vs.Raj Kumar Khosla &
Ors.
FAO(OS) 152/2007 Lt.Col.B.M.K.Khosla 15.5.2007
vs.Raj Kumar Khosla &
Ors.
FAO(OS) 187/2007 Lt.Col.B.M.K.Khosla 5.7.2007
vs.Raj Kumar Khosla &
Ors.
FAO(OS) 218/2007 Lt.Col.B.M.K.Khosla 12.2.2009
vs.Raj Kumar Khosla &
Ors.
FAO(OS) 335/2007 Lt.Col.B.M.K.Khosla 3.9.2007
vs.Raj Kumar Khosla &
Ors.
FAO(OS) 3/2008 Lt.Col.B.M.K.Khosla 9.4.2008
vs.Raj Kumar Khosla &
Ors.
FAO(OS) 418/2008 Lt.Col.B.M.K.Khosla 7.2.2008
vs.Raj Kumar Khosla &
Ors.
FAO(OS) 65/2008 Lt.Col.B.M.K.Khosla 11.2.2008
vs.Raj Kumar Khosla &
Ors.
WP(C) 11094/2009 Lt.Col.B.M.K.Khosla 1.2.2010
vs.Registrar General Delhi
High Court & Ors.
WP(C) 7806/2009 Lt.Col.B.M.K.Khosla 16.9.2009
vs.Lt.Governor of Delhi &
Ors.
FAO(OS) 26/2009 Lt.Col.B.M.K.Khosla 230.1.2009
vs.Raj Kumar Khosla &
Ors.
LPA No.328/2009 Lt.Col.B.M.Khosla
Vs.Lt.Governor of Delhi & 22.9.2009
Ors.
LPA 302/2011 Lt.Col.B.M.K.Khosla 12.7.2010
vs.Registrar General Delhi
High Court & Ors.
FAO(OS) 149/2011 Lt.Col.B.M.K.Khosla 4.4.2011
vs.Raj Kumar Khosla &
Ors.
CS(OS) 1890/2011 Lt.Col.B.M.K.Khosla 20.4.2012
vs.DDA
RFA(OS) 56/2012 Lt.Col.B.M.K.Khosla 22.5.2012
vs.DDA
2. Instant appeal challenges the order dated August 28, 2012. It reads as
under:-
"1. In a suit for partition, a preliminary decree declares
the shares of the parties. Thereafter a final decree is
passed by which a suit is disposed of. A final decree for
partition is an instrument of partition under Section 2(15)
of the Indian Stamp Act, 1899. Final decree therefore will
have to be stamped in accordance with law, i.e. Article 45
of Schedule 1 of the Indian Stamp Act, 1899. Issues with
regard to sale of the properties will be issues in execution
proceedings.
2. In the present case, the parties agree and as
recorded in the order dated 12.10.1999, that the properties
in question have to be sold. Once it is agreed that the
properties cannot be partitioned by metes and bounds and
have to be sold, a final decree will have to be passed at this
stage and necessary stamp duty in terms of Article 45 of
Schedule I of the India Stamp Act, 1899, has to be paid
before further proceedings are taken for sale of the
property.
3. In the present case, I understand two of the
properties, i.e. one at Vasant Vihar, Delhi and another at
Jalandhar, Punjab have been sold after the preliminary
decree without the final decree being drawn up.
4. It is therefore directed that firstly a final decree be
drawn out and necessary stamp duty be paid before further
proceedings are taken with respect to sale of the balance
properties, and which sale will take place in execution
proceedings. So far as the properties which have already
been sold since the price at which the properties have been
sold are on record, such sale value will be taken as a value
with respect to preparing a final decree for partition and
payment of stamp duty with respect to the properties which
are sold. With respect to the properties not sold, the
procedure as prescribed by law be adopted for valuing of
such properties and for paying of stamp duty on the same.
The total stamp duty which would be payable for drawing
up of the final decree for partition would be the value with
respect to all the properties which are subject matter of the
present suit.
5. Since in the present case various orders have been
passed post passing of the final decree, all such orders will
stand preserved with respect to action to be taken for sale
of other properties which were subject matter of this
partition suit.
6. This suit is disposed of by passing a final decree
observing that the preliminary decree is confirmed and all
the properties will have to be sold. Necessary steps for sale
of the balance properties will be taken up in execution
proceedings, and any orders passed in the suit, after
passing of the preliminary decree, to the extent the same
are required for furtherance of the execution proceedings
the same will enure for the benefit of the parties limited to
the requirement of execution of the final decree in the
execution proceedings."
3. Challenging the order it is pleaded that the suit properties do not
belong to the late father of the parties Sh.Nakul Dev Khosla. The properties
were that of a Hindu Undivided Family. It is pleaded that the wills executed
by the parents of the parties were invalid. It is prayed that the sale of
property bearing municipal No.33, Poorvi Marg, Vasant Vihar, New Delhi
and House No.337, New Jawahar Nagar, Jalandhar City made on October
21, 2005 and November 13, 2007 be set aside.
4. The litigious attitude of the appellant would be evidenced from the
fact that late Sh.Nakul Dev Khosla and his wife Smt.Satya Pal Devi Khosla
were blessed with four sons and a daughter. The names of the four sons are :
(i) Raj Kumar Khosla (plaintiff); (ii) Col.S.K.Khosla (Retd.) (defendant
No.1); (iii)Lt.Col.Brij Mohan Kumar Khosla (Retd.) (defendant No.2); and
(iv) Kul Bhushan Kumar Khosla (defendant No.3). The name of the
daughter is Kamal Mohini Passi.
5. Raj Kumar Khosla instituted CS(OS) No.2520/1996 praying for
partition of four properties mentioned in paragraph 7 of the plaint being: 33
Poorvi Marg, Vasant Vihar, New Delhi; 337, New Jawahar Nagar, Jalandhar
City; half portion of house situated at Khosla Mohalla, village Rahon,
Tehsil Nawa Shehar, District Jalandhar; and agricultural land measuring 24
Kanal and 6 marlas in village village Rahon, Tehsil Nawa Shehar, District
Jalandhar. It was pleaded that Nakul Dev Khosla and his wife Smt.Satya
Pal Devi Khosla were blessed with four sons and a daughter. That on a suit
filed by Kulbhushan Kumar Khosla, registered as Suit No.128/1984 a
declaration had been passed by the learned Sub-Judge that House No.33,
Poorvi Marg, Vasant Vihar, New Delhi and 337, New Jawahar Nagar,
Jalandhar City were equally owned by the four sons because during the
pendency of the suit the father Nakul Dev Khosla had expired on August 05,
1984 and had executed a will on September 28, 1982 bequeathing his share
equally amongst his wife and the sons. The mother Smt.Satya Pal Devi
Khosla expired on February 28, 1987 and had executed a will dated
September 28, 1982 bequeathing her share to her sons.
6. In the written statement filed by the three defendants, which includes
the appellant in the appeal, it was never pleaded by anybody that the suit
properties are HUF properties. Impleaded as defendant No.2, in the first
preliminary objection taken by the appellant as per the statement filed by
him, he pleaded as under:-
'The suit has been filed without any requisite cause of
action necessitating filing of the suit. The parties to the
suit have 1/4th share each in the properties mentioned in
the suit and the parties are willing to take their
respective shares'
7. Keeping in view the pleadings of the parties, vide order dated May 20,
1998 a preliminary decree was passed declaring the plaintiff and the three
defendants to be having 1/4th share each in the properties. The order records
that the parties would like to sit across the table and mutually agree as to in
what manner they would like to effect severance of their joint share so that
each could be the individual owner with reference to the share of each being
1/4th in the joint properties.
8. Hereinafter began the story of a protracted litigation by the appellant
to stall the implementation of the preliminary decree; declaring share of the
four brothers as 1/4th each, based on admission in the pleadings.
9. Attempts made to sell the properties were frustrated by application
after applications filed by the appellant who started claiming that being
properties belonging to the Hindu Undivided Family, neither the father nor
the mother could executed any will concerning the properties; overlooking
the fact that the parents could certainly bequeath their shares in the joint
properties to anybody they desire. The objections overlooked the fact even
if the properties were to be treated as those of the HUF, upon partition apart
from the four sons and their father; the mother would get an equal share. In
other words, the share of the four brothers and the two parents would be 1/6 th
each. As per the wills executed by the parents their share was bequeathed to
the four sons. Thus, the share of each son would be 1/4th.
10. The appellant started questioning just about everything. Orders
passed against him were challenged in appeals which were dismissed. A
Court Commissioner had to be appointed to value the properties and try to
sell them because the parties could not agree to a mode of settlement. The
order dated July 12, 2006 passed in the suit succinctly notes the fact which
had transpired till when the order was passed and we reproduce the same. It
reads as under:-
" IA 5497/2006
The Local Commissioner has filed his report dated
th
26 April, 2006 and Defendant No.2 has filed some
objections to this report. By this order, I propose to deal
with his objections.
It appears that the father of the parties, that is, Nakul
Dev Khosla left behind several properties including a
house in Vasant Vihar, New Delhi, a house bearing
No.337, Jawahar Nagar, Jalandhar, some agricultural
land and an ancestral house in Village Rahon, Punjab.
This suit for partition was filed by the Plaintiff, one of
the sons of Nakul Dev Khosla. The three Defendants are
the other three sons of Nakul Dev Khosla.
On 20th May, 1998, it was stated by learned counsel
for the parties that the matter could be settled. It was
submitted by learned counsel for the parties that the
share of the parties are admitted and all the parties are
entitled to 1/4th share in the properties in question. In
view of the statement made by learned counsel for the
parties, a preliminary decree of partition was passed.
Learned counsel for the parties stated that they would like
to have a mutual settlement with regard to their
respective shares amounting to 1/4th of the properties in
question. Liberty was given to the parties to mutually
decide their shares in the properties in question, failing
which a Court Commissioner would be appointed to
suggest ways and means for partition.
It is significant to note that no dispute was raised by
any of the parties about any of the properties to the effect
that they belong to the HUF of Nakul Dev Khosla.
Thereafter, on 12th October, 1999, the parties were
present in person and there was a broad agreement
between them and their learned counsel that
the properties in question should be sold and proceeds
distributed. Again, no dispute was raised by anybody
about any of the properties to the effect that they belong
to the HUF.
On 25th April, 2001, a detailed order was passed
incorporating all the above facts. It was noted that since
no settlement could be arrived at, a Court
Commissioner was appointed to sell the properties.
Again, no dispute was raised to any of the properties to
the effect that they belong belonging to the HUF.
On 29th May, 2003, a final decree was passed in the
suit. It was noted that as per the order dated 20th May,
1998, the shares of the parties in the
suit properties are admitted and it was on that basis that a
preliminary decree of partition was passed. Then on 29th
May, 2003, the parties again stated that they would like
to have a mutual settlement with regard to their
respective 1/4th share in the properties in question. As
regards the property in Vasant Vihar, the parties desired
to sell that property and distribute 1/4th share each from
the sale proceeds.
Defendant No.2, who was present in Court on that
date, that is, on 29th May, 2003 stated that a decree was
passed in respect of the Vasant Vihar property on 20th
August, 1984 by a Court in Jalandhar declaring it as the
property of the HUF. In view of this, the learned Judge
perused the judgment and decree and found that the
Jalandhar suit was filed by one of the brothers, namely,
Defendant No.3 herein as the plaintiff against his father,
mother and other three brothers. The father, that is,
Nakul Dev Khosla died during the pendency of the suit
and his share devolved upon themother who also died
during the pendency of the suit and her share devolved
upon her four sons (who are all parties in the present suit
before me) in equal shares in terms of a Will which
was executed by the father. Therefore, the four brothers
held 1/4th share each in the Vasant Vihar property.
Since a preliminary decree of partition had been
passed and the parties were in agreement in respect of
their respective share in the suit property, a final decree
was passed in respect of the Vasant Vihar property which
was to be sold and the sale proceeds distributed among
the four parties in equal share. Since the suit survived in
respect of the other properties, the matter was adjourned
for 14th July, 2003.
The sum and substance of all this is that this Court all
along proceeded on the basis that the parties to this suit
had 1/4th share in the suit properties.
Pursuant to the order dated 29th May, 2003, the
Vasant Vihar property was in fact sold and the sale
proceeds have been distributed but it is stated
that Defendant No.2 has not taken his share which is
lying deposited in this Court. I am told by learned
counsel for the parties that the Vasant Vihar property
has been sold and the sale has been registered in the
name of the purchaser. Against the final decree passed
on 29th May, 2003, an appeal was filed
before a Division Bench of this Court which was
dismissed. The decree of partition has, therefore, attained
finality.
Defendant No.2 also challenged the sale of the Vasant
Vihar property but the challenge was rejected by a
Division Bench of this Court and also by the Supreme
Court.
It appears that while the sale process was being
finalized in respect of the Vasant Vihar property,
Defendant No.2 raised some objections which were dealt
with by a learned Single Judge on 21st September, 2004
The objection was that the Vasant Vihar property was
HUF property and the emotional attachment of the family
members should be preserved and the sale could not be
ordered. It was noted in the order dated 21st September,
2004 that it was too late in the day to raise this
contention in view of the fact that the sale proclamation
had already been ordered with the consent of the parties
and that had been confirmed on several dates. It was
contended on behalf of Defendant No.2 that the
consent for sale was wrongly recorded but this
contention was rejected in the order dated 21st
September, 2004. The order dated 21st September, 2004
was taken up in appeal by Defendant No.2 and in FAO
(OS) No.257/2004, the Division Bench termed the appeal
as a sheer abuse of the process of law. It was noted that
learned counsel for the appellant (Defendant No.2
herein) was repeatedly asked why the question of
the Vasant Vihar property being HUF property was not
agitated but to no avail. Be that as it may, the Division
Bench dismissed the appeal with costs of Rs.5,000/-.
In spite of this, Defendant No.2 continued to raise
objections that the Vasant Vihar property was HUF
property and this argument of Defendant No.2
was considered and again rejected by a learned Single
Judge of this Court on 8th April, 2005. The order dated
8th April, 2005 appears to have been taken up to
the Supreme Court and the Supreme Court did not
entertain the special leave petition filed by Defendant
No.2.
The objection that is now raised by Defendant No.2 is
to the same effect but with reference to property bearing
No.337, Jawahar Nagar, Jalandhar. No objections have
been raised with regard to the agricultural land or the
ancestral house in Village Rahon. The objection that has
been raised with regard to the report of the
Local Commissioner in respect of House No.337,
Jawahar Nagar, Jalandhar is to the effect that this is
HUF property and, therefore, cannot be sold. The
arguments advanced by learned counsel for Defendant
No.2 are the very same arguments that
were advanced from time to time with regard to the
Vasant Vihar property and which have consistently been
rejected. I do not think it is appropriate for me to take a
different view, particularly when these arguments have
not found favour with several learned Judges and the
Division Bench and also the Supreme Court.
Accordingly, the objection in this regard is rejected.
The second objection raised by Defendant No.2 with
regard to the sale of House No.337, Jawahar Nagar,
Jalandhar is that it should be got properly valued by a
Government approved valuer and only thereafter should it
be sold. Learned counsel for the parties do not have any
objection to this but they say that Defendant No.2 has not
been forthcoming with regard to payments that are
required to be made to the Court Commissioner towards
his fees and therefore Defendant No.2 may also not make
the payment for valuation of the Jalandhar property.
Learned counsel for Defendant No.2 says that his client
has no objection in paying his 1/4th share for having
House No.337, Jawahar Nagar, Jalandhar valued by a
Government approved valuer.
Under the circumstances, the Court Commissioner
will visit Jalandhar and have the property bearing
No.337, Jawahar Nagar, Jalandhar valued by
a Government approved valuer. The Court
Commissioner will visit Jalandhar only upon receipt of
the fees of the Government approved valuer. This is
tentatively fixed at Rs.40,000/-. All the parties should
deposit a sum of Rs.10,000/- each in the Registry of
this Court within a period of two weeks from today. Of
course, if the amount is less, a proportionate refund will
be given.
List for compliance regarding payment on 30th May,
2006.
IA 2366/2004
By this application, Defendant No.2 seeks an order
for determination of the nature of the properties sought to
be sold.
In view of the above discussion, nothing further
survives in this application and the same is dismissed as
such.
IA 2367/2004
In this application, it is prayed by Defendant No.2
that it is necessary in the interest of justice that proper
orders be passed considering the facts and circumstances
of the case so that there is no illegality or factually
wrong submission made to affect sale of the properties.
The prayer is extremely vague and so the application is
dismissed.
IA 2139/2004
Dismissed as withdrawn."
11. The order speaks it all.
12. The appellant is litigating frivolously by urging that the properties
belonged to the Hindu Undivided Family.
13. It was nobody's case that the property belonged to the Hindu
Undivided Family.
14. We find that the appellant has challenged the order dated October 21,
2005.
15. No order has been passed on October 21, 2005. It appears that the
appellant is challenging the order dated November 21, 2005 passed in the
suit which reads as under:-
"The Local Commissioner has submitted his report
and is present in Court. It is stated that property at
Jullundur is a single unit and it is not possible to divide
the said property by metes and bounds between the
parties. In fact the parties are also agreeable to the
suggestion and they prayed that there could be an inter-
se bidding between the parties.
Defendant No.3, who is in possession of the property
submits that he is not interested in giving any bid and the
same may be sold by public auction. Defendant No.2 is
not present despite the fact that the case has been called
out twice since morning. He is ordered to be proceeded
against ex-parte in these proceedings. Plaintiff and
defendant No.1 through their counsel have given inter-se
bid. The plaintiff is willing to buy the property at a sum
of `85 lakhs. He does not wish to give any other amount
more than this amount Primarily the plaintiff would be
entitled to bid this property at a sum of `84 lakhs.
However, in the interest of justice, another opportunity
is granted. If defendant No.3 or defendant No.2 is
willing to get a buyer at a higher amount in excess of at
least `2 lakhs more, they shall inform the Court, failing
which the bid given by the plaintiff in Court today
through his counsel shall be accepted.
The learned Local Commissioner has not been able to
visit the other ancestral properties which are stated to be
situated in village Rahon, District Jullundur, Punjab. It
is obviously difficult to identify the land unless and until
the parties and the concerned Patwari are present on the
site. Consequently, the parties, who are present in Court
are directed to be present on 21st December, 2005 at the
place mentioned above. The revenue authorities i.e.
Patwari of the concerned Halka shall be present and
would assist the Commissioner in all respects.
List the case on 24th January, 2006."
16. The order does not decide anything. The next order passed on
November 29, 2005 notes that the parties desire the property at Jalandhar to
be sold by public auction. The order dated May 12, 2006 records the
manner in which the appellant had been obstructing giving final effect to the
preliminary decree.
17. Further orders would reveal that repeated attempts made to draw up
the sale proclamation and sell the property at Jalandhar were frustrated. The
appellant has challenged an order dated November 13, 2007. We find no
order passed on said date. In the suit their exist an order dated November
07, 2007 which reads as under:-
"IA Nos.10296/07 & 11853/07 in CS(OS) No.2520/1996
The Court Commissioner has filed an application
seeking permission to sign the sale deed/conveyance deed
for and on behalf of defendant No.2 and to get the same
registered with the Sub Registrar, Jalandhar, Punjab, and
to return the draft bearing No.015324 dated 6 th March,
2007 for a sum of `1.00 lakh deposited by the highest
bidder Another application is filed by Mr.Mukul
Sabharwal, the purchaser of the property at Jalandhar,
for a total sum of `1,26,00,251/- seeking appropriate
direction to the Court Commissioner to execute the
conveyance in respect of property No.337, New Jawahar
Nagar, Jalandhar.
The draft of the proposed conveyance to be executed
in favour of Mr.Mukul Sabharwal was given to the plaintiff
and defendant Nos.1, 2 and 3. There has been no
objection to the proposed conveyance by the plaintiff and
defendant Nos.1 and 3.
The objections were filed by defendant No.2 to the
proposed conveyance deed to be executed in favour of
Mr.Mukul Sabharwal, the proposed purchaser of the
property at Jalandhar. The objections of defendant No.2
being IA No.12161/2007 were dismissed by order dated
24th October, 2007 with a cost of `10,000/- payable by
defendant No.2.
Learned counsel for the defendant No.2 contends that
he wants to file an appeal against the order dated 24 th
October 207, dismissing his objection and he had applied
for the certified copy of the same on 24th October, 2007
where the next date had been given as 6th November, 2007.
The learned counsel for the defendant No.2 states that no
endorsement has been made on his application for certified
copy, however, the certified copy of the order dated 24 th
October, 2007 which defendant No.2 wants to impugn is
not ready.
In case the defendant No.2 wanted to file an appeal
against the order dated 24th October, 2007, it could be
filed on an ordinary copy which could be availed by
defendant No.2 by inspection of the file. It seems that copy
of the order dated 24th October, 2007 is also available on
the internet. Learned counsel for the defendant No.2 states
that his client is too poor to get a copy from the internet.
The counsel for defendant No.2 also states that he will
not inspect the judicial file as, according to him, an order
is missing from the judicial file and the blame may come
on him in case file is inspected by him.
On the basis of the pleas raised by defendant No.2,
the adjudication and decision of above applications cannot
be postponed.
The objections against the proposed conveyance deed
to be executed by the Court Commissioner in favour of
purchaser, Mr.Mukul Sabharwal, cannot be postponed as
the entire sale consideration has either been paid on the
Court Commissioner or is lying deposited with the
Registrar of this Court. No impediment has been pointed
out against the execution of the conveyance deed in favour
of purchaser who has either aid or deposited the entire
sale consideration.
Consequently, the applications are allowed. The
Court Commissioner is directed to execute the conveyance
in favour of the purchaser, Mr.Mukul Sabharwal, on the
date and time convenient to the Court Commissioner. The
Court Commissioner is also authorized to execute the
conveyance on behalf of defendant No.2.
Learned counsel for the plaintiff states that he has
instructions from his cleitn to authorize the Court
Commissioner to execute the conveyance in favour of
Mr.Mukul Sabhawal, the purchaser, on his behalf also as
he is unable to go to Jalandhar for registration of the
conveyance to be executed in favour of Mr.Mukul
Sabharwal on account of his hospitalization.
In the facts and circumstances, the Court
Commissioner is also permitted to sign and get the
conveyance deed registered on behalf of plaintiff in respect
of property at Jalandhar.
Since the conveyance is to be executed in favour of
Mr.Mukul Sabharwal who has either paid or deposited the
total consideration of `1,26,00,251/-, the draft of `1.00
lakh deposited by the purchaser, Mr.Mukul Sabharwal, as
an earnest money be also returned to him forthwith.
With these directions the applications are disposed
of."
18. It is apparent that the property at Jalandhar was sold in the year 2007.
Thus it is too late in the day for the appellant to challenge the sale of the
property at Jalandhar. As regards the property at Poorvi Marg, Vasant
Vihar, New Delhi we find that the Court Commissioner appointed by the
Court submitted a report that the highest bid he has received for sale of the
property was in sum of `9.15 crores. Vide order dated November 16, 2004
the bid was confirmed. The appellant questioned the sale pleading that the
decree was invalid since the properties belonged to the Hindu Undivided
Family, a plea which was negated vide order dated April 08, 2005. The
Court approved the draft of the agreement to sell prepared by the learned
Local Commissioner. Order dated May 30, 2005 records that all brothers,
which include the appellant, have signed the agreement to sell, the
undertaking, indemnity bonds and have submitted affidavits.
19. At this stage we note that the buyer was happy to take possession of
the property under the agreement to sell but had desired sale deed to be
executed because the property at Poorvi Marg, Vasant Vihar, New Delhi was
under a perpetual lease-hold tenure and policy of DDA permitted the lead-
hold tenure to be converted into free-hold tenure. He had desired execution
of the sale deed when the property was converted into free-hold.
20. Thereafter, the property was converted into free hold and sold.
21. Thus, it is too late in the day for the appellant to question the sale of
the property at Poorvi Marg, Vasant Vihar, New Delhi.
22. The appellant contends that since the sister of the parties were not
impleaded as a defendant and in the suit the decree would be a nullity.
The appellant points out that the application filed by the sister to be
impleaded as a defendant in the suit was rejected by the learned Single
Judge against which she filed an appeal which was dismissed. Appellant
points out that notice has been issued by the Supreme Court in the petition
seeking Special Leave to Appeal filed by the sister.
23. What happens in said proceedings is irrelevant insofar as the appellant
is concerned for the simple reason it is settled law that a decree in a suit does
not, and cannot affect the rights of third parties. If the sister has a claim to
the properties she has an independent right to sue and claim a share therein.
24. Noting as above and finding the appeal to be wholly frivolous we
dismiss the same imposing cost of `1,00,000/- (Rupees One Lakh only)
upon the appellant; to be shared equally by the three respondents.
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
FEBRUARY 21, 2014
skb
