Meera Jain & Anr. vs Sundari Devi Garg & Ors.
2014 Latest Caselaw 3347 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                               Date of Decision: July 28, 2014

+                           FAO(OS) 193/2014
        MEERA JAIN & ANR                                   ..... Appellant
                 Represented by:       Mr.Kapil Khosla, Advocate
                                       with appellants in person

                                       versus

        SUNDARI DEVI GARG & ORS                    ..... Respondent
                 Represented by: Mr.Varun Nischal, Advocate for R-1
                                 Mr.Harish Malhotra, Sr.Advocate
                                 instructed by Mr.Vikas Arora,
                                 Advocate for R-2
                                 Respondents in person

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J.

1. Late Sh.Banwari Lal Garg was the owner of house No.A-1/66, Safdarjung Enclave, New Delhi. He died intestate on February 19, 2008 and was survived by his wife Sundari Devi and three daughters named Meera, Sunita and Anita.

2. The mother and the daughters recorded a memorandum of family settlement in writing on March 12, 2008 concerning how they would like the parties to inherit the house owned by the deceased. The recital and the terms of settlement are as under:-

"AND WHEREAS to arrive at an amicable settlement and to avoid any dispute in future, and with a view to have well defined demarcated portions in the said residential house No.A-

1/66, Safdarjung Enclave, New Delhi - 110029, all the four parties to this deed of settlement have arrived at a settlement

for the ownership and the possession of the Said Property in the following manner:

1. That the „First party of the One Part‟, Smt.Sundari Devi Garg W/o Late Sh.Banwari Lal Garg R/o A-1/66, Safdarjung Enclave, New Delhi, shall have the right to reside on the Ground Floor.

1(a). That Smt.Sunita Jain W/o Mr.Sudershan Jain, D/o Late Sh.Banwari Lal Garg at A-1/66, Safdarjung Enclave, New Delhi, Second Party of Other Part, shall have full and absolute ownership rights in respect of the Ground Floor of Property No.A-1/66, Safdarjung Enclave, New Delhi - 110029. That none of the other three parties to this deed have any rights whatsoever in respect of the Ground Floor as above save and except, the right of the First Party (Mother) to reside on the Ground Floor.

1(b). That Smt.Sundari Devi Garg „First Party‟ and also the two other parties namely „Third Party‟ and „Fourth Party‟ have no objection to the Ground Floor being mutated and substituted exclusively and absolutely in the name of Smt.Sunita Jain, the Second Party in the records of DDA, MCD and all other Municipal records as the absolute and exclusive owner of the Ground Floor.

2. That Smt.Anita Gupta W/o Sh.Anil Gupta, D/o Late Sh.Banwari Lal Garg R/o A-1/66. Safdarjung Enclave, New Delhi, the „Third party of Other Part,‟ who is in occupation and possession of the first floor all along shall be the full and absolute owner of the First Floor of Property No.A-1/66, Safdarjung Enclave, New Delhi - 110029 and the rest of the three parties to this deed have no objection to the mutation and substitution of Smt.Anita Gupta in the records of DDA, MCD and all other local Municipal and other Authorities as the absolute and full owner of the First Floor.

3. That Smt.Meera Jain W/o Late Vinod Jain, D/o Late Sh.Banwari Lal Garg at A-1/268, Safdarjung Enclave, New Delhi, the „Fourth Party of Other Part,‟ shall be the absolute and exclusive owner of the Second Floor of the Property No.A-

1/66, Safdarjung Enclave, New Delhi - 110029 and the rest of the three parties to this deed have no objection to the mutation and substitution of Smt.Meera Jain in the records of DDA, MCD and all other local, Municipal and other Authorities as the absolute and full owner of the Second Floor.

3(a). That the „First Party of the One Part‟, Smt.Sundari Devi Garg W/o Late Sh.Banwari Lal Garg R/o A-1/66, Safdarjung Enclave, New Delhi - 110029 shall have to the right to exclusively use the rental income of the Second Floor of the Said Property during her lifetime as long as Second Floor is rented/leased out.

x x x

As regards Driveway, Roof/Terrace, Servant Quarters and any other common area/space of the Said Property, they shall be under joint ownership of all the original heirs and their families of late Sh.Banwari Lal Garg who are residing in the Said Property."

3. Meera and Sunita executed a general power of attorney on March 13, 2008 in favour of Anita. Sundari Devi also executed a general power of attorney. As per the said general power of attorney(s), the mother and the two siblings of Anita authorized her to effect additions and alterations in the existing house after obtaining sanction from the Corporation.

4. Meera and Sunita filed a suit registered as CS (OS) No.1953/2013 making a grievance that their mother and their sister Anita were illegally constructing a third floor on the terrace of the existing second floor. The two claimed 1/3rd share each in the terrace and pleaded that the remainder 1/3rd was of Anita. They staked their claim under the memorandum of family settlement.

5. Sundari Devi and Anita accepted the execution of the memorandum of family settlement but pleaded that the writing : As regards Driveway,

Roof/Terrace, Servant Quarters and any other common area/space of the Said Property, they shall be under joint ownership of all the original heirs and their families of late Sh.Banwari Lal Garg who are residing in the Said Property in the memorandum gave them ownership of the terrace because they were the only one residing in the suit property. They also relied upon the irrevocable general power of attorney executed by Meera and Sunita in favour of Anita wherein Anita was authorized by them to make additions and alterations in the property.

6. Anita and Sunita explain the general power of attorney as being limited to authorizing their sister to make additions and alterations in the existing construction and not to effect additional construction.

7. The fact in issue between the two siblings on one side and the mother and the daughter on the other side would relate to the interpretation of the memorandum of family settlement in light of the general power of attorney executed by Anita and Sunita.

8. By an ex-parte ad-interim order dated October 08, 2013 the learned Single Judge restrained Sundari Devi and Anita from proceeding ahead with any construction on the terrace of the second floor i.e. to add the third floor.

9. A local commissioner was also appointed who has filed a report on November 27, 2013. Photographs of the building have been filed and we highlight at the moment that the RCC work i.e. the columns and the beams, the roof slab and the brick walls of the third floor have already been completed by the time the ex-parte ad-interim injunction was granted.

10. Vide impugned order dated February 20, 2014, the learned Single Judge has modified the ex-parte ad-interim injunction; permitting Sundari Devi and her daughter Anita to complete the construction of the third floor and occupy the same but subject to depositing `50,000/- per month in this

Court from the date the construction is completed.

11. Meera and her sister Sunita have challenged the said order in the appeal.

12. The dispute being essentially between a mother and one daughter on the one side and two daughters on the other, mediation was attempted. But unfortunately without success.

13. Lest parties be prejudiced before the learned Single Judge, we do not express any prima facie opinion on the interpretation of the memorandum of family settlement keeping in view the general power of attorney executed by appellants in favour of their sister.

14. In paragraph 14 of the impugned order the learned Single Judge has recorded as under:-

"14. Learned senior counsel further contended that to avoid any equities being created, the plaintiffs were agreeable to the completion of the construction subject to the fact that the property was rented out to a third party and two-third of the rent were to be deposited in Court. As per the learned senior counsel for the plaintiff the fair rental would be approximately `1,00,000/- per month. He further contended that the plaintiffs were agreeable to sharing the cost of the construction provided the defendants gave a cap on the cost of construction."

15. Modifying the ex-parte ad-interim injunction, the interim mechanism put into effect by the learned Single Judge is set out in paragraph 27 of the impugned order, which reads as under:-

"27. In view of the above, I am of the opinion that the balance of convenience tilts substantially in favour of the Defendants. In case the construction is now directed to be removed, it would cause substantial damage and loss to the property. I am of the view that the solution to the problem can be achieved by permitting the Defendant No.2 to complete the construction and occupy the third floor without any rights or equities being claimed and subject to terms."

16. Appellants have not questioned the statement made by their counsel as recorded in paragraph 14 of the impugned order. In other words, the appellants are not aggrieved by the third floor being constructed but want a two-third share in the same and if let out in the rent thereof. As per them, once completed, the third floor would fetch a rent of `1,00,000/- per month. They desired to be paid two-third thereof. They volunteered to contribute two-third cost of construction but wanted their mother and sister to cap the cost of construction.

17. Though not expressly recorded by the learned Single Judge, we highlight that by the time the suit was filed the civil works were already executed to construct the third floor. The pillars and the beams have been erected. The RCC roof has been caste. The brick walls have been laid. The plumbing, sanitary, electrical works and plastering and flooring remained as also the wood work.

18. To freeze the status quo would mean that the property would be damaged because above the roof of the third floor the water proofing work has not been done. Further, rain water would enter through the openings on the walls where windows have to be affixed.

19. Considered from the point of the view of balance of convenience alone, the impugned order has to be upheld for the reason while permitting the defendants to complete the construction of the third floor as per the approved plan by spending their own money, the learned Single Judge has directed the defendants to deposit `50,000/- per month in this Court from the date construction of the third floor is complete. The learned Single Judge has clearly recorded that no equities shall be claimed by the defendants and in case the suit succeeds, the plaintiffs shall be entitled to two-third fair rental upon payment of two-third fair cost of construction.

20. We dismiss the appeal but without any orders as to costs.

21. We find that issues have yet to be settled on the pleadings of the parties.

22. We request the learned Single Judge to settle the issues and if it is found that the only issue is as regards the interpretation of the memorandum of family settlement keeping in view the general power of attorney executed by the plaintiffs in favour of their sister requiring the contents of the said general power of attorney to be kept in mind, the suit could be decided without any evidence being recorded.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE JULY 28, 2014 mamta