Delhi High Court
Vimla Monga vs Ramlubhai on 31 March, 2014
Author: A. K. Pathak
$-R-1 & R-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26th March, 2014
Decided on: 31st March, 2014
+ CS(OS) 1059/1979
VIMLA MONGA ..... Plaintiff
Through: Mr. Raj Panjwani , Sr. Adv. with Ms.
Sonia Singhani, Adv.
versus
RAMLUBHAI ..... Defendant
Through: Mr. Sunil Malhotra and Mr. Amit
Sanduja, Advs.
AND
TEST. CAS. 47/1990
SH. KISHSORI LAL MONGA ..... Petitioner
Through: Mr. Sunil Malhotra and Mr. Amit
Sanduja, Advs.
versus
STATE ..... Respondent
Through: Mr. Raj Panjwani , Sr. Adv. with
Ms. Sonia Singhani, Adv.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J.
1. By this judgment aforementioned suit as well as testamentary petition
are disposed of together since the disputes involved therein are between the
members of same family, inasmuch as, property involved therein is same,
that is, House No. A-315, Defence Colony, New Delhi - 110003.
2. Plaintiff is daughter-in-law of defendant no.1. Defendant no.1 is wife
of Late Shri Ajodhia Nath Monga. She died during the pendency of suit on
8th April, 1983. Defendant no.2 is brother-in-law (husband‟s brother) of
plaintiff.
3. The pedigree table of the family, as emerges from the record, is as
under:-
Late Ajodhia Nath Monga
and
Late Mrs. Ramlubhai
(Defendant no. 1)
Late Janki Nath Monga Kishori Lal Monga
and (Defendant no. 2)
Mrs. Vimla Monga and
(Plaintiff) Mrs. K.L. Monga
Kamal Manu Raman Aman Suman
4. Plaintiff has alleged in the plaint that Late Shri Ajodhia Nath Monga
and his two sons, namely, Late Shri J.N. Monga (husband of the plaintiff)
and defendant no. 2 were members of Hindu Undivided Family (HUF). Pre-
partition of the country they were living and carrying on business together in
Lahore. Shri Ajodhia Nath Monga was the Karta of HUF. Plaintiff was
married to Late Shri J.N. Monga on 23rd April, 1947 at Lahore. Thereafter,
she also became member of the joint family. Plaintiff gave her assets also in
the HUF pool. After partition of the country members of HUF finally
settled in Delhi. They occupied Flat No.15, Khan Market, New Delhi on
rent from 1951 onwards. Thereafter, the said flat was purchased in the year
1961. On 24th January, 1961, Shri Ajodhia Nath Monga wrote a letter to
Settlement Commission, Jam Nagar House, New Delhi that claim of his
sons may also be adjusted towards the cost of Khan Market flat. In the
year 1961 flat at Khan Market was sold by Shri Ajodhia Nath Monga to his
mother-in-law, namely, Smt. Malin Devi for Rs. 32,000/-. Defence Colony
house was purchased by the HUF in the name of defendant no. 1 on 6th
March, 1961 for Rs.35,000/-. HUF was also carrying on business in the
name of „Auto Bakery‟ from Defence Colony, New Delhi and was also
having share in the „Standard Screw Factory‟.
5. After the death of Shri J.N. Monga, the parties to the HUF held
discussion and agreed to a family settlement and executed an agreement on
24th June, 1974, in relation to „Auto Bakery‟ business, „Standard Screw
Factory‟ business and House No. A-315, Defence Colony, New Delhi. The
agreement was signed by the Karta-Shri Ajodhia Nath Monga, defendant
no.1, defendant no.2 and the plaintiff.
6. Plaintiff has alleged that the family arrangement is binding on the
parties, inasmuch as, parties did act upon the same after its execution. In
respect of „Auto Bakery‟ business, a partnership deed was executed on 3rd
March, 1975, in terms of the family arrangement. Joint family owned and
possessed considerable properties as detailed in the Schedule A attached to
the plaint. Plaintiff was having more than 1/3rd share in all the properties.
After the death of Shri Ajodhia Nath Monga defendants started threatening
to dispossess the plaintiff from Defence Colony house and also from „Auto
Bakery‟ business which business was being run by her. They also denied
her share in the Standard Screw Factory. Plaintiff was in joint possession of
Defence Colony house. She was in possession of the „Auto Bakery‟
business as she was managing and running the same. Thus, it has been
prayed that joint family properties, as detailed in Schedule A, be partitioned
by metes and bounds and plaintiff be put in actual physical possession of the
properties coming to her share. She further prayed that defendants be
directed to render full, accurate and detailed accounts of all the dealings of
the „Standard Screw Factory‟ and all other business concerns of the HUF. It
is further prayed that by way of perpetual injunction defendants be
restrained from disturbing the plaintiff‟s possession from the suit properties;
Defendants be restrained from transferring, disposing of or parting with
possession of any of the assets and properties as detailed in Schedule A.
7. Initially defendants filed a composite written statement. However,
after the death of defendant no.1, defendant no. 2 had filed the amended
written statement in the year 1992. Certain preliminary objections have
been taken. It has been alleged that suit is bad for mis-joinder of causes of
action. Plaintiff could not club the relief of rendition of accounts of
partnership concerns with the relief of partition of joint family property.
Suit is bad for non-joinder of necessary parties. All the persons, who would
have share in the suit properties ought to have been impleaded. Partners of
partnership firm were also necessary parties. It is alleged that agreement
dated 24th June, 1974, is inadmissible in evidence for want of stamp duty
and registration. On merits, relationship between the parties, as detailed in
the plaint, has not been disputed. It was denied that there was a joint family
or HUF comprising of Shri Ajodhia Nath Monga, his wife and his two sons.
As per the defendants, Late Shri Ajodhia Nath Monga had been running the
business in Lahore and later in New Delhi, in his individual capacity.
Neither his wife nor any of his two sons were the members of HUF. It is
alleged that no woman could have become member of HUF. Late Shri
Ajodhia Nath Monga, Late Shri J.N. Monga and defendant no.2 owned their
individual properties in Pakistan. They received individual claims in respect
of the properties left behind by them in Pakistan. Late Shri Ajodhia Nath
Monga did not inherit anything from his father. All his assets and properties
were self acquired properties. Even after partition, Shri Ajodhia Nath
Monga, Shri J.N. Monga and defendant no.2 had been doing their individual
business. It is, however, admitted that parties were living together in one
house in Lahore and, thereafter, at Delhi. It is alleged that the same by
itself, was not sufficient to constitute HUF. It was denied that plaintiff had
brought substantial cash and jewellery in her marriage and had pooled the
same in HUF. It was not denied that Shri Ajodhia Nath Monga, Shri J.N.
Monga and defendant no.2 were living in Khan Market flat on rent from
1951 onwards. It was not denied that later on the said flat was allotted by
the Rehabilitation Authority to Late Shri Ajodhia Nath Monga. However, it
is denied that claims of Shri J.N.Monga and defendant no.2 were also
adjusted against the cost of the said flat. Late Shri Ajodhia Nath Monga had
made payment from his own claim. As per the defendants, claim of Shri
J.N.Monga was adjusted towards the dues of the rent of Metropol Hotel at
Simla which he was running in partnership with some other persons. It is
not denied that the Khan Market flat was sold by Shri Ajodhia Nath Monga
to Smt. Malin Devi, mother of defendant no.1 in 1961. However, it is
alleged that Defence Colony house was purchased by the defendant no.1
from her own funds. It was denied that Defence Colony house was
purchased by HUF in the name of defendant no.1. It is alleged that
defendant no.1 belonged to a very affluent family and had her own funds
and had purchased the house from her own funds and also by selling some
of her jewellery. Defendant no.1 allowed the plaintiff and defendant no.2 to
live in the said house, accordingly, status of plaintiff and defendant no.2 was
nothing more than that of a „licensee‟. "Auto Bakery" business was run in
partnership by Shri A.N.Monga, plaintiff and defendant no.2. It was denied
that HUF had any share in the „Standard Screw Factory‟. It is alleged that
this factory was demolished by the demolition squad in the year 1976. It is
categorically stated that Defence Colony house was personal property of
defendant no.1. Execution of agreement dated 24th June, 1974, has not been
disputed. However, it is stated that the said agreement was executed
immediately after the death of Shri J.N. Monga at the behest of son-in-law
of the plaintiff for some ulterior motive as he wanted to create some disputes
in the family. Agreement is without any consideration and did not amount
to a gift or transfer of properties. Mere recital in the agreement that the
parties are members of the HUF is not sufficient to create any HUF; moreso
when no such HUF was in existence. The agreement does not confer any
right in favour of plaintiff. Defendants have further alleged that partnership
dated 3rd March, 1975, came to an end on the death of Shri Ajodhia Nath
Monga but the parties continued to run the business from Shop No. 31,
Defence Colony Market, New Delhi, which was taken on rent by Shri
Ajodhia Nath Monga. The tenancy rights were inherited by the defendant
no. 2 pursuant to a registered Will. It is alleged that plaintiff had share in
the properties which was much less than 1/3rd share as claimed by her.
Vide Will dated 3rd April, 1976 defendnat no.1 bequeathed Defence Colony
property to the defendant no.2. It is prayed that suit be dismissed with costs.
8. Plaintiff filed replication whereby she has denied the averments as
contained in the written statement. She has reiterated the averments made in
the plaint. As per the plaintiff document dated 24th June, 1974, is a family
arrangement and has to be enforced. The terms were recorded in writing as
a memorandum of what had been agreed upon between the parties. The said
document merely recorded the statements of signatories, inasmuch as,
referred Shri Ajodhia Nath Monga as Karta of joint family consisting of his
wife and two sons. As per the agreement, Shri Ajodhia Nath Monga and his
sons had been carrying on business jointly by pooling all the assets
belonging to members of the family; they had been living together in Lahore
even before partition and that the Defence Colony house was a Joint Hindu
Family property. It is denied that the agreement is inadmissible in evidence
for want of stamp duty and registration. Plaintiff has stated that she has
based her claim on the basis of Joint Hindu Undivided Family as also under
the Hindu Succession Act, 1956, which confers right in her favour, in
respect of the suit properties.
9. On the pleadings of the parties following issues were framed on 8th
April, 1983:-
1. Whether the suit is bad for mis-joinder of causes of
action?
2. Whether suit is bad for non-joinder of parties?
3. Whether the suit has been properly valued for purposes
of jurisdiction and court-fees and proper court fee has
been paid?
4. Whether Shri Ajodhia Nath Monga with his wife and two
sons constituted a joint Hindu family and he was its
Karta?
5. Whether the family arrangement dated 24th June, 1974 is
not admissible in evidence and binding on the parties, if
not, to what effect?
6. Whether Shri Ajodhia Nath Monga executed a valid Will
dated 3rd April, 1976, if so to what effect?
7. Whether the property at A-315, Defence Colony, New
Delhi is the joint family property as alleged, if no to what
effect?
8. Whether the property at A-315, Defence Colony, New
Delhi was the self acquired property of defendant No.1?
9. Whether the business of „Auto Bakery‟ is the joint family
business or a partnership business, if so what are the
rights of the parties?
10. Whether the share in the business of „Standard Screw
Factory‟ is joint family property, if so to what effect?
11. Whether Shri Ajodhia Nath Monga and his wife gifted
their share in „Standard Screw Factory‟ to defendant
No.2, if so when and to what effect?
12. Whether plaintiff is entitled to a share in the suit
properties, if so what is her share and the share of
defendant No.2?
13. Whether the defendant is liable to render accounts with
respect to suit properties, if so for what period?
14. If a Local Commissioner is appointed to partition the
property by metes and bound or for rendition of accounts,
what directions if any are to be given to him?
15. Relief.
10. On 23rd February, 1995, following additional issue was framed in
view of the amended written statement filed by defendant no.2:-
8A Is it proved that deceased Smt. Ram Lubhai (defendant
no. 1) executed her last Will on 3.4.1976 as a free and capable
testator in sound and disposing state of mind bequeathing
House No. A-315, Defence Colony, New Delhi to defendant
No. 2, Kishori Lal Monga?
11. After the death of defendant no. 1 on 27th November, 1982, defendant
no. 2 has propounded the Will dated 3rd April, 1976, of defendant no.1 and
has filed probate petition under Section 276 of Indian Succession Act, 1925,
seeking probate of the said Will. It is alleged that defendant no.1 was a
resident of Delhi at the time of her death. She executed a registered Will
dated 3rd April, 1976, whereby she bequeathed the properties described
therein, more particularly immovable property bearing House No. A-315,
Defence Colony, New Delhi to her husband Shri Ajodhia Nath Monga, who
unfortunately pre-deceased her on 7th February, 1979, during his life time,
with the further stipulation that after his death Defence Colony house shall
vest in defendant no.2. It is further stated that defendant no.1 did not
appoint any Executor under the said Will. Petitioner has prayed that probate
of the Will of defendant no.1 be granted in his favour.
12. Plaintiff has opposed the grant of probate. Plaintiff has alleged in the
reply that Bhai Nanak Chand was a wealthy and affluent person having vast
and extensive immovable properties including jagir. He had six sons and
one daughter, namely, Bhai Manohar Lal, Jai Kishan Das, Amar Nath,
Chuni Lal, Panna Lal, Ajodhia Nath Monga (husband of defendant no.1) and
Mahinder Kaur respectively. He died in the year 1921 at the age of 72
years. He constituted a Hindu Joint Family with ancestral properties. After
the death of Bhai Nanak Chand, all the brothers divided the properties in the
year 1926 amongst themselves. Late Shri Ajodhia Nath Monga was a law
graduate. In the partition he got two big houses. Late Ajodhia Nath Monga
was blessed with two sons, namely, Janki Nath (husband of plaintiff) and
Kishori Lal (defendant no.2). Shri Ajodhia Nath Monga left his legal
profession and started business in partnership with his elder brother Panna
Lal in the name and style „Standard Restaurant‟. Shri Ajodhia Nath Monga
used and invested the Hindu Joint Family funds in the said business. Later
on, „Standard Restaurant‟ was opened at Mussoorie also. Shri Ajodhia Nath
Monga purchased cotton ginning factory at Qasur near Lahore in the name
of Shri J.N. Monga and the said factory was managed by Shri J.N. Monga.
On 23rd April, 1947, plaintiff got married with Shri J.N. Monga. One plot,
lot of cash and jewellery was given to plaintiff in her marriage, which she
gave to the Karta of the family, namely, Shri Ajodhia Nath Monga. After
the partition, Shri Ajodhia Nath Monga with his family, that is, Sh.
J.N.Monga, defendant no.1 and defendant no.2 came to Delhi on 24th
November, 1947. They lived together in Mussoorie and thereafter at Delhi.
Shri Ajodhia Nath Monga started a canteen at „Constitution House‟ in
partnership with Panna Lal, Prem Nath and Amolek Ram Suri and invested
joint family funds in the said business. Plaintiff‟s husband used to run and
manage the said canteen as Ajodhia Nath Monga took another contract at
Ludhiana. All of them lived at Constitution House for about five years.
Thereafter, they shifted to Khan Market flat. In the year 1952, Shri Ajodhia
Nath Monga started „Standard Restaurant‟ from Regal Building, New Delhi
in partnership with M/s Capri Limited. He invested joint family funds in the
said business. Plaintiff‟s husband used to look after the „Standard
Restaurant‟. Shri Ajodhia Nath Monga sold the „Standard Restaurant‟ and
opened a shop at Kashmere Gate by the name of „Auto Bakery‟ which used
to be run by plaintiff‟s husband. However, the said business did not
succeed, therefore, he shifted to Kanpur but the business did not succeed
there also and was closed ultimately. Thereafter, plaintiff‟s husband started
„Auto Bakery‟ at Defence Colony sometime in the year 1961 by investing
Joint Family funds. Other business ventures also used to be run by utilising
the joint family funds. Initially, Khan Market flat was taken on rent but was
subsequently purchased in the year 1961. Vide letter dated 24th January,
1961, Shri Ajodhia Nath Monga requested the Settlement Commissioner to
adjust the claims of his sons towards the cost of Khan Market flat.
Subsequently, Khan Market flat was sold by Shri Ajodhia Nath Monga to
his mother-in-law, Malin Devi for Rs.32,000/- and possession thereof was
given to her on 9th March, 1961. On 6th March, 1961, Defence Colony
house was purchased in the name of defendant no.1 for Rs.35,000/-. After
the death of her husband, family sat together and agreed to a family
arrangement which was reduced in writing on 25th June, 1974. The said
family arrangement was acted upon and a partnership deed was executed on
3rd March, 1975, in respect of „Auto Bakery‟ wherein plaintiff was inducted
as one of the partners.
13. It was denied that Will dated 3rd April, 1976, was a legal and valid
Will of defendant no.1. It was stated that defendant no.1 was not the owner
of the house No. A-315, Defence Colony, New Delhi and had no power or
authority to make a Will in respect of the said property. It is prayed that
probate petition be dismissed.
14. Following issues were framed in the probate petition on 23rd February,
1995:-
1. Is it proved by the petitioner that Ram Lubhai Monga, on
3.4.1976, executed her last Will as a free and capable
testator in a sound and disposing state of mind?
2. Relief.
15. In the suit plaintiff has examined herself as PW1; whereas defendant
no. 2 has examined himself as DW-1. Probate petition has been filed by the
defendant no.2 and he has examined himself as PW1. Attesting witness to
the Will, namely, Shri Ashok Kumar Chabra has been examined as PW2.
Plaintiff, who has been shown as relative no.2 in Probate Case, did not step
in the witness box in view of the order dated 21st February, 2011, passed in
Test Case whereby it is held that evidence of respondent/objector - Smt.
Vimla Monga, as recorded in CS (OS) 1059/1979, shall be read as her
evidence in the testamentary case with a rider that the petitioner shall be at
liberty to summon the respondent/objector for evidence as and when on any
material aspect (to be disclosed in writing) the petitioner desires to further
cross-examine the respondent/objector, that is, Mrs. Vimla Monga. It may
further be noted that defendant no.2 during his cross-examination in the suit
has categorically stated that he had no objection if his testimony by way of
cross examination recorded in Test Case 47/1990 is read in the suit as well;
meaning thereby that evidence recorded in suit has to be read in the
testamentary case and vice-versa.
16. I have heard the learned senior counsel/counsel for the parties,
perused the written submission of the parties as well as records and my
issue-wise findings are as under :-
17. Defendant has failed to point out as to how the suit is bad for mis-
joinder of causes of action. During the course of hearing it has been
admitted by both the parties that disputes in respect of „Auto Bakery‟ and
„Standard Screw Factory‟ stands settled between the parties during the
pendency of suit and only dispute remains to be adjudicated is about the
immovable property bearing number A-315, Defence Colony, New Delhi.
Accordingly, it is held that suit is not bad for mis-joinder of causes of action.
18. This issue was framed on the objections taken by the defendants in
their written statement. Onus to prove this issue was on the defendants. No
argument has been advanced by the defendant no.2 to point out as to how
the suit is bad for non-joinder of necessary parties. As regards disputes in
respect of business of „Standard Screw Factory‟ and „Auto Bakery‟ are
concerned, parties have stated that the same have already been settled during
the pendency of suit and only dispute remains to be adjudicated in this case
is in respect of the immovable property bearing no. A-315, Defence Colony,
New Delhi. Thus, partners of the aforesaid business concerns are not
required for adjudication of the disputes between the parties. As per the
plaintiff, all the parties were living in Joint Hindu Family comprising of Late
Shri Ajodhia Nath Monga, his wife-Mrs. Ramlubhai (defendant no.1) and
his two sons, namely, J.N. Nonga (husband of plaintiff) and K.L. Monga
(defendant no.2). Suit has been filed by the plaintiff, that is, widow of pre-
deceased son for partition of immovable property after the death of Shri
Ajodhia Nath Monga and she has impleaded the widow of Late Shri Ajodhia
Nath Monga and the surviving son, that is, Shri K.L. Monga, as defendants.
Plaintiff and defendant no.2 are head of their branch of family, that is, their
children.
19. Learned senior counsel for the plaintiff has contended that since head
of each branch entitled to share have been duly impleaded, therefore, suit is
not bad for non-joinder of necessary parties. Reliance has been placed on
Bishambar Das and others vs. Kanshi Prashad and others AIR 1932
Lahore 641, Thakar Singh vs. Sant Singh and others AIR 1933 Lahore
465, Subba Rao vs. Subba Rao and others AIR 1936 Madras and
Bhikulal and others vs. Kisanlal and others AIR 1959 Bombay 260. I
find force in this contention of the learned senior counsel. Since head of
each branch entitled to a share in the suit property has been impleaded, suit
cannot be said to be bad for non-joinder of necessary parties. This issue is
answered accordingly.
20. This issue was also framed in view of the objections taken in the
written statement. However, this issue has not been pressed during the
course of hearing and is answered in favour of the plaintiff.
21. During the course of hearing these issues have not been pressed more
particularly in view of the fact that disputes regarding "Auto Bakery" and
„Standard Screw Factory‟ have already been settled between the parties
during the pendency of suit.
22. This issue need not to be redressed in view of the settlement arrived at
between the parties in respect of „Auto Bakery‟ and „Standard Screw
Factory‟ business. A perusal of Will Ex.PW1/C makes it clear that it is in
respect of the share of Late Shri Ajodhia Nath Monga in the partnership firm
„Auto Bakery‟ and „Standard Screw Factory‟ as also with regard to cash in
the banks. In the present suit no claim has been made in respect of the cash,
which may be lying in the account of Late Shri Ajodhia Nath Monga, at the
time of his death. This issue is answered accordingly.
23. These issues are taken up together since findings returned on one
issue would have material bearing on the other. From the evidence adduced
by the parties it is clear that Shri Ajodhia Nath Monga along with his wife
and two sons, namely, J.N. Monga (husband of the plaintiff) and K.L.
Monga (defendant no.2) were living together in a joint family in Lahore.
Prior thereto Shri Ajodhia Nath Monga along with his family was living
with his father and brothers. While they were living in Lahore Shri Ajodhia
Nath Monga along with his family branched out. They had been carrying on
business together. After the partition Shri Ajodhia Nath Monga along with
his family first shifted to Mussoorie and then to Delhi. It is admitted by the
defendant no.2, in his cross-examination, that all throughout they were
living together under the same roof. They had been carrying on business in
partnership. It is also established from the statements of PW1 and DW1 that
they were using common kitchen. In the year 1951, Flat No. 15, Khan
Market, New Delhi was taken on rent. Subsequently, said flat was
purchased in the year 1961 by Ajodhia Nath Monga from the claims
received from the Settlement Commissioner. No documentary evidence has
been led by the defendant no.2 to show that his father-Ajodhia Nath Monga
and brother-J.N. Monga were running the business separately and
independently either pre-partition or post-partition. It has also not been
proved that defendant No.2 was having independent income from his own
business. Defendant no.2 has not lead any evidence to show that in the year
1961, when Khan Market flat was purchased, they were having separate
bank accounts. Defendant no. 2 has also failed to produce any documentary
evidence to show that Ajodhia Nath Monga, J.N. Monga and defendant no.2
were having separate and independent income and were maintaining
separate bank accounts. As regards Khan Market flat is concerned, the same
was purchased out of the claims received from Settlement Commissioner in
respect of the properties left behind in Pakistan. It was sold by Late Shri
Ajodhia Nath Monga to his mother-in-law Smt. Malin Devi, that is, mother
of defendant no.2 for Rs.32,000/- in the month of March, 1961. On 6th
March, 1961, Defence Colony house was purchased for Rs.35,000/- which
period is proximate to the sale of Khan Market flat. The above
circumstances support the version of plaintiff that house No.A-315,
Defence Colony, New Delhi was purchased by Late Shri Ajodhia Nath
Monga from the joint family funds.
24. Defendants have claimed that Defence Colony house was purchased
by the defendant no.1 from her own personal funds. It is contended that
defendant no.1 belonged to a rich and affluent family and was given
sufficient jewellery at the time of her marriage. Besides this she also used to
receive cash and gifts on important occasions. Defendant no.1 sold her
jewellery and invested sale proceeds besides cash which she was having, to
purchase the Defence Colony house. There is only a bald assertion in this
regard. No documentary evidence has been adduced to show that defendant
no.1 had sold the jewellery, if so, to whom and for how much amount. No
evidence has been led to show that defendant no.1 was maintaining a bank
account and the sale consideration was paid from the said account. The
answers given by the defendant no.2, in his cross-examination, also create a
suspicion about this plea. Defendant no.2 has admitted in his cross-
examination that Smt. Ramlubhai (defendant no. 1) was a house wife and
had not been carrying any business or work. He further admitted that
defendant no.1 was an illiterate lady. He further stated that he had no
knowledge that defendant no.1 was having any bank account. He also
feigned ignorance about the fact as to whether his mother was an income tax
assessee or not. He also claimed ignorance about the fact that his mother
was assessed to wealth tax or not. He stated that he was not aware as to how
much karat gold his mother was having in the year 1960. Defendant no.2
was asked as to how he acquired the knowledge that defendant no.2 had paid
sale consideration by selling her jewellery. He first stated that he was told
about this fact by his mother but immediately thereafter he changed his
statement and stated that he had not talked with his mother in this regard but
his father told him that the property in question had been purchased from the
sale of his mother‟s jewellery. This shaky response, in his cross-
examination, makes the plea of defendants that Defence Colony house was
purchased by defendant no.1 from her own funds, highly suspicious.
Defendants have failed to prove that Defence Colony house was purchased
by the defendant no.1 from her own personal funds.
25. Plaintiff has categorically deposed that Defence Colony house was
purchased by Late Shri Ajodhia Nath Monga in the name of defendant no. 1
from the joint family funds. Khan Market flat was purchased out of the
claims received from the Settlement Commissioner, which fact has even
been admitted by the defendant no.2. However, he has explained that Shri
Ajodhia Nath Monga got only his claim adjusted against the said property
and not of Late Shri J.N. Monga and defendant no.2. However, no
documentary evidence in this regard has been led. As against this, in the
family arrangement Ex.P-2, it has been specifically mentioned that Defence
Colony house had been purchased from the joint family funds. Ex.P-2 has
been signed by the plaintiff, defendant no.1, defendant no.2 as well by late
Shri Ajodhia Nath Monga. Defendant no.2 has admitted his signatures on
this document and the statements contained therein have to be preferred as
against the bald oral assertions of the parties. It is trite law that documentary
evidence has to be preferred against the bald oral statement.
26. Accordingly, I am of the view that Defence Colony house was
purchased by Late Shri Ajodhia Nath Monga in the name of defendant no.1
from the joint family funds and the same is not the self acquired property of
defendant no.1.
27. Family arrangement dated 24th June, 1976 reads as under:-
"This agreement entered into on this day the 24th of June, 1974
at Delhi between (1) Mr.A.N.Monga (2) Mrs.A.N.Monga (3)
Mr.K.L.Monga, and (4) Mrs.Vimla Monga, all residing at
No.A-315, Defence Colony, New Delhi-24.
WHEREAS Mr.A.N.Monga is the Manager of a Joint Family
consisting of himself and his two sons, the late Mr.J.N.Monga
and Mr.K.L.Monga.
AND WHEREAS Mr.A.N.Monga and his sons have been
carrying on business in a joint manner pooling all assets
belonging to all the members of the family from the time they
had been living at Lahore even before partition.
AND WHEREAS Mr.J.N.Monga suddenly expired on 17th
June, 1974 at Delhi.
AND WHEREAS Mrs.Vimla Monga is the Legal and Lawful
wife of late Mr.J.N.Monga and she now represents the interests
of late J.N.Monga in the joint family.
AND WHEREAS the family of Mr.A.N.Monga has been doing
business owning properties and has been in partnership and the
said business property and shares in other partnership being in
the name of one or either or all of the members of the family
both the deceased and the living.
AND WHEREAS consequent to the death of Mr.J.N.Monga it
has been mutually agreed upon to the satisfaction of all the
parties to this agreement in the manner setforth hereunder:
I. AUTO BAKERY
In the Partnership Firm under the name and style of Auto
Bakery a new partnership will be drawn and the following will
be the partners with the following specified shares:
1. Mr.A.N.Monga 34% Share
2. Mr.K.L.Monga 16% -do-
3. Mr.Raman Monga 17% -do-
4. Mrs.Vimla Monga 16% -do-
5. Miss Manu Monga 17% -do-
Mr.A.N.Monga will receive a remuneration of Rs.500 per
month and an additional Rs.500/- per month towards the
maintenance expense of his car.
Mr.Raman Monga and Miss Manu Monga will be paid a
remuneration of Rs.500 each per month for their attending to
the daily management and affairs of the Auto Bakery and for
helping Mr.A.N.Monga in the running of the Auto Bakery firm.
Any amounts drawn for the personal use and expenses of the
partners will be debited to the respective drawing accounts.
No partner shall be entitled to any extra benefit or advantage
other than those that have been and will be specifically
mentioned in the deed of partnership and they would not be
entitled to debit the partnership firm for expenses not connected
for running of the bakery.
If Miss Manu Monga gets married, her share will stand merged
with the share of Mrs.Vimla Monga and Mrs.Vimla Monga
from that date would be entitled to the remuneration of Rs.500/-
per month which has been hitherto being paid and enjoyed by
her daughter, Miss Manu Monga.
The entire net income of the partnership shall be divided only
according to the specified shares in the partnership deed.
II. STANDARD SCREW FACTORY
Mr. K.L.Monga would represent the interests of Mr.A.N.Monga
and Mrs.A.N.Monga in the partnership which subsists between
Mr.and Mrs.A.N.Monga and others.
It is agreed and understood between the signatories to this
agreement that Mr.and Mrs.A.N.Monga would be entitled to
40% of the net income from the Standard Screw Factory and
Mr.K.L.Monga would be entitled to 30% of the net income
from the Standard Screw Factory and Mrs.Vimla Monga would
be entitled to 30% of the net income from the Standard Screw
Factory.
After the demise of both Mr.A.N.Monga and Mrs.A.N.Monga,
their shares in the Standard Screw Factory would vest in
Mr.K.L.Monga and Mrs.Vimla Monga in equal shares and
proportions.
III. HOUSE BEARING NO.A-315, DEFENCE COLONY
The signatories to this agreement will continue to live in the
house bearing No.A-315, Defence Colony in the same portion
under their use and occupation.
In the event of the house being sold during the life time of any
one of the signatories to this agreement the net income available
after payment of all taxes including capital gains etc. would
stand divided between Mr.A.N.Monga and Mrs. A.N.Monga on
the one side and Mr.K.L.Monga on the one side and Mrs.Vimla
Monga on the other side in the proportion of 1/3 : 1/3 : 1/3.
After the demise of both Mr.A.N.Monga and Mrs.A.N.Monga,
the house bearing No.A-315 Defence Colony will be shared by
Mr.K.L.Monga and Mrs.Vimla Monga in equal proportion viz.,
50% each.
Mr.K.L.Monga will have the option after the demise of
Mr.A.N.Monga and Mrs.A.N.Monga to choose either the
ground floor portion or the upstairs portion for his 50% share in
the house subject to the following conditions.
The person choosing the ground floor flat will be entitled to all
the lawns in the front and the back and the person choosing first
floor flat will be entitled to the exclusive possession of the open
terrace area and the access to the upstairs flat would be through
the staircase in the front side which would then be separated by
building a wall near the staircase leading to the outside gate.
All expenses in regard to the maintenance of the house like
white-washing, payment of taxes, repairs etc., will be borne
jointly by Mr.A.N.Monga, Mr.K.L.Monga and Mrs.Vimla
Monga excepting what the individual member of the families
might install in the house to suit their needs and conveniences
e.q., if a member of the family wants to fit up an expensive
bath-tub in his or her toilet it would be to the debit of their
individual account, but common amenities like installation of a
booster pump and the repairs to the house etc. will be borne
commonly.
IV. UNSPECIFIED GENERAL ASSETS
What ever assets moveable and immovable which are available
after the demise of Mr.A.N.Monga and Mrs.A.N.Monga will be
divided between Mr.K.L.Monga and Mrs.Vimla Monga in
equal proportion.
The parties to this agreement agree and declare that they are
signatories to this agreement voluntarily and unequivocally
declare that all and either of them would be prepared to execute
any deed or document registered or unregistered affirming the
contents of this agreement and its implementation thereof.
The parties have signed this deed on this 24th day of June, 1974.
28. A perusal of aforesaid family arrangement makes it clear that parties
had agreed that in the event of sale of Defence Colony property the sale
proceeds, after payment of all taxes, was liable to be divided between
defendant nos. 1, 2 and plaintiff in the ratio of 1/3rd each. It has been further
stipulated that in case the sale does not take place during life time of Shri
Ajodhia Nath Monga and defendant no.1, Defence Colony house will be
shared by the plaintiff and defendant no. 2 in the ratio of 50% each with a
further stipulation that defendant no.2 will have first option either to choose
ground floor portion or upstairs portion.
29. Learned counsel for the defendant no.2 has vehemently contended
that the family arrangement cannot be read in evidence as it is unstamped
and unregistered document. Reliance has been placed on Narendra Kante
vs. Anuradha Kante and Ors. 2010 (2) SCC 77, Bankey Bihari vs. Surya
Narain 2004 (11) SCC 393 and Jagdish Kumar Sachdeva vs. Subhash
Chander Sachdeva 2011 (V) AD (Delhi) 463. Per contra, learned senior
counsel for the plaintiff has vehemently contended that after the death of
Shri J.N. Monga family members orally discussed about the partition of
assets of family which later on was recorded in writing vide Ex.P-2, thus, no
registration under Section 17 of the Registration Act, 1908 (hereinafter
referred to as „the Act‟) was required and the same can be read in evidence.
Reliance has been placed on Kale and others vs. Deputy Director of
Consolidation and others AIR 1976 SC 807. It has been further contended
that the family arrangement was bonafide and arrived at between the
members of the family to resolve the family disputes once for all by fair and
equitable allotment of assets between the respective branches of the family,
thus, was liable to be enforced for establishing or ensuring amity and
goodwill amongst the persons bearing relationship with one another. It is
further contended that if the Court finds that a family arrangement has been
entered into between the family members bonafidely and the terms thereof
are fair in the circumstances of a particular case, Courts will more readily
give assent to such an arrangement than to avoid it. Reliance has been
placed on Hari Shankar Singhania & Ors. Vs. Gaur Hari Singhania &
Ors. AIR 2006 SC 2488, Ram Charan Das vs. Girja Nandini and others
AIR 1966 SC 323.
30. Plaintiff has deposed that after the death of her husband all the family
members sat together and agreed to a family arrangement and executed a
document containing the family arrangement on 25th June, 1974. Learned
senior counsel for the plaintiff has contended that after the death of Shri
J.N.Monga discussions took place, between the plaintiff, Shri Ajodhia Nath
Monga, defendant No.1 and defendant No.2 with regard to the modalities of
partition of assets of the family and the manner in which the assets were to
be divided and only thereafter arrangement reached between the parties was
recorded in writing. The words "it has been mutually agreed upon", as
contained in para 1 of Ex.P-2, indicates that parties had first orally agreed on
the terms prior to the execution of Ex.P-2. The oral family arrangement,
which was arrived at between the parties, was subsequently drafted,
prepared and signed, thus, it required no compulsory registration under
Section 17 of the Act.
31. In Kale (Supra), Supreme Court has held that family arrangement may
be even oral, in which case no registration is necessary; Registration would
be necessary only if the terms are reduced to writing but there also a
distinction should be made between a document containing the terms and
recitals of a family arrangement made under the document and a mere
memorandum prepared after the family arrangement had already been made
either for the purpose of the record or for information of the court for
making necessary mutation. In such a case the memorandum itself does not
create or extinguish any rights in the immovable properties and therefore
does not fall within the mischief of S. 17(2) of the Registration Act nor is it
compulsorily registrable. It has been further held that a document, which
was no more than a memorandum of what was agreed to, did not require
registration. While holding so their Lordships also indicated that even if a
family arrangement, which required registration and was not registered, it
would operate as a complete estoppel against the parties, which had taken
advantage thereof. In para 9 of the judgment Supreme Court has held thus:-
"Before dealing with the respective contentions put forward by the
parties, we would like to discuss in general the effect and value of
family arrangements entered into between the parties with a view to
resolving disputes once for all. By virtue of a family settlement or
arrangement members of a family descending from a common
ancestor or a near relation seek to sink their differences and
disputes, settle and resolve their conflicting claims or disputed titles
once for all in order to buy peace of mind and bring about complete
harmony and goodwill in the family. The family arrangements are
governed by a special equity peculiar to themselves and would be
enforced if honestly made. In this connection, Kerr in his valuable
treatise "Kerr on Fraud" at p. 364 makes the following pertinent
observations regarding the nature of the family arrangement which
may be extracted thus;
"The principles which apply to the case of ordinary compromise
between strangers, do not equally apply to the case of compromises
in the nature of family arrangements. Family arrangements are
governed by a special equity peculiar to themselves, and will be
enforced if honesty made, although they have not been meant as a
compromise, but have proceeded from an error of all parties,
originating in mistake or ignorance of fact as to that their rights
actually are, or of the points On which their rights actually depend."
The object of the arrangement is to protect the family from long
drawn litigation or perpetual strifes which mar the unity and
solidarity of the family and create hatred and bad blood between the
various members of the family. Today when we are striving to build
up an egalitarian society and are trying for a complete
reconstruction of the society, to maintain and uphold the unity and
homogeneity of the family which ultimately results in the
unification of the society and, therefore, of the entire country, is the
prime need of the hour. A family arrangement by which the
property is equitably divided between the various contenders so as
to achieve an equal distribution of wealth instead of concentrating
the same in the hands of a few is undoubtedly a milestone in the
administrating of social justice. That is why the term "family" has
to be understood in a wider sense so as to include within its fold not
only close relations or legal heirs but even those persons who may
have some sort of antecedent title, a semblance of a claim or even if
they have a spes successions so that future disputes are sealed for
ever and the family instead of fighting claims inter se and wasting
time, money and energy on such fruitless or futile litigation is able
to devote its attention to more constructive work in the larger
interest of the country. The Courts have, therefore, leaned in favour
of upholding a family arrangement instead of disturbing the same
on technical or trivial grounds. Where the Courts find that the
family arrangement suffers from a legal lacuna or a formal defect
the rule of estoppel is pressed into service and is applied to shut out
plea of the person who being a party to family arrangement seeks to
unsettle a settled dispute and claims to revoke the family
arrangement under which he has himself enjoyed some material
benefits. The law in England on this point is almost the same. In
Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216,
the following apt observations regarding the essentials of the family
settlement and the principles governing the existence of the same
are made:
"A family arrangement is an agreement between members of the
same family, intended to be generally and reasonably for the benefit
of the family either by compromising doubtful or disputed rights or
by preserving the family property or the peace and security of the
family by avoiding litigation or by saving-its honour.
The agreement may be implied from a long course. Of dealing, but
it is more usual to embody or to effectuate the agreement in a deed
to which the term "family arrangement" is applied.
Family arrangements are governed by principles which are not
applicable to dealings between strangers. The court, when deciding
the rights of parties under family arrangements or claims to upset
such arrangements, considers what in the broadest view of the
matter is most for the interest of families, and has regard to
considerations which in dealing with transactions between persons
not members of the same family, would not be taken into account.
Matters which would be fatal to the validity of similar transactions
between strangers are not objections- to the binding effect of family
arrangements".
32. In Hari Shankar (Supra), in the context of enforceability of a family
arrangement, Supreme Court has observed thus:
"Another fact that assumes importance at this stage is that, a
family settlement is treated differently from any other formal
commercial settlement as such settlement in the eyes of law
ensures peace and goodwill among the family members. Such
family settlements generally meet with approval of the Courts.
Such settlements are governed by a special equity principle
where the terms are fair and bona fide, taking into account the
well being of a family.
The concept of 'family arrangement or settlement' and the present
one in hand, in our opinion, should be treated differently.
Technicalities of limitation etc should not be put at risk of the
implementation of a settlement drawn by a family, which is
essential for maintaining peace and harmony in a family. Also it
can be seen from decided cases of this Court that, any such
arrangement would be upheld if family settlements were entered
into ally disputes existing or apprehended and even any dispute
or difference apart, if it was entered into bona fide to maintain
peace or to bring about harmony in the family. Even a semblance
of a claim or some other ground, as say affection, may suffice as
observed by this Court in the case of Ram Charan v. Girija
Nandini AIR 1966 SC 323."
33. In Ram Charan Das (Supra), Supreme Court has held thus :-
"Courts give effect to a family settlement upon the broad and
general round that its object is to settle existing or future disputes
general regarding property amongst members of a family. The
word family in this context is not to be given a narrow meaning.
In Ramgouda Annagouda's case, of the three parties, to the
settlement of a dispute concerning the property of a deceased
person one was his widow, another her brother, and the third her
son-in-law. The two latter were not heirs of the deceased, yet
bearing in mind their relationship to the widow the settlement of
the dispute was regarded as the settlement of a family dispute.
The consideration for such a settlement is the expectation that it
will result in amity and goodwill amongst persons bearing
relationship to one another. That consideration having passed by
each of the disputants, the settlement consisting of recognition of
the right asserted by each other cannot be permitted to be
impeached thereafter."
34. What can be culled out from the above judgments is that all kinds of
family arrangement or family settlement need not necessarily require
compulsory registration. In case, an oral family arrangement has been
arrived at it can be later on reduced in writing for the purpose of record and
in such an eventuality the same does not require compulsory registration
under Section 17 of the Act. Courts have to make an endeavour to uphold a
family arrangement instead of disturbing the same on technical and trivial
grounds. In case court finds that family arrangement suffers from a legal
lacuna or a formal defect, the rule of estoppel is applied to shut out the plea
of the person, who being a party to the family arrangement, seeks to unsettle
a settled dispute and claims to revoke the family arrangement under which
he has himself enjoyed some material benefits. Endeavour has to be made
to give effect to a family arrangement and/or family settlement in order to
establish or ensuring amity and goodwill amongst the persons bearing
relationship with one another.
35. From the overall reading of the statement of PW1. It is clear that after
the death of Shri J.N. Monga, family discussed the mode and manner of
dividing the assets of family and after a consensus arrived at family
arrangement was reduced into writing and was signed by all the parties.
Execution of agreement has not been denied by the defendant no.2.
Accordingly, I am of the view that non registration of Ex.P-2 would not
come in the way as the same did not require compulsory registration under
Section 17 of the Act, in the facts and circumstances of this case, as
discussed above.
36. If the matter is looked from yet another angle then also family
arrangement has to be given effect to as the defendants are estopped from
challenging the same. The family settlement was partially acted upon.
Plaintiff in her affidavit has stated that parties did act upon the family
arrangement Ex.P-2 in respect of „Auto Bakery‟ business as a partnership
deed was executed on 3rd March, 1975, after the execution of Ex.P-2. As
per Ex.P-2, Shri Ajodhia Nath Monga was to get 34 % share; defendant no.
2 and his son was to get 33% share; whereas plaintiff and her daughter was
to get 33% share. As per the partnership deed of „Auto Bakery‟ executed
thereafter Shri Ajodhia Nath Monga, plaintiff and defendant no. 2 were
given 1/3rd share each in the partnership business, which was in line with the
family arrangement. Instead of defendant no. 2 and his sons defendant no. 2
became partner and got 1/3rd share. In place of plaintiff and her daughter
plaintiff joined partnership and got 1/3rd share. Ratio of share of each
branch of family remained the same, as was stipulated in Ex.P-2. Defendant
no.2 had been enjoying his share in the „Auto Bakery‟ business. Defendant
no.2 has admitted in his cross-examination that Mrs.Vimla Monga was
looking after business of M/s Auto Bakery. He further admitted that in the
year 1978, Shri A.N.Monga and Smt.Ramlubhai retired from the partnership
of „Standard Screw Factory‟ and transferred the share in his favour. He used
to look after the production of the said factory. As regards Defence Colony
property is concerned, the equal share was given to each branch of the
family. This further indicates that terms of family arrangement were fair to
all the parties, inasmuch as, efforts were made to divide the properties to all
the branches in equal proportion. The family arrangement was entered into
after the death of husband of the plaintiff and the properties were distributed
amongst three branches of the family, that is, Shri A.N.Monga and his wife
one branch, family of the deceased son as second branch and the other son
as a third branch. Family arrangement appears to have been arrived at to
settle the existing or/and future disputes regarding properties amongst
members of the family, for this reason also, efforts have been made to give
effect to the family settlement as Ex.P-2.
37. Judgments relied upon by the defendant no. 2 are in the context of
different facts and are of no help to the defendant no.2.
38. In view of the above discussions, it is held that suit property bearing
No.A-315, Defence Colony, New Delhi - 110003 is not a self acquired
property of defendant no.1 and, in fact, was purchased in the name of
defendant no.1 by Late Shri Ajodhia Nath Monga from the joint family
funds. Ex.P-2 is a family arrangement between the parties with regard to
distribution of assets owned by the family and is enforceable. Suit property
has not been sold during the life time of Shri Ajodhia Nath Monga and his
wife (defendant no.1), thus, plaintiff and defendant no.2 are entitled to 50%
share each in the suit property.
39. The above issues are answered accordingly.
Issue No. 8A and Issue No. 1 of Probate Case
40. The above issues need not to be redressed, in view of the findings
returned on Issue Nos. 4, 5, 7, 8 and 12. While answering the said issues it
has been held that property bearing no. A-315, Defence Colony, New Delhi
was not a self acquired property of defendant no.1. Thus, defendant no.1
was not competent to execute the Will in respect of the said property.
Issue No.14
No finding on this issue is required to be given in this judgment for
the purpose of passing a preliminary decree. This issue is answered
accordingly.
Relief
41. In view of the findings returned on Issue No. 4, 5, 7, 8 and 12 a
preliminary decree of partition is passed in respect of the property bearing
No. A-315, Defence Colony House, New Delhi thereby holding that plaintiff
and defendants have 50% share each in the said property. Test Case is
dismissed. No order as to cost. Decree sheet be drawn.
A.K. PATHAK, J.
March 31, 2014
ga
