Smt. Sudershana Kumari Blagan vs Smt. Tulsan Devi Decd Thru Lrs & Ors
2014 Latest Caselaw 6027 Del

$~25 to 27

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                RSA 171/2011 & Conn.
%                                                   21st November, 2014

+RSA 171/2011
SMT. SUDERSHANA KUMARI BLAGAN                           ..... Appellant
                            Through:   Ms. Tamali Wad and Mr. Yogendra
                                       Kumar, Advs.
                            Versus

SMT. TULSAN DEVI DECD THRU LRS & ORS         ..... Respondents

Through: Mr.K.S.Pathania, Adv. for R-1.

Mr. Ashish Mohan, Adv. for Mr. Anshumalee Sood through L.Rs.

+ RSA 172/2011
SMT. SUDERSHANA KUMARI BLAGAN                           ..... Appellant
                            Through:   Ms. Tamali Wad and Mr. Yogendra
                                       Kumar, Advs.
                            Versus

SMT. TULSHAN DEVI THR LRS & ORS              ..... Respondents
                  Through: Mr.K.S.Pathania, Adv. for R-1.
                            Mr. Ashish Mohan, Adv. for Mr.
                            Anshumalee Sood through L.Rs.





 + RSA 173/2011
SMT. SUDERSHANA KUMARI BLAGAN                             ..... Appellant
                            Through

                            versus

SHRI. ANSHUMALEE SOOD & ANR                  ..... Respondents
                  Through: Mr. Ashish Mohan, Adv. for Mr.
                           Anshumalee Sood through L.Rs.
                           Mr.K.S.Pathania, Adv. for R-2.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?        Yes.

VALMIKI J.MEHTA, J (ORAL)

CM No. 19063/2014 (U/o 23 Rule 3 CPC for recalling of the order dated 18.2.2014) in RSA No. 171/2011

1. There are certain sections of litigants for whom a legal binding

compromise agreement entered into before the Court, is not a deterrence for

seeking to recall the consent order/agreement by saying in almost a blasé

manner that convenience supported by dishonesty is very much a general

thing in this kalyug. The present application which has been filed is

symptomatic of these types of litigants. I am using very strong words and

deliberately so, and which are intended to send a strong message that courts

of law have to be accessed for the purpose of justice and where there is if not

a strong case at least some reasonable case, but access to justice does not

mean entitlement to indulge in gross abuse of the process of the law. Before

reproducing the consent order, disposing of as many as five Regular Second

Appeals (RSAs) filed under Section 100 of the Code of Civil Procedure,

1908 (CPC) and which brought to an end litigation of three decades, it is

required to be noted that the consent order dated 18.2.2014 recording the

agreement between the parties was passed after the counsels were heard on

merits in the RSAs. In fact, the earlier order dated 29.1.2014 specifically

records that the case was adjourned at the joint request of the parties, who

wanted to consider settlement out of court.

2. The consent order recording the agreement between the parties

dated 18.2.2014 is a long order but I have no option but to reproduce the

same in its entirety and the same is therefore reproduced as under:-

"1. Counsel for the parties were heard with respect to their respective stands on merits. I am happy to note that counsels have taken a pragmatic stand and have advised their clients to arrive at a settlement in terms of the present consent order so that this family litigation which is now pending for about

three decades will come to an end. This court place on record the appreciation for the stand which is taken by the parties who have been ably assisted by their counsels. The present appeals are accordingly disposed of in terms of the following consent order:-

(i) The property bearing no. I-13, Jangpura Extension, New Delhi-14 will be demolished and rebuilt at the cost of Sh. Deen Dayal Sood or his nominee. The new construction will comprise of basement(as permissible), stilt parking, ground floor, first floor, second floor and third floor. There will be maximum coverage/construction as per applicable laws including municipal laws. Sh. Anshumalee Sood and Smt. Sudershana Kumari Blagon will be entitled to have parking of one car space in the stilt parking which will be provided in the newly built up property. All the floors will have same type and quality of fittings and fixtures.

(ii) Smt. Sudarshana Kumari Blagan will get the ground floor of the property to be newly constructed. Smt. Sudershana Kumari Blagan will be entitled to a rental per month of a sum of Rs.40,000/- per month from Din Dayal Sood/nominee for the period of two and half years from today during which new construction will be made on the property and the possession of the newly built up property will be handed over to Smt. Sudershana Kumari Blagan. In case, for any reason construction of the new property cannot be completed within a period of two and half years, thereafter the amount which would be payable to Smt. Sudarshana Kumari Blagan will be a figure of more than Rs.40,000/- per month and which amount/figure would be commonly decided by Smt. Sudarshana Kumar Blagan,and Mr. Din Dayal Sood or his nominee. The object of fixing of a

fresh figure of rental per month will be to ensure a fair and reasonable rental amount to be available to Smt. Sudarshana Kumari Blagan equivalent to the property she is occupying if for reasons beyond control the new construction cannot be completed within a period of two and half years and she cannot be given possession of the ground floor of the property to be newly constructed. The period of making of the newly constructed property will in no circumstance exceed a period of three years from today.

(iii) Sh.Anshumalee Sood who is the son and legal representative of late Smt.Dev Kumari Sood will get the first floor of the property to be newly constructed.

(iv) For the sake of clarification, it is clarified that Sh. Din Dayal Sood or his nominee will get the basement (as permissible), stilt parking except spaces of Mr. Anshumalee Sood and Smt. Sudershana Blagon, second floor and third floor with terrace rights in the building to be newly constructed subject to the condition that the terrace will be available to the other residents of the property for their various conveniences/amenities including water tanks, antenna etc etc. However, the physical use of the terrace, except for the aforestated purposes, will be only of Sh. Din Dayal Sood.

(v) All the parties will ensure that within a period of three months from today, they will agree to a common name of a builder/collaborator who will make the new construction on the plot after demolishing the old construction. The parties will

agree to such a common builder who has reputation for ensuring timely completion of construction. Counsel for the parties agree before me that they will not select a builder with negative reputation who would be not acceptable as a common person of the parties.

(vi) If the parties to the proceedings, namely Sh. Din Dayal Sood, Sh. Anshumalee Sood and Smt. Sudershna Kumari Blagan cannot agree to a name of a common builder / collaborator within a period of three months, then, the trial Court will within a period of three months thereafter by a judicial order appoint the builder/collaborator to demolish the old construction and make a new construction on the property in terms of the present order.

(vii) It is further clarified that Smt. Sudershna Kumari Blagan will not be asked to hand over her possession of the ground floor of the suit property for demolition of the property unless the entire agreement with the builder/collaborator is final and Smt. Sudershana Kumari Blagan gets at least one year advance rent for her to shift to an alternative residence for the period for which the property is to be newly constructed and till possession of the ground floor in the newly constructed property is handed over to her.

(viii) Before commencement of demolition of the old construction on the suit plot, Sh. Anshumalee Sood will be paid a lumpsum amount of Rs.7.5 lacs and Smt. Sudershana Kumari Blagon will get a sum of Rs.2.5 lacs, and which would be

payable at the time of signing of the agreement with the builder/collaborator and Sh. Anshumalee Sood and Smt. Sudershana Kumari Blagon giving up any right to remain in possession of any part of the old property. The amount payable of Rs.2.5 lacs is in addition to rent which Smt. Sudershana Kumari Blagon has to get.

(ix) It is agreed that the Advocates who are representing the parties, namely Sh. K.S.Pathania, Advocate, Sh. Ashish Mohan, Advocate and Ms. Tamali Wad, Advocate will be joint referees to implement the present consent order in its letter and spirit because they are aware of the sentiments of the parties at the time of passing of the consent order and which is to ensure that in spite of small differences which may crop up nothing should come in the way of ensuring over all implementation of the present settlement which is already arrived at before passing this order but reflected in terms of the present order.

2. In terms of the settlement all disputes, claims, counter claims and issues in the present proceedings of all the parties i.e Sh. Din Dayal Sood, Sh. Anshumalee Sood and Smt. Sudarshana Kumari Blagan will stand merged as per the terms of the present compromise order.

3. All pending applications including any contempt petition will stand disposed of as not pressed and will stand merged in terms of the present compromise order.

4. If there are any other litigations between the parties except the present appeals, those disputes between the parties pertaining to the estate of Sh. Mela Ram existing between them till date will stand merged in terms of the present compromise order.

5. The appeals are accordingly disposed of in terms of the present compromise order and parties will now appear before the District & Sessions Judge (East), Karkardooma Courts, Delhi on 23.3.2014. District & Sessions Judge will mark the suit for implementation of the present consent order to the extent it is necessary to a competent Court in accordance with law."

3. The consent order records a very detailed agreement to sort out

disputes with respect to the suit property bearing no.I-13, Jangpura

Extension, New Delhi-14. The property was a very old property which

required reconstruction for effecting the compromise. The detailed terms

and conditions as to who gets which floor, for vacating the property a

particular person has to get rental charges per month or lumpsum payment

has to be made to certain persons, are all recorded in detail in the aforesaid

order.

4. The most important aspect which has to be noted and which is

mentioned in the order dated 18.2.2014 is that the order consciously and

deliberately while making reference to Sh. Din Dayal Sood records that

reference to Sh. Din Dayal Sood includes the reference to his nominee. This

has been recorded because to my clear recollection there had been stated

before the court during the deliberations in the case and before the

compromise was recorded in terms of the order of this Court that Sh. Din

Dayal Sood had no remaining interest in the property and he had sold his

rights in the suit property to a third person, and to which aspect there was no

contest by any of the other parties in the matter, and consequently wherever

the expression 'Din Dayal Sood' is stated in the order dated 18.2.2014 it is

also stated that reference to Sh. Din Dayal Sood will include reference to his

nominee.

5. Now, this application is filed by two applicants namely Ms.

Seema Sood and Mr. Kanak Sood who claim to be the legal heirs of Sh.

Anshumalee Sood who is stated to have expired on 4.5.2014 ie after passing

of the consent order. The applicants Ms. Seema Sood and Mr. Kanak Sood

are claiming rights only on the ground that they are representatives of late

Sh. Anshumalee Sood and since Sh. Anshumalee Sood was a party to the

consent order /agreement dated 18.2.2014, they have a right to seek recall of

the order for the reason stated in the application that Sh. Din Dayal Sood had

already expired before passing of the consent order dated 18.2.2014.

6. As per the consent order/agreement dated 18.2.2014, Sh.

Anshumalee Sood was to get the first floor of the newly constructed

property. Sh. Anshumalee Sood was also to get stilt parking space. Sh.

Anshumalee Sood was also to get a lumpsum amount of Rs.7.5 lacs. Rights

of different parties to the suits, and all of which suits basically emerged as

for partitioning the Jungpura Extension property, were delineated in detail in

the consent order dated 18.2.2014 as reproduced above.

7. The only and only ground which is urged on behalf of the

applicants for setting aside the consent order/agreement dated 18.2.2014 is

that Sh. Din Dayal Sood, who was one of the parties to the RSAs, had

already expired on 16.9.2012 and therefore the power of attorney which was

executed by Sh. Din Dayal Sood in favour of his attorney Sh. Arun Saini

came to an end and therefore Sh. Arun Saini could not represent Sh. Din

Dayal Sood who had already expired at the time of passing of the consent

order dated 18.2.2014. The consent order/agreement dated 18.2.2014 be

hence recalled it is prayed.

8. I have already stated above, that in the consent order wherever

relevant reference is made to Sh. Din Dayal Sood the same records that

reference to Sh. Din Dayal Sood includes his nominee. Counsel, Mr.

K.S.Pathania, who appeared for Sh. Din Dayal Sood through his attorney has

now filed in this Court various registered documents being the registered

Agreement to Sell dated 7.2.2007 executed by Sh. Din Dayal Sood in favour

of M/s Business Environment Assessments (India) Pvt. Ltd., a registered

general power of attorney executed by Sh. Din Dayal Sood in favour of one

Sh. Jagbir Singh dated 7.2.2007, a registered Will dated 7.2.2007 executed

by Sh. Din Dayal Sood in favour of M/s Business Environment Associates

Pvt. Ltd. bequeathing his rights in the suit property to the company etc.

9. I may note that the Special Power of Attorney which was

executed in favour of Sh. Arun Saini is dated 6.2.2007 and these documents

in favour of the company M/s Business Environment Assessments (India)

Pvt. Ltd. and the power of attorney holder Sh. Jagbir Singh are immediately

of the next date i.e 7.2.2007. In all these documents dated 7.2.2007 there is

a paragraph which refers to appointment of Mr. Arun Saini as the Special

Power of Attorney Holder of Sh. Din Dayal Sood and which obviously was

because the Special Power of Attorney was a limited power of attorney with

respect to the litigations.

10. It is therefore clear that when the consent order was passed, it

was to the knowledge of the parties that Sh. Din Dayal Sood had already

sold/transferred his rights in the suit property to a third person, whose name

was not mentioned and reference to such person was by reference to the

nominee of Sh. Din Dayal Sood, but, it is clear that the expression 'nominee'

was clearly understood by all the parties to have been deliberately used and

was used in view of the documentation dated 7.2.2007 being the registered

agreement to sell, registered power of attorney and a registered Will

executed by Sh. Din Dayal Sood. Therefore, when today this application is

filed the same is only on a technical ground, obviously however the real

intention is to back out of the detailed settlement agreement recorded by this

Court on 18.2.2014, and therefore, the issue is that whether the technicality

of Sh. Din Dayal Sood having already expired when the consent order dated

18.2.2014 was recorded is a ground for setting aside the compromise

agreement dated 18.2.2014. It bears reiterations that none of the parties are

questioning the fact that all the parties gave their consents and all the terms

recorded in the order dated 18.2.2014 are agreed terms.

11. At this stage, it is necessary to refer to Section 202 of the Indian

Contract Act, 1872 and more particularly the illustration (b) given under that

Section.

12. The aspect as to whether a power of attorney given for

consideration under Section 202 of the Indian Contract Act continues or

comes to an end after the death of the principal has been dealt with by me in

the judgment in the case of Sh.Ramesh Chand Vs. Suresh Chand & Anr. in

RFA No.358/2000 decided on 9.4.2012: 2012 (188) DLT 538 and the

relevant paras of this judgment are paras 3 and 4 and which read as under:-

"3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para

14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the

provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.

4. There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:-

"Section 202. Termination of agency, where agent has an interest in subject matter.- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations

(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."

The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney."

13. The reason why any power of attorney given for consideration

does not lapse after the death of the principal who has executed the same is

because once consideration has been received by a person which is a subject

matter of the power of attorney, and such interest is created in favour of the

agent, agent should not be prejudiced because of the death of the principal

inasmuch as the principal has received whatever benefits/consideration

which had to be received under the power of attorney. Once therefore the

special power of attorney holder Sh. Arun Saini was acting in terms of his

special power of attorney dated 6.2.2007 executed by Sh. Din Dayal Sood

and which document has to be necessarily seen with the other documents of

the transactions dated 7.2.2007 being the registered power of attorney,

agreement to sell and Will dated 7.2.2007, inasmuch as documents executed

even on different dates can surely in law form part and parcel of the same

transaction, it is clear that mere death of Sh. Din Dayal Sood which took

place prior to recording of the consent order which is dated 18.2.2014 should

not be allowed to be made as a convenient but illegal basis to recant from the

detailed consent agreement dated 18.2.2014. Even if the documents are not

seen part and parcel of the same transaction and the documents dated

7.2.2007 are seen independently, the power of attorney executed on 7.2.2007

in favour of Sh. Jagbir Singh, and Sh. Jagbir Singh not disputing entitlement

of Sh. Arun Saini, the same is enough for holding that even after the death of

Sh. Din Dayal Sood the same did not make any difference to the recording

of the consent order dated 18.2.2014 especially because in the order dated

18.2.2014 alongwith the expression 'Din Dayal Sood' the expression

'nominee' is also simultaneously and repeatedly used.

14. The matter in my opinion in the peculiar facts of this case can

also be seen in the context that in the interest of justice, Sh. Arun Saini who

was admittedly the special power of attorney holder of Sh. Din Dayal Sood

can be taken to be a party to the RSAs for the purpose of arriving at the

detailed settlement agreement as recorded on 18.2.2014 and the applicants

cannot now dishonestly seek to back out of the settlement. To allow

litigants such as the applicants to succeed in their dishonest purpose, and

which is obviously to back out of the consent order recorded on 18.2.2014,

would be to allow such litigants to play games of hide and seek with the

Court, and which in my opinion is something which should definitely not be

permitted.

15. Learned counsel for the applicants very vehemently argued that

the documents dated 7.2.2007 which have been referred to in the present

order have only now been filed in this petition and that they should not be

referred, but I find this argument an argument of sheer desperation inasmuch

as not only these documents make specific reference to the special power of

attorney which was executed in favour of Sh. Arun Saini but also because

these documents are registered which show payment of consideration of

cheques to Sh. Din Dayal Sood. Additionally, and as stated above, there is

no surprise or prejudice to the applicants inasmuch as all the parties at the

time of passing of the consent order on 18.2.2014 knew why the expression

'nominee' was used alongwith the name of Sh. Din Dayal Sood.

16. The present application therefore being an abuse of the process

of the law is dismissed with costs of Rs.1.5 lacs in favour of representatives

of Sh. Din Dayal Sood. Costs shall be paid within a period of four weeks

from today, failing which the costs imposed upon the applicants can be got

adjusted by the nominee of Sh. Din Dayal Sood from the amount which is

payable to Sh. Anshumalee Sood or his estate in terms of the consent order

dated 18.2.2014.

CM is dismissed and disposed of in view of the aforesaid order.

CM Nos. 15977/2014, 16002/14 and 16003/2014

These applications will not survive in view of the detailed order

passed by me dismissing the CM No. 19063/2014 in RSA 171/2011 and

therefore these applications are also dismissed because there does not arise

any question of representation to the estate of Sh. Anshumalee Sood or even

Sh. Din Dayal Sood in view of a detailed discussion given while dismissing

CM No. 19063/2014

CM Nos. 15942/14, 15944/14, 15945/14 & 19061/14 in RSA 172/2011 CM Nos. 15947/14, 15949/14 15950/14 & 19202/14 in RSA 173/2011 These applications will stand dismissed in terms of the order passed in

CM No. 19063/2014 in RSA No. 171/2011.

VALMIKI J. MEHTA, J

NOVEMBER 21, 2014 ib