Smt. Aditi Upadhyay vs Shri Lalit Kumar & Ors
2015 Latest Caselaw 6336 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) No. 819/2006
%                                                   27th August, 2015


SMT. ADITI UPADHYAY                                       ..... Plaintiff

                          Through:       Mr.V.K.Garg, Sr. Adv. with Ms.
                                         Noopur Dubey, Advocate.


                          versus

SHRI LALIT KUMAR & ORS                                    ..... Defendants

                          Through:       Mr. Raman Kapur, Sr. Adv. with Mr.
                                         Dhiraj Sachdeva, Mr. R.P.Singh and
                                         Mr. Aviral Tiwari and Mr. Varun,
                                         Advs. for D-1 to 3.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

The subject suit being decided by the present judgment is a suit

for declaration, permanent injunction and partition filed by Smt. Aditi

Upadhyay against her two brothers Mr. Lalit Kumar and Mr. Mahesh

Kumar; defendants no.1 and 2, the sister Ms. Kamlesh Kumar Gola;

defendant no.3 and defendant no.4/Smt. Vidyawati the mother of the

plaintiff as also of the other parties. Defendant no.4 died during the

pendency of the present suit. As per the suit plaint, the plaintiff states that

either it be declared that there was an oral family settlement dated 22.4.1999

by which plaintiff was made the owner of the property bearing no. R-298,

IInd Floor, Greater Kailash-I, New Delhi or that there should be a decree of

partition with respect to this Greater Kailash Property and another property

bearing no.U-11, Green Park, New Delhi. The plaintiff claims that these

two properties belonged to her father (and defendant nos.1 to 3) and since

the father died intestate she succeeds to a share in these properties as the heir

of her father Sh. O.P. Kumar.

2(i). The case of the plaintiff as per the plaint is that the entire

Greater Kailash property was originally owned by her grandfather Sh. Hira

Lal. As per the para 3 of the plaint, Sh. Hira Lal during his life time

partitioned his Greater Kailash property among his four sons and the share

of his one son Sh. O.P. Kumar, father of the plaintiff, was as per the request

of Sh. O.P. Kumar instead of being given to Sh. O.P. Kumar was bequeathed

to the two sons of Sh. O.P. Kumar i.e defendant nos. 1 and 2. This Will of

the grandfather Sh. Hira Lal is dated 24.9.1986. The plaintiff therefore

pleads that though this property was bequeathed by the grandfather to her

brothers/defendant nos.1 and 2, yet, this property really belonged to the

father Sh.O.P. Kumar as bequeathing of this property by the grandfather to

the defendants no. 1 and 2 was for the actual ownership of Sh. O.P. Kumar.

(ii) The further case of the plaintiff is that the father Sh. O.P.

Kumar got an oral family settlement arrived at between the family members

whereby the second floor of the property bearing no.R-298, IInd Floor,

Greater Kailash-I, New Delhi was given to the plaintiff as an absolute owner

and the other two sons of Sh. O.P. Kumar were given the property U-11,

Green Park, New Delhi after giving life interest in the same to his wife Smt.

Vidyawati; and who is also the mother of the plaintiff and

defendant nos. 1 to 3.

(iii) The plaintiff further pleads that the fact that there was an oral

family settlement is clear because a Relinquishment Deed dated 22.4.1999

was executed by defendant nos.1 and 2 in favour of the plaintiff recognizing

the plaintiff to be an exclusive owner of the entire second floor of the

property no. R-298, Greater Kailash-I, New Delhi. Plaintiff pleads that after

the father Sh. O.P. Kumar died leaving behind the parties to the suit as his

legal heirs, the defendants started questioning the oral family settlement

dated 22.4.1999 reflected by the Relinquishment Deed dated 22.4.1999 and

asked the plaintiff to vacate the Greater Kailash property.

(iv) Plaintiff finally pleads that defendants did not agree to the bona

fide request of the plaintiff that either she should be given the second floor

of the Greater Kailash property or this Greater Kailash property and the

Green Park property be partitioned among the legal heirs of Sh. O.P. Kumar

i.e parties to the suit, and hence she has filed the suit.

3(i). The sister of the plaintiff i.e defendant no.3 has supported the

case of the defendant nos. 1 and 2 and there is a common written statement

filed by defendant nos. 2 and 3. Defendant nos. 1 and 4 have filed a

common written statement.

(ii) The case of the defendant nos. 1 and 2, brothers of the plaintiff

and the sons of Sh. O.P. Kumar (and in fact of all the defendants) is that

there was never any oral family settlement dated 22.4.1999 as alleged by the

plaintiff. It is stated that the Relinquishment Deed dated 22.4.1999 though

bears the signatures of the defendant nos.1 and 2, but, the same was not

registered and which is compulsory for transferring interest in an immovable

property and which was for the reason that the plaintiff's husband had gone

abroad, and only as an assurance the plaintiff was thus given a limited right

to stay in the Greater Kailash property by virtue of the Relinquishment Deed

dated 22.4.1999. It is stated that since the plaintiff had only a temporary

right of stay in the Greater Kailash property hence the Relinquishment Deed

was not registered before the concerned Sub-Registrar. The defendants

therefore plead that the plaintiff is not the exclusive owner of the second

floor of the property bearing no R-298, Greater Kailash-I, New Delhi as

claimed.

(iii) As per the further case of the defendants, father Sh. O.P. Kumar

before he died on 9.8.2005, had executed his Will dated 12.11.2002 whereby

the Green Park property was bequeathed by the father Sh. O.P. Kumar in

favour of his two sons i.e defendant nos. 1 and 2 with life interest in favour

of her mother/defendant no.4. Defendants therefore deny any right of the

plaintiff claiming rights and seeking partitioning of the Greater Kailash

property and the Green Park property.

4. In this suit, the following issues were framed on 24.7.2009:-

"1. Whether the plaintiff has any right, title or interest in properties bearing no.R-298, Greater Kailash, Part-I, New Delhi and U-11, Green Park (Main), New Delhi OPP

2. Whether there was any oral settlement dated 22.4.1999 as alleged by the plaintiff? OPP

3. Whether the plaintiff has no cause of action to file the present suit? OPD

4. Whether the plaintiff is entitled to decree for partition as prayed for? OPP

5. Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP

6. Relief."

These issues are required to be dealt with together and therefore

are being discussed together. As per these issues, it will be decided as to

whether there was an oral family settlement dated 22.4.1999 as per the case

of the plaintiff and plaintiff because of this oral family settlement became

the owner of the second floor of the property bearing no R-298, Greater

Kailash-I, New Delhi. In case there was arrived at an oral family settlement,

then, plaintiff will have a legal right and a cause of action to file a suit

seeking the reliefs claimed therein.

6. On behalf of the plaintiff, it is argued that though the family

settlement was oral, the fact that there was an oral family settlement

becomes clear because a Relinquishment Deed dated 22.4.1999 is admittedly

executed by defendant nos. 1 and 2 in favour of the plaintiff. It is argued

that this Relinquishment Deed was acted upon becomes clear from the fact

that the plaintiff did the 'Greh Pravesh'/'House Warming Ceremony' of this

Greater Kailash Property. Though no date is given of Greh Pravesh, it is

said to have taken place quite soon after the oral family settlement dated

22.4.1999.

7. The issue before this Court is that was there any oral family

settlement dated 22.4.1999 as is the case of the plaintiff. In my opinion, it

cannot be held that there existed any oral family settlement dated 22.4.1999

and the reasons for so holding are as under:-

(i) In the Relinquishment Deed dated 22.4.1999 Ex.P1, there is no

mention whatsoever that there took place an oral family settlement. There is

absolutely no reference not only to an oral family settlement but in fact to

any family settlement between the family members of Sh. O.P. Kumar.

Therefore, it is only the plaintiff's self-serving case that in the

Relinquishment Deed Ex.P1 the expression "oral family settlement" should

be deemed to be included. Once in my opinion, there is nothing to indicate

in the Relinquishment Deed Ex.P1, that there was an oral family settlement,

in my opinion, the Relinquishment Deed cannot be read as to have been

executed pursuant to an oral family settlement of the same date.

(ii) The Relinquishment Deed cannot also be taken to have been

executed pursuant to an oral family settlement of the same date, inasmuch

as, if the object was to give ownership rights to the plaintiff of the Greater

Kailash property then nothing prevented the parties from registering the

Relinquishment Deed. Admittedly, the relinquishment deed to have legal

effect must be registered as per Section 17(1)(b) of the Registration Act,

1908 and once relinquishment deed is not registered, no title will flow

pursuant to the same in the Greater Kailash property. In fact, I accept the

stand and the case of the defendants that the Relinquishment Deed Ex.P1

even was not registered as the object of executing the same was only as an

assurance to allow plaintiff a temporary stay in the property as her husband

had in the meanwhile gone to USA. I may also note that today the admitted

position is that the plaintiff alongwith her son has shifted to USA to stay

with her husband.

(iii) If there was an oral family settlement, the best way in which

this oral family settlement would have been proved is by showing that the

parties acted upon and pursuant to this oral settlement for making the

plaintiff as the owner of the second floor of the Greater Kailash property.

This acting upon and acting in furtherance of the family settlement would

have been if the plaintiff would have at least applied for mutation before the

Municipal Authorities for transferring the property in her name. No doubt

mutation does not confer title, but asking for mutation of the property would

have been an act in furtherance to the claim of exclusive ownership of the

second floor of the Greater Kailash property of the plaintiff. Concededly

plaintiff has not applied for mutation and thus it is seen that the plaintiff

cannot be said to have taken any step in furtherance of the alleged family

settlement so as to show that in fact an oral family settlement was arrived at

on 22.4.1999.

Another manner in which the family settlement could have been

shown to have been acted upon was if the plaintiff had filed any income tax

returns or got entered in public record or written to any public authority

showing that the plaintiff had claimed exclusive ownership of the second

floor of the Greater Kailash property, but admittedly, no document has been

filed before this Court and no case laid out that plaintiff before any public

authority pursuant to the alleged oral family settlement dated 22.4.1999

claimed ownership rights in the Greater Kailash property. This is therefore

another reason to reject the claim of there having taken place any oral family

settlement dated 22.4.1999 as claimed by the plaintiff.

Yet another reason for holding that there is no oral family

settlement dated 22.4.1999 is because if the plaintiff had become owner of

the second floor of the Greater Kailash property then plaintiff should have

atleast paid her share of the house tax of the Greater Kailash property, but

once again and admittedly no document whatsoever has been filed by the

plaintiff before this Court that she paid house tax either to the Municipal

Authorities or to anyone who paid house tax for the plaintiff's share of the

house tax payable for the second floor of the Greater Kailash property. If

this was done, then this would have been proof of acting upon the family

settlement, but, admittedly no proof in this regard has been filed before this

Court and not even an oral deposition in this regard is made by the plaintiff.

(iv) Learned senior counsel for the defendants is also justified in

arguing that there could not have been given the second floor of the Greater

Kailash property to the plaintiff pursuant to the alleged oral family

settlement because the oral family settlement itself does not speak of the

second floor of the Greater Kailash property being given in ownership rights

to the plaintiff and the Relinquishment Deed Ex.P1 only talks of giving of

1/4th undivided share of defendant nos. 1 and 2 of the Greater Kailash

property to the plaintiff. For this reason also therefore the plaintiff cannot lay

a claim to the second floor of the Greater Kailash property, which floor was

not of the defendant nos. 1 and 2 themselves because the Greater Kailash

property was an undivided property of the brothers of Sh. O.P. Kumar (sons

of Sh. Hira Lal) and the defendant nos.1 and 2. It has emerged, the

indubitable position on record that the Greater Kailash property was of the

father of Sh. O.P. Kumar; Sh. Hira Lal i.e grandfather of the plaintiff and

defendant nos. 1 to 3; and this property of Sh. Hira Lal vested in three other

sons of Sh. Hira Lal and the defendant nos. 1 and 2 by virtue of a Will Ex.D-

1 dated 24.9.1986 executed by Sh. Hira Lal. This Will Ex.D-1 is an

admitted document and this Will shows that Sh. Hira Lal divided the Greater

Kailash property to his three sons Sh. Moti Lal, Sh. Mohan Lal and Sh. Hari

Ram in 1/4th share each and the 4th part he bequeathed to his two grandsons

(i.e sons of Sh. O.P. Kumar) the defendant nos. 1 and 2 in the present case.

Once the property is a joint property, and there is no proof filed before this

Court that the property was partitioned before 22.4.1999 between the sons of

Sh. Hira Lal and the defendant nos.1 and 2 for the defendants no.1 and 2 to

have got exclusive ownership rights of the second floor of the Greater

Kailash property for being given to the plaintiff, this is another reason that if

the defendant nos. 1 and 2 themselves were not the owners of the specific

portion of the Greater Kailash property viz the second floor of the Greater

Kailash property, surely they could not have therefore given ownership

rights of specific portion i.e the second floor of the Greater Kailash property

to the plaintiff. Though learned senior counsel for the defendants sought to

orally argue that a partition suit is pending between the sons of Sh. Hira Lal

in this Court, but once there are no documents on record, I cannot look into

the same, but in any case this aspect that the Greater Kailash property was a

joint property which was undivided (not partitioned) is clear from the fact

that both the documents being the Will of Sh. Hira Lal Ex.D-1 dated

24.9.1986 and the Relinquishment Deed Ex.P1 dated 22.4.1999, only talk of

undivided shares in the Greater Kailash property and not the specific portion

being the second floor of the Greater Kailash property.

(v) The contention of the learned senior counsel for the plaintiff

that since plaintiff has done 'Greh Pravesh' in the Greater Kailash property,

and which has been deposed to on behalf of the plaintiff as PW1 and Ms.

Vrushali Desai as PW2, and that since 'Greh Pravesh' can only be done by

an owner, it should hence be held that plaintiff has proved acting upon of the

family settlement. This is argued to be all the more so because it is argued

that there is no specific cross-examination of their witnesses on behalf of the

defendants that there was no 'Greh Pravesh' of the plaintiff in the Greater

Kailash property.

The contention of the plaintiff in this regard is misconceived

because 'Greh Pravesh' is not necessarily only done by an owner. 'Greh

Pravesh' is a house warming ceremony which is done when a person enters

in a new premises. Plaintiff was given this premises inasmuch as her

husband had gone abroad and the defendant nos. 1 and 2 wanted to give

comfort to the sister/plaintiff, and hence even assuming 'Greh Pravesh' is

proved to have taken place by the plaintiff in the second floor of the Greater

Kailash property, in my opinion, this would not give ownership rights to the

plaintiff with respect to the Greater Kailash property on the ground that it is

shown that there is an acting upon an oral family settlement, and which oral

family settlement has not in any manner otherwise been proved by the

plaintiff by acting upon before public authorities. Of course, I may note that

even on a point of fact the contention of the learned senior counsel for the

plaintiff is not totally correct that defendants have not cross-examined PW1

and PW2 on the aspect of 'Greh Pravesh' inasmuch as the defendants have

put up a specific case to the witnesses that the Relinquishment Deed dated

22.4.1999 was only executed to give temporary stay to the plaintiff/sister

and this suggestion in my opinion is sufficient for disputing the ownership

rights of the plaintiff in the Greater Kailash property sought to be got proved

by an action of 'Greh Pravesh'.

(vi) Yet another reason for holding that there never took place any

oral family settlement by which plaintiff can be said to have been given

ownership rights of the Greater Kailash property is on account of the fact

that the defendants have proved the Will dated 12.11.2002 executed by the

father Sh. O.P. Kumar and in this Will Ex.DW2/1, father Sh. O.P. Kumar

has talked himself only to be the owner of the Green Park property and

which has been bequeathed to the two sons and Sh. O.P. Kumar's widow for

life. There is no mention in this Will that there was an oral family

settlement whereby the Greater Kailash property has been already given to

plaintiff and hence she is not getting anything under the Will dated

12.11.2002. If plaintiff would have got the second floor of the Greater

Kailash property by virtue of an alleged oral family settlement then surely in

this Will dated 12.11.2002 the father Sh. O.P. Kumar would have given this

as the reason for not giving any property to the plaintiff. On the contrary the

Will gives the reason for ousting the two daughters including the plaintiff

that the father Sh. O.P. Kumar had spent sufficiently on the marriages of the

daughters and hence they are not being given any share in the Green Park

property. Also, the fact that the father Sh. O.P. Kumar does not mention

anything as regards the Greater Kailash property in his Will, and which

shows that the Greater Kailash property was of the defendant nos.1 and 2

and the father Sh. O.P. Kumar was never the owner of the same as alleged

by the plaintiff.

8. In view of the above, issue nos.1 to 3 are decided against the

plaintiff and in favour of the defendants.

(i) By these issues it will be discussed and decided as to whether

the plaintiff has any right to seek partition not only for the Greater Kailash

property but also for the Green Park property. Plaintiff would have got co-

ownership rights of the Green Park property if the father Sh. O.P. Kumar had

died intestate.

(ii) So far as the Greater Kailash property is concerned, the same

was never of the father Sh. O.P. Kumar as this Greater Kailash property was

of the grandfather Sh. Hira Lal and who by his Will dated 24.9.1986 had

bequeathed the same to defendant nos.1 and 2, and there is no challenge by

the plaintiff to this Will dated 24.9.1986.

(iii) The case of the defendants as per their written statements is that

the father Sh. O.P. Kumar died leaving behind his Will dated 12.11.2002.

This Will is referred to as many as three times by the defendants in their

written statements. Plaintiff who has filed replication has not even at single

place in the replication stated that the Will is a forged and fabricated

document or that the Will dated 12.11.2002 is not signed by the father Sh.

O.P. Kumar or the Will dated 12.11.2002 is not duly executed. In my

opinion, though this can be enough to hold that the Will dated 12.11.2002 is

proved, in any case the defendants have proved this Will by leading

evidence of the attesting witness DW2 Dr. Ajay Aggarwal. DW2 has filed

his affidavit by way of evidence that the deceased Sh. O.P. Kumar has

signed the Will dated 12.11.2002 in his presence and in the presence of the

other witness and that he and the other witness signed in the presence of the

deceased Sh. O.P. Kumar. This witness has also deposed that the testator

Sh. O.P. Kumar was in a sound disposing mind. It is also seen that in the

cross-examination nothing could be elucidated from the witness DW2 Dr.

Ajay Aggarwal that the Will was not duly executed and this witness has

stood steadfast with respect to due execution and attestation of the Will.

Also, there is no cross-examination of DW2 Dr. Ajay Aggarwal with respect

to the soundness of mind of the deceased testator Sh. O.P. Kumar.

Therefore, the Will dated 12.11.2002 is held to have been proved to have

been duly executed by the father Sh. O.P. Kumar and also duly attested by

the attesting witnesses. It is therefore held that the Will Ex.DW2/1 stands

duly proved in favour of the defendants and against the plaintiff.

10. In view of the above, issue nos.4 and 5 are decided against the

plaintiff and in favour of the defendants.

11. Relief

In view of the decision of all the issues in the suit in favour of the

defendants and against the plaintiff, the suit will stand dismissed. Parties are

left to bear their own costs. Decree sheet be prepared.

AUGUST 27, 2015                                    VALMIKI J. MEHTA, J.
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