Delhi High Court
Shri Ashok Alagh vs Mrs. Neelam Alagh & Ors. on 30 September, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.1289/2006
% 30th September, 2015
SHRI ASHOK ALAGH ..... Plaintiff
Through: Mr. S.S. Panwar, Advocate with Ms.
Shantha Raman, Advocate and Ms.
Nivedita Panwar, Advocate.
Versus
MRS. NEELAM ALAGH & ORS. ..... Defendants
Through: Mr. M. Tarique Siddiqui, Advocate
with Ms. Rakshan Ahmed, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1.
This is a suit for partition, rendition of accounts and permanent
injunction. The suit is filed by the plaintiff Sh. Ashok Alagh. Defendants in
the suit are the widow and children of late Sh. Subhash Alagh who was the
brother of the plaintiff. Plaintiff claims 50% ownership rights and hence
partition of his ½ share in the suit property no.N-215, ground floor flat,
G.K.-I, New Delhi. The suit property is an old construction of 1967 and is
situated on a plot of land admeasuring 313 sq yds. Originally the plaintiff
and Sh. Subhash Alagh, the late husband of the defendant no.1 were the two
owners of the suit property inasmuch as the father Sh. Gulzari Lal Alagh; the
father of the plaintiff and Sh. Subhash Alagh; was the owner of the property
and which property had devolved upon the father Sh. Gulzari Lal Alagh
from his wife Smt. Soma Rani Alagh. Smt. Soma Rani Alagh had
bequeathed the suit property to her husband Sh. Gulzari Lal Alagh by the
Will dated 19.3.1984. Smt. Soma Rani Alagh pre-deceased Sh. Gulzari Lal
Alagh on 8.11.1985. Sh. Gulzari Lal Alagh bequeathed the suit property
half and half to the plaintiff and Sh. Subhash Alagh by his Will dated
15.7.1986. Sh. Gulzari Lal Alagh died on 25.6.1991. Plaintiff is residing in
U.K. for 29 years before filing of the suit in the year 2006. As per the
plaintiff his brother Sh. Subhash Alagh had agreed to pay him the value of
his half share in the suit property however Sh. Subhash Alagh has backed
out. Plaintiff therefore claims partition and rendition of accounts with
respect to his half share in the suit property.
2. Defendants filed their written statement and contested the claim
of the plaintiff and denied that the plaintiff any longer has half ownership
rights in the suit property. The defendants in the written statement have
pleaded that between the brothers late Sh. Subhash Alagh and the plaintiff, a
Family Settlement was signed on 18.2.1999 as a result of which it was
agreed that plaintiff would be paid his half share by taking the market value
of the property as on the date of Family Settlement being 18.2.1999 vide
para 4 of the family settlement. The payment to the plaintiff was to be made
within six months to one year as per para 5 of the family settlement. It is
stated that late Sh. Subhash Alagh during his lifetime, paid different amounts
from the year 1999 to 2005, either directly to the plaintiff or to Ms. Kanchan
Tuli who is the sister of the parties and who was the attorney of the plaintiff.
It be noted that even the present suit has been filed by the sister Ms.
Kanchan Tuli as the attorney of the plaintiff. In the written statement, the
defendants have pleaded that the plaintiff has deliberately concealed not
only the factum of a Family Settlement dated 18.2.1999 entered into between
him and late Sh. Subhash Alagh but also that payments pursuant to the
settlement were made by Sh. Subhash Alagh to the plaintiff and his attorney
Ms. Kanchan Tuli on various dates during the years 1999 to 2005.
Defendants have also pleaded that besides the plaintiff has resorted to filing
a false suit and which has been filed deliberately after the death of Sh.
Subhash Alagh so as to prejudice the defendants who may not have had the
documents and other factual details which would have been much more
easily available to Sh. Subhash Alagh for defending the false suit of the
plaintiff.
3. Plaintiff in the replication filed admitted to the existence of and
the execution of the documents being the Family Settlement dated
18.2.1999, however, it is pleaded by the plaintiff that a further and a final
settlement agreement was envisaged in terms of the Family Settlement dated
18.2.1999 to be thereafter entered into but that final agreement was never
entered into because market price of the property at the time of MOU was
not settled. It is also pleaded in the replication that no consideration in terms
of the MOU/ Family Settlement dated 18.2.1999 was received by the
plaintiff. It is also pleaded in the replication by the plaintiff that payments
stated to have been made by late Sh. Subhash Alagh to the plaintiff during
1999 to 2005 are absolutely manipulated, baseless, false, frivolous, bogus,
misconceived and mala fide. Plaintiff has also denied that value of the suit
property was Rs.20 lacs in February, 1999 as was the case of the defendants
as per the written statement. Plaintiff however conceded in the replication
that the plaintiff received a sum of Rs.70,000/- and Rs.1,58,960/- from late
Sh. Subhash Alagh through bank payments. It is claimed that late Sh.
Subhash Alagh failed to make the payment in time and in lumpsum basis
and therefore the payments made of Rs.70,000/- and Rs.1,58,960/- stood
forfeited.
4. The following issues were framed in the suit on 9.1.2009:-
"1. Whether the present suit filed by the plaintiff through his
attorney Smt. Kanchan Tuli is legally maintainable? OPP
2. Whether the family settlement dated 18.02.1999 entered into
between the plaintiff and his late brother Mr. Subhash Alagh is
binding on them and was it ever acted upon and if so, to what effect?
OPD
3. Whether the plaintiff's late brother Mr. Subhash Alagh had paid
the price of half share of the plaintiff in the suit property after
entering into the family settlement dated 18.02.1999 and if so, to
what effect? OPD
4. Whether the plaintiff is entitled for partition of the suit property
i.e. ground floor of property bearing No.N-215, GK-I, New Delhi
and if so, to what share he is entitled in the said property? OPP
5. Whether the plaintiff is entitled to any amount from the defendant
on account of their use and occupation of the suit property since
1999 and if so, to what amount? OPP
6. Relief."
5. The following witnesses have been examined by both the
parties:-
Plaintiff
(i) PW1- Plaintiff himself.
(ii) PW2- Ms. Kanchan Tuli, the sister of the plaintiff and late Sh.
Subhash Alagh, and the attorney of the plaintiff.
(iii) PW3- Mr. Anupam Kumar Kulshreshta, who was the Senior
Accountant of the company M/s. Watch Dog Security & Detective Agency
Pvt. Ltd. This company is owned by Ms. Kanchan Tuli and her family
members.
Defendants
(i) DW-1 Smt. Neelam Alagh, defendnant no.1.
(ii) DW-2 Sh. Amit Sharma, valuer with respect to valuation of the suit
property. It is however noted that cross-examination of this witness was not
completed as this witness left to settle abroad, but, plaintiff's counsel has
agreed that the evidence of DW-2 and the valuer's report filed by the witness
be looked into by this Court.
(iii) DW-3 Sh. Devender Kumar of Syndicate Bank wherein late Sh.
Subhash Alagh maintained one bank account.
(iv) DW-4 Sh. Gunjan Kumar from LIC on the aspect of working of
defendant no.1 with LIC only for a limited period.
(v) DW-5 Sh. N.P. Kaushik from MCD house tax department
(vi) DW-6 Sh. Tarun Kumar Dutt of Standard Chartered Bank with
respect to another account maintained in this bank by late Sh. Subhash
Alagh, and which is the main account from which payments in cash were
withdrawn and paid by Mr. Subhash Alagh to Ms. Kanchan Tuli and her
family members for the plaintiff.
(vii) DW-7 Sh. Manoj Prasad from United Bank of India to show clearing
of cheques of Rs.2.50 lacs in favour of Ms. Pooja Tuli, daughter of Ms.
Kanchan Tuli.
Issue No.1
6. So far as issue no.1 is concerned, counsel for the defendants
does not press the issue, and therefore this issue is decided in favour of the
plaintiff holding that Ms. Kanchan Tuli is the attorney of the plaintiff Sh.
Ashok Alagh and she has validly filed the present suit on behalf of the
plaintiff/Sh. Ashok Alagh.
7. Let me now take up issue nos.2 and 3 together for discussion
inasmuch as discussion on these issues would be inter-related. These two
issues are the main issues which will decide the fate of the suit. Under these
issues it will have to be discussed as to whether the plaintiff and his brother
late Sh. Subhash Alagh had entered into the Family Settlement dated
18.2.1999 and if so whether the same was acted upon. It will also have to be
seen as to whether pursuant to the family settlement, Sh. Subhash Alagh
during his life time paid half share of the suit property to the plaintiff
pursuant to the Family Settlement /MOU dated 18.2.1999.
8. With respect to these issues, the following arguments have been
urged on behalf of the plaintiff:-
(i) The Family Settlement dated 18.2.1999 was not a final document
inasmuch as the document itself talks of a settlement to be arrived at i.e a
proper document had to be executed specifying the value of the property and
how the amount is to be paid to the plaintiff and therefore the defendants can
derive no benefit from this MOU/ Family Settlement dated 18.2.1999.
(ii) That in fact no price i.e value of the share of the plaintiff was agreed
upon at Rs.10 lacs as claimed by the defendants and in fact the defendants
have failed to prove by leading credible evidence that the value of the half
share of the plaintiff was a total sum of Rs.20 lacs in February, 1999
whereby the share of the plaintiff would be Rs.10 lacs as claimed by the
defendants.
(iii) That except two sums of Rs.70,000/- and Rs.1.50 lacs received by the
plaintiff on 2.1.2000 and 18.4.2002, no other payments were ever received
by the plaintiff from late Sh. Subhash Alagh. This aspect is to be taken with
the fact that payments which are said to have been made by Sh. Subhash
Alagh to Ms. Kanchan Tuli and her family members being Sh. Satish Tuli,
her husband and Ms. Puja Tuli, her daughter are pleaded by the plaintiff that
these cash payments made to Ms. Kanchan Tuli and her family members
cannot be said to have been made to the plaintiff more so because on such
payments having been made there were no confirmations sent by late Sh.
Subhash Alagh to the plaintiff that such amounts are towards the value
payable to the plaintiff of his half share in the suit property. All the
payments therefore alleged to have been made by Sh. Subhash Alagh to the
plaintiff through Ms. Kanchan Tuli and her family member are alleged to be
a manipulated and mala fide stand of payments to the plaintiff by Sh.
Subhash Alagh which cannot be taken as satisfaction of the dues of the
plaintiff.
(iv) This Court should not accept the defence of the defendants with
respect to value of half share of the property at Rs.10 lacs and the Family
Settlement dated 18.2.1999 being final because after all admittedly payments
are alleged to be made in not one lumpsum but by means of different
amounts on the different dates during the years 1999 to 2005 whereas
payment ought to have been in one lumpsum as per the MOU/ Family
Settlement dated 18.2.1999.
(v) The defendants are guilty of stating false facts before this Court
inasmuch as the valuation report filed and exhibited through the valuer of
the defendants witness DW-2 Sh. Amit Sharma shows that in this report
dated 15.5.1999 the defendant no.1 Smt. Neelam Alagh is shown to be the
wife of late Sh. Subhash Alagh and which cannot be because late Sh.
Subhash Alagh admittedly died later on 7.10.2005 and therefore Smt.
Neelam Alagh could not have been the widow on 15.5.1999 which is the
date of the report.
9. In response to the arguments urged on behalf of the plaintiff,
the defendants have argued as under:-
(i) The Family Settlement/MOU dated 18.2.1999 did not envisage any
further document to be entered into as is falsely being alleged by the plaintiff
inasmuch as when the language of this document talks of a 'settlement' it
means thereby that the settlement is of payments to be made and not that the
settlement which is referred to in the Family Settlement dated 18.2.1999 is
that the document of settlement was to be entered into.
(ii) The Family Settlement dated 18.2.1999 specifically crystallizes the
market value to be the market value of the property to be the half share of
the plaintiff as on the date of MOU and this is so specifically stated in the
last line of para 4 of the family settlement.
(iii) Defendants have proved various payments which have been made to
the plaintiff directly as also through Ms. Kanchan Tuli and who was and is
the power of attorney holder of the plaintiff, and that payments in cash made
to Ms. Kanchan Tuli and her family members (being her husband Sh. Satish
Tuli and her daughter Ms. Puja Tuli) were made by late Sh. Subhash Alagh
for and on behalf of the plaintiff by endorsing each cash withdrawal and thus
payment, in the counterfoils of the cheque books as being referable to Ms.
Kanchan Tuli and her family members and that there were no commercial
relations between Mr. Subhash Alagh and Ms. Kanchan Tuli and her family
members for the cash payments to have been made by Mr. Subhash Alagh to
them i.e there was no reason for such payments by Mr. Subhash Alagh to
Ms. Kanchan Tuli and her family members except that these payments were
as per directions of plaintiff/Kanchan Tuli towards the MOU/family
settlement.
(iv) Plaintiff is wholly unjustified in arguing that the value of the property
was never determined at Rs.20 lacs and the share of the plaintiff at Rs.10
lacs, inasmuch as, after all unless the value of the share of the plaintiff was
decided why would plaintiff otherwise have received various payments
which have been proved by the defendants to have been made either directly
to the plaintiff or to the plaintiff through Ms. Kanchan Tuli and her family
members. It is argued that the stand of the plaintiff is self-contradictory that
the value of the property falling to the share of the plaintiff is undecided
inasmuch as the very fact that payments were received by the plaintiff
directly or through the family members of Ms. Kanchan Tuli, such a
situation does envisage that the value has been fixed and only thereafter
would have arisen the factum of payments having been made to the plaintiff.
(v) The fact that late Sh. Subhash Alagh made payments in different
amounts over the years 1999 to 2005 shows that clearly there was no issue
of plaintiff being paid in lumpsum as is being argued on behalf of the
plaintiff. It is also argued on behalf of the defendants that the fact that
payments of different amounts were made by late Sh. Subhash Alagh from
the year 1999 to 2005, the same is clearly an indication of the fact not only
that payment was not to be made in lumpsum but also that Clause 5 of the
Family Settlement dated 18.2.1999 of payment by settlement to be
completed within six months to one year was given a go bye by the parties.
(vi) The plaintiff through this suit is guilty of not only concealing of facts
but he has also adopted a totally dishonest approach and has repeatedly told
lies before this Court and which is clear from various facts such as plaintiff
having been concealed the existence of the Family Settlement dated
18.2.1999 by not even mentioning the same in the plaint, plaintiff denying
the receipt of any payment except the bank payments of Rs.70,000/- and
Rs.1.50 lacs and thereafter of defendants exposing the lies of plaintiff by
filing clinching proof of such payments, and finally, of the plaintiff in spite
of executing the Power of Attorney dated 18.2.1999 in favour of Ms.
Kanchan Tuli falsely denied that Ms. Kanchan Tuli was not entitled to
receive money under the Family Settlement dated 18.2.1999 but the same is
shown to be a complete lie in view of para 3 of the Power of Attorney dated
18.2.1999 executed by plaintiff in favour of Ms. Kanchan Tuli which shows
that Ms. Kanchan Tuli was authorized to receive amounts on account of the
Will of the father Sh. Gulzari Lal Alagh and it is through the Will of the
father that plaintiff has got half share in the suit property.
10. Before referring to the respective arguments of the parties and
deciding the existence, validity and applicability of the Family Settlement
dated 18.2.1999, let me at this stage reproduce the Family Settlement dated
18.2.1999, Ex.PW1/DX, and which reads as under:-
"AGREEMENT OF FAMILY SETTLEMENT
We Subhash Alagh S/o Late Shri Gulzari Lal Alagh R/o N-215, Greater
Kailash-I, New Delhi and Ashok Alagh S/o Late Shri Gulzari Lal Alagh
R/o 153, Fleet Side, West Molesey, Surrey, England, KT8 2NH hereby
declare and confirm our Mutual Agreement as below.
1. That we have acquired Ground floor Flat of N-215, Greater Kailash-I
as per Will of our father Late Shri Gulzari Lal Alagh.
2. Mr. Subhash Alagh is at present living at Ground floor of N-215,
Greater Kailash-I which is a joint property of Mr. Subhash Alagh and
Mr. Ashok Alagh.
3. Mr. Subhash Alagh hereby agrees that Mr. Ashok Alagh shares same
property equally as per our father's will.
4. Since Mr. Ashok Alagh is living abroad, Mr. Subhash alagh agrees
that his share of Ground Floor will be reimbursed to him either by
selling the complete flat or half flat which is Mr. Ashok Alagh's
share. And also his share of property can be reimbursed by paying
him the market price of his flat at the time of settlement.
5. We understand that this settlement should be done between a period of
6 months to one year.
6. We both have agreed to do every effort to do the settlement at earliest
possible time.
7. We also agree that there should not be any alteration or addition to the
property without the mutual consent.
8. In case of any eventuality the same agreement will be valid by legal
heirs of Mr. Subhash Alagh and legal heirs of Mr. Ashok Alagh.
Signed by: Witnesses
1. Mr. Subhash Alagh 1. Mrs. Indu Alagh
2. Mr. Ashok Alagh 2. Mrs. Kanchan Tuli."
(underlining added)
11. Since discussion on the terms of this family settlement will
necessarily envisage reference to payments if made by late Sh. Subhash Alagh
to the plaintiff or the family members of Ms. Kanchan Tuli, let me reproduce
the chart Ex.DW1/2 of the defendants which as per the defendants show
payments made by late Sh. Subhash Alagh to the plaintiff, and to Ms. Kanchan
Tuli and her family members for the plaintiff, in terms of the Family Settlement
dated 18.2.1999, and which chart reads as under:-
"DETAILS OF AMOUNT PAID TO PLAINTIFF
S.No. Date Bank Name Cheque To Amt
No.
1 04/11/99 United Bank of 895041 Kanchan Tuli 10,000/-
India
2 25/10/99 Anz Bank 643868 Kanchan Tuli 70,000/-
3 17/07/00 ANZ Bank 590505 Kanchan Tuli 12,000/-
4 03/08/00 ANZ Bank 590514 Kanchan Tuli 15,000/-
5 22/11/00 ANZ Bank 952330 Satish Tuli 20,000/-
6 19/12/00 ANZ Bank 952336 Kanchan Tuli 18,266/-
7 13/03/01 Standard Chartered 943378 Watch Dog 18,132/-
Co.
8 24/05/01 ANZ Bank 952343 Kanchan Tuli 20,000/-
9 18/01/02 Standard Chartered 934562 Satish Tuli 20,270/-
10 11/02/02 Standard Chartered 934574 Satish Tuli 20,000/-
11 11/02/02 Standard Chartered 934575 Satish Tuli 20,000/-
12 22/22/02 Standard Chartered 934551 Ashok Alagh 22,000/-
13 18/03/02 Standard Chartered 934559 Satish Tuli 21,000/-
14 15/05/02 Standard Chartered 934573 Satish Tuli 20,500/-
15 02/07/02 Standard Chartered 773326 Watch Dog 24,380/-
16 02/08/02 Standard Chartered 773339 Satish Tuli 24270/-
17 18/09/02 Standard Chartered 183927 Satish Tuli 22270/-
18 20/12/02 Standard Chartered 002726 Satish Tuli 19000/-
19 25/01/03 Standard Chartered 014480 Satish Tuli 22270/-
20 27/02/03 Standard Chartered 014495 Satish Tuli 22270/-
21 25/07/03 Standard Chartered 051302 Satish Tuli 24270/-
22 03/10/03 Standard Chartered 565070 Watch Dog 41,880/-
23 16/01/04 Standard Chartered 051317 Kanchan Tuli 30,000/-
24 02/01/00 Cash in Pounds Through 70,000/-
sister in UK
25 18/04/02 HSBC Bank 301823 To Ashok 1,50,000/-
Alagh
26 12/09/05 Standard Chartered 307235 Kanchan Tuli 2,50,000/-
27 05/10/05 United Bank of 5712 Puja Tuli 2,50,000/-
India
Total 12,57,778/-
12. Finally before proceeding to decide issue nos.2 and 3, it would
be necessary to refer to the Power of Attorney dated 18.2.1999 executed by
plaintiff in favour of Ms. Kanchan Tuli and for this judgment one needs to
refer only to para 3 of this power of attorney and therefore the relevant
portion of the power of attorney reads as under:-
"Know all men by these presents that Mr. Ashok Alagh S/o Late Sheri
Gulzari Lal Alagh R/o N-215, Greater Kailash, New Delhi-110048,
India I hereby appoint Mrs. Kanchan Tuli W/o Capt. Satish Kumar
Tuli R/o C-116/B Kalkaji, New Delhi (India) as my lawful and
general power of attorney and in my name and on my behalf and as
my act and deed or otherwise to do all or any of the following things
namely:-
1. The attorney is authorised to institute and file any papers or
any application in any court of law in India in respect of
succession certificate or probate relating to my father late Sh.
Gulzari Lal Alagh who expired on 25th of June, 1991.
2. To appoint and engage any advocate on my behalf in any
court in India.
3. To receive any amount on my behalf from the Will of my late
father Sh. Gulzari Lal Alagh and give the discharge receipt in
lieu of.
xxxx xxxx xxxx
IN WITNESS WHEREOF I have put my signature hereunder on 18th
day of Feb. 1999 in the presence of witnesses.
Signature of Attorney
Signed as a deed and delivered by the said in the presence of:
Witnesses
1. Mr. Subhash Alagh 2. Mrs. Indu Alagh
N-215, Greater Kailash-I N-215, Greater
Kailash-I
New Delhi-110048 New Delhi-110048"
(underlining added)
13(i). I may note that though the Power of Attorney dated 18.2.1999
executed by the plaintiff in favour of Ms. Kanchan Tuli is mentioned as
Mark A, however, this document is an admitted document inasmuch as in
the cross-examination of plaintiff as PW-1 on 11.11.2009, plaintiff at page 2
of the cross-examination of the said date has clearly admitted that he had
executed this GPA in favour of Ms. Kanchan Tuli which is Mark A. Also,
Ms. Kanchan Tuli deposing as PW-2 in her cross-examination dated
16.11.2009 has also in the first few lines of the cross-examination itself
admitted that plaintiff had executed this GPA in her favour on 18.2.1999
which is Mark A. Thus there is no dispute that Mark A is a proved
document and for the sake of completion of exhibit numbers, I am exhibiting
this power of attorney as Ex.PWDW/X.
(ii) Para 3 of this GPA dated 18.2.1999 leaves no manner of doubt
that Ms. Kanchan Tuli was authorized by the plaintiff to receive amounts on
behalf of the plaintiff on account of the Will of the father Sh. Gulzari Lal
Alagh. Admittedly, the suit property devolved upon the plaintiff and late Sh.
Subhash Alagh as per the Will dated 15.7.1986 of Sh. Gulzari Lal Alagh and
therefore whatever payments which Ms. Kanchan Tuli received with respect
to the share of the plaintiff was as per the share of the plaintiff as per the
Will as regards the suit property and therefore payments received by Ms.
Kanchan Tuli would very much be authorized payments by late Sh. Subhash
Alagh to the plaintiff through Ms. Kanchan Tuli and her family members.
(iii) I therefore reject the argument urged on behalf of the plaintiff
that payments which have been made by late Sh. Subhash Alagh to Ms.
Kanchan Tuli and her family members cannot be taken to be payments to the
plaintiff.
(iv) This aspect and finding is buttressed by the fact that there is no
reason given in the pleadings of the plaintiff or in the depositions of the
plaintiff and Ms. Kanchan Tuli that after all why would late Sh. Subhash
Alagh make payments to Ms. Kanchan Tuli and her family members and
which payments could only have been if for example Ms. Kanchan Tuli had
given loans to late Sh. Subhash Alagh and which was being returned by late
Sh. Subhash Alagh by different payments over different years from 1999 to
2005 or there were some business relations between late Sh. Subhash Alagh
and Ms. Kanchan Tuli and her family members for payments to be made by
Mr. Subhash Alagh to Ms. Kanchan Tuli and her family members or if late
Sh. Subhash Alagh was acting as an agent or attorney of Ms. Kanchan Tuli
and her family members for certain dealings and therefore pursuant to these
relations payments were made by late Sh. Subhash Alagh to Ms. Kanchan
Tuli and her family members, and this is not the position in the facts of the
present case.
(v) I therefore hold that payments which have been made by late
Sh. Subhash Alagh to Ms. Kanchan Tuli and her family members in view of
categorical para 3 of the GPA Ex.PWDW/X have to be taken as payments
made by Mr. Subhash Alagh to the plaintiff.
14(i). Now we have to examine whether the 27 payments which have
been given in the chart Ex. DW1/2 are payments which have been proved to
have been made by late Sh. Subhash Alagh to Ms. Kanchan Tuli and her
family members. I may note that with respect to two payments of
Rs.70,000/- and Rs.1,50,000/, serial nos.24 and 25 no discussion is required
because plaintiff admits that such payments have been received by him from
late Sh. Subhash Alagh.
(ii) In my opinion, defendants have clearly proved 24 out of the
remaining 25 payments inasmuch as no doubt 22 payments (last two of 24
are by account payee cheques) are not made by cheques in favour of Ms.
Kanchan Tuli and her family members, but as the saying goes that men will
lie but circumstances do not. The best proof that cash was withdrawn by late
Sh.Subhash Alagh from his bank account and payments made by means of
cash to Ms.Kanchan Tuli and her family members is seen because the
defendants have filed as Ex. DW1/3 to Ex. DW1/3K the counter-foils of the
cheque books containing entries in the hand of late Sh.Subhash Alagh that
withdrawals being made by the particular cheques which are stated in the
counter-foils Ex.DW1/3 to Ex. DW1/3K are in the hand of late Sh. Subhash
Alagh simultaneous to the withdrawals being made by the particular cheques
which are stated in Ex.DW1/3 to Ex.DW1/3K that the withdrawal cheques
were for either Ms. Kanchan Tuli/KT or Mr. Satish Tuli/ST or for Watchdog
i.e Watchdog Security and Detective Agency Private Limited, which is
admittedly a company owned by Ms. Kanchan Tuli and her family members.
As already stated above there were no business relations or any other
commercial relations or any other relationship of late Sh. Subhash Alagh
acting as the agent of Ms. Kanchan Tuli and her family members, and
therefore payments made by Sh. Subhash Alagh to Ms. Kanchan Tuli and
her family members and their company Watchdog would only and only be
for and on behalf of the plaintiff, more so, in view of para 3 of the General
Power of Attorney (GPA) Ex.PWDW/X. Not only the defendants have
supported the proof of payments contained in the chart Ex.DW1/2 by filing
the counter-foils of the cheque books, but the defendants have also
summoned the witness from Standard Chartered Bank as DW-6 and this
witness has filed and proved on record the cheques as also the statement of
account maintained by late Sh. Subhash Alagh with the said bank. These
documents have been collectively exhibited as Ex.DW1/7A and
Ex.DW1/7B. The statement of account has been filed and exhibited as
Ex.DW6/2 and 12 out of the 17 cheques have been filed and exhibited as
Ex.DW6/1 (colly).
At this stage it is required to be noted that with respect to the
last two payments by cheques (not cash) of Rs.2.5 lacs each totaling to Rs.5
lacs shown at serial nos.26 and 27 of Ex.DW1/2, the same are supported by
the documents being statement of account of Standard Chartered Bank filed
and exhibited as Ex.DW1/7 and the pass-book entry in the pass book of
United Bank of India filed and exhibited as Ex.DW1/8. It may be noted that
out of the two cheques one cheque in the name of Ms. Pooja Tuli was
brought by the witness from Standard Chartered Bank and this cheque of
Rs.2.5 lacs dated 29.09.2005 has been exhibited as Ex.DW-7/A.
15. In my opinion therefore the payments which are stated in the
chart Ex.DW1/2 are clearly proved by means of the aforesaid documents
being the counter-foils of the cheque books i.e endorsements in the counter-
foils of the cheque books in the hand of deceased Sh. Subhash Alagh
relating to these payments as being made to Ms. Kanchan Tuli and her
family members, the statement of account of Standard Chartered Bank along
with 12 out of the 17 cheques and the passbook of the account of Sh.
Subhash Alagh with United Bank of India.
16. Defendants have thus proved payment of a total amount of
Rs.12,57,778/- by late Sh.Subhash Alagh to the plaintiff, and which amount
is more than the amount of Rs.10 lacs which had to be paid as the 50% share
of the plaintiff in the suit property. I may note that there is a ring of truth in
the stand taken by the defendants in their written statement that after great
difficulty Mr. Subhash Alagh in around the time of his death, i.e a month or
so before his death, had managed to arrange a total sum of Rs.5 lacs and
which were paid to Ms. Kanchan Tuli and Ms. Pooja Tuli on 12.9.2005 and
5.10.2005 towards final payments for the amount of Rs.10 lacs to the
plaintiff and the additional payment of Rs.2,57,778/- obviously would be on
account of interest/extra payment for the delay in making of payments by
Mr. Subhash Alagh to the plaintiff. Also, where the transactions of payments
are to be taken with the closeness of the relations between the parties, it need
not be as if payment has to be taken to the last exact specific rupee
calculation. Out of the amount of Rs. 12,57,778/-, the sum of Rs. 7,20,000/-
is proved as paid by bank to bank transfers and the balance amount by cash
duly supported by bank entries with endorsements in counter-foils of the
cheque books. In my opinion in view of the above facts the defendants have
discharged the onus of proof on them that payment of Rs.12,57,778/- as
stated in Ex.DW1/2 was the payment made by Mr. Subhash Alagh to the
plaintiff for the share of plaintiff in the suit property.
17. The aforesaid conclusion of this Court that payment of
Rs.12,57,778/- is the payment towards plaintiff's share in the suit property,
has to be first however based on a finding that in February, 1999 value of the
suit property was Rs.20 lacs as is the case of the defendants. The question
is, is there evidence on record that the value of the suit property was Rs.20
lacs in February, 1999. I would therefore now discuss the evidence led by
the parties on this issue as also the pleadings on this issue in terms of the
arguments urged by the respective parties on this aspect.
18(i). So far as the best evidence led on behalf of the defendants with
respect to the valuation of the suit property being Rs.20 lacs in February,
1999 is concerned, the same is the report of the valuer Mr. Amit Sharma and
which has been filed and proved as Ex.DW1/1. In my opinion however this
report does not contain any basis for arriving at the valuation. This valuation
report dated 15.5.1999 that the value of the suit property would be Rs.20
lacs in February, 1999 is not supported by documentary evidence. An
expert's report cannot be treated as weighty evidence merely on the self-
serving statement in the report i.e unless the expert has filed along with his
report other sale deeds of the property situated in the same area to show and
substantiate the value of the property or would have referred to the
Government circle rates so as to determine valuation of the suit property, the
valuer's report is not of much weight.
(ii) This report Ex.DW1/1 however has some significance and
weight as there is no cross-examination of this witness by the plaintiff that
the value of the suit flat was not Rs.20 lacs in February, 1999 and more
importantly that if the value was not Rs.20 lacs then what was the market
value of the suit flat in February, 1999.
19(i). The question then is that is there any further evidence on record
with respect to value of the suit property being Rs.20 lacs in February, 1999.
In this regard one does not need to go too far off as one can simply refer to
the pleadings of the plaintiff itself. Para 13 of the plaint categorically states
that in April, 2004 the suit property was valued atleast at around Rs.30 lacs
and thereafter the property values further rose. This para 13 of the plaint
reads as under:-
"13. That seeing no alternative, the plaintiff repeatedly requested
Shri Subhash Alagh to partition the suit property by metes and
bounds after he failed to pay the plaintiff, the prevalent market
value of his share in the suit property till April, 2004, which was
in no case less than Rs.30,00,000/-(Rupees Thirty Lacs only) in
April, 2004, but the value of property has rapidly increased
thereafter, which in no case is less than Rs.50,00,000/- (Rupees
Fifty Lacs only) at present. Thereafter, the plaintiff again requested
Shri Subhash Alagh to partition the suit property in first week of
May, 2005, which also proved futile." (emphasis is mine)
(ii). Once the plaintiff admits that the value of the suit property, five
years after the MOU/Family Settlement of February, 1999, i.e in April,
2004, was Rs.30 lacs, then surely this Court can take the value of the suit
property five years earlier in February, 1999 at Rs.20 lacs i.e 50% less. An
increase from Rs.20 lacs to Rs.30 lacs is an increase of 50% over five years
i.e 10% per annum, and I take judicial notice in exercise of my powers under
Sections 57 and 114 of the Indian Evidence Act, 1872 of the rise in the
values of the properties in urban areas and more so in the capital Delhi
during the period from 1999 to 2004. Therefore in the opinion of this Court
definitely there does exist the admissions of the plaintiff qua value of the suit
property that the valuation of the suit property was Rs.20 lacs as in February,
1999 and which is the case of the defendants.
20. Thus when these aspects are taken together of (i) some weight
to report Ex.DW1/1 on account of lack of cross-examination, (ii) no
suggestion to DW2 that the value of the suit property if not Rs.20 lacs than
was a higher amount, and (iii) of the admission of the plaintiff in his plaint,
it can thus be held that the value of the suit property was around Rs.20 lacs
as in February, 1999. The fact that the construction is an old construction of
1967 also leads one to the conclusion of the value being Rs.20 lacs in
February, 1999 with the fact that the valuation was inter se brothers and thus
there would have been a compromise figure of valuation.
21. The argument urged on behalf of the plaintiff that the
Memorandum of Understanding/Family Settlement dated 18.2.1999
envisaged entering into a further agreement, is an argument which has no
legs to stand upon for three main reasons. Firstly, no doubt the language of
the Family Settlement dated 18.2.1999 does use the expression settlement to
be done between a period of six months to one year but this settlement is
really a settlement by means of payments of the market price payable with
respect to the plaintiff's share in the suit property. The second reason is that
if another agreement was to be arrived at, the same either was as a matter of
formality or was to determine the price of the suit property being the price of
the suit property as stated in the last line of para 4 of the family settlement as
the market price of the suit property at the time of settlement in February,
1999, and that the market price as already discussed above would be taken at
Rs.20 lacs as on February, 1999. The third reason is that surely if another
agreement had to be entered into as a sine qua non for implementing the
agreement, then there was no reason why payments were made for as long as
a period of five years from 1999 to 2005 and making of payments clearly
suggest an existing agreement as to what has been taken as the market value
of the property in February, 1999. Admittedly, in fact, two out of the 27
payments referred to as Ex.DW1/2 were directly received by the plaintiff
from Sh. Subhash Alagh of the amounts of Rs.70,000/- and Rs.1.5 lacs. Such
payments therefore being received are a clear pointer to the fact that no
further written agreement was envisaged between the parties and parties in
fact by an overall understanding had agreed to the value of the share of the
plaintiff at Rs.10 lacs in February, 1999 and which value was being paid by
means of various payments from time to time by late Sh. Subhash Alagh to
the plaintiff directly or through Ms. Kanchan Tuli and her family members
from the years 1999 to 2005.
22. I therefore reject the argument of the plaintiff that the Family
Settlement dated 18.2.1999 Ex.PW1/DX was not a final document between
the parties and was not acted upon.
23. In my opinion it is in fact the plaintiff who is guilty of gross
concealment of facts and stating one lie after another for harassing the
widow/defendant no.1 and children/defendant nos.2 to 4 of his late brother.
Firstly, it is to be noted that plaintiff did not take any steps to file a suit till
the death of his brother Sh. Subhash Alagh in October, 2005. Obviously, the
present suit seeks to steal a march with respect to a case being proved in
Court inasmuch as plaintiff very much knows that the legal heirs of late Sh.
Subhash Alagh would definitely have more difficulty than late Sh. Subhash
Alagh himself to prove the aspect of payments and other related aspects as
mentioned in the Family Settlement dated 18.2.1999. Not only the suit has
been unfairly filed after the death of Sh. Subhash Alagh, the plaintiff
concealed the factum of the Family Settlement dated 18.2.1999 at the time of
filing of his plaint. Plaintiff was forced to concede to the existence of the
family settlement only after the defendants took up this stand in the written
statement. The plaintiff was not satisfied with his lies and concealment of
facts with respect to the family settlement already having been arrived at on
18.2.1999 but the plaintiff further chose to illegally and blatantly deny
receipt of any payment whatsoever made by Sh. Subhash Alagh to him or to
Ms. Kanchan Tuli and her family members. The defendants have during trial
with great grit and with fate on their side, have been able to locate and file
counter-foils of cheque books as also the cheques summoned from the bank
and the statement of account summoned from the bank, all of which
documents have shown payments in terms of the chart Ex.DW1/2. It may be
noted that one sister Ms. Shashi Trikha had written a letter dated 8.12.2003
to Sh. Subhash Alagh and the defendant no.1 that she had made a payment
of Great Britain Pounds 1000 approximating to Rs.70,000 to the plaintiff and
once this document was filed by the defendants along with the written
statement, the plaintiff in the replication was forced to admit receipt of this
amount of Rs.70,000/-. All in all the plaintiff has left no stone unturned to
first tell a lie and thereafter being forced to admit the contents of his lie once
the plaintiff was confronted with clinching documentary evidence by the
defendants. Plaintiff therefore can claim no equity in his favour much less on
the ground that the valuation report Ex.DW1/1 of Mr. Amit Sharma refers as
on 15.05.1999 to Ms. Neelam Alagh as the widow of Sh. Subhash Alagh
inasmuch as this aspect has also been clarified by the witness in terms of the
Order dated 28.04.2012 wherein the Joint Registrar who was recording the
evidence records that the witness Mr. Amit Sharma has submitted that the
name of Ms. Neelam Alagh in Ex.DW1/1 has been incorporated on the basis
of the letter provided by Ms. Neelam Alagh in the year 2006 i.e the
valuation report incorporated the name of defendant no.1 as she had
requested for the copy of this report which had been prepared earlier at the
request of Sh. Subhash Alagh. In any case, even assuming the defendants
have filed a valuation report of 1999 when for the sake of arguments that it
was not of the year 1999, nothing turns on the same because I have already
discarded the valuation report Ex.DW1/1 and have not referred to the same
for arriving at the valuation of the suit property.
24. I may finally dispose of a very minor argument urged on behalf
of the plaintiff that originally a chart was filed as Annexure R-3(colly) to the
written statement of the defendants and which entries of which in some
manner differ from the entries in Ex.DW1/2, however in my opinion nothing
prevents defendants to correct mistakes of two/three amounts and names in a
chart originally given once defendants are able to find out more and better
details and which more and better details have been duly proved by leading
clinching evidence in the form of counter-foils of cheque books and
passbooks, statement of accounts from the bank and substantial number of
cheques of the transactions of withdrawals themselves. This argument urged
on behalf of the plaintiff is therefore rejected.
25. In view of the above, it is held that there was a Family
Settlement dated 18.2.1999, the family settlement specifically fixed the price
payable to the plaintiff as 50% of the market value as on 18.2.1999, no
further written family settlement was to be entered into and even if there had
to be a further agreement, conduct of the parties show that there was an
agreement with respect to valuation of the suit property at Rs.20 lacs with
the share of the plaintiff being Rs.10 lacs and the plaintiff was acting upon
the family settlement in receiving payments which the defendants have
shown to have been made by Sh. Subhash Alagh to the plaintiff or Ms.
Kanchan Tuli and her family members as detailed in the chart Ex.DW1/2.
Therefore, it is held that plaintiff is bound by the family settlement and
plaintiff has already received his due share being half share in the suit
property, and therefore plaintiff is not entitled to partition of the suit
property or rendition of accounts of the suit property from the defendants.
26. Issue nos.2 and 3 are therefore decided in favour of the
defendants and against the plaintiff.
Issue nos.4 and 5
27. As issue nos.2 and 3 have been decided in favour of the
defendants and against the plaintiff, issue nos.4 and 5 also automatically get
decided in favour of the defendants and against the plaintiff that plaintiff is
not entitled to partition of the suit property or for rendition of accounts from
the defendants.
General observations:-
28. I have already on quite a few occasions earlier referred to the
aspect of lack of honesty and lack of fairness on the part of the plaintiff.
Plaintiff has been really caught on a considerable number of times with
respect to his mala fide actions of concealment of facts at the time of filing
of the suit, concealment of facts of accepting payments from Sh. Subhash
Alagh although denied at one point of time, of taking unfair and
legal/technical objections to get over the bindingness of the Family
Settlement dated 18.2.1999, and finally of payments made under that family
settlement by Sh. Subhash Alagh to the plaintiff directly and through Ms.
Kanchan Tuli and her family members. Plaintiff has also taken up a grossly
unfair stand that Ms. Kanchan Tuli was not authorized to receive monies on
his behalf although para 3 of the GPA dated 18.2.1999 clearly authorizes
Ms. Kanchan Tuli to receive monies in terms of the share of the plaintiff as
per the Will of the father Sh. Gulzari Lal Alagh. Finally, as stated above,
there is no deposition given or evidence led by the plaintiff as to why Sh.
Subhash Alagh would have been making payments to Ms. Kanchan Tuli and
her family members or the company of Ms. Kanchan Tuli M/s Watchdog
when there are no commercial or other relations. I may also note that Mr.
Subhash Alagh and his widow being the defendant no.1, at one point of time
for some period were the employees of M/s Watchdog, however, it is not
understood as to how employees can make payments to an employer, and
therefore clearly payments made by Sh. Subhash Alagh to M/s Watchdog
would have been as per the requirements of Ms. Kanchan Tuli or the
plaintiff or at the instance of plaintiff or Ms. Kanchan Tuli. This Court
therefore deprecates the actions of the plaintiff in filing this false and
frivolous suit against a widow and children of his late brother and especially
because such suit was not filed during the lifetime of Sh. Subhash Alagh and
was filed just after around eight months after the death of Sh. Subhash
Alagh. It may also be noted that the plaintiff is very pretty staying in U.K.
and harassing the defendants by proxy through his sister Ms. Kanchan Tuli
who has been made by the plaintiff as his attorney for the purposes of the
present suit. Suit will therefore be dismissed with costs of Rs.2.5 lacs and
which amount can in one way be seen as the interest/extra payment received
by the plaintiff over the sum of Rs.10 lacs which he had to receive as his
share of the suit property.
Relief
29. In view of the decision of all the issues in favour of the
defendants and against the plaintiff the suit is dismissed. Considering the
lack of honesty on the part of the plaintiff, the suit is dismissed with costs of
Rs.2.5 lacs. Decree sheet be prepared.
SEPTEMBER 30, 2015 VALMIKI J. MEHTA, J.
Ne/nn
