Delhi High Court
Rishi Pal Singh vs Shri Harinder Pal Singh & Ors. on 2 May, 2016
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.1441/2008
% 2nd May, 2016
RISHI PAL SINGH ..... Plaintiff
Through: Mr. Lalit Gupta, Ms. Garima Goel and
Ms. Payal Gupta, Advocates.
Plaintiff in person.
versus
SHRI HARINDER PAL SINGH & ORS. ..... Defendants
Through: Mr. Anshu Mahajan, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CS(OS) No.1441/2008 & I.A. No. 10345/2010 (U/O VII Rule 11 CPC)
1.
This suit for partition is filed by the plaintiff Sh. Rishi Pal Singh
son of Sh. Padam Singh and Smt. Chanderkala Devi. The suit property is the
property situated on a plot of land admeasuring 322 sq. yds. bearing no. T-14,
Green Park Extension, New Delhi. Defendant no.1 in the suit is Sh. Harinder
Pal Singh, one other son of late Sh. Padam Singh and Smt. Chanderkala Devi.
Defendant nos. 2(i) to 2(iv) are the legal heirs of another son Sh. Rajendra Pal
Singh of Sh. Padam Singh and Smt. Chanderkala Devi. During the pendency of
the suit defendant no.1/Sh. Harinder Pal Singh expired, and he is now
represented by his legal heirs.
2. The suit plaint is predicated on the cause of action that the suit
property has to be equally divided 1/3rd each between the plaintiff, the defendant
no.1 and defendant nos. 2(i) to 2(iv) jointly, inasmuch as though earlier there
was a compromise of January, 1983 recorded between the parties in execution
of the Decree dated 22.10.1980 in suit no. 163/1980 dividing the suit property in
different portions and shares, yet when the plaintiff had filed an earlier suit for
partition of the second floor and above of the suit property and which second
floor as per the compromise in execution proceedings of 1983 was to be equally
devolve to and be divided between the three sons of Sh. Padam Singh and Smt.
Chanderkala Devi ie plaintiff herein, late defendant no.1 Sh. Harinder Pal Singh
and the third son Sh. Rajendra Pal Singh represented by the defendant nos.2(i)
to 2(iv) herein, but the defendants in the present suit who were also the
defendants in the earlier suit filed by the plaintiff for partition of the second
floor of the suit property, disputed the Compromise dated 11.1.1983 recorded in
the execution proceedings of the Decree dated 22.10.1980 in suit no. 163/1980
by pleading that the compromise recorded on 11.1.1983 is illegal and
unenforceable because the same is not stamped and registered with the further
aspect that the father Sh. Padam Singh was in fact the sole owner of the suit
property, and therefore, there could not have been filed the suit between the
parties being suit no. 163/1980 and in which suit there took place the
Compromise Decree dated 22.10.1980. To put it simply, the present suit for
partition is filed for each of the three sons of Sh. Padam Singh and Smt.
Chanderkala Devi to get 1/3rd share in the suit property on the ground that the
other two sons of Sh. Padam Singh and Smt. Chanderkala Devi are disputing
the validity of the Compromise dated 11.1.1983 entered into in the execution
proceedings of the Decree dated 22.10.1980 in suit no. 163/1980. It is required
at this stage to be noted that to the Compromise dated 11.1.1983, Sh. Padam
Singh, Smt. Chanderkala Devi and the three sons being the plaintiff and the
predecessors-in-interest of the defendants in the present suit were parties as they
are admittedly the signatories to the Compromise Application dated 11.1.1983,
their statements were duly recorded before the court on 21.1.1983, and which
aspects ultimately resulted in the Order of the court in execution proceedings on
24.1.1983 accepting the Compromise dated 11.1.1983 and the statements dated
21.1.1983.
3(i). The net effect of the earlier litigations being (A) the suit no.
163/1980 resulting in the Decree dated 22.10.1980, (B) Compromise
Application dated 11.1.1983 with statements of the parties recorded in the court
on 21.1.1983, and the court Order dated 24.1.1983, and (C) disputes raised on
account of the defences raised by the defendants in this present suit as the
defendants in the earlier suit for partition filed by the plaintiff with respect to
the second floor and above of the suit property that the compromise of 1983 is
not binding, is that the plaintiff hence claims partition of the entire property by
claiming 1/3rd share each.
(ii) In this suit defendants deny the right of the plaintiff to claim
partition of 1/3rd share of the entire suit property as claimed by the plaintiff or
that the second floor and above of the suit property is available for partition and
this is in view of the Will of the father Sh. Padam Singh dated 1.11.1982 giving
the second floor and above portion of the suit property to his wife Smt.
Chanderkala Devi and the subsequent Will of Smt. Chanderkala Devi dated
27.9.1996 bequeathing the second floor and above portion of the suit property to
Smt. Shashi Singh wife of Sh. Rajendra Pal Singh represented by defendant nos.
2(i) to 2(iv).
4. The aforesaid maze of the facts when streamlined and put in a
logical manner are as under:-
(i) The suit property was owned by the father Sh. Padam Singh by
virtue of title deeds in his name.
(ii) With respect to the suit property, the mother Smt. Chanderkala
Devi filed a suit being suit no.163/1980 against her three sons and possibly her
husband Sh. Padam Singh which resulted in a Compromise Decree dated
22.10.1983.
(iii) Whereas the case of the plaintiff in the present suit was that the
father Sh. Padam Singh, the mother Smt. Chanderkala Devi and all the three
sons were parties to this suit filed by the mother Smt. Chanderkala Devi (suit
no. 163/1980) and also in the execution proceedings, the case of the defendants
in the present suit however is that the father Sh. Padam Singh was not a
party/defendant when the suit no. 163/1980 was filed by the mother Smt.
Chanderkala Devi against the three sons and that the father Sh. Padam Singh
became a party only in the execution proceedings of the Decree dated
22.10.1983 in suit no. 163/1980 filed by Smt. Chanderkala Devi.
(iv) Chronologically and prior to the compromise proceedings recorded
in the execution proceedings on 24.1.1983 of the Decree dated 22.10.1980 in
suit no. 163/1980, the father Sh. Padam Singh had executed his Will on
1.11.1982 bequeathing different portions of the suit property to the three sons
and his wife Smt. Chanderkala Devi whereby the wife Smt. Chanderkala Devi
got the entire second floor and above of the suit property.
(v) In spite of Sh. Padam Singh having executed his Will dated
1.11.1982, all the family members being the father Sh. Padam Singh, the mother
Smt. Chanderkala Devi and the three sons Sh. Harinder Pal Singh (erstwhile
defendant no.1 in the suit), Sh. Rajendra Pal Singh (represented by defendant
nos. 2(i) to 2(iv) in this suit) and Sh. Rishi Pal Singh (plaintiff), entered into a
Compromise dated 11.1.1983 in execution proceedings of the Decree dated
22.10.1980 in suit no. 163/1980 filed by Smt. Chanderkala Devi. The
compromise terms stated in the Application dated 11.1.1983 were reiterated by
the statements of all the five parties recorded before the executing court on
21.1.1983. This resulting in the Order of the court dated 24.1.1983 accepting the
compromise and the effect of which was that the second floor and above of the
suit property was to be of the parents viz Sh. Padam Singh and Smt.
Chanderkala Devi during their lifetimes and after the death of the parents Sh.
Padam Singh and Smt. Chanderkala Devi, the second floor and above of the suit
property was to devolve equally in the ratio of 1/3rd each to the three sons.
(vi) Plaintiff filed an earlier suit for partition, and which was contested
by the defendants on various grounds including that the Order of the court dated
24.1.1983 in execution proceedings was not binding as the said order required
stamping and registration but was not duly stamped and registered, as also the
fact that the father in fact had earlier executed his Will dated 1.11.1982 which is
at variance with the Compromise Order dated 11.1.1983; the statements dated
21.1.1983; and the court Order dated 24.1.1983 ie defendants in the present suit
who were the defendants in the earlier suit filed by the plaintiff for partition of
the second floor and above of the suit property claimed that the second floor and
above of the suit property did not devolve equally on the three sons of Sh.
Padam Singh in the ratio of 1/3rd each as per the compromise of January, 1983,
but the second floor and above of the suit property fell to Smt. Shashi Singh
wife of deceased defendant no.2 [now represented by defendant nos. 2(i) to
2(iv)] in terms of the Will of Smt. Chanderkala Devi dated 27.9.1996, which
Will Smt. Chanderkala Devi executed in view of her being given this share in
the suit property of the second floor and above in terms of her husband's Will
dated 1.11.1982. Defendants in effect plead that whereas the portions of the suit
property below the second floor were partitioned as per what is stated in the
Compromise dated 11.1.1983, but actually this compromise only recorded what
was contained in the Will of Sh. Padam Singh dated 1.11.1982 with the variance
that the second floor and above of the suit property as per the Will of Sh. Padam
Singh dated 1.11.1982 fell to the share of Smt. Chanderkala Devi who
bequeathed this portion to Smt. Shashi Singh wife of late Sh. Rajendra Pal
Singh as per her Will dated 27.9.1996, and therefore, the defendants in the
present suit plead that the entire suit property cannot be partitioned in the ratio
of 1/3rd each as prayed in the present suit and in fact no partition at all can be
granted even of the second floor and above of the suit property though the same
equally fell to the three sons of Sh. Padam Singh as per para 4 of the
Compromise Application dated 11.1.1983 and this is because of the Wills dated
1.11.1982 and 27.9.1996 of Sh. Padam Singh and Smt. Chanderkala Devi
respectively whereby Smt. Shashi Singh is the owner of the second floor and
above of the suit property .
5. At this stage, it will be necessary to reproduce in entirety the
execution application dated 17.11.1981/1982, the Compromise Application
dated 11.1.1983, the statements of the parties dated 21.1.1983 and the Order of
the court dated 24.1.1983 in the execution proceedings of the Judgment and
Decree dated 22.10.1980 in suit no. 163/1980 filed by Smt. Chanderkala Devi
against the three sons, and in the execution proceedings of the Decree dated
22.10.1980 of which suit the husband of Smt. Chanderkala and the father of the
parties namely Sh. Padam Singh was made a party. These entire execution
proceedings with the relevant compromise application and the relevant
compromise statement of the parties and the order of the court read as under:-
"Execution Application dated 17.11.1981/1982
Application under Order 21 Rule 11 C.P.C.
Sir,
The Decree Holder prays for Execution of the Decree/Order
particulars whereof are stated in the columns hereunder:-
1. No. of Suit 163 of 1980 ARC
2. Name of parties Mrs. Chanderkala w/o Sh. Padam
Singh, r/o T-14, Green Park Extension
New Delhi....DH
Vs.
Shri Harander Paul Singh,
Shri Rajender Paul Singh,
Shri Rishi Paul Singh and Padam
Singh, all r/o T-14, Green Park
Extension, New Delhi....J.Ds.
3. Date of Decree/order which 22.10.80 ARC
execution is sought
4. Whether an appeal was filed No. As it was a compromise decree.
against the decree/order under
execution
5. Whether any payment has No
been received to wards
satisfaction of Decree/order
6. Whether any application was No.
made previous to this & if so,
their dates & result
7. Amount of suit along with No. It was a suit for declaration as well
interest as per decree of any as injunction.
other relief granted by decree
8. Amount of costs if allowed No.
by Court
9. Against whom execution is Against J.Ds.
sought
10. In what manner Court's By way of issue of the warrants of
assistance is sought attachment of J.Ds goods with a view
to compel them to obey the terms of
compromise or in any other manner in
which this Hon'ble court may deem fit
and proper sothat compromise effected
between the parties may be
implemented.
The D.H. humbly prays that
warrants of attachment of the moveable goods be issued against
Judgement Debtors and further they may also be detained in civil prison
sothat they may be compelled to obey the decree passed by this
Honourable court.
If this Honourable court deems fit and proper then a Commissioner
be appointed at the expense of the J.Ds sothat share of the decree holder
may be divided or separated according to law.
That any other order or order as this Honourable court deems fit and
properwith a view to give effect decree in question may be passed in
favour of the Decree Holder sothat decree holder may be able to enjoy
the fruits of the decree.
The costs of the present application be also allowed against the J.Ds.
Compromise Application dated 11.1.1983
IN THE COURT OF SHRI S.N. KAPOOR, ADDITIONAL DISTRICT
JUDGE, DELHI.
Mrs. Chandra Kala Devi ....Decree Holder.
Versus
Shri Harendra Pal Singh and others ...J.Ds.
Civil Execution No. of 1982.
Sir,
The parties to the deed have compromised as under:-
1. That rear portion shown in red colour shall be owned by Rishi Pal
Singh exclusively i.e. ground floor with land beneath, first floor upto the level
of ceiling, as no other party shall have any right title interest in the same in
any manner.
2. That newly constructed first floor as has been shown in blue colour in
the annexed site plan shall be exclusively owned by Rajendra Pal Singh as
sole owner/landlord, no other party to present proceedings shall have any
claim, right, title over the same in any manner.
3. That J.D.No.1 Shri H.P.Singh shall have all the ownership rights in
respect of front Ground floor portion of the house No.T-14, Green Park
Extension, New Delhi which has been shown in green colour in the annexed
plan.
4. That barsati floor as has been shown in brown colour shall be
owned by Decree Holder and her husband as sole owner/landlord till they
are alive and thereafter it shall be devolved upon all the sons equally.
5. That the common portion as has been shown in blank in the site plan
shall be maintained by the parties in a joint way for common use.
6. That site plan shall be read as part and parcel of this deed.
7. That parties shall be bound by the terms and conditions of this
compromise.
8. That none of parties to deed in question shall be entitled to sell their
portion to any outsider except to the family members or their legal heirs.
However, any of the parties shall be entitled to sell or transfer the same with
the consant of all the parties to this deed, which has to be obtained in writing.
9. That Decree Holder, J.Ds and parties to this deed shall also bear and
include the express meaning of their legal heirs representatives, assign &
representatives etc.
10. That parties to the deed shall honestly and faithfully observe the above
noted terms and conditions.
It is, therefore prayed that present executed application be allowed in
terms of this compromise and site plan which Ex.C-II.
Statement of parties
Statement of Smt. Chanderkala Devi DH on
S.A:-
I have compromised this execution petition in terms of Ex.C-1 and site
plan Ex.C-2. Therefore, I do not want to persue my execution petition, which
may kindly been dismissed as satisfied.
RO&AC ADJ
21.1.83 21.1.83
Statement of JDs No.1 to 4 Harender Pal Singh, Rajender Pal Singh,
Rishi Pal Singh and Padam Singh on S.A.:-
We have heard the aforesaid statement of the D.H. We admit the same
as correct. Compromise Deed Ex.C-1 and Ex.C-2 (plan) are correct and have
been signed by the parties we have got no objection if the prayer of the D.H. is
allowed.
RO&AC ADJ
21.1.83 21.1.83
Statement of J.Debtors on S.A
On 21.1.83 our counsel Sh. H.Waltor was not present. Therefore, we
got ourselves identified by one Sh. Rajan Saluja, Adv. Today our counsel Sh.
Walter is present & we confirm our statement of 21.1.83.
RO & AC ADJ
24.1.83
Order dated 24.1.1983
In view the statements of parties recorded on 21.1.83 and today, this
execution application is disposed as satisfied in terms of compromise
application and site plan annexed to the same Ex.C-1 and C-2.
File be consigned to record." (emphasis is mine)
6. Counsel for the plaintiff argues that let it be assumed for the sake
of arguments that there exist the Wills dated 1.11.1982 and 27.9.1996 of Sh.
Padam Singh and Smt. Chanderkala Devi respectively, yet, existence of these
Wills would not make any difference to the claim of the partition of the plaintiff
and his right to 1/3rd portion of the second floor and above of the suit property,
inasmuch as the Compromise dated 11.1.1983/21.1.1983/24.1.1983 supersedes
the Will of Sh. Padam Singh dated 1.11.1982 which is prior in point of time,
and the Will of Smt. Chanderkala Devi dated 27.9.1996 giving the second floor
and above portion to Smt. Shashi Singh wife of Sh. Rajendra Pal Singh is of no
legal effect and purpose because Smt. Chanderkala Devi was not the owner of
the second floor and above of the suit property when she made the Will dated
27.9.1996 inasmuch as by the Compromise dated
11.1.1983/21.1.1983/24.1.1983 the second floor and above of the suit property
was already agreed to be partitioned between the three sons equally in the ratio
of 1/3rd each after the death of Sh. Padam Singh and Smt. Chanderkala Devi.
7. The issue to be decided by this Court is therefore as to whether the
defendants can at all claim rights on the basis of the Will dated 1.11.1982 of Sh.
Padam Singh once this Will is prior in point of time to the Compromise dated
1.11.1983/21.1.1983/24.1.1983 and to which compromise Sh. Padam Singh was
a party and as per which compromise the second floor of the suit property came
to be owned by Sh. Padam Singh and Smt. Chanderkala Devi for their lifetimes
and after their lifetimes equally to the three sons namely Sh. Harinder Pal
Singh, Sh. Rajendra Pal Singh and Sh. Rishi Pal Singh, and who are the parties
to the present suit either themselves or through their legal heirs. If the Will
dated 1.11.1982 of Sh. Padam Singh will not legally operate and bind in view of
the subsequent compromise of the year 1983 in the execution proceedings, then
automatically Smt. Chanderkala Devi's Will dated 27.7.1996 would fall
inasmuch as rights are claimed to execute this Will on account of the Will dated
1.11.1982 of Sh. Padam Singh but the fact is that the compromise of January,
1983 in the execution proceedings supersedes the earlier Will of Sh. Padam
Singh dated 1.11.1982.
8. In the present case, issues are not framed and the suit is listed for
framing of issues as also for arguments on an application under Order VII Rule
11 of the Code of Civil Procedure, 1908 (CPC) being I.A.No.10345/2010 filed
by the defendants.
9. In my opinion, the argument and the issue urged on behalf of the
defendants that Smt. Chanderkala Devi/mother became the owner of the second
floor and above of the suit property by virtue of the Will dated 1.11.1982 of Sh.
Padam Singh, and therefore, Smt. Shashi Singh wife of Sh. Rajendra Pal Singh
became owner of the second floor and above of the suit property by virtue of the
Will of the mother Smt. Chanderkala Devi dated 27.9.1996 is a fallacious
argument inasmuch as admittedly the parents Sh. Padam Singh and Smt.
Chanderkala Devi as also all the three sons Sh. Harinder Pal Singh, Sh.
Rajendra Pal Singh and Sh. Rishi Pal Singh were parties to the compromise of
January, 1983 and which has been reproduced above in extenso. Para 4 of the
Compromise Application dated 11.1.1983 signed by all the parties being the
three sons and the parents makes it more than clear that it was agreed that the
barsati floor i.e the second floor and above of the suit property was to be of Sh.
Padam Singh and Smt. Chanderkala Devi for their lifetimes and thereafter this
portion was to devolve equally upon the three sons who were to be equal 1/3rd
co-owners. Clearly by entering into the compromise of January, 1983, the Will
of Sh. Padam Singh dated 1.11.1982 would no longer operate and which in any
case would have only operated after the life of Sh. Padam Singh and who was
alive and very much a party to the compromise of January, 1983. Sh. Padam
Singh, therefore, when he died on 16.8.1996 was not the owner of the suit
property except to the extent of the rights conferred by para 4 of the
Compromise Application dated 11.1.1983, and therefore, the Will of Sh. Padam
Singh dated 1.11.1982 did not operate for the same to give the second floor and
above portion of the suit property to Smt. Chanderkala Devi, and once the
mother Smt. Chanderkala Devi is not the owner of the second floor and above
of the suit property, then Smt. Chanderkala Devi thereafter could not have
bequeathed the second floor and above of the suit property in terms of her Will
dated 27.9.1996.
10. The argument of the defendants that the compromise of January,
1983 is not binding inasmuch as the same is not stamped and registered, is an
argument which is legally incorrect in view of Section 17(2)(vi) of the
Registration Act, 1908 which specifies that anything in sub-Section (1) of
Section 17 which requires compulsory registration will not apply to a decree or
an order of a court unless the property is not the subject matter of the suit
proceedings. The suit property was admittedly the subject matter of the suit
no.163/1980 resulting in the Judgment and Decree dated 22.10.1980 and with
respect to which execution proceedings were filed and compromised in January,
1983 between the parents and the three sons. Also, I may note that the
Compromise Application dated 11.1.1983 and the statements recorded between
the parties on 21.1.1983 resulting in the Compromise Order dated 24.1.1983 are
really in the nature of family settlement and such type of family settlement
which delineates specific portions to specific parties need not be registered in
view of the judgment of the Supreme Court in the case of Roshan Singh and
Ors. Vs. Zile Singh & Ors. AIR 1988 SC 881. The terms of settlement as stated
in this judgment of the Supreme Court in the case of Roshan Singh and Ors.
(supra) show that delineation of shares also in fact is only a recognition of
shares of the parties and therefore, the same is taken to be a family settlement
which does not require stamping or registration. It is trite that the family
settlement only records pre-existing rights, and therefore, the family settlement
does not itself create rights and hence the same need not be stamped and
registered in view of the judgment of the Supreme Court in the case of Kale and
Others Vs. Deputy Director of Consolidation and Others, (1976) 3 SCC 119.
Therefore, the contentions of the defendants are misconceived that the
compromise of January, 1983 will not bind the parties.
11. The conclusion of the above discussion would be that the
compromise of January, 1983 will bind the parties. As per the compromise of
January, 1983, the suit property stood already divided as per the terms contained
in the Compromise Application dated 11.1.1983. Certified copy of the site plan
in terms of the compromise of January, 1983 is filed by both the parties in the
present suit, but one does not have to refer to that site plan because the issue
before this Court is not of partitioning of the whole property but only of second
floor and above of the suit property and which falls to the three brothers in
equal shares on the death of the parents Sh. Padam Singh and Smt. Chanderkala
Devi in view of para 4 of the Compromise Application dated 11.1.1983. I may
note that this Court is entitled in view of Order VII Rule 7 CPC to grant lesser
relief as per the facts which ultimately have emerged and as prayed by the
plaintiff that instead of partitioning the entire property for claiming 1/3 rd share
as per the prayers of the plaintiff in the plaint, the plaintiff only seeks partition
of 1/3rd share of the second floor and above of the suit property.
12. In view of the above, the subject suit for partition is decreed by
passing a preliminary decree directing that the plaintiff will be the owner of
1/3rd of the second floor and above portion of the suit property situated on a plot
of land admeasuring 322 sq. yds. bearing no. T-14, Green Park Extension, New
Delhi. 1/3rd portion of the suit property will fall to the branch of the defendant
no.1 and who is now represented by his legal heirs. The remaining 1/3 rd portion
falls to the branch of late Sh. Rajendra Pal Singh and who is now represented by
his legal heirs defendant nos. 2(i) to 2(iv). Preliminary decree is accordingly
passed. Since suit is decreed, I.A.No.10345/2010 under Order VII Rule 11 CPC
is accordingly dismissed. Parties are left to bear their own costs.
13. Let parties suggest modes of partition by metes and bounds or if by
metes and bounds partitioning is not possible then to give suggestions as to how
the property can be sold so that the net sale proceeds can be equally divided
between the three sons of Sh. Padam Singh and Smt. Chanderkala Devi ie the
three branches of the three sons being the plaintiff, the legal heirs of defendant
no.1 and the defendant nos. 2(i) to 2(iv).
14. List for further proceedings on 16th August, 2016.
MAY 02, 2016 VALMIKI J. MEHTA, J.
ib
