Dr. P.K. Chawla And Ors. vs Smt. Sharda Rani Chawla And Ors.
2016 Latest Caselaw 3855 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  CS(OS) No.836/2008
%                                                                  23rd May, 2016

DR. P.K. CHAWLA AND ORS.                                         ..... Plaintiffs
                  Through:               Ms. Gunjan Sinha Jain, Advocate.


                          versus

SMT. SHARDA RANI CHAWLA AND ORS.                                   ..... Defendants
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?         Yes


VALMIKI J. MEHTA, J (ORAL)

1.

This is a suit for partition. There are three plaintiffs who are real

brothers, namely Dr. P.K. Chawla, Sh. Satish Chawla and Sh. Naresh Chawla.

Plaintiffs had the fourth brother namely late Sh. Vinod Kumar Chawla. The three

defendants are the legal heirs of Sh. Vinod Kumar Chawla being his widow, son

and daughter. Partition by means of present suit is sought of property no.4-C-171,

Dayanand Colony, Lajpat Nagar, New Delhi.

2. Counsel for the plaintiffs was heard on 19.5.2016. Counsel for the

plaintiffs has also been heard with respect to further clarifications today in the

post lunch hearing. Counsel for the plaintiffs states that counsel for the

defendants was duly informed about this matter having been called out in the

finals list and hearing having been commenced, but, yet the counsel for the

defendants has not appeared.

3. The cause of action as pleaded for seeking partition is that the suit

property was owned by the father late Sh. Bhim Sain Chawla. Sh. Bhim Sain

Chawla died intestate on 2.10.1969. On the death of Sh. Bhim Sain Chawla, he

left behind his four sons and his widow Smt. Manorama Rani Chawla, mother of

the plaintiffs and late Sh. Vinod Kumar Chawla. Smt. Manorama Rani Chawla

died on 7.7.1999. Smt. Manorama Rani Chawla is said to have executed her last

Will and testament dated 3.4.1979 bequeathing the suit property equally among

her four sons i.e three plaintiffs and late Sh. Vinod Kumar Chawla. Plaintiffs

therefore claim that each of the three plaintiffs is 1/4 th co-owner of the suit

property with remaining 1/4th ownership being of late Sh. Vinod Kumar Chawla

who is now represented by the defendants in the present suit. During the course

of arguments, counsel for the plaintiffs conceded to the fact that this Court need

not pronounce on the validity or otherwise of the Will of Smt. Manorama Rani

Chawla dated 3.4.1979 inasmuch as even if Smt. Manorama Rani Chawla expires

intestate, and the suit property is taken to be the suit property of late Sh. Bhim

Sain Chawla, even in such a scenario since late Sh. Bhim Sain Chawla died

intestate, all the four sons of late Sh. Bhim Sain Chawla and Smt. Manorama Rani

Chawla i.e the three plaintiffs and late Sh. Vinod Kumar Chawla will be 1/4 th

equal co-owners of the suit property.

4. Defendants have contested the suit. The factum of ownership of the

suit property of late Sh. Bhim Sain Chawla is admitted. The only main defence of

the defendants is that on 20.3.2007 there was a family settlement between the

three plaintiffs and late Sh. Vinod Kumar Chawla whereby the total value of the

suit property was taken as Rs.1 crore and the defendants had to pay a sum of

Rs.25 lacs to each of the three plaintiffs, i.e Rs.75 lacs in all on or before

31.7.2007, and consequently the defendants were to become the sole owners of

the suit property. Defendants have relied upon the written settlement deed

Ex.PW1/Ex.D-1 of the year 2007 in support of their defence of the family

settlement having been entered into between the plaintiffs and the defendants and

being therefore binding on all the parties i.e plaintiffs had to only receive Rs.25

lacs each as their share of the suit property.

5. Plaintiffs have countered the defence of the defendants based on the

oral settlement dated 20.3.2007; and which was thereafter put in the form of

writing, by stating that this family settlement was signed only by plaintiff nos.1

and 2 and not by plaintiff no.3/Sh. Naresh Chawla and therefore on account of

refusal of Sh. Naresh Chawla to sign this settlement agreement the same could not

go through. Plaintiffs have therefore pleaded that there was no final family

settlement of March, 2007 and also that the same was never acted upon.

6. The following issues were framed in this suit on 12.10.2009:-

"1. Whether the plaintiffs are entitled to 1/4th share each in the suit property 4-C-171, Dayanand Colony, Lajpat Nagar, New Delhi? OPP

2. If issue no.1 is decided in favour of plaintiffs, whether the plaintiffs are entitled to partition of the suit property, as claimed by plaintiffs? OPP

3. Whether plaintiffs are entitled to recover damages @ Rs.30,000/- per month from defendants on account of use and occupation of their share in the suit property by defendants? OPP

4. Whether the settlement arrived at between the parties on 20th March 2007 was revoked and cancelled and, therefore, not acted upon, as claimed by plaintiff? OPP

5. Whether the suit is not maintainable, as claimed by defendants? OPD

6. Relief."

7. Issue nos.1, 2, 4 and 5 will be decided together because if defendants

succeed in proving the settlement dated 20.3.2007, then, plaintiffs will not be

entitled to partition, and conversely if the defendants fail to prove the settlement

dated 20.3.2007, the three plaintiffs will be 1/4th co-owners of the suit property

with the fourth share falling to Sh. Vinod Kumar Chawla, predecessor-in-interest

of the defendants and plaintiffs hence will be entitled to the relief of partition.

8. In order to decide as to whether at all there was a family settlement

dated 20.3.2007, we would have to refer to the said document itself besides the

oral evidence of the parties, as to whether or not this family settlement was signed

by and thus binding on all the parties and also that whether this settlement was

acted upon to show that it was entered into between the parties and also acted

upon. If the family settlement is either not final on account of the plaintiff no.3

having not signed the same or on account of the same not having been acted upon,

suit for partition will have to be decreed. The settlement of March, 2007 being

dated 20.3.2007 has been proved as the document Ex.PW1/Ex.D-1. Though this

document is undated but it is not disputed that if this document was final, this

document would be dated 20.3.2007. Plaintiffs have also filed and proved this

original agreement of March, 2007 as Ex.PW1/Ex.D-2. The difference between

Ex.PW1/D-1 and Ex.PW1/D-2 is that the document Ex.PW1/Ex.D-2 filed by the

plaintiffs is crossed out and it is stated on the first page after crossing out the

whole page by writing an expression „void‟ across this first page of the document,

and, the second page is again scored out on the entire page and on the entire page

by hand the word „cancel‟ is written. The common point of both the documents,

however, is that the said documents do bear the signatures of the plaintiff nos.1

and 2 and the defendant no.2/Sh. Rishi Chawla for and on behalf of the

defendants. Another common point is also that para/Clause 4 in both the

documents has been crossed out and initialed. The document Ex.PW1/Ex.D-1

reads as under:-

" AGREEMENT This agreement is made at Faridabad on this......day of ..........., 2007 Between Dr. P.K. Chawla, Sh. Satish Chawla and Sh. Naresh Chawla all sons of Late Sh. Bhim Sain Chawla all are resident of 681, Sector-15, Faridabad (Haryana), Satish Chawla presently residing at 9 Grace-Shantz Karkland-49J3A4, Quebec (Canada), Naresh Chawla presently residing at 1222, Balantry Road, Oakville Ontario L64 5 M6, Canada (herein after called the party of the first part).

AND Mr. Rishi Chawla S/o Late Sh. Vinod Kumar Chawla and Smt. Sharda Rani Chawla W/o Late Sh. Vinod Kumar Chawla both R/o. 4-C/171, Dayanand Colony, Lajpat Nagar, New Delhi (hereinafter called the party of the second part). WHEREAS the second party has possession of the H. No.4-C/171, Dayanand Colony, Lajpat Nagar, New Delhi, which is an ancestral property on the name of Late Smt. Manorma Chawla W/o Late Sh. Bhim Sain Chawla (Mr. Rishi Chawla is

the grand son of Late Smt. Manorma Chawla and Smt. Sharda Rani is the daughter in law of late Smt. Manorma Chawla).

Whereas a dispute was going on between first party and second party towards the property bearing No.4-C/171, Dayanand Colony, Lajpat Nagar, New Delhi, but now they have agreed to settle the dispute which had arisen between them, on the following terms and conditions:-

1. That the First party will relinquish their rights, title and interest qua the above said property bearing no.4-C/171, Dayanand Colony, Lajpat Nagar, New Delhi for which second party will pay Rs.75,00,000/- to first party (Dr. P.K. Chawla, Sh. Satish Chawla and Sh. Naresh Chawla Rs.25,00,000/- each respectively).

2. That the second party shall make the payment on or before 31st July 2007 to the first party.

3. That after receiving the payment the first party will not claim, file any suit towards the above said property.

4. That if the second party will not make the payment within the stipulated Sd/- time period i.e. 31st July 2007 the first party will reserve their rights to Sd/-

take legal necessary action.

5. That the parties hereto and their respective legal heirs shall abide by the terms and conditions of this agreement.

                                                          Sd/- Dr. P.K. Chawla
                                                          Sd/-Satish Chawla
      WITNESSES                                           First Party

      1      Sd/-                                         Sd/- Rishi Chawla
      2      Sd/-                                         Second Party"

9. A reference to the aforesaid document shows that admittedly plaintiff

no.3/Sh. Naresh Chawla did not sign the same. Admittedly, therefore this

document will not bind the plaintiff no.3. The issue however is that whether still

this document binds the plaintiff nos.1 and 2 as these plaintiff nos.1 and 2 have

signed the same however it is claimed that this family settlement was never

finalized upon on account of the plaintiff no.3 not signing the same. A facet of

this settlement being final would be if it had been acted upon. In my opinion,

defendants have failed to prove that the family settlement document

Ex.PW1/Ex.D-1 has been finalized or ever acted upon, for the following reasons:-

(i) The typed document shows that all the three plaintiffs were expected

to sign together as one group as party of the first part, thus once the plaintiff no.3

has not signed the document, the document cannot be said to have fructified and

come into existence because it is not as if the three separate plaintiffs are referred

to being three separate parties having independently three separate rights i.e the

three separate plaintiffs have not been called as party of the first part, party of the

second part and the party of the third part. As already stated above, three

plaintiffs have been referred to jointly as a party of the first part. For this reason,

it is held that since plaintiff no.3 Sh. Naresh Chawla did not sign this family

settlement, this family settlement itself did not come into force.

That there is no final agreement being the family settlement dated

20.3.2007 is also clear from communication being the email dated 5.4.2007 sent

by the plaintiff no.2 to Sh. Rishi Chawla/DW1/defendant no.2. This email has

been proved as Ex.PW1/10 as per the affidavit by way of evidence of the plaintiff

no.1/Dr. P.K. Chawla who deposed as PW1. Though this document was

subsequently marked as Mark G on 7.7.2010, I would have to take this document

as proved because when defendant no.2/DW1/Sh. Rishi Chawla was confronted

with this email dated 5.4.2007 in his cross-examination on 10.7.2013, defendant

no.2 only stated that he does not recall of receiving this email from the plaintiff

no.2/Sh. Satish Chawla. In my opinion, this answer is not good enough to deny

exhibition of this email and hence the plaintiffs have legally proved this email

dated 5.4.2007 as Ex.PW1/10 since DW1 while deposing has not deposed that he

has never received the email dated 5.4.2007 and which stand is different from the

witness deposing that he does not recall having receiving the email dated

5.4.2007, and therefore, it is held that the plaintiff no.2 had sent this email dated

5.4.2007 to the defendant no.2/Sh. Rishi Chawla/DW1. In this email plaintiff

no.2/Sh. Satish Chawla has clearly stated that the Settlement Agreement dated

20.3.2007 cannot go ahead on account of the plaintiff no.3/Sh. Naresh Chawla

having failed to sign the same. This email dated 5.4.2007 reads as under:-

"From: Satish Chawla [[email protected]] Sent: Thursday, April 05, 2007 11:56 AM To: Rishi Chawla ([email protected]) Cc: Naresh Chawla (Naresh Chawla): Ashish Chawla (Ashish Chawla);

Kusum Chawla (Kusum Chawla) Subject: Property at Lajpat Nagar Dear Rishi and Bhabhiji, I am sorry to inform you that Naresh did not sign the document, hence there is no deal and we are back to the same dilemma and issue still remains unresolved. Rishi and Bhabhiji, during my meeting of 20th March 2007 at Lajpat Naga I had stated that in the event this issue is not settled amicably to the satisfaction of all parties then Naresh and others will have no choice but to seek the legal route to settle the matter. Furthermore I had also mentioned to you during the meeting that, should there be any legal action taken against you by any one of the brothers to settle the dispute then I will have no choice but to have my legion with that person i.e. with Naresh and others who are taking legal action against you to settle this matter.

I spoke with Naresh this morning and was confirmed that legal action will be institute to resolve the property dispute which we could not settle among ourselves. In addition you also confirmed to me during my telephone conversation of 3rd April

2007 that we should go ahead and take the legal course of action to settle the property issue.

I am sorry that I could not resolve this dispute and have failed in my mission, furthermore I agree with your comment that let the court decide our faith. I know it may take time but it has already taken 20 years of my effort with no results. Keep in touch and good luck.

Regards Satish CC to Ashish Chawla with the request to hand over this e-mail to Dr Pramod Chawla"

(ii) The second reason for holding that this family settlement was not

operative and not acted upon is because para 2 of this family settlement shows

that only on defendants making total payments of Rs.75 lacs to the three plaintiffs

by 31.7.2007 that the defendants were to become the owners of the suit property,

and for this purpose let us take it also that plaintiff nos.1 and 2 would have been

individually bound by the family settlement dated 20.3.2007 because of their

having signed the same, however, it is seen that defendants have failed to pay any

amount whatsoever to any of the three plaintiffs including the plaintiff nos.1 and 2

by 31.7.2007 or even till the filing of the suit. The admitted case of the

defendants is that payments have not been made to the plaintiffs and that the

plaintiffs have not received any amount from the defendants by 31.7.2007. The

only defence of the defendants is that they were always ready, but this defence

does not hold water because in the cross-examination of defendant no.2 who

appeared as DW1, it is conceded that he has no documents with him to show an

amount of Rs.75 lacs being available with him on 20.3.2007 and no evidence is

led by the defendants that they had with them in their bank accounts or otherwise

an amount of Rs.75 lacs as on 31.7.2007. There is also no deposition by the

defendant no.2/Sh. Rishi Chawla that the defendants tendered to the plaintiffs an

amount of Rs.75 lacs by 31.7.2007 i.e DW1 in his affidavit by way of evidence

filed as examination-in-chief has not deposed that he tendered an amount of Rs.75

lacs to the three plaintiffs or an amount of Rs.25 lacs to each of the plaintiff nos.1

and 2. Therefore on the defendants having failed to pay to either of the plaintiff

nos.1 and 2 an amount of Rs.25 lacs each on or before 31.7.2007 as also not

proving any tendering of the amounts to the plaintiffs including the signatories

plaintiff nos.1 and 2 by 31.7.2007, and finally having failed to prove any financial

capacity to pay the amount of Rs.75 lacs to the plaintiffs by 31.7.2007, it is thus

held that defendants have failed to discharge the onus of proof upon them that the

family settlement dated 20.3.2007 was in fact acted upon, as is the case of the

defendants.

(iii) I may note that in fact it is not as if by the family settlement dated

20.3.2007, plaintiffs were not admitted to be the equal co-owners of the suit

property with the deceased Sh. Vinod Kumar Chawla, predecessor-in-interest of

the defendants. In fact the Settlement Agreement dated 20.3.2007 relied upon by

the defendants itself shows that effectively the suit property was valued at Rs.1

crore, and the three plaintiffs therefore had a share of Rs.25 lacs each, totaling to

Rs.75 lacs for the three plaintiffs. Clearly therefore the family settlement dated

20.3.2007 does not deny any rights of the plaintiffs to be the equal co-owners of

the suit property but only quantifies the share of each of the plaintiffs at Rs.25

lacs each, and once that is so, taken with the fact that plaintiffs each have not

received an amount of Rs. 25 lacs by 31.7.2007, it will be unequivocally unjust

besides being illegal to hold that the plaintiffs are only entitled to Rs.25 lacs each

as stated in the Settlement Agreement dated 20.3.2007 and are not entitled to seek

partition of the suit property.

10. In view of the aforesaid discussions, issue nos.1, 2, 4 and 5 are

decided in favour of the plaintiffs and against the defendants by holding that each

of the three plaintiffs are 1/4th co-owners of the suit property and therefore a

preliminary decree is liable to be and is accordingly passed holding that each of

the plaintiffs are 1/4th co-owners of the suit property no. 4-C-171, Dayanand

Colony, Lajpat Nagar, New Delhi and which is a single storey building.

Issue No.3

11. Plaintiffs had claimed from the defendants damages at the rate of

Rs.30,000/- per month on account of the plaintiffs‟ share in the suit property. No

doubt, it is the law that if a co-owner holds portion in excess of his share, such a

co-owner would be liable to pay damages, however, since the issue is of

imposition of a huge monetary liability it was necessary for the plaintiffs to lead

evidence which this Court would believe and Court‟s judicial conscience is

satisfied for passing of a money decree for a specific amount. Plaintiffs therefore

had to lead evidence with respect to the rate of rent in the area with respect to per

square feet or any other unit area method. Plaintiffs had also to prove that what is

the constructed area of the suit property occupied by defendants and what is the

excess area with them. Plaintiffs had also to lead documentary evidence to show

the rate of rent of comparable premises in the same area or adjoining areas. The

plaintiffs have failed to prove any of the above aspects. Plaintiff nos.1 to 3 who

have deposed as PW1, PW2 and PW3, have only given a self-serving assertion in

para 9 of their affidavits that property can fetch Rs.10,000/- per month from

7.7.1979. In my opinion such type of flimsy evidence cannot be a believable

proof with respect to an important issue of rate of mesne profits in the facts of this

case even if there is no cross-examination on the sketchy and limited evidence. In

law, even if a defendant is ex parte, yet plaintiff has to lead such evidence which

will amount to discharge of onus of proof. Self-serving averments without basis

with respect to area of the property, condition of the property, construction of the

property, comparable rent rates per square feet or any unit area method etc would

not amount to plaintiffs having proved the entitlement to claim damages at the

rate of Rs.30,000/- per month from the defendants.

12. This issue is therefore decided in favour of the defendants and

against the plaintiffs.

Relief

13. In view of the above discussion, it is held that each of the three

plaintiffs are 1/4th co-owners each in the suit property no.4-C-171, Dayanand

Colony, Lajpat Nagar, New Delhi. A preliminary decree is accordingly passed

giving each of the three plaintiffs 1/4th share each in the suit property. Defendants

jointly are held entitled to the remaining 1/4 th share in the suit property. Plaintiffs

are held not entitled to damages/mesne profits from the defendants. Parties are

left to bear their own costs.

14. List for further proceedings on 13th September, 2016 wherein parties

will give their submissions with respect to partition by metes and bounds of the

property or if the property has to be reconstructed under collaboration agreement,

then how and in what manner and with which builder, and if the property has to

be sold then by inter se bidding or by public auction etc etc.

MAY 23, 2016 VALMIKI J. MEHTA, J.

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