Delhi High Court
Shilendra Ghai vs Shakuntala Ghai on 10 January, 2018
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10.01.2018
+ CM(M) 5/2018 & C.M.No. 76/2018
SHILENDRA GHAI ..... Petitioner
Through: Mr. Prag Chawla and Mr. Shaurabh
Shokeen, Advocates.
Versus
SHAKUNTALA GHAI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. This petition impugns an order dated 23.12.2017 passed by the
learned Additional District Judge, West, Tis Hazari Courts, Delhi, in CS No.
1345/17 dismissing the petitioner's application under Order XXXIX Rules 1
and 2 read with section 151 CPC regarding maintenance of status quo by the
purchasers of his mother's property at Najibabad. It is the petitioner's case
that by way of a Memorandum of Family Settlement (MoFS), the properties
bequeathed by the petitioner's father were mutually divided. The relevant
clause 16 thereof reads as under:-
"16. Smt, Shakuntla Ghai W/o Late. Shri K. C. Ghai (First
Party) Desire so. That after her demise, all the moveable and
immoveable assets of hers (First Party) will be shared &
Distributed equally (1/3rd each) between her three sons Shri
Anil Ghai, Shri Rajiv Ghai and Shri Shailendra Ghai families
(Second Party, Third Party, Fourth Party here to)."
2. Mr. Prag Chawla, the learned counsel for the petitioner, submits that
the MoFS has to be read in totality, that this clause created an interest in
favour of the petitioner, therefore, if the properties owned by his mother
were encumbered or otherwise parted with, then his share would be
prejudiced. He contends that the sale of the petitioner's mother's
immovable properties at Najibabad, Uttar Pradesh, at a price lesser than the
circle rate and the consideration thereof not being shared on him has
prejudiced his interest. Furthermore, it is contended that the entire sale
consideration was not paid at the time of the registration of the Sale Deed,
instead it was to be paid subsequently, therefore, the sale transaction is a
sham and illegitimate so as to deprive the petitioner of his rights therein.
The court, however, does not find the said contentions tenable for the
following reasons:-
(i) Clause 16 of MoFS would become operational only after the demise
of the petitioner's mother. It does not, in any way, limit his mother's
right to use her estate during her life time; and
(ii) that the petitioner would have only a promise of a right and such
promise would become operational apropos the assets of the mother
only after her demise.
3. In the circumstances, it cannot be said that the petitioner has any right
apropos the said clause 16.
4. After the order was dictated, the learned counsel for the petitioner,
sought and was granted time to research judgments which could assist him
in this case. The case was taken up again in the post-lunch session.
5. The learned counsel for the petitioner, relies upon a Division Bench
judgment of this Court in Ravi Singhal & Ors. vs. Smt. Manali Singhal &
Anr., 87 (2000) DLT 658 (DB), which held that a family settlement should
be given due importance since it purports to bring about a settlement in the
family so as to quiten the lis amicably and also to save the relationship
within the family members. He relies upon the following portions of the
judgement:-
"33. It was contended that there was no consideration
for the agreement. Appellants No.2 and 3 were under no
obligation to provide maintenance to the respondents but the
questions is whether such a ground would be a valid ground at
this stage to resist the respondent's claim for interim
directions, which have been allowed by learned Single Judge
on coming to a prima facie conclusion that the agreement is
not without consideration and it was bona fide made and
recognised by both the sides with a laudable object of putting
an end to controversy. Where certain family differences are
adjusted by means of a compromise, there is no reason to
doubt the bona fides of the arrangement. Such an adjustment
of the dispute with a view to maintain amity and peace in the
family satisfies all the requirement of a family settlement. In
case due to circumstances, which were in existence on the date
when the agreement was arrived at, in order to maintain amity
and peace in the family, a settlement was arrived at by which
the appellants jointly agreed, as the terms of the agreement
suggest, to provide financial security to the respondents, there
is no reason why there should be any suspicion at this stage in
the absence of any other material that there was any lack of
bona fide.
XXX XXX XXX
35. In Sahu Madho Das and others Vs. Mukand Ram and
Another AIR 1955 S.C. 451, it was held that Courts lean
strongly in favor of family arrangements that bring about
harmony in a family and do justice to its various members and
avoid, in anticipation, future disputes, which might ruin them.
Such an arrangement must be upheld.
36. In Ram Charan Das Vs. Girja Nandini Devi and Others
[1965]3SCR841, it was held that Courts give effect to a family
settlement upon the broad and general ground that its object is
to settle existing or future disputes amongst members of a
family. It was further held that family in the context is not be to
understood in a narrow sense of being a group of persons who
are recognised in law as having a right of succession or
having a claim to a share in the property in dispute.
37. In the Commissioner of Wealth Tax. Mysore Vs. Her
Highness Vijayaba, Dowger Maharani Saheb of Bhavnagar
Palace. Bhavnagar and others: [1979]117ITR784(SC), it was
held that contractual obligations entered into or arising out of
a family settlement are binding, the consideration being
purchase of peace of the family, which is good consideration.
38. In Maturi Pullaiah and another Vs. Maturi Narasimham
and others AIR 1966 S.C. 1886, it was held that family
arrangement will not generally be disturbed by Courts.
Summary and nature of family arrangements and conditions
for their validity contained in 3rd Edn.Vol.17 at pages 215-
216 in Halsbury's Laws of England was quoted with approval
saying:-
"A family arrangement is an agreement between members of
the same family, intended to be generally and reasonably for
the benefit of the family either by compromising doubtful or
disputed rights or by preserving the family property or the
peace and security of the family by avoiding litigation or by
saving its honour.
The agreement may be implied from a long course of dealing,
but it is more usual to embody or to effectuate the agreement
in a deed to which the term family arrangement is applied.
The principles the Courts should bear in mind in appreciating
the scope of such family arrangement are stated thus:
"Family arrangements are governed by principles which are
not applicable to dealings between strangers. The Court, when
deciding the rights of parties under family arrangements or
claims to upset such arrangements, considers what in the
broadest view of the matter is most for the interest of families
and has regard to considerations which, in dealing with
transactions between persons not members of the same family,
would not be taken into account. Matters which would be fatal
to the validity of similar transactions between strangers are
not objections to the binding effect of family arrangements."
This passage indicates that even in England Courts are averse
to disturb family arrangements but would try to sustain them
on broadest considerations of the family peace and security.
This concept of a "family arrangement" has been accepted by
Indian Courts but has been adapted to suit the family set up of
this country which is different in many respects from that
obtaining in England. As in England so in India, Courts have
made every attempt to sustain a family arrangement rather
than to avoid it, having regard to the broadest considerations
of family peace and security."
39. In K.K. Modi Vs . K.N. Modi and others: [1998]1SCR601
also it was held that validity of family settlement, which settles
disputes within the family should not be lightly interfered with.
In S. Shanmugam Pillai and others Vs . K. Shanmugam Pillai
and others: [1973]1SCR570 it was held that Courts lean
strongly in favor of family arrangements that bring about
harmony in a family and do justice to its various members and
avoid, in anticipation, future disputes which might ruin them
all.
40. In Kale and others Vs . Deputy Director of Consolidation
and others: [1976]3SCR202, it was held that by virtue of a
family settlement or arrangement of a family or a near relation
seek to sink their differences and disputes, settle and resolve
their conflicting claims or disputed titles once for all in order
to buy peace of mind and bring about complete harmony and
goodwill in the family, which family arrangements are
governed by a special equity peculiar to themselves and will
be enforced if honestly made. The object of the arrangement is
to protect the family from long drawn litigation or perpetual
strife's which mar the unity and solidarity of the family and
create hatred and bad blood between the various members of
the family. It promotes social justice through wider
distribution of wealth. Family Therefore has to be construed
widely. It is not confined only to the people having legal title to
the property. This position was further upheld in Taraknath
and another Vs. Sushil Chandra Dev by Lrs. and others:
(1996)4SCC697."
5. The Court is unable to see how the said judgment comes to the
appellant's assistance. The aforesaid paragraphs relied upon by him are
primarily with respect to the sanctity of the family settlement arrived at. In
the present case, the sanctity of the family settlement has been upheld by
the Court inasmuch as the petitioner seeks to restrain his mother from
creating third party rights in moveable assets. The Court is unable to see
from a perusal of the MoFS as to how the petitioner's mother could be
restrained in terms of clause 16 of the settlement from selling her property or
how the settlement was inextricably linked to the disposal of her share of the
settlement property or her other financial assets, if any, during her life time.
It does not usurp or hinder or waive her right to dispose off the same at her
will. It is an expression of her desire about the manner in which her
properties/ estate is to be disposed off after her demise. Clause 16 is at best a
Will and would become operational only after her passing away.
6. Since the disputes having arisen from the Will of Mr. K.S. Ghai, the
husband of Smt. Shakuntala Ghai and the father of the three sons including
the present petitioner, the learned counsel for the petitioner submits that the
settlement included not only the bequeathed properties mentioned in the
Will but also the other properties of the mother. Therefore, it was a
comprehensive family settlement. In this regard, he refers to a residential
house bearing Khasara No. 319, Village Taida, Vijain Bazpur Road
Kashipur Tehsil, Udham Singh Nagar, in the name of Smt. Shakuntala Ghai.
He also refers to another plot No.4, recorded as agricultural land in the name
of Smt. Shakuntala Ghai vide Khatoni No. 761, Khasra No. 301,
admeasuring 0.136 hect and also the agricultural land at the out skirts of
Najibabad, District Bijnor (U.P.) in the name of Smt. Shakuntala Ghai.
These three properties have been held in the family settlement of MoFS.
7. The relevant clauses 8 to 10 of MoFS read as under:-
"8. That the house belonging to Smt. Shakuntia Ghai at
Tanda Ujain Kasra 319 Bazpur Road Kashipur has since
become the exclusive property of the party of third part.
9. That the agriculture land at Jaspur Road in the name of
Shri K. C, Ghai and Smt. Shakuntia Ghai, Kashipur district
U.S. Nagar have since become the exclusive property of the
party of third part.
10. That the agriculture land at the out skirts of the
Najibabad district have since become the exclusive property of
the party of first part, which already exists in her name."
Subsequently, it is followed by clause 16.
8. It is in this context that an amicable family settlement was done and
the mother's desire recorded in clause 16 was included therein. The Court
is, therefore, unable to see how the said clause would come into effect
during the life time of the mother. Accordingly, the Court is not persuaded
by the contentions raised by the learned counsel for the petitioner for grant
of stay of the impugned order and for an injunction as sought in the petition.
9. The appeal is without any merit. Therefore, it is dismissed alongwith
pending application.
NAJMI WAZIRI, J.
JANUARY 10, 2018
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