Amit Passi vs K K Passi & Ors.
2019 Latest Caselaw 3845 Del

$~15
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of decision: 20th August, 2019
+                                   CS (OS) 2740/2015
       AMIT PASSI                                              ..... Plaintiff
                           Through:      Mr. Manav Gupta, Ms. Esha Dutt and
                                         Mr. Devang Kumar, Advocates.
                                         (M:9818022022)
                           versus

       K K PASSI & ORS.                                     ..... Defendants
                      Through:           Ms. Renu Verma, Advocate for D-10.
                                         (M:9810241303)
       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

CS(OS) 2740 of 2015 and I.A. 6200/2019 (seeking release of money)

1. The background of the present case is that the Plaintiff and the Defendants are the family members of Late Shri K. K. Passi, who had various movable and immovable assets. The prayers sought in the suit are as under:

"[A] Pass a preliminary decree in favour of the Plaintiff and against the Defendants declaring the right/share of the parties to the suit in the suit properties i.e. B-2/20 Vasant Vihar, R-2/68, Raj Nagar, Ghaziabad, Flat No. 903, 27 Barakhamba Road and Flat No. 1108, 26 Kasturba Gandhi Marg; [B] Direct an enquiry to suggest the mode of partition by metes and bounds;

[C] Pass a final decree for the partition of the suit property by metes and bounds/with separation of possession;

[D] Pass a decree of cost in favour of the Plaintiff and

against the Defendants for the cost of the present proceedings;"

2. Vide order dated 10th March, 2016, a preliminary decree was passed in respect of three properties namely -

       (i)      B-2/20, Vasant Vihar, New Delhi
       (ii)     Flat No.903, 27 Barakhamba Road, New Delhi and
       (iii)    Flat No.1108, 26 Kasturba Gandhi Marg, New Delhi.

It was held that in the said properties, Defendant Nos.1, 4 & 6 would get 1/3rd share in each of the said properties. The operative portion of the said order reads as under:

"Plaintiff, defendant no.1 and defendant nos.4 to 8 are present. Defendant nos.2 and 3 who are sons of defendant no.1 are ex-parte.

Learned counsel for the plaintiff, on instructions, states that the plaintiff is agreeable to claim his share in respect of 3 out of the 4 properties, namely:

i) B-2/20 Vasant Vihar valued at Rs.3.9 crores being the value of the plaintiff share [16.25% of 24 crores], the plaintiff being in joint possession of the property.

ii) Flat No.903, 27 Barakhamba Road valued at Rs.25,00,000/- being the value of the plaintiff share (1/6th of Rs.1.5 crores), the plaintiff being in joint possession of the property.

iii) Flat No. 1108, 26 Kasturba Ganghi Marg valued at Rs.25,00,000/- being the value of the plaintiff share (1/8th of Rs.2 crores), the plaintiff being in joint possession of the property.

The plaintiff states that he gives up the claim in respect of property bearing no.R-2/68, Raj Nagar, Ghaziabad. Defendant nos.4 to 8 also agree to stake their claim in respect of the aforesaid three properties

and do not claim any relief in respect of the property situated at R-2/68, Raj Nagar, Ghaziabad. Defendant no.1 has stated that he is the sole beneficiary of property situated at R-2/68, Raj Nagar, Ghaziabad, and this position is accepted by the plaintiff and the other defendants.

All the parties are agreeable that the aforesaid three properties be partitioned, such that defendant nos.1, 4 and 6 get 1/3rd share each in the said three properties. Accordingly, a preliminary decree is passed in the aforesaid terms. The plaintiff and defendant no.5, are the sons of defendant No.4. Similarly, defendant Nos.2 & 3 are the sons of defendant No.1. Defendant Nos.7 and 8 are the sons of defendant No.6. The claims of the plaintiff, defendant Nos. 2, 3, 5 & 7 and 8, if any, shall arise only from the share falling in favour of defendant nos. 4, 1 and 6 respectively, i.e. their respective fathers.

I consider it appropriate to send the parties to mediation to try and resolve the modality for passing of a final decree. Let the parties appear before the Delhi High Court Mediation& Conciliation Centre on 17.03.2016 at 4:00 p.m. In case no modalities are worked out, the court shall appoint a court commissioner on the next date. List on 27.04.2016."

3. The preliminary decree was, accordingly, drawn up. Thereafter, mediation was attempted between the parties, in respect of how the properties were to be finally partitioned - however, the same failed. Accordingly, with the consent of the parties, two of the said properties i.e. the Barakhamba Road property and the K.G. Marg property were directed to be sold. Insofar as the property at Vasant Vihar is concerned, even the said property was directed to be sold in a public auction. The order dated 27th April, 2016 reads as under:

"The mediation has failed. It is accordingly directed with the consent of parties that Flat No. 903, 27 Barakhamba Road, New Delhi, and Flat No. 1108, 26 Kasturba Gandhi Marg, be sold by the parties jointly to third parties and the sale proceeds be shared, equally. It shall be open to all the parties to locate an appropriate buyer who is willing to pay the highest consideration for the aforesaid two properties. The parties shall place before Court the best offer that they receive, on the next date. The prospective buyers shall also be brought to the court and they shall come to the court with pay orders drawn in the name of the Registrar General of this Court for an amount of Rs. 10 lacs each to show their bona fides. It is made clear that the pay orders shall be retained only in respect of the buyers whose offer is found to be the best. So far as residential property bearing No. B-2/20, Vasant Vihar, is concerned, defendant Nos. 4 and 6 desire that the property be sold to the highest bidder in a public auction, and the sale proceeds be divided between defendant Nos. 1, 4 and 6 equally. On the other hand, defendant No.1 states that he has been residing in the said property for decades, and would like that he continues to live in the said property.

In view of the aforesaid, one modality which has been discussed in court today is that the parties may locate an appropriate buyer who could enter into an agreement with the parties, such that defendant No. 4 and 6 are paid the consideration due to them for their share in the property, and the defendant No. 1 could be given constructed portions in the property by the builder. The parties may accordingly make efforts to locate an appropriate buyer for the said purpose and place before the Court their respective offers before the next date which shall be considered by the court and further directions shall be issued.

List on 09.08.2016."

4. As recorded subsequently in various orders, all the above three properties have been sold and the sale proceeds were deposited in the Court. Subsequently, an application has been moved by Defendant No.10 - Ms. Rashmi Dutt claiming that she is a beneficiary of Will dated 12 th August, 2016 executed by Late Shri K. K. Passi and seeking to be impleaded as a party to the suit. Vide order dated 31st July, 2018 she was impleaded as Defendant No.10 in the suit.

5. Ms. Rashmi Dutt has also filed a testamentary case being Test Case 2/2018 seeking probate of the alleged Will executed by Late Shri K. K. Passi.

6. The present application has been moved by Defendant Nos.2, 3 & 9 seeking release of 25% of the sale consideration, in respect of the Vasant Vihar property, which is lying deposited in this Court as tabulated in paragraph 2 of the application.

7. The applicants in the present application submit that 25% of the sale consideration of the above three properties is lying deposited in this Court, and even if the case of Ms. Rashmi Dutt is taken at its highest, she is only entitled to 25% of the total value of these properties, that too, subject to her stand in respect of the Will being accepted by the Court and the probate being granted to her. Ld. Counsel for the applicants further submits that the Ld. Division Bench had, on 10th August, 2018 considered the stand taken by Ms. Rashmi Dutt in the present suit and had observed that she had set up a false case. It is further submitted that another property, being House No.103, Sector-37, Noida, UP has also been injuncted by this Court in Test Case No.2/2018 vide order dated 26th March, 2019. The value of the said property, which stands injuncted, is itself sufficient to secure the 25% of Ms.

Rashmi Dutt, which she is claiming in respect of the other properties. Reliance is placed by ld. counsel on order dated 27 th May, 2019 passed in Test Case No.2/2018. The said order reads as under:

"IA No.6280/2019 (of the respondents no.2 to 4 u/Order XXXIX R-4 CPC).

1. The counsel for the petitioner and the counsel for the applicants/respondents no.2 to 4 have been heard.

2. The counsel for the applicants/respondents no.2 to 4, on the basis of the order dated 10th August, 2018 in FAO(OS) No.56/2018 seeks vacation of the interim order dated 26th March, 2019 in this proceeding.

3. However I am unable to find in the order of the Division Bench any observation qua the document claimed to be the Will and which till date has not been proved in any of the proceedings. Thus merely on the basis of the order of the Division Bench, the interim order is not liable to be vacated.

4. The counsel for the applicants/respondents no.2 to 4 then states that as per the document set up by the petitioner as the Will also, the share of the petitioner in House No.103, Sector-37, Noida is only to the extent of 50%, with the other 50% having been bequeathed to the respondent no.2 Kajal Passi. It is argued that since the deceased was the owner only of 50% undivided share in the said property with the other 50% being owned by his wife Rama Passi, the petitioner as per her own document is entitled to 25% share only in the property and the order dated 26th March, 2019 be modified by directing deposit of rent to the extent of 25% only and not 50%.

5. The counsel for the petitioner who had earlier responded to the contentions of the counsel for the applicants/respondents no.2 to 4 which did not find favour with the Court, faced therewith states that she is not the main counsel.

6. Such pick and choose policy cannot be permitted i.e.

to argue on some aspects and not on others.

7. Accordingly, the application is allowed to the extent modifying the order dated 26th March, 2019 by directing the applicants/respondents no.2 to 4/objectors to, w.e.f. the month of June, 2019 deposit 1/4th of the rent earned by House No.103, Sector-37, Noida in this Court and by modifying, that instead of rent being deposited month by month, the said 25% share in the rent be deposited on a quarterly basis.

8. The application is disposed of."

8. On behalf of Ms. Dutt, apprehension is expressed that if the amounts lying deposited to secure her interest are released to the Applicants, there would be no means to recover her share, in case the Will is proved and probate is granted. According to Ms. Dutt, she is entitled to 25% share in the estate of the deceased.

9. After hearing the parties, it is clear that the best case by Ms. Rashmi Dutt, would be that she would, if the probate is granted in her favour, be entitled to 25% of the value of the assets of Late Shri K. K. Passi. Ld. counsel for the Applicants submits that the valuation of the Noida house, which admeasures approximately 400 sq. yards, would exceed the 25% of the value given of the other three properties which have already been sold. Her share therefore, at the highest, would be approximately Rs.3 crores + 25% of value of Noida property only, and nothing more. In Test Case 2 of 2018, an interim order dated 26th March 2019, has already been passed in the following terms:

"1. IA No.9980/2018 and IA No.4336/2019, both for condonation of delay in taking the requisite steps, are allowed and disposed of.

2. IA No.13704/2018 of the petitioner, to restrain the respondents from dealing with the following properties:

(a) Property No.B-2/20, measuring 600 sq.yds. (approx.), Vasant Vihar, New Delhi-110057. (b) Flat No.903, New Delhi House, 27, Barakhamba Road, New Delhi-110001. (c) Kailash Building Flat No.1108, 26 Kasturba Gandhi Marg, New Delhi-110003. (d) House No.103, Sector-37, Noida, Uttar Pradesh. is pending consideration.

3. The respondents no.2 to 4 objectors have filed a reply to the application.

4. The counsel for the respondents no.2 to 4 states that save for House No.103, Sector-37, Noida, Uttar Pradesh, the other properties have been sold off under orders of this Court in CS(OS) No.2740/2015 and in which the petitioner is also a party.

5. The counsel for the petitioner agrees.

6. As far as House No.103, Sector-37, Noida, Uttar Pradesh is concerned, the counsel for the respondents no.2 to 4 states that the petitioner has misrepresented that the deceased was the sole owner of the said property; the respondents no.2 to 4 have placed before this Court title documents to show that the deceased, along with wife Rama Passi was the owner of the said property.

7. On enquiry as to the nature of the property, it is stated that it is a residential flat.

8. The residential flat obviously is indivisible and once it is the admitted position that deceased was the owner of 50% share of the said flat, the said flat in entirety has to be preserved awaiting the outcome of this case.

9. The application is thus disposed of by restraining the petitioner as well as the respondents no.2 to 4 from alienating, encumbering or parting with possession of House No.103, Section -37, Noida, Uttar Pradesh...."

10. Ld. counsel for Ms. Rashmi Dutt does not dispute this position. However, she submits that the valuation of the Noida property has not been

brought on record by the applicants.

11. Since the preliminary decree and final decree actually stand passed in the present case, no useful purpose would be served by holding back the remaining part of the consideration lying deposited before this Court. The Test case filed by Ms. Rashmi Dutt is pending before this Court and evidence is about to commence. Directions can therefore be passed in the present suit, in order to ensure that none of the parties are prejudiced. In the present application, accordingly, the following directions are issued:

1) The applicants shall place on record the valuation of the Noida property i.e. House No.103, Sector-37, Noida by a government approved valuer. Ms. Dutt is also permitted to place a similar valuation on record, if she deems fit. The said valuation shall be filed within four weeks.

2) If the total value of the said Noida property is more than Rs.3 crores + 25% of the value of the Noida property, the 25% consideration from the sale of the other three properties, lying deposited in this Court shall be released to the Applicants along with the interest accrued thereon (after deduction of TDS on the interest component), subject to the Applicants furnishing an undertaking that if the Test Case No. 2/2018 is decided in favour of Ms. Rashmi Dutt, the entire amount due to her (Rs. 3 crores + 25% value of the Noida property) shall be first paid to her, before the Applicants claim or take their share of 75% in the Noida property. The Noida property also stands secured by way of an injunction granted in the Test Case No.2/2018 and part of the rent is, in fact, being deposited before this Court.

3) Upon the said valuation of the Noida property being filed, the parties shall appear before the Registrar General of this Court for release of the amount lying deposited in this Court.

4) If the value of the Noida property is less than the share of Ms. Rashmi Dutt, the amounts which are lying deposited in this Court, shall continue to remain deposited in this Court, and shall abide by the directions to be passed in Test Case No.2/2018.

12. The parties are at liberty to move an appropriate application in Test Case 2/2018 in case any further directions are required.

13. List before the Registrar General on 16th October, 2019.

14. I.A. and the suit stand disposed of in the above terms.

PRATHIBA M. SINGH JUDGE AUGUST 20, 2019/dk