Amarita Martindale & Anr. vs Sanjay Mohan Baqaya
2019 Latest Caselaw 3911 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CS(OS) 452/2018, IA No.12408/2018(u/O.XXXIX R.1&2CPC)
     AMARITA MARTINDALE & ANR.                       ..... Plaintiffs
                      Through: Mr. Sarvesh Singh with Ms. H.K.
                                 Brar, Advs.
                      Versus
     SANJAY MOHAN BAQAYA                     ..... Defendant
                      Through: Mr. Anil Kaushik with Mr. Abhishek
                                 Mishra & Mr. Akash Bhardwaj,
                                 Advs.
     CORAM:
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                      ORDER

% 23.08.2019

1. The two plaintiffs, viz. Amarita Martindale and Sushma Goffroy, have instituted this suit for (i) partition of property No.C-2, Nizamuddin East, New Delhi; (ii) permanent injunction restraining the defendant from dealing with the property; (iii) declaration that the documents if any prepared by the defendant, claiming exclusive ownership of the property are null and void; and, (iv) rendition of accounts with respect to the property against the defendant who is the son of the brother of the plaintiffs father, pleading that

(a) Sham Mohini Baqaya being the grandmother of the two plaintiffs as well as the sole defendant, was the owner of the property and died leaving a validly executed last Will dated 4 th June, 1987 of which probate was granted on 5 th October, 1998, bequeathing 50% undivided share in the property to Prem Mohan Baqaya i.e. the father of the two plaintiffs and the other 50% undivided share in the property to the defendant;

(b) the father of the two plaintiffs died on 19th November, 2016, leaving, besides the two plaintiffs as his daughters and only legal heirs, his wife having predeceased him on 31st December, 2003;

(c) since the plaintiffs reside in United Kingdom (UK), the entire property is in possession of the defendant, though the plaintiffs through their agents visit the property from time to time;

(d) in January, 2018, the plaintiffs came to know that the defendant was claiming to be the sole owner of the property, though on the plaintiffs confronting the defendant, he denied; and,

(e) hence the suit.

2. The suit was entertained and vide ex parte ad-interim order dated 14th September, 2018, status quo qua title and possession of the property directed to be maintained.

3. At this stage, it is apposite to set out in toto the Will dated 4 th June, 1987 of Sham Mohini Baqaya as under:

"WILL DATED: 04.06.1987 That I, the testator herein named Sham Mohini Baqaya widow of Sh. Iqbal Nath Baqaya, am R/o C-2, Nizamuddin East, New Delhi-110013, and now I am aged 85 years. I am in my full conscious and in good health, and fully understand my good and bad. Nobody knows when to leave from this world. I want that after my demise, the property which I have accumulated myself, there ensues no dispute regarding this property among my issues / LRs. Therefore I am executing this Will qua the property of which I am owner and in possession of, and the property which I have owned out of my own funds and resources, the details of which are mentioned as under:

I own one house at address: C-2, Nizamuddin East, New Delhi- 13, which is constructed over an area of 200 Sq. yds. This property has been created out of my own efforts and resources. Except this property I have no other movable or immovable property in India or outside of India.

I have two sons. One son named Lt. Col. (Retired) Manmohan Baqaya, who is residing with me alongwith his family, at: C-2, Nizamuddin East, New Delhi-13, is in quite good condition. The name of my second son is Prem Mohan Baqaya, who has been residing in London (U.K.) for quite some time, and is doing his business there. He has a European wife, from whom he has children. Besides them I have five daughters, all living. Their names are: Sushila Kichlue, who is residing at address: Q-9, Hauz Khas, New Delhi-110016. The name of the second daughter is Monihi Kaul, who is residing at Address: J-57- 58, Gandhi Nagar, Gwalior, Madhya Pradesh. The name of third daughter is Smt. Vijay Kaul, who is residing at address: Jodhpur Road, 96 Government Quarters, Pali, Marvad, Rajasthan. The name of fourth daughter is Smt. Vinay Nehru, who is resident of Belleville (Canada), and the name of her husband is Shri Joginder Nehru. The name of fifth daughter is Smt. Kiran Rawal, who is residing at Jammu (J&K). Besides my sixth daughter whose name was Kamla Kaul, had expired in the year 1973, leaving behind three sons namely, Sh. Kuldeep, aged 30 years, Sh. Jagdish, aged 28 years, and Sh. Suraj, aged 24 years, and one daughter named Veena Kaul, aged 27 years. All of them reside at Kashmiri Mohalla, in Lucknow, Uttar Pradesh.

All my five daughters are in good health, well to do, and are happily enjoying their life.

Therefore I am executing this will that after my demise, half of the property C-2, Nizamuddin East, New Delhi-13, would go to my grandson Sh. Sanjay Mohan Baqaya, who is son of my elder son Man

mohan Kumar Baqaya, and who is presently doing his job at Bareilly, he will be owner. Rest half share will go to my second son Sh. Prem Mohan Baqaya, who has been presently residing at London (U.K.) for the last many years. His family and children are also residing at London, he will be owner.

After my demise, if Prem Mohan Baqaya is willing to sell his half share in the said house at C-2, Nizamuddin East, New Delhi-13, then the entire sale proceeds received out of the sale will be divided in six parts. From the amount received after such sale, 1/6th each will go to my five daughters. And 1/6th will go to the four children of my sixth daughter Late Kamla Kaul, who is now deceased.

So long as I am alive, I am owner of my said property. I may use it the way I like. If I have any income from it, then I may use the same. There will be no bar or intervention on me from doing so from anyone.

I hereby appoint Dr. S.K. Zutshi Resident of: C-22, Nizamuddin East, New Delhi-13 as my executor on my behalf.

That prior to this I have never executed any will pertaining to this property and this is my last will.

Therefore, I have written and signed this Will today dated 4th June, 1987 in presence of witnesses, that it remains a proof."

4. A perusal of the judgment dated 5th October, 1998 in Probate Case No.189/1996 titled Sanjay Mohan Baqaya & Anr. Vs. Smt. Sushila Kitchlue & Ors. shows, (i) probate to have been applied jointly by Prem Mohan Baqaya, father of the plaintiffs and the defendant herein; (ii) none to have opposed the grant of probate inspite of citation / notice; and, (iii) Letters of Administration with copy of the Will aforesaid having been granted jointly to the defendant and the father of the two plaintiffs.

5. The defendant contested the suit, pleading that (a) Prem Mohan Baqaya, being the father of the plaintiffs, was entitled to only a life interest in 50% share of the property; (b) Prem Mohan Baqaya, father of the plaintiffs, being well aware of the intent of the Will dated 4 th June, 1987 that his sisters and their legal heirs were beneficiaries of his half share in the property and to give effect to the said intent of the Will, entered into an oral Family Settlement with his sisters and their legal heirs, whereby he relinquished his interest in the suit property and made his sisters and their legal heirs joint absolute owners of his one half share in the property; (c) subsequently in the year 2010, the oral Family Settlement was recorded in writing; (d) the suit is bad for non-joinder of necessary parties, as daughters of Sham Mohini Baqaya i.e. Sushila Kichlue, Mohini Kaul, Vijay Kaul, Vinay Nehru, Kiran Rawal and Kamla Kaul were named as beneficiaries of Prem Mohan Baqaya‟s half share in the property and the plaintiffs have no right, title and/or interest in Prem Mohan Baqaya‟s half share in the property; (e) Prem Mohan Baqaya, being the father of the plaintiffs, was also a resident of UK and executed a registered General Power of Attorney (GPA) dated 1st December, 2009 in respect of his one half share in the property in favour of his two sisters Vinay Nehru and Kiran Rawal; (f) the leasehold rights in the land underneath the property were converted into freehold vide Conveyance Deed dated 19th November, 2009 in favour of defendant and Prem Mohan Baqaya, being the father of the plaintiffs; however the limited interest of Prem Mohan Baqaya is duly recorded in the Conveyance Deed dated 19th November, 2009 (however no such Conveyance Deed has been filed); (g) the sisters of Prem Mohan Baqaya, in exercise of their rights as absolute owners of the property under the Will

dated 4th June, 1987 and the subsequent Family Settlement, executed an Agreement to Sell dated 9th February, 2011 in favour of one Harjit Singh Sahni in respect of their one half share in the property; (h) however the Agreement to Sell dated 19th February, 2011 was terminated by Kiran Rawal and Vinay Nehru vide public notice dated 24th May, 2011; (i) thus the defendant is the owner of one half share in the property and Sushila Kichlue, Mohini Kaul, Vijay Kaul, Vinay Nehru, Kiran Rawal and Kamla Kaul or their legal heirs are jointly the owners of the other half share in the property; and, (j) the plaintiffs are not entitled to any share in the property.

6. The plaintiffs filed a replication denying the averments aforesaid in the written statement.

7. The suit came up for framing of issues on 16th April, 2019 when though the counsels handed over proposed issues but after understanding the controversy, it was enquired, whether not the only question for adjudication was the interpretation of the probated Will and there was no factual controversy for trial.

8. The counsel for the defendant contended that the Will, after so bequeathing the property equally to the father of the plaintiffs and the defendant, also provided that if father of the plaintiffs is willing to sell his half share then the entire sale proceeds will be divided between the six daughters of the testatrix and / or their heirs and the Will, if read applying the arm chair principle, showed that only life interest was given to Prem Mohan Baqaya and which life interest ceased on the demise of Prem Mohan Baqaya, father of the plaintiffs and the plaintiffs did not inherit any share in the property from their father.

9. On enquiry, it was confirmed that during the lifetime of the father of the plaintiffs, his half share in the property was not sold to anyone.

10. I had, on 16th April, 2019, enquired from the counsel for the defendant that since admittedly the father of the plaintiffs in his lifetime did not sell the property, how was the latter clause in the Will attracted and how would such a clause bind the plaintiffs as daughters of their father. It was further enquired, whether not the plaintiffs were only seeking partition and not sale of their half share in the property, to attract the latter clause in the Will, even if binds the plaintiffs.

11. The counsel for the defendant then contended that an issue may be required to be framed qua plea of Family Settlement.

12. However on enquiry, the counsel for the defendant admitted that there was no Family Settlement in writing but still contended that the same found mention in the Agreement to Sell dated 9th February, 2011 executed by the father of the plaintiffs through his two sisters as his attorney in favour of Harjit Singh Sahni aforesaid.

13. However again on enquiry, it was agreed that the Agreement to Sell did not go through.

14. On 16th April, 2019, I had also observed, whether not the Agreement to Sell, in accordance with the Will, on proposed sale of the property, so vesting the sale proceeds in favour of six sisters / their legal heirs of the father of the plaintiffs and it was enquired that since the Agreement to Sell did not go through, how can it be said that Prem Mohan Baqaya‟s 50% share in the property has not been inherited by the plaintiffs as his daughters.

15. The counsel for the plaintiffs on 16th April, 2019 contended that Prem Mohan Baqaya had not authorized his sisters to enter into the Agreement to Sell. No reference to the alleged Family Settlement was found in the General Power of Attorney executed by Prem Mohan Baqaya; rather the said document was in exercise of rights as absolute owner and negated the plea of Family Settlement. Moreover, without a registered document, Prem Mohan Baqaya could not have relinquished his rights in the property. It was also enquired, how, under a Family Settlement, property could be transferred in favour of sisters, who had no share in the property.

16. The counsel for the defendant on 16th April, 2019 also referred to Raj Bajrang Bahadur Singh Vs. Thakurain Bakhtraj Kuer AIR 1953 SC 7, Navneet Lal @ Rangi Vs. Gokul (1976) 1 SCC 630, Gopala Menon Vs. Sivaraman Nair (1981) 3 SCC 586 and Madhu Kohli Vs. Suresh Khattar 2006 (128) DLT 117. However none of the said judgments were found to be applicable.

17. On request of the counsel for the defendant the proceedings were adjourned to today.

18. Today, the counsel for the defendant, instead of arguing, states that a preliminary decree for partition, declaring the two plaintiffs to be having 50% undivided share in the property and the defendant to be having the other 50% undivided share in the property be passed.

19. Resultantly, with the consent of the parties through counsels, a preliminary decree for partition of property No.C-2, Nizamuddin East, New Delhi is passed, declaring the two plaintiffs viz. Amarita Martindale and Sushma Goffroy to be having one half undivided share therein and further declaring the defendant Sanjay Mohan Baqaya to be having the other one

half undivided share in the property.

20. Preliminary decree for partition be drawn up.

21. List for further consideration on 4th December, 2019.

RAJIV SAHAI ENDLAW, J AUGUST 23, 2019 „gsr‟