Sikandar Lal Bhatia & Ors vs Sheila S. Kapoor
2019 Latest Caselaw 1109 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RFA No. 147/2019


%                                              19th February, 2019


SIKANDAR LAL BHATIA & ORS.
                                                        ..... Appellants
                          Through:       Mr. Naveen Kumar, Advocate
                                         with Mr. Prabhat Kumar Rai,
                                         Advocate (M. No.9724243214).

                          Versus

SHEILA S. KAPOOR
                                                         ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Nos. 7728/2019 & 7730/2019 (exemption)

1. Exemption allowed subject to just exceptions.

C.M.s stand disposed of.

RFA No. 147/2019 and C.M. No.7729/2019 (stay)

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit

impugning the Judgment of the trial court dated 26.11.2018 by which

the trial court has decreed the suit for partition filed by the

respondent/plaintiff with respect to property bearing No. C-1/22,

Lajpat Nagar, Part-I, Delhi (hereinafter 'C-1/22') and thereby passing a

preliminary decree of 1/3rd share of the suit property in favour of the

respondent/plaintiff.

3. The facts of the case are that the respondent/plaintiff filed

the subject suit for partition of the suit property pleading that she was

the daughter of Late Sh. Ram Chand Chandna and Late Smt. Soni Bai

Chandna. Late Sh. Ram Chand Chandna and Late Smt. Soni Bai

Chandna left behind only two legal heirs being the two daughters.

The respondent/plaintiff was one daughter and the

appellants/defendants were the legal heirs of the other daughter, Late

Smt. Saroj Bhatia. It was pleaded that a registered Gift Deed with

respect to 1/3rd share belonging to the mother was executed in favour

of Late Smt. Saroj Bhatia, and therefore, Late Smt. Saroj Bhatia

(consequently the appellants/defendants) were 2/3rd owners of the suit

property and the respondent/plaintiff had 1/3 rd share. Accordingly, the

suit for partition was prayed to be decreed for 1/3 rd share of the suit

property.

4. The appellants/defendants filed their written statement as

per which there was a family settlement under which the adjoining

property bearing No. C-1/2, Lajpat Nagar, Part-I, Delhi was given to

the share of the respondent/plaintiff whereas the suit property C-1/22

fell to the share of Late Smt. Saroj Bhatia, the predecessor-in-interest

of the appellants/defendants. It was pleaded that this Family

Settlement was of the year 1972 and pursuant to this family

settlement, the respondent/plaintiff had executed a Power of Attorney

dated 31.08.1972 in favour of her mother to give effect to the

relinquishment of the share of the respondent/plaintiff in the suit

property. Accordingly, it was prayed that the suit property fell to the

ownership of Late Smt. Saroj Bhatia and hence the suit was liable to

be dismissed.

5. The following issues were framed in the suit:-

"(i) Whether the plaintiff is the co-owner/co-lessee having 1/3rd share in the suit property? OPP

(ii) Whether there was any Family Settlement as alleged by the defendant in the written statement? OPP

(iii) Whether plaintiff is entitled for decree of partition? OPP.

(iv) Whether the plaintiff is entitled for decree of Rendition of Accounts? OPP.

(v) Whether the suit of plaintiff is barred by Limitation as alleged? OPD.

(vi) Whether the suit of the plaintiff is not properly valued for the Court Fee? OPD.

(vii) Relief."

6. The evidence led by the parties is recorded in paras 6.1 to

6.3 of the impugned judgment, and these paras read as under:

"6.1 In plaintiff evidence, Sh. Jagan Nath Ahuja has been examined as PW-1 by way of affidavit Ex.PW1/A who relied upon documents Ex.PW1/1 to Ex.PW1/17 as follows:

     S. No.              Ex./Mark           Description of document

     1.                  Ex.PW1/1           General Power of Attorney dated
                                            30.11.2009

     2.                  Ex.PW1/2           Mutation Letter dated 31.03.1988
                                            issued by the Office of L&DO

     3.                  Ex.PW1/3           Letter dated 27.04.2009 to the
                                            office of L&DO

     4.                  Ex.PW1/4           Copy of Legal Notice dated
                                            02.09.2009

     5.                  Ex.PW1/5    to     Postal receipts
                         Ex.PW1/7

     6.                  Ex.PW1/8    to     AD cards
                         Ex.PW1/10

     7.                  Ex.PW1/11          Sale Deed dated 23.10.1964

     8.                  Ex.PW1/12          Copy of the Admission card of





                                           Shri Pawan Keller

     9.             Ex.PW1/13             Copy of Nomination form

     10.            Ex.PW1/14             Copy of gratuity form

     11.            Ex.PW1/15     &       Fixed Deposit receipts in the
                    Ex.PW1/16             name of the Trust

     12.            Ex.PW1/17             Statement of Accounts of the
                                          Trust

6.2 In defendant evidence, Sh. Sikander Lal Bhatia has been examined as D1W1 by way of affidavit Ex.D1W1/A who relied upon documents Ex.D1W1/1 to Ex.D1W1/5.

     S. No.         Ex./Mark              Description of document

     1.             Ex.D1W1/1             Original    Sale    Deed     dated
                                          23.10.64

     2.             Ex.D1W1/2             Original Irrevocable Special
                                          Power of Attorney executed on
                                          31.08.1972

     3.             Ex.D1W1/3             Letters of Administration dated
                                          28.02.1991 in PC-269/1987 in
                                          respect of properties of Sh. Topan
                                          Dass Chandna

     4.             Ex.D1W1/4             Original General Power of
                                          Attorney executed on 16.12.1986
                                          by Smt. Soni Bai in favour of
                                          Late Mrs. Saroj Bhatia

     5.             Ex.D1W1/5             Original Agreement to sell dated
                                          6.10.1994 executed by plaintiff
                                          and Mrs. Saroj Bhatia in favour
                                          of Mrs. Kalpana Jaiswal



      6.3    Both witnesses were cross-examined extensively by the opposite
      side."

7. The trial court has held that the appellants/defendants

have failed to prove any Family Settlement of the year 1972. It has

been held that if the Family Settlement of the year 1972 took place

and the respondent/plaintiff was hence not the owner of the suit

property, then, there was no reason why much later in the year 1994,

the suit property would have been sold not only by Late Smt. Saroj

Bhatia but jointly by the respondent/plaintiff and Late Smt. Saroj

Bhatia. In fact, the trial court has also held that the original Family

Settlement of the year 1972 of relinquishment of the share of the

respondent/plaintiff in the suit property in terms of Power of Attorney

dated 31.08.1972/Ex.D1W1/2 (also Ex. D-1) was not correct because

the suit property was mutated much later in the year 1981 in the

records of the Land & Development Office in the name of the

respondent/plaintiff/Late Smt. Saroj Bhatia and the mother Late Smt.

Soni Bai Chandna under the terms of the Substitution Letter dated

06.08.1981/Ex. PW1/2. Accordingly, the trial court has rejected the

defence of the appellants/defendants of the Family Settlement of the

year 1972.

8. In my opinion, the trial court is completely justified in

rejecting the defence of the appellants/defendants because if the

relinquishment by the respondent/plaintiff in favour of her mother in

terms of the Power of Attorney dated 31.08.1972/Ex.D1W1/2 would

have been done, then there was no reason why much later in the year

1981, the suit property was mutated in the records of three parties

being the respondent/plaintiff, her sister Late Smt. Saroj Bhatia and

the mother Late Smt. Soni Bai Chandna. It is pertinent to note that if

the respondent/plaintiff was not the owner, then, how does the

question of the respondent/plaintiff being one of the sellers of the C-

1/21 property alongwith Late Smt. Saroj Bhatia arise. The Agreement

to Sell dated 06.10.1994 in this regard has been proved as

Ex.D1W1/5.

9. In fact, this Court would like to add that the total sale

consideration for the sale of the Property No. C-1/21 was Rs.

25,50,000, and the respondent/plaintiff has successfully proved that

she received only half of the sale consideration because the

respondent/plaintiff has filed and proved on record the two Fixed

Deposit Receipts Ex.PW1/15 and Ex.PW1/16 which showed that

amounts of Rs. 10,46,131/- and Rs. 2,48,671/- were deposited in the

Oriental Bank of Commerce by the respondent/plaintiff. If the

respondent/plaintiff was the owner of the property no. C-1/21, and the

same was sold pursuant to the Agreement to Sell dated 06.10.1994/

Ex.D1W1/5 for an amount of Rs. 25,50,000, then this whole amount

would have been received by the respondent/plaintiff and not one-half

of the amount only which was put in fixed deposit as proved through

FDRs Ex.PW1/15 and Ex.PW1/16. In my opinion, the

appellants/defendants could have only succeeded if they were able to

prove that their predecessor-in-interest, Late Smt. Saroj Bhatia, never

received any consideration on the sale of the property No. C-1/21 or if

Late Smt. Saroj Bhatia though had received the consideration but she

thereafter passed on her share of the consideration for sale of property

No. C-1/21 to the respondent/plaintiff, but on both these aspects the

appellants/defendants have miserably failed as there is no evidence

whatsoever that Late Smt. Saroj Bhatia did not receive any amounts

from the sale of the Property No. C-1/21 nor is there any evidence to

establish the fact that Late Smt. Saroj Bhatia gave her share of the

consideration of sale of property No. C-1/21 (50% of the sale

consideration) to the respondent/plaintiff. Therefore, the case set up

by the appellants/defendants was completely false that the property

No. C-1/21 fell solely to the share of the respondent/plaintiff and the

suit property No. C-1/22 had fallen to the exclusive ownership of the

predecessor-in-interest of the appellants/defendants, namely Late Smt.

Saroj Bhatia.

10. In view of the aforesaid discussion, there is no merit in

the appeal. Dismissed. All pending applications are also disposed of.

FEBRUARY 19, 2019                      VALMIKI J. MEHTA, J
Ne