Arjun Singh Kochhar & Anr vs Gurpreet Singh Bindra & Ors
2019 Latest Caselaw 1160 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 611/2016
       ARJUN SINGH KOCHHAR & ANR               ..... Plaintiffs
            Through: Mr. Salim A. Inamdar with
                       Mr. Ravi Sehgal, Advs.

                           versus

       GURPREET SINGH BINDRA & ORS                          ..... Defendants
           Through: Mr. Abhimanyu Mahajan &
                    Mr. Sarthak Mehrotra, Advs.

       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                       ORDER

% 21.02.2019 IA No.13280/2017(u/O.XII R-6 CPC)

1. Though the suit is ripe for framing of issues but the counsel for the plaintiffs states that IA No.13280/2017 of the plaintiffs under Order XII Rule 6 of the CPC is pending consideration.

2. The counsel for the plaintiffs has been heard on the said application.

3. The counsel for the plaintiffs contends that it is not in dispute that the two plaintiffs as natural heirs of their deceased maternal grandmother Smt. Gurbir Kaur Bindra, would have a share in the flat, for partition of which the suit has been filed and the only plea of the defendants in para 2 of the written statement is of an oral family agreement and in pursuance to which Smt. Gurbir Kaur Bindra had executed a Gift Deed with respect to the flat in favour of the defendants 1 and 2; however the said Gift Deed is unregistered and would thus be of no avail and thus the said plea does not require any adjudication.

4. I have perused the written statement of the defendants and find the defendants to have in para 3 of the written statement also pleaded that in pursuance to the oral family agreement Smt. Gurbir Kaur Bindra had endorsed the Deed of Apartment with respect to the subject flat in favour of the defendants no.1 and 2. It is also the plea of the defendants in para 2 of the written statement that besides the said flat, another property at Gurgaon was also the subject matter of the family settlement and Gift Deed/Transfer Deed with respect whereto, in accordance with the family settlement, was registered. The plea of the defendants is that the family arrangement pleaded is evident from the registered Gift Deed of the Gurgaon property as well as from endorsement of the Deed of Apartment with respect to the subject flat in favour of the defendants no.1 and 2.

5. I have enquired from the counsel for the plaintiffs, how the defendants can be deprived of leading evidence on the said plea and if are able to prove the same, take benefit of the legal consequences thereof.

6. The counsel for the plaintiffs states that the defendants have only placed before this Court a copy of the Deed of Apartment with respect to the flat, endorsed in favour of the defendants no.1 and 2. The counsel for the plaintiffs refers to Section 13(3) read with Section 13(6) of the Delhi Apartment Ownership Act, 1986 (Apartment Act) as well as the dicta of the Division Bench of this court in O.S.Bajpai vs. The Aministrator Lt. Governor, (2012) 194 DLT 138 (DB).

7. I have considered the aforesaid contentions.

8. The flat subject matter of this suit is situated in a multi-storeyed building in an area, land underneath of buildings wherein is leasehold and on account of restrictions in the lease of land underneath, the documents with respect to flats are not registered. The deed of apartment in favour of Smt. Gurbir Kaur Bindra also is thus not registered.

9. The counsel for the plaintiffs admits that even the Deed of Apartment in favour of Smt. Gurbir Kaur Bindra is unregistered.

10. The practice which has come into vogue is, of lessee of the land underneath the property / building, and/or the developer of the building transferring such flats in such buildings by unregistered Agreements to Sell/Deeds of Apartment and which flats change hands by the lessee/developer making endorsement in favour of successive purchaser of the flats on the Deed of Apartment itself. The same practice is found to have been followed in this instance also.

11. O.S.Bajpai supra, on which reliance is placed, was not concerned with the said issue. That was a petition by one of the flat buyers, seeking directions to the various authorities to enable the flat buyers to have mortgageable title to their respective flats. It was in that context that various directions were issued to the Land and Development Office qua execution and registration of the Deeds of Apartments.

12. I have heard and counsel for the plaintiffs confirms that the O.S. Bajpai supra has still not been implemented and no Deeds of Apartments are being executed / registered. The said judgment thus did not deal with the issue as has arisen in this lis.

13. As far as reference to Sections 13(3) and (6) is concerned, the same envisage a stage of transfer after a Deed of Apartment has been executed and registered. However as of today, as aforesaid, the document, even if nomenclatured "Deed of Apartment" is not a Deed of Apartment as envisaged by the Apartment Act and once there is no registered title, the question of the assignment of such Deed being by registered document does not arise.

14. However, the aforesaid discussion is only to deny a decree under Order XII Rule 6 CPC and is not intended to prejudice in any manner either of the parties from raising all legal pleas as may be available to them at the time of final adjudication and it is hoped that by then, some clarity will emerge with respect to O.S.Bajpai supra.

15. IA No.13280/2017 is thus dismissed.

CS(OS) 611/2016 & IA No.15330/2016(u/O.XXXIX R-1 & 2 CPC)

16. On the pleadings of the parties, the following issues are framed:-

(i) Whether there was any oral family settlement to which late Smt. Gurbir Kaur Bindra was a party, and if so to what effect? OPD.

(ii) Whether under the said family arrangement, if any, Smt. Gurbir Kaur Bindra was divested of right in commercial Flat No.804, Mohan Dev Building, 13 Tolstoy Marg, New Delhi? OPD.

(iii) Whether the plaintiffs, by waiving their rights in the Gurgaon property as recorded in the orders dated 9th December, 2016 and 14th December, 2016, have acquiesced and/or waived their right, if any, to challenge the family arrangement pleaded by the defendants? OPPr.

(iv) Relief.

No other issue arises or is pressed for.

17. It is clarified that no issue with respect to shares, in the event of partition being allowed arises because it is not in dispute that the plaintiffs together would have a one-third share in the flat and the share of the defendants no.1 and 3 would be one-third each in the aforesaid flat.

18. The parties to file their list of witnesses within 15 days.

19. The onus to prove the main issue being on the defendants, the defendants to lead evidence first.

20. The defendants to file affidavit by way of examination-in-chief of their witnesses within six weeks.

21. Option given of having evidence recorded on commission has been accepted.

22. Mr. D.S. Punia, Additional District Judge (Retd.) (Ph. No.9910384618) is appointed as the Court Commissioner to record evidence in the suit.

23. The fee of Court Commissioner is tentatively fixed at Rs.1,00,000/-, besides out of pocket expenses, to be borne equally by the parties.

24. The counsels to appear before the Court Commissioner, with prior appointment, within eight weeks hereof for commencing the recording of evidence.

25. The Court Commissioner is requested to record the evidence within the Court Complex. The Court Commissioner is granted liberty to have the matter placed before the Court, if any of the parties are found delaying recording of the evidence.

26. The Registry is directed to send the file of the suit at the place and time fixed by the Court Commissioner for recording of evidence.

27. Recording of evidence be completed within six months of the date of commencement thereof.

28. IA No.15330/2016 of the plaintiff under Order XXXIX Rule 1 & 2 CPC is disposed of by making the ex parte ad interim order dated 14th December, 2016 absolute during the pendency of the suit.

29. The suit be listed after recording of evidence is completed.

RAJIV SAHAI ENDLAW, J FEBRUARY 21, 2019 Ak..