Prodeep Roy Choudhury vs Sandeep Roy Choudhury
2022 Latest Caselaw 247 Del

                          $~14(Original Side)
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CS (OS) 147/2021, I.A. 3552/2021, I.A. 3553/2021 & I.A.
                                 8234/2021
                                 PRODEEP ROY CHOUDHURY                  ..... Plaintiff
                                                Through: Mr. Jayant K. Mehta , Sr. Adv.
                                                            with Mr. Shiv Chopra, Ms.
                                                            Shubhi Pawha and            Ms.
                                                            Aadhyaa Khanna, Advs.

                                                     versus

                                 SANDEEP ROY CHOUDHURY            ..... Defendant
                                              Through: Mr. Gurmeet Narula, Adv.

                                 CORAM:
                                 HON'BLE MR. JUSTICE C.HARI SHANKAR
                                         ORDER

% 25.01.2022

IA 3553/2021 in CS (OS) 147/2021 (under Section 151 of CPC, 1908- for directions)

1. This order disposes of IA 3553/2021, whereby the plaintiff has sought interlocutory relief.

2. CS (OS) 147/2021, in which the present application has come to be filed, is a suit for declaration, partition and permanent injunction.

3. The plaintiff and the defendant are brothers. The suit seeks partition of the estate of their mother, Mrs. Vijaya Rajya Laxmi Choudhary. The property at I-1787, Chitranjan Park, New Delhi- 110019, ("the CR Park property" hereinafter) forming subject matter

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 of the present application, is one of the properties of which the suit seeks partition, and comprises of three floors including a ground floor, a first floor and a second floor/ barsati.

4. In 1997, the defendant started residing on the first floor of the CR Park property. The plaintiff is in possession of the second floor of the property; as per the plaint, since 1999, prior to which the plaintiff claims to have been residing on the ground floor with his mother.

5. As the situation stands at present, admittedly, the plaintiff's wife alone stays on the second floor, as the plaintiff is working in Singapore. It is an admitted position, that, till date, the plaintiff continues to work in Singapore and that it is his wife who is in occupation of the second floor.

6. Mr. Mehta, learned Senior Counsel for the plaintiff submits that, consequent to his retirement, the plaintiff is working in Singapore as a Consultant and periodically visits Delhi. The plaintiff, according to Mr. Mehta, is a diabetic, and 65 years of age. There is no lift in the CR Park property, and the plaintiff and his wife have, in order to obtain access to the premises in their occupation, to climb two floors.

7. As is customary in such cases, the plaintiff and the defendant lay individual claim, to the exclusion of the other, to have taken care of the mother during her lifetime. That aspect is, however, of no particular significance, in so far as the present application is concerned.

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41

8. According to the plaintiff, their mother died intestate. As a result, the plaintiff claims that he, and the defendant have each succeeded to half of the estate of their mother. In the CR Park property too, therefore, according to the plaint and according to Mr. Mehta, the plaintiff and the defendant are each entitled to a half share.

9. After the demise of their mother, the defendant claimed rights on the basis of a will dated 19th August, 2017, stated to have been executed by their mother. As per the will, the defendant would be entitled to first and second floor of the CR Park property, whereas the plaintiff would be entitled to the ground floor of the CR Park property The plaintiff disputes the genuineness, validity and legality of the will which, according to the plaint, is a fabricated document.

10. The plaint further asserts that, as opposed to the aforesaid will, oral discussions were taking place between the plaintiff and the defendant, regarding the manner in which the estate of their mother should be divided. These discussions, avers the plaint, resulted in an oral family settlement dated 22nd December, 2018, under which the entire estate of their mother would be divided equally and for execution of a written family settlement executed in the said terms, and the CR Park property would be demolished and a new building with four floors constructed, to be equally divided between the plaintiff and the defendant. However, the plaint acknowledges that there were points of disagreement regarding inclusion, in the written family settlement, of the will dated 19th August, 2017, as well as the

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 right of the defendant to choose the flats into which he would come into possession, consequent to re-development of the CR Park property.

11. Be that as it may, it is not in dispute that no written family settlement came to be executed at any point of time. Mr. Mehta, however, has drawn my attention to the communications between the petitioner and the respondent in this connection. This communication may, chronologically, be traced, to the extent relevant, thus:

(i) On 16th January, 2019, a draft of the family settlement deed was sent by the plaintiff to the defendant, with a request to the defendant, to examine the document and seek clarifications, if any.

(ii) On 17th February, 2019, the defendant wrote thus to the plaintiff:

"Subject: Family settlement Deed

And Dada, you talk about parents wish ... if you may recall baba had said that I would get First and second floor and you the ground floor .... Ma too wanted it to be as per Baba's wish .... but I had all along told her that I did not want anything that would create ill will between brothers and against her and Baba's wish she relented .... inspite of the will clearly stating that everything will be equal and my giving commitment that I will resolve any point which gives me unfair advantage .... you still are challenging the will. .. I shudder to think what would have happened if ma had given me something extra ... anyhow no one can change what is destiny ... one can only try and do the right thing ..."

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41

(iii) On the same day, the defendant again wrote, thus, to the plaintiff, asserting the will, but agreeing, on the terms of settlement between the parties being finalised, to grant half share of the CR Park property to the plaintiff:

"I will not disregard the Will and I am committed to ensure that we both get equal shares and equal rights... Ma has given me this responsibility and I will not jeopardize it in any way..."

(iv) On 24th February, 2019, the defendant again wrote to the plaintiff stating that he would sign anything which was "fair and square, and equal".

Having said that, it remains undisputed that, in fact, no written or final family settlement ever came to be executed between the parties.

12. Along with the present suit, the plaintiff filed IA 3552/2021 and the present application, i.e. IA 3553/2021. IA 3552/2021 sought an ex parte ad interim order restraining the defendant from parting with possession or creating any third party interest in the estate of Mrs. Vijaya Rajya Laxmi Choudhary, pending disposal of the suit. IA 3553/2021, which this order disposes of, prays for a direction to the defendant to permit the plaintiff to peacefully occupy the ground floor of I-1787, Chitranajn Park, New Delhi-110019 till the disposal of the present suit.

12. I have heard, at length, Mr. Jayant Mehta, learned Senior

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 Counsel for the plaintiff and Mr. Gurmeet Narula, learned Counsel for the defendant, on this application.

13. To repeated queries from the Court, Mr. Mehta candidly acknowledges that, while the plaintiff cannot claim a right, even as a successor to the estate of his mother, to any particular floor in the CR Park property, the plaintiff is entitled to a half share in the entire property, as intestate successor thereto. This, submits Mr. Mehta, would in any event be more than the property presently in possession of the plaintiff, which is 800 sq. ft. on the second floor. As against this, Mr. Mehta submits that the defendant is occupying the first floor of the CR Park property ad measuring 1400 sq. ft.

14. Arguendo, submits Mr. Mehta, even if the defendants' best case were to be accepted and the purported will dated 19th August, 2017 were to be treated as valid, the plaintiff would be entitled, even thereunder, to possession of the ground floor of the CR Park property. The defendant cannot, therefore, according to Mr. Mehta, restrict the plaintiff to the second floor of the suit property, as that would be a derogation of the rights claimed by the plaintiff as the intestate successor of their mother entitled to a half share in her estate, as well as the case set up by the defendant under the purported will dated 19 th August, 2017, under which he would be entitled to the ground floor.

15. It is, in these circumstances, he submits, that the plaintiff has staked a claim, at an interlocutory stage pending disposal of the suit and final partition of the estate of Mrs. Vijaya Rajya Laxmi

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 Choudhary, to possession of the ground floor of the CR Park property.

16. The claim, he submits, is intended to balance equities and is eminently within the jurisdiction of this Court.

17. Mr. Mehta has also highlighted the adverse physical condition of his client and his wife, and the difficulties being faced by them in having to ascend, without the assistance of a lift, to the second floor of the CR Park property, repeatedly. Mr. Mehta submits that, viewed any which way, the plaintiff would be entitled to more than the 800 sq. ft. of the second floor of the CR Park property presently in his possession and occupation.

18. Reliance has been placed, by Mr. Mehta in support of the case pleaded by him, on the judgments of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden1, Hammad Ahmed v. Abdul Majeed2 and of a learned Single Judge of this Court in Sneh Lata Mathur v. Brij Raj Bahadur3.

19. Mr. Narula, learned Counsel for the defendant submits, per contra, that the application is not maintainable, as there is no prayer in the suit seeking possession of the ground floor of the CR Park property. In the absence of any substantive prayer in the suit, to the said effect, Mr. Narula contends that the plaintiff cannot maintain an interlocutory prayer to that effect, seeking to be placed in possession

1 (1990) 2 SCC 117

(2019) 14 SCC 1 3 AIR 2003 DEL 259

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 of the ground floor. For this proposition, by Mr. Narula places reliance on the judgment of a learned Single Judge of this Court in Raman Hosiery Factory, Delhi v. J.K. Synthetics Ltd.4.

20. Mr. Narula submits, further, that, having contested the will dated 19th August, 2017, the plaintiff cannot seek any claim to interlocutory relief predicated on the will.

21. There is, in fact, he submits, no entitlement, of the petitioner, to possession of the ground floor of the CR Park property, choate or inchoate. Unlike the facts which obtain in the cases on which Mr. Mehta relies, Mr. Narula highlights, in the present case, the parties were enjoying different portions of the CR Park property, and, at the interlocutory stage, it was not permissible to grant exclusive possession to the plaintiff of the ground floor, in the absence of any such right crystallising in the plaintiff's favour. The plea of family settlement, urged by Mr. Mehta, contends Mr. Narula, is completely devoid of merit, as the e-mails exchanged between the parties clearly indicate that there was no consensus ad idem between them, as a result of which the family settlement could never fructify. In fact, according to Mr. Narula, while the defendant was willing to come to terms and amicably resolve the issue, the plaintiff created hurdles by alleging forgery on the part of the defendant and filing the present proceedings contesting the will dated 19th August, 2017, executed by their mother, the genuineness of which Mr. Narula asserts.

AIR 1974 DEL 207

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41

22. Arguing in rejoinder, Mr. Mehta answers the contention of Mr. Narula that the plaintiff was seeking, at an interlocutory stage, relief in excess of that sought in the plaint, by submitting that the prayer for possession was inherent in the prayer for partition of the property. Mr. Mehta submits that the plaintiff was entitled, as the intestate successor to the estate of their mother, to a half share in each of the floors of the CR Park property and, in any event, to a share greater than the 800 sq. ft. of the second floor of the CR Park property presently in his occupation and possession. As such, he submits, this Court ought, in equity, to direct an interlocutory arrangement, pending partition of the property and disposal of the suit, to the plaintiff being put in possession of the ground floor of the CR Park property.

23. Having heard learned Counsel at length, I confess that I am unable to subscribe to the contentions advanced by Mr. Mehta or to discern, in the case set up by him, any right, whatsoever, inhering in the plaintiff, as would justify grant of the prayer in this application.

24. There is, quite clearly, no entitlement, of the petitioner, to the ground floor of the CR Park property. Even if the estate of Mrs. Vijaya Rajya Laxmi Choudhary were to be partitioned by metes and bounds, it is not Mr. Mehta's case that the plaintiff would be entitled to come into possession of the ground floor.

25. As such, even as an intestate successor to the estate of Mrs. Vijaya Rajya Laxmi Choudhary, the plaintiff could not lay a claim to

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 the ground floor of the CR Park property.

26. A reading of the present application, in fact, reveals, though Mr. Mehta argues otherwise, that the plaintiff has predicated his claim on the recitals in the very will dated 19th August, 2017, of Mrs. Vijaya Rajya Laxmi Choudhary, which he has sought to challenge. Paras 6 to 9 of the present application may, for this purpose, be reproduced thus:

"6. The Defendant currently enjoys the use of the ground and first floor of I - 1787, Chitranjan Park, New Delhi - 110019 while Plaintiff is suffering on the barsati. The Plaintiff and his wife are old aged and there is no lift to access the 2nd floor. The second floor only has 800 square foot constructed area which comprises of 1 master bedroom with bathroom with another small bedroom and bathroom, a small hall, kitchen and open attached terrace. It is susceptible to the extreme weather conditions of summer and winter. The ground floor and first floor both have constructed area of 1400 square feet each. The ground and first floor are identical

- each of them have 3 bedrooms with attached bathrooms along with 1 kitchen and 1 drawing room. Upon his return to India the Plaintiff and his wife are staying in the barsati portion of the Chitranjan Park property. While on the other hand the Defendant is enjoying the ground and first floor living lavishly while the Plaintiff and his wife suffer on the 2nd floor. The Plaintiff and his wife are finding it extremely difficult to survive in the 2nd floor and thus they need to shift into either the first or ground floor at the earliest so that they too can enjoy the same comforts as the Defendant. The Parties being equals must also be able to enjoy the fruits of their mother's estate equally.

7. It is submitted, without prejudice to the Plaintiffs rights and contentions, that even as per the purported Will, the Plaintiff is entitled to enjoy and live on the ground floor.

8. Grave prejudice and miscarriage of justice will be caused to the Plaintiff is denied use of the ground floor as he is finding it very difficult to keep climbing two stories each

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 time he has to leave or come back home. The Defendant on the other hand is enjoying a much larger area on the first floor while the Plaintiff is suffering in the smaller area on the 2nd floor.

9. The Plaintiff and his wife have no other residence in Delhi and since the Plaintiff is equal co-owner of the I - 1787, Chitranjan Park, New Delhi - 110019 they should both be allowed to use equal living space and comforts of the property number I -1787, Chitranjan Park, New Delhi - 110019."

Quite clearly, the only paragraph which asserts any right, founded on a legal basis, to the reliefs claimed in the application, is para 7, which is premised on the will dated 19th August, 2017, on which the defendant relies.

27. In my opinion, it is clear that, having contested the validity of the will dated 19th August, 2017 in the plaint, and having specifically prayed for a declaration that the will dated 19 th August, 2017 is null and void, the plaintiff cannot base a claim to interlocutory relief predicated on the recitals in the will. This would amount to claiming interlocutory relief on the basis of a document which is denied by the plaintiff in the plaint and regarding which a declaration that the document is null and void is specifically being sought by the plaintiff.

28. The relief in the interlocutory application is, therefore, not merely in excess of the reliefs sought in the plaint, but is directly opposed thereto. This is a clear case, therefore, of approbate and reprobate as, in the plaint, the plaintiff disputes the will and seeks a declaration that it is null and void and, in the present interlocutory

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 application, seeks interim relief predicated on the covenants of the will.

29. The legal position in this regard is no longer res integra. In Bhagwat Sharan v. Purushottam5, the Supreme Court held thus:

"26. It is also not disputed that the plaintiff and Defendants 1 to 3 herein filed suit for eviction of an occupant in which he claimed that the property had been bequeathed to him by Hari Ram. According to the defendants, the plaintiff having accepted the will of Hariram and having taken benefit of the same, cannot turn around and urge that the will is not valid and that the entire property is a joint family property. The plaintiff and Defendants 1 to 3 by accepting the bequest under the will elected to accept the will. It is trite law that a party cannot be permitted to approbate and reprobate at the same time. This principle is based on the principle of doctrine of election. In respect of wills, this doctrine has been held to mean that a person who takes benefit of a portion of the will cannot challenge the remaining portion of the will. In Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153 : AIR 2013 SC 1241, this Court made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order.

27. The doctrine of election is a facet of law of estoppel. A party cannot blow hot and blow cold at the same time. Any party which takes advantage of any instrument must accept all that is mentioned in the said document. It would be apposite to refer to the treatise Equity--A Course of Lectures by F.W.

Maitland, Cambridge University, 1947, wherein the learned

5 (2020) 6 SCC 387

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 author succinctly described principle of election in the following terms:

"The doctrine of election may be thus stated : that he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it...."

This view has been accepted to be the correct view in Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262. The plaintiff having elected to accept the will of Hari Ram, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the averments made by Hari Ram that the property was his personal property, is incorrect."

Equally, in my considered opinion, having elected to challenge the will dated 19th August, 2017, and having incorporated, in the plaint, a specific prayer to have it declared null and void, the plaintiff cannot be permitted to seek a relief predicated on the terms of the will, even if without prejudice.

30. Apparently aware of this legal situation, Mr. Mehta during arguments, submitted that he was not predicating the case of his client on the will but on the fact that the plaintiff was entitled, as the intestate successor to the estate of his mother, to half share in the CR Park property. Though this would not, as Mr. Mehta, candidly acknowledges, necessarily entitle the plaintiff, as of right, to the ground floor of the said property. Mr. Mehta submits that his client is, in any event, entitled to more than the 800 sq. ft. on the barsati, which

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41 is presently in his possession and occupation. In such a situation, Mr. Mehta submits that this Court is within its jurisdiction, as an interim arrangement and subject to crystallisation of rights consequent on partition of the property, to place the plaintiff in possession of the ground floor of the CR Park property.

31. I am unable to find, in law, any basis, for this submission of Mr. Mehta. There can be no question of granting, by interim relief, a right to be placed in possession of the ground floor of the CR Park property, when no such discernible right would arise even at the stage of final grant of relief in the suit. Though equity does inhere in the jurisdiction exercised by the Court under Order XXXIX of the Code of Civil Procedure, 1908, the Court cannot pass orders solely based on equity, sans the existence of any legal right. Ubi jus, as the hallowed adage goes, ibi remedium.

32. The position as it exists today is that the plaintiff is in possession of the second floor of the CR Park property, whereas the defendant is in possession of the first floor. Even consequent on partition by metes and bounds (assuming the will is declared to be null and void), it cannot be said that the plaintiff would become entitled to the ground floor of the CR Park property. That, indeed, is not even the case set up by Mr. Mehta. The mere fact that the plaintiff may be entitled to a greater share than the barsati which is presently in the plaintiffs' occupation cannot justify granting of any interlocutory direction placing the plaintiff in possession of the ground floor of the CR Park property.

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41

33. The family settlement, quite clearly, can afford no support to the plaintiff, as the terms thereof were never finalised. No written family settlement came into existence at any point of time. The e- mails exchanged between the parties do not indicate that there was consensus regarding the family settlement or that the plaintiff would be entitled to possession of the ground floor of the CR Park property.

34. In view of the above position, it is not possible to grant, to the plaintiff, the relief sought in this application, which is accordingly dismissed.

35. Needless to say, all observations and findings in this application are restricted to the relief sought in this application, which is for being placed in interim possession of the ground floor at I-1787, Chitranjan Park, New Delhi-110019, and would not be treated as an expression of opinion, even collaterally regarding any of the issues in controversy between the parties in the suit.

I.A. 3552/2021 (under Order XXXIX, Rules 1 & 2 of CPC, 1908- for ad interim ex parte injunction) & I.A. 8234/2021 (under Order VII, Rule 14(3) read with Section 151 of CPC, 1908 - for additional documents)

36. Re-notify on 19th April, 2022.

C.HARI SHANKAR, J JANUARY 25, 2022/SS

Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.01.2022 22:04:41