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Dayanita Singh Vs. Ranjit Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtDelhi High Court
Decided On
Case NumberInterim Application Nos. 5193 and 6277 of 1994 and Suit No. 1250 of 1994
Judge
Reported in1997IVAD(Delhi)942; 68(1997)DLT45; 1997(42)DRJ686
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 1
AppellantDayanita Singh
RespondentRanjit Kaur
Advocates: S.K. Kaul,; Mukul Rohatagi,; D.N. Goverdhan,;
Excerpt:
civil procedure code, 1908 - order 39 rules 1, 2 & 4--injunction--vacation of--joint property--allegedly inherited by plaintiff and defendants--defendant no. 1 entered into agreements with other defendants to raise construction--claimed rights affected--pleaded--documents are sham, bogus, null and void and not enforceable--co-ownership claimed--sought restraint order against dealing of property and recovery of rent--ex-parte injunction granted--defendants pleaded plaintiff accepted absolute right of ownership of defendant no. 1--order modified--defendants restrained not to alienate, part with possession of the premises--disposed of. - labour & services disability pension: [vikramajit sen, sanjiv khanna & s.l.bhayana,jj] army act (46 of 1950), section 192 & pension regulations for the.....s.k. mahajan, j. (1) the plaintiff claiming herself to be the co-owner of the property being no.b-68, greater kailash-i, new delhi along with defendants 1 to 4, has sought partition of her 1/5th undivided share in the said property. she has also claimed rendition of accounts from defendant no. 1 and defendants 5 to 8. the case of the plaintiff in short is that the plot of land being no.b-68, greater kailash-i, new delhi was initially booked and purchased by her father late kanwar mahinderpal singh in the year 1958 from m/s. dlf housing & construction private limited; that prior to the execution of the said deed, kanwar mahinderpal singh was married to defendant no. 1 in april 1960 and he, thereforee, requested m/s. dlf housing & construction private limited to execute the sale deed in.....
Judgment:

S.K. Mahajan, J.

(1) The plaintiff claiming herself to be the co-owner of the property being No.B-68, Greater Kailash-I, New Delhi along with defendants 1 to 4, has sought partition of her 1/5th undivided share in the said property. She has also claimed rendition of accounts from defendant No. 1 and defendants 5 to 8.

The case of the plaintiff in short is that the plot of land being No.B-68, Greater Kailash-I, New Delhi was initially booked and purchased by her father late Kanwar Mahinderpal Singh in the year 1958 from M/s. Dlf Housing & Construction Private Limited; that prior to the execution of the said deed, Kanwar Mahinderpal Singh was married to defendant No. 1 in April 1960 and he, thereforee, requested M/s. Dlf Housing & Construction Private Limited to execute the sale deed in favor of the said defendant. Sale deed was, accordingly, executed in favor of defendant No. 1 on 12th May, 1965 and registered on 17th May, 1965 Kanwar Mahinderpal Singh died on 4th April, 1981. It is alleged by the plaintiff, who is daughter of defendant No. 1, that on 13th January, 1981 defendant No. 1 representing herself to be the sole owner of the aforesaid property entered into a construction agreement with defendant No. 6 for construction of a two and a half storied building thereupon as per plan sanctioned in her favour. The total cost of construction was alleged to be Rs. 30,50,000.00 which was to be initially borne by defendant No. 6 and would be paid by defendant No. 1 after completion of the building and on failure of the said defendant to pay, defendant No. 6 was to remain in possession of 50% of the built up area which was to be sold for the recovery of the cost of construction. After the property had been constructed, defendant No. 1 sold five flats for a total sale consideration of Rs. 33,15,000.00 and the amount due to defendant No. 1 was allegedly paid.

(2) On or about 26th May, 1989 a suit for partitioning the ancestral properties of Sir Datar Singh, late grandfather of the plaintiff, was filed by one Anand Deep Singh in this Court and the property being No.B-68, Greater Kailash-I, New Delhi was alleged to be belonging to late Sir Datar Singh and its partition was also, thereforee, claimed by Anand Deep Singh. An order of status quo was passed in the said suit on 26th May, 1989. The suit was ultimately decreed on 28th May, 1993 after the parties in the said suit had entered into a settlement and in terms of the decree defendants 1 to 4 and the plaintiff were declared to be the co-owners of this property bearing No.B-68, Greater Kailash-I, New Delhi. Defendant No. 5 is stated to be a confirming party to the said settlement. It is alleged that with a view to avoid certain interim/adverse orders that were likely to be passed in the aforesaid suit being Suit No. 1495/89, a pre-dated construction agreement was entered into between defendant No. 1 and defendant No. 6 purported to have been signed on 13th January, 1988. Under the said agreement a consideration of Rs. 135.00 per sq.ft. was agreed to be paid by defendant No. 1 to defendant No. 6 for construction of the super structure and another sum of Rs. 25,00,000/ was agreed to be paid for the interior/wood work. In terms of the said agreement, on the failure of defendant No. 1 to pay to defendant No. 6 the cost of construction of the building, the said defendant was to take possession of 50% of the built up area and to sell the same to recover the cost of construction. Under another clause of the agreement, the right was given to defendant No. 1 to terminate the second part of the agreement regarding interior/wood work subject to either (i) by payment of a sum of Rs. 9,00,000.00 or (ii) by granting a lease in favor of defendant No. 6 or its nominee for the entire built up front portion of the house No.B-68, Greater Kailash-I, New Delhi with a further right to the said defendant to sub let the said portion to any other person without further reference to defendant No. 1. It is alleged that acting on the aforesaid agreement, defendant No. 1 allegedly terminated the second part of the agreement and she in collusion with defendant No. 5 executed three separate lease deeds on 16th January, 1991 in favor of defendant No. 6 and its two nominees, namely, defendant No. 7 and defendant No. 8 by which front portion of the entire building was let to them on a rent of Rs. 7,500.00 per month. All the lease deeds were initially for a period of five years renewable at the request of lessee for a further period of fifteen years.

(3) That on the strength of the aforesaid three lease deeds wherein right to sub let had been given to defendants 6 to 8, the premises being the front portion of the aforesaid property was let to defendant No. 9, namely, Anz Grindlays Bank. A Memorandum of Understanding dated 1st May, 1991 was executed between defendant No. 5 for and on behalf of defendants 6 to 8 and Anz Grindlays Bank. On 31st May, 1991 lease deeds were executed by defendants 6 to 8 in favor of defendant No. 9 letting out the aforesaid premises on a monthly rent of Rs. 2,50,000.00 as also further sum of Rs. 75,000.00 per month for the fittings and fixtures. The lease was to commence from 1st June, 1991 and was initially for a period of 9 years with an option to the sub-lessee to renew the same for a further period of 9 years.

That it is the contention of the plaintiff that there was an order of status quo in Suit No. 1495/89 passed on 26th May, 1989 and the said order was vacated on 16th January, 1991 on which date the alleged lease agreements were entered into between defendant No. 1 and defendants 6 to 8. It is also alleged that against the order of the learned Single Judge passed in Suit No. 1495/89 vacating the stay, an appeal was preferred before the Division Bench and by order dated 19th April, 1991 the order of the learned Single Judge was set aside and the matter was remanded for further hearing. The Division Bench had also restrained the parties to the said suit from transferring, alienating or parting with possession of the said property till further orders to be passed by the learned Single Judge after remand. It is, thereforee, alleged that the lease deeds were executed by defendant No. 1 in collusion with defendant No. 5 in violation of the orders of the Court.

It is also the case of the plaintiff that the agreement dated 13th January, 1988 as well as the lease deeds dated 16th January, 1991 as also the lease deed dated 31st May, 1991 executed by defendants 6 to 8 on the strength of the aforesaid lease deed dated 16th January, 1991 were void being fraudulent and made for unlawful objects so as to defeat the provisions of law. The said agreements were allegedly entered into by defendant No. 1 in collusion with defendant No. 5 to perpetuate a fraud on the third party besides this Court and were liable to be declared unlawful one.

(4) It is also stated that by virtue of the family settlement dated 28th May, 1993 which resulted in a decree being passed by the Court in Suit No. 1495/89 the rights of the plaintiff and defendants 1 to 4 being owner of 1/5th share each in the aforesaid property were recognised by the Court and defendant No. 5 was a confirming party to the said settlement. It is, thereforee, alleged that defendants were aware of the fact that as the suit property belong to the plaintiff and defendants 1 to 4, they could not enter into any agreement in respect of the said property and the agreements entered into by defendant No. 1 were, thereforee, void since they proceeded on the assumption that the said property exclusively belonged to defendant No. 1. The plaintiff, thereforee, filed this suit for a declaration that the second construction agreement executed on 13th January, 1988 between defendant No. 1 and defendant No. 5 was void and not enforceable and binding on the plaintiff and that the three lease deeds dated 16th January,1991 executed by defendant No. 1 in favor of defendants 6 to 8 as also lease deed dated 31st May, 1991 executed by defendant No. 5 on behalf of defendants 6 to 8 in favor of defendant No. 9 were void, vitiated by fraud and executed without authority of the co-owners of the suit property. Plaintiff also claimed partition of the property by metes and bounds and also claimed a decree for rendition of accounts directing defendants 1 and 5 to 8 to render full and true account of the money received and receivable and the profits realised from the aforesaid property.

On summons having been issued to the defendants, separate written statements were filed by defendant No. 1 as well as by defendants 2 to 4. Written statements were also filed on behalf of defendants 5 to 8 as well as on behalf of defendant No. 9 While defendants 2 to 4 have fully supported the case of the plaintiff and have claimed 1/5th share each in the property, defendant No. 1 in her written statement has also besides supporting the case of the plaintiff stated that the agreement were entered into between her and defendants 5 and 6 to 8 only with a view to save this property from litigation which had been initiated by Anand Deep Singh, the grand son of Sir Datar Singh and it was never the intention of the parties to act upon the said agreements. It is also stated by her that series of documents were executed on the basis of trust only for keeping the other family members at bay and the object was that she and her four daughters should be protected from evil designs of the other family members so that the property was not grabbed by them and Defendant No. 5 taking benefit of his influence upon defendant No. 1 got the said documents executed from defendant No. 1 and she could not realise the game plan of defendants 5 to 9. The agreements, according to defendant No. 1, were void and they were not executed by free consent so as to constitute a valid agreement. The bargain is stated to be unconscionable and under undue influence.

(5) Defendants 5 to 8 in the written statement have denied the allegations made in the plaint and have stated that the suit was barred by time as also by the principles of res-judicata. Suit is also alleged to be barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure. It is stated that all the documents were executed prior to three years of the filing of the suit and the suit for declaration, thereforee, for declaring the said documents as null and void was barred by time. It is also stated that admittedly some portions of the property are owned by K.D.Jaitley, Madhu Malhotra, K.M.Properties, Savita Chopra and Trinity Builders and as none of the sale deeds executed in favor of the said persons had been challenged nor they had been made parties to the suit, the plaintiff would be deemed to have accepted the alienation by defendant No. 1 in favor of the above persons.The plaintiff by her own action has waived the right, if any, to claim that she has any interest in the property. Besides raising a few legal objections to the maintainability of the suit, it is stated that the suit is collusive and fraudulent between the plaintiff and defendant Nos. 1 to 4. It was also stated by defendants 5 to 8 that the plaintiff has concealed material facts from this Court and had not come to the Court with clean hands and was, thereforee, not entitled to invoke the equitable jurisdiction of this Court.

It is also the case of defendants 5 to 8 that in the suit bearing Suit No. 1495/89 entitled Anand Deep Singh v. Ranjit Kaur and others, it was the common stand of the plaintiff and defendants 1 to 4 that the property bearing No.B-68, Greater Kailash-I, New Delhi was the property of defendant No. 1 alone and no other person had any right thereto. It is, thereforee, stated that the plaintiff and defendants 2 to 4 were estopped from contending that the property belonged to them. The contesting defendants have also stated that the suit was hit by Section 3 of the Benami Transaction (Prohibition) Act and was barred by law. Some of the other objections taken by defendants 5 to 8 to the maintainability of the suit were as under : @SUBPARA = 'XIV. Without prejudice to the foregoing, it is submitted that the defendants No. 5 to 8 were put in possession of the suit property under the construction agreement and under the terms of the leases which are legal, valid and binding on the plaintiff and the defendant Nos. 1 to 4. The plaintiff had full knowledge of the fact that the said defendants were in possession, about sanction of the plans, raising of the construction by the defendants No. 5 and 6 at an expense running into several lakhs, leasing of the property to the defendants No. 6 to 8, payments made by the said defendants to the Mcd, lease with the defendant No. 9 and opening of a Bank in the premises which was given substantial publicity. The plaintiff herself has maintained an account with the defendant No. 9 Bank. The plaintiff having full knowledge of the foregoing, is estopped from raising the claim made in the plaint and from suing the partition or possession of the property.

XV.Without prejudice to the foregoing and without admitting any averment made in the plaint, the de fendants No. 5 to 8 respectfully submit that assuming without admitting that the plaintiff had any right, title or interest in the property, it is respectfully submitted that by the conduct of the plaintiff, the plaintiff is deemed to have permitted the construction made by the defendants No. 5 and 6, and the leases in favor of the defendants No. 6 to 8 which render their possession of the premises irrevocable. The plaintiff and the defendants No. 1 to 4 have delibately permitted the defendants No. 5 and 6 to raise permanent construction at substantial costs and have also caused the parties to vary their position and incur financial liability on the basis of the same. As such the conduct of the plaintiff and the defendants No. 1 to 4 amounts to actually having given consent amounting to agreement and in acquiescence to the raising of the construction under the agreement and leasing by the defendant No. 1 and all the other terms and conditions agreed to as well as admission of the ownership of defendant No. 1 of the property by the plaintiff and defendants No. 2 to 4. The conduct of the parties has been such that equity, principles of justice acquiescence and good conscience will presume in favor of the defendants No. 5 to 8 and against the plaintiff and defendants No. 1 to 4 and that they have no right to challenge the solemn agreement entered into between the defendant No. 1 and the defendants No. 5 to 8 and between the defendants Nos. 5 to 8 and the defendant No. 9. @SUBPARA = XVI. That the plaintiff has not come before this Hon'ble Court with clean hands and is disentitled to any relief in the present suit. Balance of convenience, interest of justice, equity are wholly in favor of the defendants No. 5 to 8 and against the plaintiff and the defendants No. 1 to 4.

XVII.That the alleged family settlement relied upon by the plaintiff is neither a relinquishment nor is release of title or interest by the defendant No. 1 nor it amounts to transfer of any interest in the property B-68, Greater Kailash, Part-I, New Delhi in favor of the plaintiff or defendants No. 2 to 4. The suit is baseless and misconceived for this reason alone.

XVIII.That the family settlement dated 28.5.1993 and the consent decree passed in Suit No. 1495/89 dated 25.8.93 is non est and is nullis juris, inasmuch as on the showing of the plaintiff herself consent on behalf of minors is stated to have been given. Defendant No. 5 could not have and/or was not vested with any authority or right or jurisdiction to give such consent. No interest of a minor in an immovable property can ever be alienated without the prior permission of the District Judge in which the immovable property is situated. Admittedly, no such permission was taken. Moreover, when any agreement or compromise to which minors are parties is to be recorded, a specific order has to be passed with reasons by the Hon'ble Court that any such consent is for the welfare of the minors and in their interest. Neither the permission was taken nor any such order was passed by the Hon'ble Court while passing the order dated 25th August, 1993. As such, the said compromise or a decree dated 25th August, 1993. is nullity in law and has to be ignored. No right could be claimed by the plaintiff on the basis of the alleged decree.

XIX.Without prejudice to the above it is submitted that in case the above objection is held against the defendants No. 5 to 8, it is submitted that the plaintiff at best would be entitled only to proportionate division of the rent payable by the defendants No. 6 to 8 to the defendant No. 1 and nothing more. The suit, the claim and the challenge therein are baseless and misconceived.

XX.That the defendants No. 6 to 8 were not a party to the alleged family settlement or to the suits or other proceedings conducted inter-se the family members of the plaintiff and the defendants No. 1 to 4. The defendants No. 5 to 8 were also neither a signatory nor a party to the compromise entered into between them and their relatives. As such, the same are not binding upon them and are of no legal consequence and effect.

XXI.The claim of the plaintiff based on a title allegedly derived from the decree passed in Suit No. 1495/89 is not maintainable as no suit lies to enforce the decree. @SUBPARA = XXII. The plea of the plaintiff of having been party to international acts to defraud the Courts cannot form the basis of avoiding transactions especially when substantial benefits have been derived there under and other side i.e. the defendants No. 5 to 8 have been made to incur large amounts of expenses and to vary their position by the plaintiff and defendant Nos. 1 to 4. This is more so in view of the fact that the replying defendants were not a party to any of the proceedings which were being contested by the plaintiff. @SUBPARA = XXIII. The alleged family settlement is also barred under the provisions of the Hindu Minority and Guardianship Act. The same is also the subject matter of challenge in Suit No. 1790/94 titled 'Mrs. Madhu Magotra and Others v. Mr. Mohan Magotra and Others' pending in this Hon'ble Court. The alleged compromise passed thereon is also of no legal consequence or benefit. The application under Order 23, Civil Procedure Code and the terms contained therein are barred in law and no judgment thereon could have been passed in the facts and circumstances of the case. In fact, the signatures of the replying defendant No. 5 have been procured fraudulently by the plaintiff and the defendants No. 1 to 4. The clause incorporating the confirmation of the replying defendant No. 5 is void, devoid of any consideration is illegal and is a result of a fraud practiced in conspiracy by the plaintiff and the defendants No. 1 to 4 and is not binding upon the replying defendants.

XXIV.That the replying defendants were not a party to the alleged oral settlement or any other clause or agreement contained in the Family Settlement but the defendant No. 5 was made a confirming party only to the clause pertaining to the land at Punjab Khor. None of the members of the confirming party were party to the suits or the Order 23 application of a party to the decree. The defendants No. 6 to 8 were neither the confirming party nor a party to the alleged settlement or the Order 23 application or the suit. As such, the family settlement dated 8.5.93 and the compromise dated 28.5.93 are not binding upon the replying defendants. @SUBPARA = XXV. That the plaintiff and the defendants No. 1 to 4 are bound by their admissions made on Court record in Suit No. 1495/89 entitled 'Anand Deep Singh v. Ranjit Kaur and Others' and in Suit No. 63/75 wherein it was admitted by the plaintiff and the defendants No. 1 to 4 that late Kanwar Mahinder Pal Singh was not a Karta of any Hindu joint family and that the plot No.B-68, Greater Kailash, Part-I, New Delhi was bought by Mrs. Ranjit Kaur presently defendant No. 1. It was also admitted that the property was being constructed by the defendant No. 1 under an agreement. the plaintiff and the defendants No. 1 to 4 are estopped from contending to the contrary. The judicial admission contained in the suit are conclusive and no evidence to the contrary can be led.'

(6) It is also the case of defendants 5 to 8 that the plaintiff and her sisters had throughout accepted the right of ownership of defendant no. 1 in the property; that after the death of Kanwar Mahinderpal Singh they had filed estate duty return and the suit property was not included as a part of the estate of deceased Kanwar Mahinderpal Singh. Even in the Wealth Tax and Income-Tax returns filed by the plaintiff and defendants 1 to 4, the property in suit has been shown to be the exclusive property of defendant No. 1 and it has not been asserted anywhere that it was the estate of Kanwar Mahinderpal Singh. Defendants 1 to 4 have also in their separate income-tax returns not shown this property as belonging to them. It is also stated that defendant No. 1 having taken benefit under the agreements and having acted upon the same, was now estopped from denying the execution of the said agreements. It is stated that defendant No. 1 and defendant No. 5 promoted a company called as Noni Builders Private Limited both having 50% interest in the same. Though the work under the construction agreements at B-68, Greater Kailash-I, New Delhi was carried out through the finances provided by defendants 5 to 8 and relatives of defendant No. 5 to defendant No. 1 and Noni Builders (P) Ltd. but utilising the instrumentality and corporate entity of Noni Builders Private Limited, in which defendants 5 to 8 had 50% interest. This Company had also entered into a construction agreement with Genl.R.S.Pantal for construction of a building at Vasant Vihar, New Delhi. It is stated that defendant No. 5 had advanced a loan of Rs. 11,00,554.00 to the company. He had also a share capital of Rs. 1,00,100.00 as well as application money of Rs. 60,000.00 in the said company. Against this amount defendant No. 1 is stated to have paid a sum of Rs. 5,21,321.00 as loan to the company and she had share money of Rs. 1,00,100.00 in the said company between 1988 to 1993. Defendant No. 5 is stated to have not received a single penny out of the construction of the building at Vasant Vihar whereas defendant No. 1 and her daughters had not only allegedly fraudulently taken possession of one of the two flats in the building in Vasant Vihar but she also had taken benefit from the company in the shape of a Tempo Traveller, Maruti car, goodwill and other assets. Realizing that as on 18th February, 1994 defendant No. 1 and the said Noni Builders Private Limited were owning huge sums of money to defendants 5 to 8, they started pressurising the defendants to settle the accounts and to adjust the amount so that nothing remained due from either side. It is stated that Memorandum of Understanding was, thereforee, entered into on 18th February, 1994 whereby entire amount due from defendant No. 1 and Noni Builders Private Limited was shown to have been adjusted against non existing dues, except that defendant No. 5 was given the right to recover the amount from debtors of defendant No. 1 to the extent of Rs. 4,30,630.00 . The Memorandum of Understanding dated 18th February, 1994 is stated to be without any legal or valid consideration and it was allegedly undertaken by defendant No. 1 that she would pay a sum of Rs. 28,89,288.00 before 30th June, 1994. Subject to this Memorandum of Understanding defendant No. 5 is stated to have resigned from the company. @BTINDENT = It is also stated that property measuring 109 acres in Punjab Khor was sold by the plaintiff and defendants 1 to 4 to defendant No. 5. The said property was stated to be extremely valuable and defendant No. 5 and his relatives had been put in possession of the said property. During settlement in Suit No. 1495/89, defendant No. 5 is stated to have been approached by the plaintiff and defendants 1 to 4 to release 41.2 acres of the said land, which had a very good situation facing the main road, to the branch of late Sh.Maninder Singh who was the brother of Kanwar Mahinderpal Singh to enable them to settle their personal affairs. Defendant No. 5 with a view to assist the plaintiff and defendants 1 to 4 agreed to release the said land and to receive a small plot of land measuring 7.14 acres in lieu thereof which was not located at an ideal place. It is stated that but for defendant No. 5 having agreed to this understanding, no compromise had been possible in Suit No. 1495/89 and it was only to record this aspect of Punjab Khor land that defendant No. 5 was made to sign the settlement as a confirming party. It is stated that none of the other dealings between the parties i.e. between defendants 5 to 8, plaintiff and defendant Nos. 1 to 4 were even referred to in the said settlement and defendant No. 5 being not a party to Suit No. 1495/89, it is stated, could not be bound by the same.

(7) It is further the case of defendants 5 to 8 that even assuming that plaintiff and defendants 2 to 4 had any share in the property, they had executed general power of attorneys in favor of defendant No. 1 and these power of attorneys having not been cancelled till date, they were bound by any transaction which might have been entered into by defendant No. 1 on their behalf. It is, thereforee, stated that neither the plaintiff nor any of the defendants 1 to 4 were entitled to challenge the lease deeds which had been executed by defendant No. 1 in favor of defendants 6 to 8 or the lease deeds executed by defendants 5 to 8 in favor of defendant No. 9. The suit is stated to be an abuse of the process of the Court and the plaintiff is alleged to be guilty of suppression of facts.

Defendant No. 9 has filed its separate written statement and besides stating that the suit is collusive between the plaintiff and defendants 1 to 4 and the plaintiff had no right whatsoever in the property, it is stated that defendant No. 9 was neither necessary nor a proper party to the suit. It is stated that the family settlement dated 28th May, 1993 was not of any legal force as the same was not registered. It is also stated that it was on the representation made by defendant No. 1 that defendants 6 to 8 had legal right and authority to give the property on lease to defendant No. 9 that the said defendant took the said premises for purposes of Bank under the registered lease deed dated 31st May, 1991. It is stated that even assuming that the family settlement dated 28th May, 1993 was correct, the rights, if any, were created in favor of the plaintiff only on 28th May, 1993 and she, thereforee, could not challenge the transaction which took place prior to her becoming the joint owner in the property. It is also stated that plaintiff had not come to the Court with clean hands and suppressed material facts in as much as she was fully aware about each and every transaction between her mother and defendants 5 to 8. Moreover defendant No. 9 on the representation of defendant No. 1 that defendants 6 to 8 had the right to sublet the property, had provided credit facility to the extent of Rs. 78,00,000.00 in favor of the said defendants and the said defendants had secured the aforesaid credit facility by executing various documents in the nature of agreement relating to assignment of rent, etc. in favor of defendant No. 9. It is stated that defendant No. 9 has every right to adjust the total outstanding from the said defendants against the rent which may become due from the Bank to the said defendants. The suit is stated to be frivolous.

Along with the suit, the plaintiff had also filed an application for the grant of an ad-interim injunction for restraining the defendants from alienating, incorporating, transferring or executing any document or parting with possession of any portion of the property being No.B-68, Greater Kailash-I, New Delhi and from entering into any arrangement for encashment of rent or capitalising the same or for creating any credit limits on the basis of rentals being realised. It was also prayed that a direction be given to defendant No. 9 to deposit the amount of rental in this Court. This application came up for ex parte hearing on 30th May, 1994 and after hearing learned counsel for the plaintiff the Court passed the order in the following terms :-

'NOTICE for 8th July, 1994.

Having gone through the averments made in the application, I find that it is a fit case to grant ex parte injunction. In case ex parte injunction is not granted, plaintiff is like to suffer irreparable loss and injury. Consequently, by way of ex parte interim injunction, the defendants are restrained from transferring, alienating of otherwise encumbering, in any manner, the suit property bearing No.B-68, Greater Kailash, Part-I, New Delhi. Defendants are also restrained from carrying out any additions or alterations or construction in the suit property. Defendants are also restrained from entering into arrangement for encashment of rent or from creating credit limits on the basis of rental of the property in question. Defendant No. 9 is directed to deposit the amount of rent in the Registry of this Court.

Plaintiff to comply with the requirements of Proviso to Order 39 Rule 3, CPC. Dasti'

(8) An application was thereafter made by defendant No. 9 under Order 39 Rule 4, Civil Procedure Code for vacating the said order of injunction in so far as defendant No. 9 was concerned on the ground that as on the date of filing of the application, defendants 6 to 8 owed a sum of more than Rs. 23,00,000 to the Bank and the Bank was, thereforee, entitled to adjust the amount which they were liable to pay in terms of the lease deed against the amount which was due from the said defendants to the Bank. On 6th June, 1994 this Court on the application of defendant No. 9 passed an interim order directing that till the next date defendant No. 9 may not deposit the amount in the Court. By this order, I propose to dispose of these two application, namely, one filed on behalf of the plaintiff for the grant of ad-interim injunction and second the application of defendant No. 9 for modifying the order of injunction dated 30th May, 1994.

(9) The main contention of the plaintiff is that the property in suit was owned by her father and after his death the same was inherited by her as well as by defendants 1 to 4. It is, thereforee, contended that defendant No. 1 could not enter into any agreement with defendants 5 to 8 and any agreement which affects the rights of the plaintiff in the said property is not binding upon the plaintiff. It is the contention of Mr.Kaul, learned counsel for the plaintiff, that by the settlement arrived at between the members of the family of late Sir Datar Singh, the right of the plaintiff in the said property was upheld by the Court. By an order dated 26th May, 1989 passed in IA. No. 4224/89, it is contended by Mr.Kaul, the defendants in that case which included the present defendant No. 1 in this suit, were restrained from dealing with the property in any manner and the parties to that suit were directed to maintain status quo. This order was vacated by the Court on 16th January, 1991. Further in appeal filed against the said order, the Division Bench of this Court in FAO.(OS). No. 57/91 by order dated 19th April, 1991 remanded the case back to the learned Single Judge for reconsideration and the Counsel appearing for the plaintiff and other defendants including defendant No. 1 made a statement that till fresh orders were passed by the learned Single Judge, the property being No.B-68, Greater Kailash-I, New Delhi shall not be transferred, alienated or parted with possession to a third party. Ultimately on 28th May, 1993 the said suit was compromised after the parties had arrived at a settlement. By way of the settlement and the decree passed in the said suit, it was held by the Court that 'the plot of land admeasuring 1,000 sq.yds. and the building built thereon at B-68, Greater Kailash-I, New Delhi shall be owned by the first party. The property already stand in the name of Smt.Ranjit Kaur vide a registered sale deed in her favor dated 12th May, 1965. The members of the first party are free to hold and divide the same amongst themselves in any manner they like and the other parties shall have no right, title, interest of claim in the said property at B-68, Greater Kailash-I, New Delhi.' The first party in the said suit included the present plaintiff and defendants 1 to 4. Defendant No. 5 singed the said family settlement dated 28th May, 1993 as a confirming party and it was stated therein that the family arrangement has been consented to by the confirming parties of their own free will. It is, thereforee, contended that pursuant to the decree having been passed in the said suit, the rights of the plaintiff along with defendants 2 to 4 were confirmed and recognised by the Court as well as by defendant No. 5 as co-owners of the property along with defendant No. 1. It is also contended by Mr.Kaul that execution of the lease deeds dated 16th January, 1991 i.e. the date on which the status quo order was vacated by the learned Single Judge, was only with the intention of avoiding the orders which were likely to be passed in the proceedings pending in Suit No. 1495/89 and the same were never intended to be acted upon and were stated to be sham and bogus documents. According to the plaintiff, agreements for constructions were fully discharged and satisfied and all the payments required to be made were made to the defendants by sale of the flats and nothing further remained to be done and there was, thereforee, according to the plaintiff, no occasion for execution of the lease deeds in favor of defendants 5 to 8. Summing up, Mr.Kaul contended that once the litigation in Suit No. 1495/89 was settled, the documents and more particularly the lease deeds dated 16th January, 1991 stood nullified and cancelled as they were never intended to create any right or transfer of any right in favor of defendants 5 to 8. The said documents, thereforee, stated to be sham, bogus, null and void and not enforceable against the plaintiff. Plaintiff, thereforee, claiming to be a co-owner in the property seeks an order restraining defendants 5 to 8 from in any manner dealing with the property or recover the rent from defendant No. 9 till the decision of the suit.

Mr. Mukul Rohtagi, Senior Advocate, appearing on behalf of defendants 2 to 4 and Mr. D.N. Goverdhan appearing on behalf of defendant No. 1 have supported the arguments of the plaintiff. I, thereforee, need not separately discuss the contentions of the said defendants.

(10) MS.GITA Mittal, learned counsel appearing on behalf of defendants 5 to 8 has vehemently contended that the stand now taken by the plaintiff and defendants 1 to 4 was not supported by the documents on record and the suit had been filed only to harass and pressurise the said defendants. It is the submission of Ms.Mittal that the property in suit had never been shown either by the plaintiff or by any of the defendants 1 to 4 to be owned by Kanwar Mahinderpal Singh and this property was always shown as the exclusive property of Mrs.Ranjit Kaur, defendant No. 1. It is submitted that after the death of Kanwar Mahinderpal Singh the Estate Duty returns were filed and this property was not included as a part of the estate of Kanwar Mahinderpal singh. Even in the Wealth-Tax returns this property has always been shown by Mrs.Ranjit Kaur as her own property and neither the plaintiff nor any of defendants 2 to 4 had ever shown this property as their property in their respective Wealth-Tax returns. The plaintiff as well as defendants 2 to 4 in their separate Wealth-Tax returns while claiming 1/5th share from the estate of Kanwar Mahinderpal Singh had not shown to have inherited any part of the disputed property. Ms.Mittal has also drawn my attention to the application being IA. No. 6389/94 under Order 39 Rule 4, Civil Procedure Code filed by defendants 5 to 8 wherein in paragraph 21 it has been contended that 'the plaintiff has throughout accepted the absolute right of ownership of defendant No. 1 of the property bearing No.B-68, Greater Kailash-I, New Delhi.' The contentions raised in paragraph 21 of the application reads as under :-

'THAT the plaintiff has throughout accepted the absolute right of ownership of the defendant No. 1 of the property bearing No.B-68, Greater Kailash-I, New Delhi. The plaintiff and the defendants 1 to 4 have been assessed to different Government authorities for various purposes including Income tax, Wealth tax and Urban Land Ceiling Tax, etc. The said property has been reflected as the property of the defendant No. 1 in all returns at all material time by the defendant No. 1 and even under the signatures of the plaintiff and the defendants No. 1 to 4. After the death of late Sh.Mahender Pal Singh in 1981 no estate duty was paid in respect of the property No.B-68, Greater Kailash-I, New Delhi in as much as the said property never from part of the estate and belong exclusively and absolutely to the defendant No. 1. Furthermore the garage block which was constructed on the said property had been raised by the defendant No. 1 after sanction of building plans etc. in her name originally. The defendant No. 1 has shown the said property as belonging to her in the wealth tax returns filed by her including the years 1989-90, 1990-91 and subsequently. The said returns were filed on her behalf by her daughter Rishma Singh presently the defendant No. 4 and a complete statements of wealth was enclosed showing the immovable property B-68, Greater Kailash-I, New Delhi as belonging to the defendant No. 1 along with 1/5th share in the estate of late Kanwar Mahender Pal Singh. The defendant No. 1 had even shown her liability to the defendant No. 6 in the said return. The division of the wealth of late Kanwar Mahender Pal Singh for the assessment year 1990-91 was also enclosed which was duly signed by the plaintiff and by defendant Nos.1 to 4. The property No.B-68, Greater kailash-I, New Delhi was never mentioned as form part of wealth of late Kanwar Mahender Pal Singh. It is pertinent to mentioned that the statement of wealth for the year 1989-90 of Mrs.Ranjit Kaur the defendant No. 1 herein was initially also signed by the plaintiff whose signatures have been scored out as being not required on the said return. The plaintiff had also admitted that the property No.B-68, did not form part of the estate of late Kanwar Mahender Pal Singh and further that she had no right title or interest therein in view of the fact that the same was never mentioned in her wealth tax return or statement of assessable wealth. The plaintiff is bound by such admissions made to all authorities.

Defendant No. 1 in her reply has not denied the allegations made in para 21 of the application while the plaintiff in her reply has stated that the said averments were not relevant. Para 21 of the reply of the plaintiff to the aforesaid averments reads as under:

'Contents of para 21 as stated are wrong and are denied. Rights of the plaintiff being reiterated in the compromise to which the answering defendants are parties. In view of the same rights of the plaintiff are solutely clear. The wealth-tax and income-tax returns are not material as the said property was subject matter of dispute. In any case, admittedly the plaintiff was never party to the same. It is in fact the answering defendants who are bound by the compromise order and decree dated 25.8.1993 recognising the rights of the plaintiff.'

(11) Defendants 5 to 8 have clearly stated in the application being IA. No. 6389/94 that the plaintiff had accepted the absolute right of ownership of defendant No. 1 in the property bearing No.B-68, Greater kailash-I, New Delhi and the said property had at all material times been shown to be the exclusive property of defendant No. 1 in the income-tax and wealth-tax returns. Moreover the said property had not been shown in the estate duty return to be the property owned by the deceased Kanwar Mahinderpal Singh. The plaintiff in reply to the said contentions raised by defendants 5 to 8 has in her reply stated that her rights had been reiterated in the compromise to which defendant No. 5 was a confirming party and in view of the same the wealth tax and income-tax returns were not material as the property was subject matter of dispute. However, I find that prior to the filing of the said suit in May, 1989 the said property was never in dispute in any litigation amongst the heirs of late Sir Datar Singh. It was for the first time that in Suit No. 1495/89 one Anand Deep Singh had shown this property also to be a property of Hindu undivided family of Sir Datar Singh and claimed a share therein. The plaintiff and defendants 1 to 4 had filed joint written statement in reply to the said suit. In the said written statement also which was verified on 6th March, 1990 the plaintiff as well as defendants 1 to 4 had stated that House No.B-68, Greater Kailash-I was never the joint family property of Sir Datar Singh and the same was purchased by defendant No. 1 - Mrs. Ranjit Kaur in the year 1965. It is also stated that nobody had even claimed that the property in suit was purchased from the funds of Huf and the allegation that the house was purchased from the joint Hindu family fund was vague and liable to be struck off. It was also denied by them in the written statement that Kanwar Mahinderpal Singh had purchased property No.B-68, Greater Kailash-I, New Delhi in the name of his wife i.e. defendant No. 1. It is also the case of the plaintiff and defendants 1 to 4 in the written statement in Suit No. 1495/89 that 'plot No.B-68, Greater Kailash-I, New Delhi was bought by defendant No. 1 Mrs.Ranjit Kaur.' Neither the plaintiff nor defendants 2 to 4 asserted their right in this property and they also admitted that defendant No. 1 was constructing the property under an agreement. The only agreement which at that time defendant No. 1 had entered into was the agreement with defendant No. 5. On 26th July, 1987 the first agreement was entered into by defendant No. 1 with defendant No. 5 for development of this property. In the said agreement defendant No. 1 had represented herself to be the owner of plot No.B-68, Greater Kailash-I, New Delhi and the property was agreed to be developed by defendant No. 5 in accordance with the terms contained in the said agreement. This agreement has been duly witnessed by the plaintiff. As on 26th July, 1987 when this agreement was entered into, there was no dispute about this property and I am, thereforee, of the view that the stand taken by the plaintiff that the wealth tax and income-tax returns were not material as the property was subject matter of dispute, is not correct. As already mentioned above, for the first time the dispute, if any, about this property was raised by one Anand Deep Singh only in May, 1989 when Suit No. 1495/89 was filed. By that time not only that the agreement of 26th July, 1987 was entered into between the parties but some other agreements were also entered into between defendant No. 1 and defendant No. 5 in January, 1988. Before the date of filing of the aforesaid Suit No. 1495/89 defendant No. 1 had already sold different portions of the property, after the same had been constructed by defendant No. 5. By virtue of a sale deed executed on 26th March, 1989 lower ground floor unfinished space in the rear portion was sold to Mr.K.D.Jaitley while another portion of the property was sold to Madhu Magotra on 31st March, 1989. On the same date one portion of the property was sold to M/s.K.M. Properties and by a sale deed dated 24th May, 1989 Smt.Savita Kumari Chopra purchased one portion of the property. All these sale deeds were duly registered before the Sub-Registrar of Assurances transferring different portions of the property to different buyers. Till this date there was no litigation in respect of the property bearing No.B-68, Greater kailash-I, New Delhi nor any of the sale deeds executed by defendant No. 1 in favor of said persons has been challenged by the plaintiff. That being the position, I am prima facie of the view that the plaintiff and defendants 2 to 4 had also by their conduct represented to defendant No. 5 that defendant No. 1 was the exclusive owner of the property and she had every right to deal with the same in any manner she liked.

(12) On 16th January, 1991 the plaintiff had by virtue of three separate lease deeds let out different portions of the property to defendants 6 to 8. The said lease deeds were duly registered before the Sub-Registrar of Assurances. By virtue of the powers given to defendants 6 to 8 to sub let the premises, the said defendants entered into a Memorandum of Understanding with the Anz Grindlays Bank, defendant No. 9, on 1st May, 1991 agreeing to let out to the Bank the said portions of the property on the terms and conditions contained in the said Memorandum of Understanding. Under this lease the Bank had agreed to keep deposited with defendants 6 to 8 an amount equivalent to six months rental and six months charges for fittings and fixtures as advance by way of security during the entire period of lease. Before Memorandum of Understanding dated 1st May, 1991 was entered into between defendants 6 to 8 and the Bank, it appears that the said defendants had already informed defendant No. 1 about the proposal to sub let the premises to the Anz Grindlays Bank. Defendant No. 1 thereforee, on 25th March, 1991 executed an indemnity bond which was duly registered with the sub-Registrar of Assurances on 26th March, 1991. A recital in the bond shows that defendants 6 to 8 had agreed to deposit a part of the advance amount with defendant No. 1 in consideration of her executing the indemnity bond in favor of Anz Grindlays Bank indemnifying them from any claim by defendant No. 1, her successors, trustees and beneficiaries. Under the bond, defendant No. 1 indemnified Anz Grindlays Bank up to the extent of amount paid by them to M/s.Goodfaith Constructions Private Limited; M/s. Healthy Holdings Private Limited and M/s. Govind Impex Private Limited, defendants 6 to 8 respectively as consideration of lease amount for use of the front portion of the upper ground floor and lower ground basement, first and second floor of the house No.B-68, Greater Kailash-I, New Delhi. An affidavit was also sworn by defendant No. 1 stating that she was the sole and absolute owner of the property and she had no objection if the tenants, namely, defendants 6 to 8 sub let the premises to any other sub-tenant on such terms and conditions as they may consider appropriate. It was after the execution of the indemnity bond and the affidavit that the Memorandum of Understanding was arrived at between the Bank and defendants 6 to 8 on 1st May, 1991 and a proper lease deed was executed on 31st May, 1991. On 20th November, 1991 addendums to the three lease deeds dated 16th January, 1991 were executed between defendant No. 1 and defendants 6 to 8. By virtue of the addendum executed on 20th November, 1991 between defendant No. 1 and M/s. Healthy Holdings Private Limited, defendant No. 7, a sum of Rs. 4,92,000.00 was given to defendant No. 1 as interest free deposit required to be refunded at the expiry of the final lease. It was further provided in this addendum that lease in favor of Healthy Holdings Private Limited shall be co-terminus with the tenancy of Anz Grindlays Bank. Similar terms appear in the addendums to the lease deeds with defendants 6 and 8. A sum of Rs. 4,92,000.00 was paid by defendant No. 8 and a sum of Rs. 5,41,000.00 was paid by defendant No. 6 to defendant No. 1 as interest free deposit. The defendant No. 1 was, thereforee, paid a sum of more than Rs. 15,00,000.00 as interest free security on 20th November, 1991. Defendant No. 1, was fully conscious of the agreements arrived at by her with defendants 6 to 8 and she has also derived benefit from the same. It cannot, thereforee, be said that these agreements were not intended to be acted upon. Prima facie, there does not appear to be any misrepresentation or undue influence which might have forced defendant No. 1 to execute the said documents.

From the records I find that the Delhi Development Authority had objected to the user of a part of the building by the Bank, the same being allegedly in violation of the master plan and the zonal development plan and a notice dated 16th December, 1991 was, thereforee, issued to defendant No. 1. In reply to the said notice, defendant No. 1 through her lawyer wrote to the Delhi Development Authority that she had leased out the premises to defendants 6 to 8 with permission to sub let the same and her lessees had sub let the premises to the Bank which was using the same for running the same. In the said reply defendant No. 1 justified the user of the premises by the Bank. It is, thereforee, clear that not only that defendant No. 1 was aware of subletting of the premises to the Bank but she was also a party thereto and justified the premises having been sub let to the Bank. She was also a beneficiary of the subletting of the premises to the Bank inasmuch as a sum of more than Rs. 15,00,000.00 had been given to her as interest free security in consideration of the premises having been sub let by defendants 6 to 8 to the Bank. In my view, defendant No. 1 having permitted the subletting of the premises to the bank and having given an affidavit as well as indemnity bond indemnifying defendant No. 9, the Bank, against any loss which might be suffered by the Bank on account of any litigation by her or by her successor or assignee, defendant No. 1 is prima facie estopped from challenging the rights of defendants 6 to 8 to sub let the premises to the Bank.

As per the lease deed entered into between the Bank and defendants 6 to 8, the Bank had agreed to provide loan facility up to a maximum limit of Rs. 78,00,000.00 equivalent to two years rental and two years charges for fittings and fixtures. The Bank had provided overdraft facility to the extent of Rs. 78,00,000.00 to defendants 6 to 8 and as on 1st June, 1994 a sum of more than Rs. 23,00,000.00 was still outstanding from the said defendants and the Bank has the first registered charge over the book debts of defendants 6 to 8 and the said defendants had assigned the monthly rentals recoverable by them from the Bank in favor of the Bank which form the prime security of the bank to recover the outstanding from the said defendants.

(12) It is, thereforee, clear that the property in dispute had all along been asserted by defendant No. 1 to be her exclusive property. The plaintiff as well as defendants 2 to 4 had also supported the said right of defendant No. 1 and by their conduct, prima facie, it appears that they had also made it known that it was the defendant No. 1 who was the exclusive owner of the aforesaid property. Even in the written statement filed on 6th March, 1990 in Suit No. 1495/89 the plaintiff as well as defendants 1 to 4 stated that the property was purchased by defendant No. 1 Mr.Ranjit Kaur and she was absolute owner of the same. They also in the said written statement admitted that defendant No. 1 was constructing the property under an agreement and as already mentioned above, the only agreement in existence at the relevant time was the agreement for construction of this property with defendant No. 5. It was in May 1993 that the parties in Suit No. 1495/89 entered into a settlement whereby the plaintiff and defendants 2 to 4 were declared to be co-owners along with defendant No. 1 of the said property. However, by that time not only that defendant No. 1 had executed lease deeds in favor of defendants 6 to 8 but the said defendants in turn had sub let the premises to the Bank - defendant No. 9. The subletting by defendants 6 to 8 to the Bank was further confirmed and agreed to by defendant No. 1 by executing the addendums on 20th November, 1991 and she also obtained certain benefits by executing the said addendums. She also executed indemnity bond as well as affidavit confirming that she was the absolute owner of the property in suit. The plaintiff has not only not challenged the lease deeds executed by defendant No. 1 in favor of defendants 6 to 8 but she has also not challenged the lease deeds executed in favor of S/Sh.K.D.Jaitley, Madhu Maghotra, K.M.Properties, Savita Chopra and Trinity Builders which prima facie show that the plaintiff is not objecting to the transfer of the said properties by defendant No. 1 in favor of the said persons. It appears that while the plaintiff is not denying the right of defendant No. 1 to sell a portion of the property, she is denying her right to let out the premises to defendants 6 to 8. The plaintiff also prima facie appears to be aware of the Bank having taken possession of a portion of the property as she had opened an account with the Bank much earlier to the settlement arrived at in May, 1993 in Suit No. 1495/89. The plaintiff may claim her share, if any, of the rent from defendant No. 1 which she is receiving from defendants 6 to 8 but in my view she cannot enforce any of her alleged rights against defendants 5 to 8. In my view, thereforee, the conduct of the plaintiff does not entitle her to the grant of an order of injunction restraining the Bank from making payment of the rent to defendants 6 to 8 which the said defendants are admittedly entitled to claim from the Bank on account of their having let out the premises to it. To me, there does not appear to be any prima facie case in favor of the plaintiff to the grant of the said relief.

In view of the aforesaid, I modify the orders dated 30th May, 1994 and 6th June, 1994 and allow the application of the plaintiff only to the extent that defendants 5 to 8 shall not in any manner transfer, alienate or part with possession of the premises, now in possession of defendant No. 9, to any other person after the same is vacated by the Bank, without permission of this Court, till decision of the suit.

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13. Any observation made in this order will have no bearing on the merits of the case. With these observations, applications stands disposed of.


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