Full Judgment Text
HIGH COURT OF DELHI : NEW DELHI
C.S. (OS) No. 192/1999
Judgment reserved on: July 18, 2007
Judgment delivered on: January 07, 2008
# Abhay Sapru, ..... Plaintiff
! Through: In person
versus
$ Chitralekha Bakshi & Anr., ..... Defendants
^ Through: Mr. Sanjay Jain, Senior
Advocate with Mr. Jayant
Tripathi and Mr. Arjun Mitra,
for the Defendant No. 1.
*CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
VIPIN SANGHI, J.
1. The Plaintiff has filed the present suit for partition and
permanent injunction in respect of property bearing No.16A, Westend,
New Delhi. The substantive reliefs prayed for in the suit reads as
follows:
“pass a preliminary decree of partition
declaring that the Plaintiff and Defendants
rd
each have 1/3 share in property No. A-16,
Westend, New Delhi – 110021; and
thereafter appoint a Local Commissioner to
partition the suit property by metes and
bounds and pass a final decree after
C.S. (OS) No. 192/1999 Page 1 of 23
considering the report of the Local
Commissioner ; and
pass a decree of permanent injunction in
favour of the Plaintiff and against the
Defendants restraining them from creating any
third party rights/interest in any manner
whatsoever in the property No. A-16, Westend,
New Delhi – 110021;
pass a decree of permanent injunction in
favour of the Plaintiff and against the
Defendants restraining them from making any
additional construction and/or alterations in the
property No. A-16, Westend, New Delhi –
110021; and ”
2. Defendant No. 2, now deceased, was the mother of the
Plaintiff, while Defendant No. 1 is the sister of deceased Defendant No.
2. Defendant No. 2 passed away on 28.12.2005 and the Plaintiff being
the only legal representative of Defendant No. 2, exclusively
succeeded to her estate.
3. The admitted facts are that Late Gen. B.M. Kaul acquired
perpetual leasehold rights in respect of Plot No.16A, West End, ad
measuring 1205 sq. yds. New Delhi, vide a registered sub-Lease Deed.
Late Gen. B.M. Kaul built a single storied house on the said plot. He
passed away on 18.04.1972 leaving behind his widow Smt. D.K. Kaul
and two daughters, i.e. the two Defendants herein as his only class I
heirs. The mother of Late Gen. B.M. Kaul had predeceased him. The
Delhi Development Authority (DDA) mutated the leasehold rights in
respect of the leased plot in the name of Smt. D.K. Kaul and the two
C.S. (OS) No. 192/1999 Page 2 of 23
th
Defendants on 20 November 1978. The Diplomatic Enclave Extension
Cooperative House Building Society Ltd., in the year 1979, also
mutated the said property in the name of Smt. D.K. Kaul, Smt.
Anuradha Sapru defendant No. 2, and Smt. Chitralekha Bukshi
Defendant No.1. Consequently, late Smt. D.K. Kaul, defendant No. 2
rd
and defendant No.1 became entitled to 1/3 share each in the suit
property.
4. The Plaintiff states that in the year 1985, Smt. D.K. Kaul
and Defendant No. 2 i.e. his mother nominated the Plaintiff as the
rd
nominee with respect to their 1/3 share each in the suit property.
Smt. D.K. Kaul died intestate on 25.11.1993. The Plaintiff states that
since Smt. D.K. Kaul died intestate, the Plaintiff became owner of her
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1/3 share in the suit property being her only nominee in terms of
Section 27 of the Delhi Cooperative Societies Act, 1972 and bye laws
framed by the society. When he requested the society for recording his
name in place of Smt. D.K. Kaul in the records of the society, the same
was refused by the society on the ground that nomination by a
member does not give a right of inheritance to the nominee and the
same is governed by the normal law of the inheritance. This stand of
the society, according to the Plaintiff, was contrary to law. The Plaintiff,
rd
by asserting his right to succeed to the 1/3 share left by Smt. D.K.
Kaul, filed the present suit for the reliefs as aforesaid.
5. Defendant No.1 filed her written statement. She
C.S. (OS) No. 192/1999 Page 3 of 23
admitted the facts as recorded aforesaid in paragraphs 2 & 3. She
further states that after about 16 years of her father's death, there
were simmering of dispute. An oral family settlement was arrived at,
th
which was recorded in a memorandum on 12 February 1988 duly
signed by late Smt. D.K. Kaul and the two daughters, namely
Defendant No. 1 and 2. She further states that as per the family
settlement, she took exclusive possession of the terrace and above the
ground floor, while the mother late Smt. D.K. Kaul and Defendant No. 2
retained the ground floor and continued to live in it. She further states
that in terms of the settlement, she commenced construction on the
first floor with her own funds and with the funds of her husband. The
mother late Smt. D.K. Kaul and Defendant No. 2 and the Plaintiff
acquiesced. On 25.11.1993, the mother Smt. D.K. Kaul died leaving
surviving two daughters, i.e., Defendant No. 1 and 2. She died
intestate. The two daughters succeeded in equal shares to the
property of Smt. D.K. Kaul. The estate of Smt. D.K. Kaul had to be
worked out keeping in view the family settlement of 1988. In 1994,
the construction on the first floor was completed by Defendant No. 1
and said portion was let out to a tenant and she recovered the rents
from the tenants as an owner. The property taxes with respect of the
ground floor were contributed by Defendant No. 2, while those in
respect of first floor were met by Defendant No. 1. She further states
that the earlier tenant vacated the first floor premises, which was
repaired by her and let out to another tenant by Lease Deed dated
C.S. (OS) No. 192/1999 Page 4 of 23
15.10.1999. Defendant No.1 also made a counter claim praying for the
following relief:
“Declaration that first floor and above
(including whatever can be legally constructed)
of property No. A-16, Westend, New Delhi –
110021 with proportionate rights in the land is
the ownership of Defendant No. 1 (Chitralekha
Bukshi), and that the Plaintiff or Defendant No.
2 have no right or interest therein.
If for some reason (and without prejudice to
the main contention) the family settlement of
1988 is to be ignored, and it is held that the
property is owned by Defendant No. 1 and 2 in
equal shares, a decree for partition be passed.
It will be a preliminary decree followed by a
final decree.”
6.
The case of Defendant No. 1 in the counter claim is that
consequent upon the oral family settlement of 1988, she became the
owner of the first floor and above of the suit property including
proportionate rights in the land. She further states that so long as her
interest in the first floor and above is maintained, she would not claim
interest on the ground floor which belonged to her sister, Defendant
No. 2. She further states that if for some reason, the family settlement
is to be ignored, the estate of Smt. D.K. Kaul is to be treated as
rd
including 1/3 share in the ownership in the suit property, and such
rd
1/3 share in the ownership would devolve upon Defendant No. 1 and
2 in equal shares under the law of succession and not upon the Plaintiff
on account of the nomination made by Late Smt. D.K. Kaul in the
records of the society. It is stated that subsequent to grant of a
C.S. (OS) No. 192/1999 Page 5 of 23
perpetual lease by the President of India in respect of the plot,
nomination is meaningless.
7. The Plaintiff filed his replication and written statement to
the counter claim of Defendant No. 1 wherein he, inter-alia, states as
follows:
“It is also denied that any family settlement
was arrived and and/or terms of the settlement
were recorded in the memo dated 12.2.1988. It
is also denied that the alleged family
settlement was signed by Smt. Dhanraj Kishori
Kaul and by Smt. Anuradha Sapru as alleged. It
is also denied that the Plaintiff has signed any
affidavit dated 12.2.1988 recording the factum
of settlement. It is submitted that Annexures A
& B to the written statement are forged and
fabricated by Defendant No. 1 and have been
filed with a view to mislead this Hon'ble Court.”
8. The Plaintiff denied the stand taken by Defendant No. 1
and reiterated his own position, as contained in the plaint. The plaintiff
also states that the Defendant No.1 was not the exclusive owner of
the first floor of the suit property. Instead she was one of the co-
owners along with the plaintiff and the defendant No.2
9. On the pleadings of the parties, the court framed the
th
following issues on 12 December 2000:
“(a) Whether the act of nomination by the
predecessor-in-interest with the Cooperative
Society is over ridden by the provisions of
Hindu Succession Act, 1956 or not?
(b) Whether the cost of construction of the
first floor of the suit property was paid by
Defendant No. 1 or not? If so its effect.
C.S. (OS) No. 192/1999 Page 6 of 23
(c) Whether the family settlement was ever
effected by the Plaintiff and by the deceased
Smt. Dhanraj Kishore, if so to what effect?
(d) Relief. “
10. Vide order dated 3.2.2003, the following additional
issue was framed by the court:
“1. Whether the provisions of the family
settlement dated 12.2.1988 operates as a Will,
if so to what effect? OPP.”
11. On 6.1.2005, the Plaintiff made a statement before the
court that he would not prefer to lead any oral evidence and his
evidence may be treated as closed. He further stated that the
memorandum recording oral settlement dated 12.2.1988 be treated as
admitted and the matter may be listed for Defendant's evidence, if
any. Consequent upon this order, the memorandum recording oral
settlement dated 12.2.1988 has been given exhibit mark Ex. D-1/3.
Defendant No. 1, the only contesting Defendant, has also not led any
oral evidence and I have proceeded to hear arguments of the parties in
the aforesaid circumstances.
12. During the course of the arguments, written
submissions were also filed. The written submissions filed by the
Plaintiff are in remarkable contrast to his written statement filed to the
counter claim as well as the pleadings contained in the plaint.
13. The contention of the Plaintiff as now urged before me
C.S. (OS) No. 192/1999 Page 7 of 23
is that the Plaintiff is the owner of the leasehold rights in respect of the
plot underlying the suit property to the extent to which Smt. D.K. Kaul
and Defendant No. 2 became entitled to exclusively possess and enjoy
the ground floor under the memorandum recording oral family
settlement Ex.D-1/3, and that the rights of Defendant No. 1 in the
leasehold are only to the extent of the portion earmarked as that of
Defendant No. 1 under the family settlement.
14. From the aforesaid it is seen that the Plaintiff has been
shifting his stand from time to time. Initially, the stand of the Plaintiff
was that he and his mother Defendant No. 2, were owners in respect of
rd
the suit property to the extent of 1/3 share each. While so pleading,
the Plaintiff did not disclose the fact that there had been an oral family
settlement which was recorded in the memorandum of family
settlement Ex. D-1/3. As aforesaid, in his replication he denied the
execution of the said memorandum of family settlement and labeled
the same as 'forged and fabricated by Defendant No. 1' and as having
been filed 'with a view to mislead this Hon'ble Court' . Subsequently,
after having denied the family settlement altogether, the Plaintiff
summer saulted from his stand when he made a statement on
6.1.2005, admitting the said memorandum recording oral family
settlement Ex. D-1/3. Not only that, he also shifted his stand by
contending that the ownership in the leasehold rights of Defendant No.
1 was restricted only to the portion that was earmarked as of
C.S. (OS) No. 192/1999 Page 8 of 23
Defendant No. 1 under the memorandum recording oral family
settlement dated 12.2.1988, Ex. D-1/3.
15. Now turning to the specific issues, I find that in view of
th
the statement made by the Plaintiff on 6 January 2005, admitting the
family settlement in the memorandum recording oral settlement dated
12.2.1988, Ex. D-1/3, the first part of issue (c) viz. whether the family
settlement was ever effected by the plaintiff and by the deceased Smt.
Dhanraj Kishore has to be answered in the affirmative. The second
part of issue `c' viz. the effect of the family settlement Ex.D-1/3 shall
be considered a little later.
16. I now proceed to consider the additional issue framed
on 3.2.2003 viz., that the provisions of the family settlement Ex. D-1/3,
operate as a Will of late Smt. D.K. Kaul.
17. Section 2(h) of the Indian Succession Act, 1925 (the
Act) gives the definition of a 'Will'. It reads as under:
2(h) 'Will' means the legal declaration of
the intention of a testator with respect to his
property which he desires to be carried into
effect after his death.
18. Section 63 of the Act, so far as it is relevant, reads as
follows:
63. Execution of unprivileged wills. - Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare or an
airman so employed or engaged, or a mariner
C.S. (OS) No. 192/1999 Page 9 of 23
at sea, shall execute his will according to the
following rules: -
(a)...
(b)...
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator
sign or affix his mark to the will or has seen
some other person sign the will, in the
presence and by direction of the testator, or
has received from the testator a personal
acknowledgment of his signature or mark, or of
the signature of such other person, and each of
the witnesses shall sign the will in the presence
of the testator but it shall not be necessary that
more than one witness be present at the same
time and no particular form of attestation shall
be necessary.
19. Also relevant is Section 68 of the Indian Evidence Act,
1872. The relevant extract of section 68 is reproduced hereinbelow for
the sake of convenience:
68. Proof of execution of document required
by law to be attested. - If a document is
required by law to be attested, it shall not be
used as evidence until one attesting witness
at least has been called for the purpose of
proving its execution, if there be an attesting
witness alive, and subject to the process of
the court and capable of giving evidence.
20. Thus, Section 63(c) of the Act provides the mode of
execution of the 'Will', while Section 68 of the Indian Evidence Act,
1872 provides the mode of proof of execution of a document, required
C.S. (OS) No. 192/1999 Page 10 of 23
by law to be attested.
21. I have held in Test Case 21/2000, Ms. Sumitra Devi
and Others Vs. State and Other , decided on 15th May 2007, that
an unprivileged will under the Indian Succession Act cannot be
probated unless it complies with the requirements of Section 63 of the
said Act. The memorandum recording oral family settlement Ex.D-1/3,
purports to record an earlier oral arrangement. If one were to assume
the same to constitute a “Will” under Section 63 of the Act, the “Will”
has to be in writing, and it is not even claimed that Late Smt. D.K. Kaul
was entitled to make a privileged/oral “Will”. The memorandum of
family settlement does not purport to be a legal declaration of the
intention of a testator, in this case Late Smt. D.K. Kaul, in respect of
her property, which could be said to express her desire to be carried
into effect after her death. At the time when the memorandum of
family settlement was drawn up, there is nothing to indicate that Late
Smt. D.K. Kaul intended to make a “Will”. Moreover, the Plaintiff has
not led any evidence to prove the execution of the memorandum of
family settlement as a “Will” in compliance with Section 63(c) of India
Succession Act. Consequently, the settlement Ex.D-1/3 cannot be
construed as a Will of Late Smt. D.K. Kaul. Accordingly, the additional
issue framed on 3.2.2003 is decided against the Plaintiff.
22. Issue (a) was framed as the Plaintiff had claimed
rd
ownership over the 1/3 share of Late Smt. B.L. Kaul, being her
C.S. (OS) No. 192/1999 Page 11 of 23
nominee in the records of the society. The claim was based on the
premise that a nominee in the records of a cooperative society
succeeds to the interest of the member on the demise of such
member, to the exclusion of the legal heirs of such member under
ordinary law of succession. The above question is no longer Res-
integra and stands fully settled by various judicial pronouncements. In
Shri Ashok Chandra Aggarwala vs. Delhi Administration & Ors.,
ILR (1985) 1 Delhi 796, a single judge of this court held that an interest
of a member of a cooperative society in the lease of the property held
by him can devolve by testamentary or intestate succession and a
third kind of succession (by nomination) cannot be created under
Section 26 of the Cooperative Societies Act. The said decision was
assailed by way of Letters Patent Appeal (LPA No.31/85 reported as
1998(7) AD (Delhi) 639) which came to be dismissed by a division
bench and the order of the Single Judge was upheld. The Division
Bench held that the principles laid down by the Apex Court in Sarbati
Devi & Another v. Usha Devi, AIR 1984 SC 346 were applicable in
interpreting section 26 of the said Act and Rule 35 of the Delhi Co-
operative Societies Rules. The Division Bench also cited with approval
the decision in Sushila Devi Bhaskar vs. Ishwar Nager
Cooperative House Building Society Ltd. & Ors., 45 (1991) DLT
318, wherein it was held that despite nomination in favour of a person,
the property or the amount of the deceased, can be claimed by the
heirs of the deceased in accordance with law of succession governing
C.S. (OS) No. 192/1999 Page 12 of 23
them. The right of the nominee is merely to get recognised as the
person who is charged with the responsibility of administering the
estate in accordance with the Law of Succession. [See Vishin N.
Khanchandani & Anr. v. Vidya Lachmandas Khanchandani &
Anr. (2000) 6 SCC 724)]. This issue is therefore decided against the
Plaintiff and in favour of the defendant.
23. Turning to the first part of issue (b) viz., “whether the
cost of construction of the first floor of the suit property was paid by
defendant No.1 or not”, I am of the view that since the family
settlement has been admitted by the Plaintiff, the same has to be
decided in favour of Defendant No.1. On a mere reading of the
settlement Ex.D-1/3, particularly clauses (2), (3) and (4) thereof,
wherein the “Second Party” is Defendant No.1 herein the said position
becomes abundantly clear. These clauses read as follows:
“2.That the portion shown in green in the site
plan attached on the ground floor and the
terrace/roof of the building shall be exclusively
owned by the party of the SECOND PART.
3. That the SECOND PARTY shall have the
exclusive right of entrance from the rear
portion of the ground floor as shown in green in
the site plan attached and the parties shall
have the right to raise the construct, walls on
the ground floor of the property for proper
exclusive and better enjoyment of their
respective portions in the aforesaid property.
4.That the party of the SECOND PART shall be
fully and exclusively entitled to enjoy the
roof/terrace of the building and shall be
entitled to construct one and/or more floors as
C.S. (OS) No. 192/1999 Page 13 of 23
she likes and permitted by the authorities and
the parties of the FIRST PART shall have no
objection to the same for any reason
whatsoever. The proposed plans of the first
floor to be constructed is annexed herewith.”
24. From these clauses it is clear that it was defendant No.1
who was entitled to raise construction at her own cost on the terrace of
the Ground Floor i.e. on the first floor and above. The plaintiff has not
even averred in the plaint that he, or his predecessor in interest i.e.,
the deceased defendant No.2 had raised any construction on the
terrace above the ground floor of the property. On the other hand,
defendant No.1 has made categorical averments to this effect in
paragraph Nos.4 and 8 of the preliminary submissions contained in her
Written Statement. As aforesaid, no evidence has been led by either of
the parties. Therefore, I conclude that the cost of construction of the
First Floor of the property in question was paid by defendant No.1. The
first part of issue (b) is accordingly decided in favour of Defendant No.1
and against the plaintiff.
25. The second part of issue (b) viz., the effect of the
defendant No.1 having built the first floor of the suit property from her
own funds and the second part of issue (c), viz., what is the effect of
the family settlement Ex.D-1/3 are now being dealt with by me. The
contention of the plaintiff is that the family settlement Ex.D-1/3 had
the effect of partitioning the suit property by metes and bounds and
vesting the exclusive lease hold rights in the plot underneath the suit
C.S. (OS) No. 192/1999 Page 14 of 23
property in its entirety, (except the position marked in green in the
plan annexed to the family settlement Ex.D-1/3 on the rear side), in
Defendant No.2 and Late Smt. D.K. Kaul, and after the demise of Late
Smt. D.K. Kaul, upon Defendant No.2. After the demise of defendant
No.2, those rights have vested in the plaintiff. Therefore, the
contention is that the lease hold rights are not undivided half and half
between the Plaintiff and Defendant No.1 and the same stand
demarcate by metes and bounds as per the family settlement Ex. D-
1/3. This is obviously disputed by Defendant No.1 who contends that
the rights in the land underneath the suit property is jointly owned by
the plaintiff and defendant No.1 equally, and defendant No.1 has
exclusive ownership of the first floor and above in the said property.
26.
The shares of the three co-sharers were clearly defined.
The said family settlement in its recitals records inter-alia;
“(i) that the leasehold rights of the said plot has
already been transferred/mutated in the names of
the parties thereto by the DDA vide their letter
th
No.F.6(15)78-CS/DDA. 1853 dated 20 November
1978.
(ii)The names of the parties thereto have already
been substituted as members of the Diplomatic
Enclave Extension Cooperative Housing Society Ltd.,
in place of late Late Gen. B.M. Kaul, and the parties
thereto have become the owners of the leasehold
rights of the said plot and the building constructed
thereon; having inherited the same from Late Gen.
B.M. Kaul.
27. Consequently, the undivided shares and interest of the
three co-sharers i.e., Late Smt. D.K. Kaul, and the two defendants
C.S. (OS) No. 192/1999 Page 15 of 23
stands acknowledged in Ex.D-1/3. No doubt, the parties stated that
“ with a view to avoid any future disputes amongst the parties hereto
and to maintain peace in the family the parties hereto at the advice
and intention of friends and near relations, mutually partitioned the
aforesaid properties by metes and bounds by an oral family settlement
and the portions belonging to each parties have been de-marked as
per the site plan attached hereto .”
28. However what is the purport of the so called mutual
partition by metes and bounds has to be analysed and understood in
the light of the other terms of Ex.D-1/3, and the law.
29. The status of the parties was not that of joint owners of
the said property. There were not coparceners and the suit property
was not coparcenery property. They were having separate and defined
title as their shares were clearly defined. There could be no oral family
arrangement which could alter their respective pre-defined shares in
the suit property, and therefore, the mere recording of the same in a
memorandum at a subsequent point of time would make no difference
either. Section 19 of the Hindu Succession Act, 1956 states that if two
or more heirs succeed together to the property of an intestate, they
shall take the property as tenants-in-common and not as joint tenants.
Reference may be made in this regard to Kalooram Govindram v.
CIT, AIR 1966 SC 4. Consequently, one of the co-sharers could not
relinquish or acquire the share, or any part of it, of another without the
C.S. (OS) No. 192/1999 Page 16 of 23
execution of a registered document of transfer.
30. Even if the aforesaid aspect is kept aside, the family
settlement is recorded as a bi-parte agreement instead of as a
tripartite agreement. Mrs. D.K. Kaul and Smt. Anuradha Sapru
(Defendant No.2) together consist of the first party to the settlement,
and Mrs.Chitralekha Bakshi (Defendant No.1) was the second party.
31. The relevant terms of Ex.D-1/3 are reproduced herein
below. The first party is defined as Late Smt. D.K. Kaul and Defendant
No.2 jointly, and second party is defined as Defendant No.1.
NOW THIS DEED WITNESSES:
1. That the portion shown in red in the site
plan of the property bearing No.A-16,
West End Colony, New Delhi, attached
herewith consisting of the construction
portion and open portion of the ground
floor of the property, except the portion
shown in green, shall be exclusively
owned by the parties of the FIRST PART
jointly.
2. That the portion shown in green in the
site plan attached on the ground floor
and the terrace/roof of the building shall
be exclusively owned by the party of the
SECOND PART.
3. That the SECOND PARTY shall have the
exclusive right of entrance from the rear
portion of the ground floor as shown in
green in the site plan attached and the
parties shall have the right to raise the
construct walls on the ground floor of the
property for proper, exclusive and better
enjoyment of their respective portions in
the aforesaid property.
C.S. (OS) No. 192/1999 Page 17 of 23
4. That the party of the SECOND PART shall
be fully and exclusively entitled to enjoy
the roof/terrace of the building and shall
be entitled to construct one and/or more
floors as the likes and permitted by the
authorities and the parties of the FIRST
PART shall have no objection to the same
for any reason whatsoever. The proposed
plans of the first floor to be constructed
is annexed herewith.
5. That the party of the SECOND PART shall
obtain water and electricity including
power from the connections already
available ;and shall have sub meters
installed for the floors constructed by
her.
6. That the parties shall pay property tax of
the respective portion of the property.
7. That it is agreed between the parties that
in case Smt. D.K. Kaul joint party of the
FIRST PART predecessor Smt. Anuradha
Sapru, the other joint party of the FIRST
PART, in that event she will become the
exclusive and absolute owner of the
ground floor of the property and the
second party, Smt. Chitralekha Bakshi or
her heirs shall not inherit any right or
claim the share of her mother the
aforesaid Smt. D.K. Kaul in any manner.”
32. It is apparent from the terms of the memorandum
recording oral family settlement that the same did not divide the
property by metes and bounds between all three owners. Even if one
were to assume that the family settlement Ex.D-1/3 separated the
interest of defendant No.1 by metes and bounds, and Defendant No.2
and late Mrs. B.M. Kaul continued to be joint in ownership and
possession, upon the demise of Late Smt. D.K. Kaul, her interest in the
C.S. (OS) No. 192/1999 Page 18 of 23
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leasehold to the extent of 1/3 share would vest in defendant No.1 and
2 equally. The parties were conscious of the possibility that Late Smt.
D.K. Kaul might predecease defendant Nos.1 and 2, and therefore, to
preserve their living arrangement agreed that defendant No.1 would
not claim any interest in the ground floor portion. I have already held
that the said family settlement does not constituted a “Will” of Late
Smt. D.K. Kaul. The parties should be taken to be aware of the law, and
if they had intended that the share and interest of Late Smt. D.K. Kaul
should exclusively devolve upon only defendant No.2, they could have
so provided by Late Smt. D.K. Kaul executing a “Will” to that effect.
But that apparently was not the intention. The intention was to allow
defendant No.2 to succeed as per the law to the estate of Late Smt.
D.K. Kaul, i.e., to the extent of half of her estate and that included her
rd
1/3 interest in the existing property. Even if an oral partition had
taken place and recorded in Ex. D-1/3, the same would again have to
be undertaken in view of the devolution of the undivided interest of
Late Smt. D.K. Kaul upon defendant Nos.1 and 2 equally. Moreover,
both the plaintiff and defendant No.1 are seeking partition of the
property and the dispute appears to be limited in scope to the extent
of share that each one of them has in the property.
33. The intention of the parties while executing the family
settlment Ex. D-1/3 appears to be sanitize the involvement of
defendant No.1 from the existing constructed and living portions,
C.S. (OS) No. 192/1999 Page 19 of 23
possibly to avoid or to resolve disputes with the defendant No.2 and
her mother. Mere separation of residences or even businesses between
the family members does not lead to an inference of partition by metes
and bounds (see Madan Lal v. Yoga Bai, (2003) 5 SCC 89). The
family settlement Ex.D-1/3 does not deal with, and it could not have
dealt with the effect of this arrangement on the respective undivided
rd
1/3 shares of the parties in the land underneath, which they acquired
by inheritance and which right is duly recognised in the settlement
Ex.D-1/3. The family settlement does not suggest that the parties had
also partitioned by metes and bounds this interest in the land or that
on the arrangement being arrived, the defendant No.1 lost its then
owned one-third share in the land. The scheme of the family
arrangement itself suggests that it was not a complete and final
partition by metes and bounds but a living arrangement arrived at
between the parties. The intention was clearly to avoid disputes and
ensure full enjoyment of the property in question by the two groups, in
peace and harmony. The First Party had the whole built up portion on
the ground floor alongwith the open areas for their exclusive
enjoyment and exclusive entry from the front portion of the plot and
the second party was exclusively bestowed the right to construct on
the terrace/roof with entry from the rear. The construction, if any,
made by the second party was to be exclusively enjoyed by her. This
appears to be equitable. Defendant No.1 was expected to spend from
her own pocket and raise construction before the rights conferred
C.S. (OS) No. 192/1999 Page 20 of 23
could have been enjoyed exclusively. The arrangement was arrived at
keeping in mind the limitations of the existing structure and the
possibility of addition that could have been made. The intention
discernible from the various clauses is that the arrangement arrived at
was to continue during the life time of the structure existing and
principally agreed to be added to it. Since the defendant No.1 has built
the first floor of the suit property from her own funds and, as per the
family arrangement, she is entitled to exclusively use and enjoy the
same. All accretions from the said portion are her exclusive property.
She is also entitled to get credit for the cost of the structure on the first
floor, after accounting for depreciation, as and when the actual
physical partition of the property takes place by metes and bounds
between the parties. Since the land rights have not been dealt with in
Ex.D-1/3 with any finality, which is only a memorandum recording an
oral family settlement and is an unregistered document, there was no
complete partition by metes and bounds [See Hari Ram v. Late Om
Prakash 2003 IV AD (Delhi) 124].
34. This does not means that no rights have got crystallized
under the arrangement. The decisions relied upon by the plaintiff
beyond doubt have held that family arrangements have a special
sanctity and are binding upon the parties and cannot be lightly
interfered with. Thus, the arrangement is binding on the parties and
the property shall be enjoyed by the parties strictly in accordance with
C.S. (OS) No. 192/1999 Page 21 of 23
the terms of the arrangement, but the same does not constitutes a
partition by metes and bounds for all purposes. The family
arrangement would continue to bind the parties till so long as the
property is not actually partitioned between the plaintiff and defendant
No.1 by metes and bounds. Consequently, I declare that both the
plaintiff and defendant No.1 have equal share in the property in
question subject to my observations above with respect to the first
floor structure. A preliminary decree is passed to this effect. I also
declare that the family settlement Ex. D-1/3 is binding between the
parties and would continue to bind them till the property is finally
partitioned by metes and bounds between them. I appoint Mrs.
Maninder Acharya, Advocate, 439, Lawyers Chambers, Delhi High
Court, New Delhi as the Local Commissioner to suggest modes of
actual physical partition of the suit property keeping in view my
aforesaid findings with regard to the respective shares of the parties.
She would be entitled to take the assistance of qualified Architects,
Engineers and draftsmen, if considered necessary. She should file her
report within four months. She would tentatively be paid a fee of
Rs.60,000/- apart from all other out of pocket expenses, including
those payable to Architects, Engineers and Draftsmen. The same shall
be shared by the parties equally.
th
35. List the matter before the court for directions on 14
C.S. (OS) No. 192/1999 Page 22 of 23
May 2008.
VIPIN SANGHI,
January 07, 2008 JUDGE.
P.K. BABBAR
C.S. (OS) No. 192/1999 Page 23 of 23
C.S. (OS) No. 192/1999
Judgment reserved on: July 18, 2007
Judgment delivered on: January 07, 2008
# Abhay Sapru, ..... Plaintiff
! Through: In person
versus
$ Chitralekha Bakshi & Anr., ..... Defendants
^ Through: Mr. Sanjay Jain, Senior
Advocate with Mr. Jayant
Tripathi and Mr. Arjun Mitra,
for the Defendant No. 1.
*CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
VIPIN SANGHI, J.
1. The Plaintiff has filed the present suit for partition and
permanent injunction in respect of property bearing No.16A, Westend,
New Delhi. The substantive reliefs prayed for in the suit reads as
follows:
“pass a preliminary decree of partition
declaring that the Plaintiff and Defendants
rd
each have 1/3 share in property No. A-16,
Westend, New Delhi – 110021; and
thereafter appoint a Local Commissioner to
partition the suit property by metes and
bounds and pass a final decree after
C.S. (OS) No. 192/1999 Page 1 of 23
considering the report of the Local
Commissioner ; and
pass a decree of permanent injunction in
favour of the Plaintiff and against the
Defendants restraining them from creating any
third party rights/interest in any manner
whatsoever in the property No. A-16, Westend,
New Delhi – 110021;
pass a decree of permanent injunction in
favour of the Plaintiff and against the
Defendants restraining them from making any
additional construction and/or alterations in the
property No. A-16, Westend, New Delhi –
110021; and ”
2. Defendant No. 2, now deceased, was the mother of the
Plaintiff, while Defendant No. 1 is the sister of deceased Defendant No.
2. Defendant No. 2 passed away on 28.12.2005 and the Plaintiff being
the only legal representative of Defendant No. 2, exclusively
succeeded to her estate.
3. The admitted facts are that Late Gen. B.M. Kaul acquired
perpetual leasehold rights in respect of Plot No.16A, West End, ad
measuring 1205 sq. yds. New Delhi, vide a registered sub-Lease Deed.
Late Gen. B.M. Kaul built a single storied house on the said plot. He
passed away on 18.04.1972 leaving behind his widow Smt. D.K. Kaul
and two daughters, i.e. the two Defendants herein as his only class I
heirs. The mother of Late Gen. B.M. Kaul had predeceased him. The
Delhi Development Authority (DDA) mutated the leasehold rights in
respect of the leased plot in the name of Smt. D.K. Kaul and the two
C.S. (OS) No. 192/1999 Page 2 of 23
th
Defendants on 20 November 1978. The Diplomatic Enclave Extension
Cooperative House Building Society Ltd., in the year 1979, also
mutated the said property in the name of Smt. D.K. Kaul, Smt.
Anuradha Sapru defendant No. 2, and Smt. Chitralekha Bukshi
Defendant No.1. Consequently, late Smt. D.K. Kaul, defendant No. 2
rd
and defendant No.1 became entitled to 1/3 share each in the suit
property.
4. The Plaintiff states that in the year 1985, Smt. D.K. Kaul
and Defendant No. 2 i.e. his mother nominated the Plaintiff as the
rd
nominee with respect to their 1/3 share each in the suit property.
Smt. D.K. Kaul died intestate on 25.11.1993. The Plaintiff states that
since Smt. D.K. Kaul died intestate, the Plaintiff became owner of her
rd
1/3 share in the suit property being her only nominee in terms of
Section 27 of the Delhi Cooperative Societies Act, 1972 and bye laws
framed by the society. When he requested the society for recording his
name in place of Smt. D.K. Kaul in the records of the society, the same
was refused by the society on the ground that nomination by a
member does not give a right of inheritance to the nominee and the
same is governed by the normal law of the inheritance. This stand of
the society, according to the Plaintiff, was contrary to law. The Plaintiff,
rd
by asserting his right to succeed to the 1/3 share left by Smt. D.K.
Kaul, filed the present suit for the reliefs as aforesaid.
5. Defendant No.1 filed her written statement. She
C.S. (OS) No. 192/1999 Page 3 of 23
admitted the facts as recorded aforesaid in paragraphs 2 & 3. She
further states that after about 16 years of her father's death, there
were simmering of dispute. An oral family settlement was arrived at,
th
which was recorded in a memorandum on 12 February 1988 duly
signed by late Smt. D.K. Kaul and the two daughters, namely
Defendant No. 1 and 2. She further states that as per the family
settlement, she took exclusive possession of the terrace and above the
ground floor, while the mother late Smt. D.K. Kaul and Defendant No. 2
retained the ground floor and continued to live in it. She further states
that in terms of the settlement, she commenced construction on the
first floor with her own funds and with the funds of her husband. The
mother late Smt. D.K. Kaul and Defendant No. 2 and the Plaintiff
acquiesced. On 25.11.1993, the mother Smt. D.K. Kaul died leaving
surviving two daughters, i.e., Defendant No. 1 and 2. She died
intestate. The two daughters succeeded in equal shares to the
property of Smt. D.K. Kaul. The estate of Smt. D.K. Kaul had to be
worked out keeping in view the family settlement of 1988. In 1994,
the construction on the first floor was completed by Defendant No. 1
and said portion was let out to a tenant and she recovered the rents
from the tenants as an owner. The property taxes with respect of the
ground floor were contributed by Defendant No. 2, while those in
respect of first floor were met by Defendant No. 1. She further states
that the earlier tenant vacated the first floor premises, which was
repaired by her and let out to another tenant by Lease Deed dated
C.S. (OS) No. 192/1999 Page 4 of 23
15.10.1999. Defendant No.1 also made a counter claim praying for the
following relief:
“Declaration that first floor and above
(including whatever can be legally constructed)
of property No. A-16, Westend, New Delhi –
110021 with proportionate rights in the land is
the ownership of Defendant No. 1 (Chitralekha
Bukshi), and that the Plaintiff or Defendant No.
2 have no right or interest therein.
If for some reason (and without prejudice to
the main contention) the family settlement of
1988 is to be ignored, and it is held that the
property is owned by Defendant No. 1 and 2 in
equal shares, a decree for partition be passed.
It will be a preliminary decree followed by a
final decree.”
6.
The case of Defendant No. 1 in the counter claim is that
consequent upon the oral family settlement of 1988, she became the
owner of the first floor and above of the suit property including
proportionate rights in the land. She further states that so long as her
interest in the first floor and above is maintained, she would not claim
interest on the ground floor which belonged to her sister, Defendant
No. 2. She further states that if for some reason, the family settlement
is to be ignored, the estate of Smt. D.K. Kaul is to be treated as
rd
including 1/3 share in the ownership in the suit property, and such
rd
1/3 share in the ownership would devolve upon Defendant No. 1 and
2 in equal shares under the law of succession and not upon the Plaintiff
on account of the nomination made by Late Smt. D.K. Kaul in the
records of the society. It is stated that subsequent to grant of a
C.S. (OS) No. 192/1999 Page 5 of 23
perpetual lease by the President of India in respect of the plot,
nomination is meaningless.
7. The Plaintiff filed his replication and written statement to
the counter claim of Defendant No. 1 wherein he, inter-alia, states as
follows:
“It is also denied that any family settlement
was arrived and and/or terms of the settlement
were recorded in the memo dated 12.2.1988. It
is also denied that the alleged family
settlement was signed by Smt. Dhanraj Kishori
Kaul and by Smt. Anuradha Sapru as alleged. It
is also denied that the Plaintiff has signed any
affidavit dated 12.2.1988 recording the factum
of settlement. It is submitted that Annexures A
& B to the written statement are forged and
fabricated by Defendant No. 1 and have been
filed with a view to mislead this Hon'ble Court.”
8. The Plaintiff denied the stand taken by Defendant No. 1
and reiterated his own position, as contained in the plaint. The plaintiff
also states that the Defendant No.1 was not the exclusive owner of
the first floor of the suit property. Instead she was one of the co-
owners along with the plaintiff and the defendant No.2
9. On the pleadings of the parties, the court framed the
th
following issues on 12 December 2000:
“(a) Whether the act of nomination by the
predecessor-in-interest with the Cooperative
Society is over ridden by the provisions of
Hindu Succession Act, 1956 or not?
(b) Whether the cost of construction of the
first floor of the suit property was paid by
Defendant No. 1 or not? If so its effect.
C.S. (OS) No. 192/1999 Page 6 of 23
(c) Whether the family settlement was ever
effected by the Plaintiff and by the deceased
Smt. Dhanraj Kishore, if so to what effect?
(d) Relief. “
10. Vide order dated 3.2.2003, the following additional
issue was framed by the court:
“1. Whether the provisions of the family
settlement dated 12.2.1988 operates as a Will,
if so to what effect? OPP.”
11. On 6.1.2005, the Plaintiff made a statement before the
court that he would not prefer to lead any oral evidence and his
evidence may be treated as closed. He further stated that the
memorandum recording oral settlement dated 12.2.1988 be treated as
admitted and the matter may be listed for Defendant's evidence, if
any. Consequent upon this order, the memorandum recording oral
settlement dated 12.2.1988 has been given exhibit mark Ex. D-1/3.
Defendant No. 1, the only contesting Defendant, has also not led any
oral evidence and I have proceeded to hear arguments of the parties in
the aforesaid circumstances.
12. During the course of the arguments, written
submissions were also filed. The written submissions filed by the
Plaintiff are in remarkable contrast to his written statement filed to the
counter claim as well as the pleadings contained in the plaint.
13. The contention of the Plaintiff as now urged before me
C.S. (OS) No. 192/1999 Page 7 of 23
is that the Plaintiff is the owner of the leasehold rights in respect of the
plot underlying the suit property to the extent to which Smt. D.K. Kaul
and Defendant No. 2 became entitled to exclusively possess and enjoy
the ground floor under the memorandum recording oral family
settlement Ex.D-1/3, and that the rights of Defendant No. 1 in the
leasehold are only to the extent of the portion earmarked as that of
Defendant No. 1 under the family settlement.
14. From the aforesaid it is seen that the Plaintiff has been
shifting his stand from time to time. Initially, the stand of the Plaintiff
was that he and his mother Defendant No. 2, were owners in respect of
rd
the suit property to the extent of 1/3 share each. While so pleading,
the Plaintiff did not disclose the fact that there had been an oral family
settlement which was recorded in the memorandum of family
settlement Ex. D-1/3. As aforesaid, in his replication he denied the
execution of the said memorandum of family settlement and labeled
the same as 'forged and fabricated by Defendant No. 1' and as having
been filed 'with a view to mislead this Hon'ble Court' . Subsequently,
after having denied the family settlement altogether, the Plaintiff
summer saulted from his stand when he made a statement on
6.1.2005, admitting the said memorandum recording oral family
settlement Ex. D-1/3. Not only that, he also shifted his stand by
contending that the ownership in the leasehold rights of Defendant No.
1 was restricted only to the portion that was earmarked as of
C.S. (OS) No. 192/1999 Page 8 of 23
Defendant No. 1 under the memorandum recording oral family
settlement dated 12.2.1988, Ex. D-1/3.
15. Now turning to the specific issues, I find that in view of
th
the statement made by the Plaintiff on 6 January 2005, admitting the
family settlement in the memorandum recording oral settlement dated
12.2.1988, Ex. D-1/3, the first part of issue (c) viz. whether the family
settlement was ever effected by the plaintiff and by the deceased Smt.
Dhanraj Kishore has to be answered in the affirmative. The second
part of issue `c' viz. the effect of the family settlement Ex.D-1/3 shall
be considered a little later.
16. I now proceed to consider the additional issue framed
on 3.2.2003 viz., that the provisions of the family settlement Ex. D-1/3,
operate as a Will of late Smt. D.K. Kaul.
17. Section 2(h) of the Indian Succession Act, 1925 (the
Act) gives the definition of a 'Will'. It reads as under:
2(h) 'Will' means the legal declaration of
the intention of a testator with respect to his
property which he desires to be carried into
effect after his death.
18. Section 63 of the Act, so far as it is relevant, reads as
follows:
63. Execution of unprivileged wills. - Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare or an
airman so employed or engaged, or a mariner
C.S. (OS) No. 192/1999 Page 9 of 23
at sea, shall execute his will according to the
following rules: -
(a)...
(b)...
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator
sign or affix his mark to the will or has seen
some other person sign the will, in the
presence and by direction of the testator, or
has received from the testator a personal
acknowledgment of his signature or mark, or of
the signature of such other person, and each of
the witnesses shall sign the will in the presence
of the testator but it shall not be necessary that
more than one witness be present at the same
time and no particular form of attestation shall
be necessary.
19. Also relevant is Section 68 of the Indian Evidence Act,
1872. The relevant extract of section 68 is reproduced hereinbelow for
the sake of convenience:
68. Proof of execution of document required
by law to be attested. - If a document is
required by law to be attested, it shall not be
used as evidence until one attesting witness
at least has been called for the purpose of
proving its execution, if there be an attesting
witness alive, and subject to the process of
the court and capable of giving evidence.
20. Thus, Section 63(c) of the Act provides the mode of
execution of the 'Will', while Section 68 of the Indian Evidence Act,
1872 provides the mode of proof of execution of a document, required
C.S. (OS) No. 192/1999 Page 10 of 23
by law to be attested.
21. I have held in Test Case 21/2000, Ms. Sumitra Devi
and Others Vs. State and Other , decided on 15th May 2007, that
an unprivileged will under the Indian Succession Act cannot be
probated unless it complies with the requirements of Section 63 of the
said Act. The memorandum recording oral family settlement Ex.D-1/3,
purports to record an earlier oral arrangement. If one were to assume
the same to constitute a “Will” under Section 63 of the Act, the “Will”
has to be in writing, and it is not even claimed that Late Smt. D.K. Kaul
was entitled to make a privileged/oral “Will”. The memorandum of
family settlement does not purport to be a legal declaration of the
intention of a testator, in this case Late Smt. D.K. Kaul, in respect of
her property, which could be said to express her desire to be carried
into effect after her death. At the time when the memorandum of
family settlement was drawn up, there is nothing to indicate that Late
Smt. D.K. Kaul intended to make a “Will”. Moreover, the Plaintiff has
not led any evidence to prove the execution of the memorandum of
family settlement as a “Will” in compliance with Section 63(c) of India
Succession Act. Consequently, the settlement Ex.D-1/3 cannot be
construed as a Will of Late Smt. D.K. Kaul. Accordingly, the additional
issue framed on 3.2.2003 is decided against the Plaintiff.
22. Issue (a) was framed as the Plaintiff had claimed
rd
ownership over the 1/3 share of Late Smt. B.L. Kaul, being her
C.S. (OS) No. 192/1999 Page 11 of 23
nominee in the records of the society. The claim was based on the
premise that a nominee in the records of a cooperative society
succeeds to the interest of the member on the demise of such
member, to the exclusion of the legal heirs of such member under
ordinary law of succession. The above question is no longer Res-
integra and stands fully settled by various judicial pronouncements. In
Shri Ashok Chandra Aggarwala vs. Delhi Administration & Ors.,
ILR (1985) 1 Delhi 796, a single judge of this court held that an interest
of a member of a cooperative society in the lease of the property held
by him can devolve by testamentary or intestate succession and a
third kind of succession (by nomination) cannot be created under
Section 26 of the Cooperative Societies Act. The said decision was
assailed by way of Letters Patent Appeal (LPA No.31/85 reported as
1998(7) AD (Delhi) 639) which came to be dismissed by a division
bench and the order of the Single Judge was upheld. The Division
Bench held that the principles laid down by the Apex Court in Sarbati
Devi & Another v. Usha Devi, AIR 1984 SC 346 were applicable in
interpreting section 26 of the said Act and Rule 35 of the Delhi Co-
operative Societies Rules. The Division Bench also cited with approval
the decision in Sushila Devi Bhaskar vs. Ishwar Nager
Cooperative House Building Society Ltd. & Ors., 45 (1991) DLT
318, wherein it was held that despite nomination in favour of a person,
the property or the amount of the deceased, can be claimed by the
heirs of the deceased in accordance with law of succession governing
C.S. (OS) No. 192/1999 Page 12 of 23
them. The right of the nominee is merely to get recognised as the
person who is charged with the responsibility of administering the
estate in accordance with the Law of Succession. [See Vishin N.
Khanchandani & Anr. v. Vidya Lachmandas Khanchandani &
Anr. (2000) 6 SCC 724)]. This issue is therefore decided against the
Plaintiff and in favour of the defendant.
23. Turning to the first part of issue (b) viz., “whether the
cost of construction of the first floor of the suit property was paid by
defendant No.1 or not”, I am of the view that since the family
settlement has been admitted by the Plaintiff, the same has to be
decided in favour of Defendant No.1. On a mere reading of the
settlement Ex.D-1/3, particularly clauses (2), (3) and (4) thereof,
wherein the “Second Party” is Defendant No.1 herein the said position
becomes abundantly clear. These clauses read as follows:
“2.That the portion shown in green in the site
plan attached on the ground floor and the
terrace/roof of the building shall be exclusively
owned by the party of the SECOND PART.
3. That the SECOND PARTY shall have the
exclusive right of entrance from the rear
portion of the ground floor as shown in green in
the site plan attached and the parties shall
have the right to raise the construct, walls on
the ground floor of the property for proper
exclusive and better enjoyment of their
respective portions in the aforesaid property.
4.That the party of the SECOND PART shall be
fully and exclusively entitled to enjoy the
roof/terrace of the building and shall be
entitled to construct one and/or more floors as
C.S. (OS) No. 192/1999 Page 13 of 23
she likes and permitted by the authorities and
the parties of the FIRST PART shall have no
objection to the same for any reason
whatsoever. The proposed plans of the first
floor to be constructed is annexed herewith.”
24. From these clauses it is clear that it was defendant No.1
who was entitled to raise construction at her own cost on the terrace of
the Ground Floor i.e. on the first floor and above. The plaintiff has not
even averred in the plaint that he, or his predecessor in interest i.e.,
the deceased defendant No.2 had raised any construction on the
terrace above the ground floor of the property. On the other hand,
defendant No.1 has made categorical averments to this effect in
paragraph Nos.4 and 8 of the preliminary submissions contained in her
Written Statement. As aforesaid, no evidence has been led by either of
the parties. Therefore, I conclude that the cost of construction of the
First Floor of the property in question was paid by defendant No.1. The
first part of issue (b) is accordingly decided in favour of Defendant No.1
and against the plaintiff.
25. The second part of issue (b) viz., the effect of the
defendant No.1 having built the first floor of the suit property from her
own funds and the second part of issue (c), viz., what is the effect of
the family settlement Ex.D-1/3 are now being dealt with by me. The
contention of the plaintiff is that the family settlement Ex.D-1/3 had
the effect of partitioning the suit property by metes and bounds and
vesting the exclusive lease hold rights in the plot underneath the suit
C.S. (OS) No. 192/1999 Page 14 of 23
property in its entirety, (except the position marked in green in the
plan annexed to the family settlement Ex.D-1/3 on the rear side), in
Defendant No.2 and Late Smt. D.K. Kaul, and after the demise of Late
Smt. D.K. Kaul, upon Defendant No.2. After the demise of defendant
No.2, those rights have vested in the plaintiff. Therefore, the
contention is that the lease hold rights are not undivided half and half
between the Plaintiff and Defendant No.1 and the same stand
demarcate by metes and bounds as per the family settlement Ex. D-
1/3. This is obviously disputed by Defendant No.1 who contends that
the rights in the land underneath the suit property is jointly owned by
the plaintiff and defendant No.1 equally, and defendant No.1 has
exclusive ownership of the first floor and above in the said property.
26.
The shares of the three co-sharers were clearly defined.
The said family settlement in its recitals records inter-alia;
“(i) that the leasehold rights of the said plot has
already been transferred/mutated in the names of
the parties thereto by the DDA vide their letter
th
No.F.6(15)78-CS/DDA. 1853 dated 20 November
1978.
(ii)The names of the parties thereto have already
been substituted as members of the Diplomatic
Enclave Extension Cooperative Housing Society Ltd.,
in place of late Late Gen. B.M. Kaul, and the parties
thereto have become the owners of the leasehold
rights of the said plot and the building constructed
thereon; having inherited the same from Late Gen.
B.M. Kaul.
27. Consequently, the undivided shares and interest of the
three co-sharers i.e., Late Smt. D.K. Kaul, and the two defendants
C.S. (OS) No. 192/1999 Page 15 of 23
stands acknowledged in Ex.D-1/3. No doubt, the parties stated that
“ with a view to avoid any future disputes amongst the parties hereto
and to maintain peace in the family the parties hereto at the advice
and intention of friends and near relations, mutually partitioned the
aforesaid properties by metes and bounds by an oral family settlement
and the portions belonging to each parties have been de-marked as
per the site plan attached hereto .”
28. However what is the purport of the so called mutual
partition by metes and bounds has to be analysed and understood in
the light of the other terms of Ex.D-1/3, and the law.
29. The status of the parties was not that of joint owners of
the said property. There were not coparceners and the suit property
was not coparcenery property. They were having separate and defined
title as their shares were clearly defined. There could be no oral family
arrangement which could alter their respective pre-defined shares in
the suit property, and therefore, the mere recording of the same in a
memorandum at a subsequent point of time would make no difference
either. Section 19 of the Hindu Succession Act, 1956 states that if two
or more heirs succeed together to the property of an intestate, they
shall take the property as tenants-in-common and not as joint tenants.
Reference may be made in this regard to Kalooram Govindram v.
CIT, AIR 1966 SC 4. Consequently, one of the co-sharers could not
relinquish or acquire the share, or any part of it, of another without the
C.S. (OS) No. 192/1999 Page 16 of 23
execution of a registered document of transfer.
30. Even if the aforesaid aspect is kept aside, the family
settlement is recorded as a bi-parte agreement instead of as a
tripartite agreement. Mrs. D.K. Kaul and Smt. Anuradha Sapru
(Defendant No.2) together consist of the first party to the settlement,
and Mrs.Chitralekha Bakshi (Defendant No.1) was the second party.
31. The relevant terms of Ex.D-1/3 are reproduced herein
below. The first party is defined as Late Smt. D.K. Kaul and Defendant
No.2 jointly, and second party is defined as Defendant No.1.
NOW THIS DEED WITNESSES:
1. That the portion shown in red in the site
plan of the property bearing No.A-16,
West End Colony, New Delhi, attached
herewith consisting of the construction
portion and open portion of the ground
floor of the property, except the portion
shown in green, shall be exclusively
owned by the parties of the FIRST PART
jointly.
2. That the portion shown in green in the
site plan attached on the ground floor
and the terrace/roof of the building shall
be exclusively owned by the party of the
SECOND PART.
3. That the SECOND PARTY shall have the
exclusive right of entrance from the rear
portion of the ground floor as shown in
green in the site plan attached and the
parties shall have the right to raise the
construct walls on the ground floor of the
property for proper, exclusive and better
enjoyment of their respective portions in
the aforesaid property.
C.S. (OS) No. 192/1999 Page 17 of 23
4. That the party of the SECOND PART shall
be fully and exclusively entitled to enjoy
the roof/terrace of the building and shall
be entitled to construct one and/or more
floors as the likes and permitted by the
authorities and the parties of the FIRST
PART shall have no objection to the same
for any reason whatsoever. The proposed
plans of the first floor to be constructed
is annexed herewith.
5. That the party of the SECOND PART shall
obtain water and electricity including
power from the connections already
available ;and shall have sub meters
installed for the floors constructed by
her.
6. That the parties shall pay property tax of
the respective portion of the property.
7. That it is agreed between the parties that
in case Smt. D.K. Kaul joint party of the
FIRST PART predecessor Smt. Anuradha
Sapru, the other joint party of the FIRST
PART, in that event she will become the
exclusive and absolute owner of the
ground floor of the property and the
second party, Smt. Chitralekha Bakshi or
her heirs shall not inherit any right or
claim the share of her mother the
aforesaid Smt. D.K. Kaul in any manner.”
32. It is apparent from the terms of the memorandum
recording oral family settlement that the same did not divide the
property by metes and bounds between all three owners. Even if one
were to assume that the family settlement Ex.D-1/3 separated the
interest of defendant No.1 by metes and bounds, and Defendant No.2
and late Mrs. B.M. Kaul continued to be joint in ownership and
possession, upon the demise of Late Smt. D.K. Kaul, her interest in the
C.S. (OS) No. 192/1999 Page 18 of 23
rd
leasehold to the extent of 1/3 share would vest in defendant No.1 and
2 equally. The parties were conscious of the possibility that Late Smt.
D.K. Kaul might predecease defendant Nos.1 and 2, and therefore, to
preserve their living arrangement agreed that defendant No.1 would
not claim any interest in the ground floor portion. I have already held
that the said family settlement does not constituted a “Will” of Late
Smt. D.K. Kaul. The parties should be taken to be aware of the law, and
if they had intended that the share and interest of Late Smt. D.K. Kaul
should exclusively devolve upon only defendant No.2, they could have
so provided by Late Smt. D.K. Kaul executing a “Will” to that effect.
But that apparently was not the intention. The intention was to allow
defendant No.2 to succeed as per the law to the estate of Late Smt.
D.K. Kaul, i.e., to the extent of half of her estate and that included her
rd
1/3 interest in the existing property. Even if an oral partition had
taken place and recorded in Ex. D-1/3, the same would again have to
be undertaken in view of the devolution of the undivided interest of
Late Smt. D.K. Kaul upon defendant Nos.1 and 2 equally. Moreover,
both the plaintiff and defendant No.1 are seeking partition of the
property and the dispute appears to be limited in scope to the extent
of share that each one of them has in the property.
33. The intention of the parties while executing the family
settlment Ex. D-1/3 appears to be sanitize the involvement of
defendant No.1 from the existing constructed and living portions,
C.S. (OS) No. 192/1999 Page 19 of 23
possibly to avoid or to resolve disputes with the defendant No.2 and
her mother. Mere separation of residences or even businesses between
the family members does not lead to an inference of partition by metes
and bounds (see Madan Lal v. Yoga Bai, (2003) 5 SCC 89). The
family settlement Ex.D-1/3 does not deal with, and it could not have
dealt with the effect of this arrangement on the respective undivided
rd
1/3 shares of the parties in the land underneath, which they acquired
by inheritance and which right is duly recognised in the settlement
Ex.D-1/3. The family settlement does not suggest that the parties had
also partitioned by metes and bounds this interest in the land or that
on the arrangement being arrived, the defendant No.1 lost its then
owned one-third share in the land. The scheme of the family
arrangement itself suggests that it was not a complete and final
partition by metes and bounds but a living arrangement arrived at
between the parties. The intention was clearly to avoid disputes and
ensure full enjoyment of the property in question by the two groups, in
peace and harmony. The First Party had the whole built up portion on
the ground floor alongwith the open areas for their exclusive
enjoyment and exclusive entry from the front portion of the plot and
the second party was exclusively bestowed the right to construct on
the terrace/roof with entry from the rear. The construction, if any,
made by the second party was to be exclusively enjoyed by her. This
appears to be equitable. Defendant No.1 was expected to spend from
her own pocket and raise construction before the rights conferred
C.S. (OS) No. 192/1999 Page 20 of 23
could have been enjoyed exclusively. The arrangement was arrived at
keeping in mind the limitations of the existing structure and the
possibility of addition that could have been made. The intention
discernible from the various clauses is that the arrangement arrived at
was to continue during the life time of the structure existing and
principally agreed to be added to it. Since the defendant No.1 has built
the first floor of the suit property from her own funds and, as per the
family arrangement, she is entitled to exclusively use and enjoy the
same. All accretions from the said portion are her exclusive property.
She is also entitled to get credit for the cost of the structure on the first
floor, after accounting for depreciation, as and when the actual
physical partition of the property takes place by metes and bounds
between the parties. Since the land rights have not been dealt with in
Ex.D-1/3 with any finality, which is only a memorandum recording an
oral family settlement and is an unregistered document, there was no
complete partition by metes and bounds [See Hari Ram v. Late Om
Prakash 2003 IV AD (Delhi) 124].
34. This does not means that no rights have got crystallized
under the arrangement. The decisions relied upon by the plaintiff
beyond doubt have held that family arrangements have a special
sanctity and are binding upon the parties and cannot be lightly
interfered with. Thus, the arrangement is binding on the parties and
the property shall be enjoyed by the parties strictly in accordance with
C.S. (OS) No. 192/1999 Page 21 of 23
the terms of the arrangement, but the same does not constitutes a
partition by metes and bounds for all purposes. The family
arrangement would continue to bind the parties till so long as the
property is not actually partitioned between the plaintiff and defendant
No.1 by metes and bounds. Consequently, I declare that both the
plaintiff and defendant No.1 have equal share in the property in
question subject to my observations above with respect to the first
floor structure. A preliminary decree is passed to this effect. I also
declare that the family settlement Ex. D-1/3 is binding between the
parties and would continue to bind them till the property is finally
partitioned by metes and bounds between them. I appoint Mrs.
Maninder Acharya, Advocate, 439, Lawyers Chambers, Delhi High
Court, New Delhi as the Local Commissioner to suggest modes of
actual physical partition of the suit property keeping in view my
aforesaid findings with regard to the respective shares of the parties.
She would be entitled to take the assistance of qualified Architects,
Engineers and draftsmen, if considered necessary. She should file her
report within four months. She would tentatively be paid a fee of
Rs.60,000/- apart from all other out of pocket expenses, including
those payable to Architects, Engineers and Draftsmen. The same shall
be shared by the parties equally.
th
35. List the matter before the court for directions on 14
C.S. (OS) No. 192/1999 Page 22 of 23
May 2008.
VIPIN SANGHI,
January 07, 2008 JUDGE.
P.K. BABBAR
C.S. (OS) No. 192/1999 Page 23 of 23