Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment :09.02.2015.
+ CS(OS) 1630/2006
MR. KARAN NATH ..... Plaintiff
Through Mr. T.K. Ganju, Sr. Adv. with
Mr. Praveen Agarwal, Advocate
versus
MS. MINAKSHI NATH AND ORS. ..... Defendants
Through Mr. Amit Sehgal, Adv. for D-1
and D-2
Ms. Swaty S. Malik, Adv. for D-3
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
I.A.No.9189/2014 (u/ Order XXXIX Rules 1 and 2 CPC) and
I.A.No.20883/2014 (u/O XXXIX Rule 4 CPC)
1. The application under Order XXXIX Rules 1 and 2 CPC has been
filed by defendant nos.1 to 3. They are the two daughters and the wife
of defendant no.4 (Kailash Nath). Kailash Nath is admittedly the owner
of the suit property i.e. the property bearing no. 39, Prithviraj Road,
New Delhi. The prayer made in the application is that the plaintiff
(surrogate son of defendant no.4) be restrained from getting his name
mutated in the electricity connection no.1006560 or to substitute his
CS (OS) No. 1630/2006 Page 1 of 9
name as a co-owner in the suit property. Further prayer made in the
application is that the plaintiff be restrained from using the address of
the aforenoted property or representing himself as the co-owner in the
suit property.
2. Reply has been filed by the plaintiff contesting the application.
His submission is that the application in the present form is wholly
misconceived. Submission is that the consent decree inter se defendant
nos.1 to 3 and defendant no.4 passed on 07.11.2007 in CS(SO)
1257/2003 is not binding upon him as he was admittedly not a party to
the suit. In that judgment it had been noted that Karan Nath (plaintiff)
had filed a civil suit {(CS(OS) 1630/2006} seeking a challenge to the
family settlement dated 01.7.1992 (pursuant to which the decree dated
07.11.2007 had been passed) and while recording the compromise
decree it had noted this submission of the plaintiff that the said
compromise arrived at inter se between defendant nos.1 to 4 will not be
binding upon the plaintiff. Vehement submission of the learned counsel
for the plaintiff being that the prayer made in the present application is
even otherwise not maintainable as admittedly the plaintiff is the son of
the defendant no.4 and his status has been recognized by all family
members; the plaintiff is visiting his aged father being more than 85
years of age and looking after his health; the defendant nos.1 and 2
being the married daughters are living separately in their own homes;
his mother (defendant no.3) is also not in a position to look after her
CS (OS) No. 1630/2006 Page 2 of 9
ailing husband all by herself; the present application has been filed by
the defendants with a malafide interest.
3. Defendant no.4 i.e. Kailash Nath has also filed a reply. It was not
a part of the record although it has been admittedly filed in the Registry
as both the parties had copies of the same. Copy of the reply has been
placed on record. In this reply the stand of defendant no.4 is that the
plaintiff is admittedly his son. He has two daughters, both of whom are
married and are not residing in the suit property; they are living in their
separate houses. It has been reiterated that defendant no.4 (Kailash
Nath) is the sole and absolute owner of the suit property and is in
peaceful possession of the same. A guest house is being run in the
property. It is pointed out that defendant nos.1 to 3 (his wife and two
daughters) have now connived against him and are in complete control
of the management of the guest house and have even gone to the extent
of showcasing the answering defendant as a member of the staff and
have issued pay cheques to him after deducting TDS. It is pointed out
that the malafide and hostile conduct of defendant nos.1 to 3 is
deplorable and the answering defendant has lost complete faith in them.
He has reiterated that he had written a letter to the Water and Electricity
Department of the NDMC (dated 02.4.2014) stating that out of the two
electricity meters which are installed in the suit property (one of which
is in the name of the defendant) and second one in the name of Amar
Nath (deceased father of Kailash Nath) and the second meter be
transferred in the name of the plaintiff. Submission being that he is
CS (OS) No. 1630/2006 Page 3 of 9
rightful owner of the suit property and has complete ownership rights in
the suit property in his lifetime and is well within his right to make such
a request to the Electricity Department to transfer this meter which was
in the name of a dead man (his father) to his son.
4. The contentions and the counter contentions have been noted.
Kailash Nath is undisputedly the owner of 39, Prithviraj Road, New
Delhi. On 07.11.2007 he had entered into a compromise decree with
defendant nos.1 to 3 in CS(OS) 1257/2003 in terms of which the suit
property was to be completely owned by Kailash Nath and his wife
during their lifetime and after their demise it would fall equally to their
two daughters. In that suit before the compromise decree could be
recorded plaintiff (Karan Nath) had moved an application seeking
impleadment but this application stood dismissed. However, while
recording the terms of the consent decree on 07.11.2007 the Court had
noted that since Karan Nath was not a party to the suit the terms of the
compromise would not bind him. On 11.08.2005 in that suit an order
had been passed on an interim application. This was in
I.A.No.6627/2003. It was directed that Ms.Elma (the lady through
whom plaintiff was born) will not be inducted in the suit property;
however, it will be open to the plaintiff (Karan Nath) to visit and meet
his father/attend to him in case of emergency. This order had never been
challenged. In terms of this order permission to Karan Nath to go and
meet his father and to attend to him in emergent situations was taken
care of. This order was passed in the year 2005. Thus it appears that
CS (OS) No. 1630/2006 Page 4 of 9
even at that point of time the father (defendant no.4) was on comfortable
terms with the plaintiff and he wanted him to visit his home and to look
after him.
5. The fact that he is a son born from a surrogate mother is an
admitted fact. This in fact appears to be the bone of contention between
the defendant nos.1 to 3 and defendant no.4.
6. Be that as it may, although the family settlement dated 01.11.1992
is the subject matter of challenge in CS(OS) No. 1630/2006, yet the
undisputed fact remains that defendant no.4 Kailash Nath continues to
remain the absolute owner of the suit property during his life time. This
is clear from the decree dated 07.11.2007 (heavily relied upon by
defendant nos.1 to 3).
7. By moving an application before the Electricity Department of the
NDMC requesting them to transfer the meter in the name of the plaintiff
(qua a dead meter earlier in the name of his father Amar Nath) is a
matter which has to be taken care of by that Department and no orders
are called for by this Court on the adjudication of that application.
8. The prayers made in the present application read as under:
(a) Injunction restraining the plaintiff from mutating his
name as owner in the Electricity Consumer
No.1006560, K.No.K1946 or creating/substituting his
name with any authority, as owner or co-owner of
property bearing No.39, Prithviraj Road, New Delhi.
CS (OS) No. 1630/2006 Page 5 of 9
(b) Injunction restraining the plaintiff from creating or
using the address of the property bearing No.39,
Prithviraj Road, New Delhi, in any identity documents.
(c) Restrain the plaintiff from taking benefit of any
document, bearing the address of the suit property
bearing No.39, Prithviraj Road, New Delhi, as his
residential address.
(d) Mandatory injunction directing the plaintiff from
disclosing and withdrawing all such pending
applications, where he has misrepresented himself as co-
owner or being in possession of the suit property
bearing No.39, Prithviraj Road, New Delhi.
9. These prayers smack of malafides. This is for the reason that the
daughters (defendant nos.1 and 2) do not want the plaintiff (Karan Nath)
to even enter the suit property which in terms of the order dated
11.8.2005 stands settled. Plaintiff Karan Nath (admittedly the son of
defendant no. 4) has already been granted permission to visit his father
(defendant no.4). It is also not the case of the parties that the defendant
no.4 is in a condition of mental instability and he has been coerced or
pressurized by any person. In these circumstances, it is open to
defendant no.4, being the absolute owner of the property, to choose the
persons who can visit him in his house; the permission to Karan Nath to
CS (OS) No. 1630/2006 Page 6 of 9
visit the property in the order dated 11.8.2005 is even otherwise
affirmed.
10. On 01.8.2014 certain interim directions were passed:
“..............
3. It is not disputed by the learned counsel for the non-
applicants/plaintiffs that defendant no.4, in the very least, is in
possession of the suit property, which is located at 39, Prithviraj
Road, New Delhi.
3.1 The apprehension of the applicants/defendant nos. 1 to 3, who
are the two daughters and the wife of defendant no.4 is that, the
plaintiff /non-applicant is representing himself as being in
possession of the suit property to various statutory authorities.
3.2 Accordingly, till the next date of hearing, the plaintiff will
desist from representing to various statutory authorities or
otherwise that he is in possession of the suit property.
4. List on 05.12.2014.”
11. It is these directions which are a cause of grievance to the
plaintiff.
12. The plaintiff as on date admittedly is not in possession of the suit
property but at the cost of repetition, he is visiting his father as and
when he wishes to and as and when required to meet to the conditions of
CS (OS) No. 1630/2006 Page 7 of 9
his health. There can be no bar to such entry by the plaintiff into the suit
property for the said purpose.
13. It is pointed out by learned counsel for the plaintiff that the
interim order dated 01.8.2014 is in fact creating an embargo on the entry
of the plaintiff and this order has been used by the defendants to make
submissions before Competent Authorities that the plaintiff has no
concern with the suit property and he is hostile to the suit property. It is
pointed out that the defendant nos.1 and 2 have become so hostile to the
interest of defendant no.4 that notwithstanding that their father is still
alive they have moved an application for mutation of the suit property
before the Concerned Authorities. This factum is not disputed.
14. In this background, this Court does not deem it proper to continue
with the interim directions contained in the order dated 01.8.2014 as
they appear to be wholly unnecessary in the factual matrix as has
emerged before this Court. However, it is made clear that the plaintiff
will not hold himself out as an owner/co-owner of the suit property.
Admittedly, the ownership of the suit property is with Kailash Nath.
The family settlement dated 01.11.1992 which had led to the consent
decree dated 07.11.2007 and which even otherwise is not binding upon
the plaintiff is under challenge.
15. The order dated 01.8.2014 is accordingly set aside. It is,
however, reiterated that the plaintiff will not project himself as a co-
owner of the suit property. No further directions are called for.
CS (OS) No. 1630/2006 Page 8 of 9
16. Both these applications are disposed of.
I.A.No.14166/2014 (under Section 151 CPC)
I.A.No.15077/2014 (for early hearing)
17. These applications have become infructuous. Disposed of
accordingly.
CS(OS) 1630/2006
18. List before Joint Registrar for evidence on 06.5.2015.
INDERMEET KAUR, J
FEBRUARY 09, 2015
ndn
CS (OS) No. 1630/2006 Page 9 of 9
% Date of Judgment :09.02.2015.
+ CS(OS) 1630/2006
MR. KARAN NATH ..... Plaintiff
Through Mr. T.K. Ganju, Sr. Adv. with
Mr. Praveen Agarwal, Advocate
versus
MS. MINAKSHI NATH AND ORS. ..... Defendants
Through Mr. Amit Sehgal, Adv. for D-1
and D-2
Ms. Swaty S. Malik, Adv. for D-3
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
I.A.No.9189/2014 (u/ Order XXXIX Rules 1 and 2 CPC) and
I.A.No.20883/2014 (u/O XXXIX Rule 4 CPC)
1. The application under Order XXXIX Rules 1 and 2 CPC has been
filed by defendant nos.1 to 3. They are the two daughters and the wife
of defendant no.4 (Kailash Nath). Kailash Nath is admittedly the owner
of the suit property i.e. the property bearing no. 39, Prithviraj Road,
New Delhi. The prayer made in the application is that the plaintiff
(surrogate son of defendant no.4) be restrained from getting his name
mutated in the electricity connection no.1006560 or to substitute his
CS (OS) No. 1630/2006 Page 1 of 9
name as a co-owner in the suit property. Further prayer made in the
application is that the plaintiff be restrained from using the address of
the aforenoted property or representing himself as the co-owner in the
suit property.
2. Reply has been filed by the plaintiff contesting the application.
His submission is that the application in the present form is wholly
misconceived. Submission is that the consent decree inter se defendant
nos.1 to 3 and defendant no.4 passed on 07.11.2007 in CS(SO)
1257/2003 is not binding upon him as he was admittedly not a party to
the suit. In that judgment it had been noted that Karan Nath (plaintiff)
had filed a civil suit {(CS(OS) 1630/2006} seeking a challenge to the
family settlement dated 01.7.1992 (pursuant to which the decree dated
07.11.2007 had been passed) and while recording the compromise
decree it had noted this submission of the plaintiff that the said
compromise arrived at inter se between defendant nos.1 to 4 will not be
binding upon the plaintiff. Vehement submission of the learned counsel
for the plaintiff being that the prayer made in the present application is
even otherwise not maintainable as admittedly the plaintiff is the son of
the defendant no.4 and his status has been recognized by all family
members; the plaintiff is visiting his aged father being more than 85
years of age and looking after his health; the defendant nos.1 and 2
being the married daughters are living separately in their own homes;
his mother (defendant no.3) is also not in a position to look after her
CS (OS) No. 1630/2006 Page 2 of 9
ailing husband all by herself; the present application has been filed by
the defendants with a malafide interest.
3. Defendant no.4 i.e. Kailash Nath has also filed a reply. It was not
a part of the record although it has been admittedly filed in the Registry
as both the parties had copies of the same. Copy of the reply has been
placed on record. In this reply the stand of defendant no.4 is that the
plaintiff is admittedly his son. He has two daughters, both of whom are
married and are not residing in the suit property; they are living in their
separate houses. It has been reiterated that defendant no.4 (Kailash
Nath) is the sole and absolute owner of the suit property and is in
peaceful possession of the same. A guest house is being run in the
property. It is pointed out that defendant nos.1 to 3 (his wife and two
daughters) have now connived against him and are in complete control
of the management of the guest house and have even gone to the extent
of showcasing the answering defendant as a member of the staff and
have issued pay cheques to him after deducting TDS. It is pointed out
that the malafide and hostile conduct of defendant nos.1 to 3 is
deplorable and the answering defendant has lost complete faith in them.
He has reiterated that he had written a letter to the Water and Electricity
Department of the NDMC (dated 02.4.2014) stating that out of the two
electricity meters which are installed in the suit property (one of which
is in the name of the defendant) and second one in the name of Amar
Nath (deceased father of Kailash Nath) and the second meter be
transferred in the name of the plaintiff. Submission being that he is
CS (OS) No. 1630/2006 Page 3 of 9
rightful owner of the suit property and has complete ownership rights in
the suit property in his lifetime and is well within his right to make such
a request to the Electricity Department to transfer this meter which was
in the name of a dead man (his father) to his son.
4. The contentions and the counter contentions have been noted.
Kailash Nath is undisputedly the owner of 39, Prithviraj Road, New
Delhi. On 07.11.2007 he had entered into a compromise decree with
defendant nos.1 to 3 in CS(OS) 1257/2003 in terms of which the suit
property was to be completely owned by Kailash Nath and his wife
during their lifetime and after their demise it would fall equally to their
two daughters. In that suit before the compromise decree could be
recorded plaintiff (Karan Nath) had moved an application seeking
impleadment but this application stood dismissed. However, while
recording the terms of the consent decree on 07.11.2007 the Court had
noted that since Karan Nath was not a party to the suit the terms of the
compromise would not bind him. On 11.08.2005 in that suit an order
had been passed on an interim application. This was in
I.A.No.6627/2003. It was directed that Ms.Elma (the lady through
whom plaintiff was born) will not be inducted in the suit property;
however, it will be open to the plaintiff (Karan Nath) to visit and meet
his father/attend to him in case of emergency. This order had never been
challenged. In terms of this order permission to Karan Nath to go and
meet his father and to attend to him in emergent situations was taken
care of. This order was passed in the year 2005. Thus it appears that
CS (OS) No. 1630/2006 Page 4 of 9
even at that point of time the father (defendant no.4) was on comfortable
terms with the plaintiff and he wanted him to visit his home and to look
after him.
5. The fact that he is a son born from a surrogate mother is an
admitted fact. This in fact appears to be the bone of contention between
the defendant nos.1 to 3 and defendant no.4.
6. Be that as it may, although the family settlement dated 01.11.1992
is the subject matter of challenge in CS(OS) No. 1630/2006, yet the
undisputed fact remains that defendant no.4 Kailash Nath continues to
remain the absolute owner of the suit property during his life time. This
is clear from the decree dated 07.11.2007 (heavily relied upon by
defendant nos.1 to 3).
7. By moving an application before the Electricity Department of the
NDMC requesting them to transfer the meter in the name of the plaintiff
(qua a dead meter earlier in the name of his father Amar Nath) is a
matter which has to be taken care of by that Department and no orders
are called for by this Court on the adjudication of that application.
8. The prayers made in the present application read as under:
(a) Injunction restraining the plaintiff from mutating his
name as owner in the Electricity Consumer
No.1006560, K.No.K1946 or creating/substituting his
name with any authority, as owner or co-owner of
property bearing No.39, Prithviraj Road, New Delhi.
CS (OS) No. 1630/2006 Page 5 of 9
(b) Injunction restraining the plaintiff from creating or
using the address of the property bearing No.39,
Prithviraj Road, New Delhi, in any identity documents.
(c) Restrain the plaintiff from taking benefit of any
document, bearing the address of the suit property
bearing No.39, Prithviraj Road, New Delhi, as his
residential address.
(d) Mandatory injunction directing the plaintiff from
disclosing and withdrawing all such pending
applications, where he has misrepresented himself as co-
owner or being in possession of the suit property
bearing No.39, Prithviraj Road, New Delhi.
9. These prayers smack of malafides. This is for the reason that the
daughters (defendant nos.1 and 2) do not want the plaintiff (Karan Nath)
to even enter the suit property which in terms of the order dated
11.8.2005 stands settled. Plaintiff Karan Nath (admittedly the son of
defendant no. 4) has already been granted permission to visit his father
(defendant no.4). It is also not the case of the parties that the defendant
no.4 is in a condition of mental instability and he has been coerced or
pressurized by any person. In these circumstances, it is open to
defendant no.4, being the absolute owner of the property, to choose the
persons who can visit him in his house; the permission to Karan Nath to
CS (OS) No. 1630/2006 Page 6 of 9
visit the property in the order dated 11.8.2005 is even otherwise
affirmed.
10. On 01.8.2014 certain interim directions were passed:
“..............
3. It is not disputed by the learned counsel for the non-
applicants/plaintiffs that defendant no.4, in the very least, is in
possession of the suit property, which is located at 39, Prithviraj
Road, New Delhi.
3.1 The apprehension of the applicants/defendant nos. 1 to 3, who
are the two daughters and the wife of defendant no.4 is that, the
plaintiff /non-applicant is representing himself as being in
possession of the suit property to various statutory authorities.
3.2 Accordingly, till the next date of hearing, the plaintiff will
desist from representing to various statutory authorities or
otherwise that he is in possession of the suit property.
4. List on 05.12.2014.”
11. It is these directions which are a cause of grievance to the
plaintiff.
12. The plaintiff as on date admittedly is not in possession of the suit
property but at the cost of repetition, he is visiting his father as and
when he wishes to and as and when required to meet to the conditions of
CS (OS) No. 1630/2006 Page 7 of 9
his health. There can be no bar to such entry by the plaintiff into the suit
property for the said purpose.
13. It is pointed out by learned counsel for the plaintiff that the
interim order dated 01.8.2014 is in fact creating an embargo on the entry
of the plaintiff and this order has been used by the defendants to make
submissions before Competent Authorities that the plaintiff has no
concern with the suit property and he is hostile to the suit property. It is
pointed out that the defendant nos.1 and 2 have become so hostile to the
interest of defendant no.4 that notwithstanding that their father is still
alive they have moved an application for mutation of the suit property
before the Concerned Authorities. This factum is not disputed.
14. In this background, this Court does not deem it proper to continue
with the interim directions contained in the order dated 01.8.2014 as
they appear to be wholly unnecessary in the factual matrix as has
emerged before this Court. However, it is made clear that the plaintiff
will not hold himself out as an owner/co-owner of the suit property.
Admittedly, the ownership of the suit property is with Kailash Nath.
The family settlement dated 01.11.1992 which had led to the consent
decree dated 07.11.2007 and which even otherwise is not binding upon
the plaintiff is under challenge.
15. The order dated 01.8.2014 is accordingly set aside. It is,
however, reiterated that the plaintiff will not project himself as a co-
owner of the suit property. No further directions are called for.
CS (OS) No. 1630/2006 Page 8 of 9
16. Both these applications are disposed of.
I.A.No.14166/2014 (under Section 151 CPC)
I.A.No.15077/2014 (for early hearing)
17. These applications have become infructuous. Disposed of
accordingly.
CS(OS) 1630/2006
18. List before Joint Registrar for evidence on 06.5.2015.
INDERMEET KAUR, J
FEBRUARY 09, 2015
ndn
CS (OS) No. 1630/2006 Page 9 of 9