Delhi District Court
4 vs Ms. Shikha Mehra on 27 August, 2007
1
IN THE COURT OF SH. N. K. SHARMA,
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO. :- 39/2006
Ms. Neeta Mehra W/o Sh. Vinay Mehra,
R/o :- 10, Southern Avenue,
Maharani Bagh,
New Delhi.
Also at :-
14, Rajdoot Marg,
Chanaky2a Puri,
New Delhi. ...... Plaintiff
Versus
1. Ms. Shikha Mehra
R/o :- 10, Southern Avenue,
Maharani Bagh,
New Delhi.
2. Ms. Megha Mehra D/o Sh. Vinay Mehra
R/o :- 10, Southern Avenue,
Maharani Bagh,
New Delhi. ...... Defendants
DATE OF INSTITUTION OF SUIT :- 21/12/2004
RESERVED FOR JUDGMENT ON :- 20/08/2007
DATE OF DECISION :- 27/08/2007
SUIT FOR DECLARATION & PERMANENT INJUNCTION
J U D G M E N T :-
The brief facts as stated in the plaint by the plaintiff are that she is a resident of Delhi and is residing 2 at the above mentioned address and defendants No. 1 and 2 are her daughters, who are major and the parties are descendants of one common ancestor late Sh. Jagat Mohan Mehra. She stated that present suit pertains to the property bearing House No. 14, Rajdoot Marg, Chanakya Puri, New Delhi.
2. She stated that her husband alongwith his father and two other brothers was co-parcener of a Hindu Undivided Family (HUF) and late Sh. Jagat Mohan Mehra was Karta of such HUF. She stated that other members of the HUF were Sh. Anand Mohan Mehra, Sh. Vinay Mehra and Sh. Rajiv Mehra and the suit property was the part of HUF property (Hindu Undivided Property) of said HUF. She stated that in the year 1988, one of the members of HUF viz. Sh. Anand Mohan Mehra, being one of the co-parceners of the HUF, had instituted a suit titled "Anand Mohan Mehra V/s Jagat Mohan Mehra & Others"
for Partition & Rendition of Accounts with regard to the entire property of HUF and in the said suit apart from Sh. Jagat Mohan Mehra other members of HUF, namely, Sh. Vinay Mehra and Sh. Rajiv Mehra were impleaded as defendants.
3. She further stated that during the pendency of the above said suit, filed by Sh. Anand Mohan Mehra, a Family Settlement was arrived at between the parties on 15/02/1994 and the entire properties of HUF were 3 divided between its members. She stated that in terms of the Family Settlement the suit property i.e. House No. 14, Rajdoot Marg, Chanakya Puri, New Delhi which had gone to the share of Sh. Jagat Mohan Mehra would be bequeathed in favour of defendants namely Ms. Shikha Mehra and Ms. Megha Mehra, both daughters of Sh. Vinay Mehra and the plaintiff in equal share i.e. half each and at the same time the she and her husband Sh. Vinay Mehra gave the rights of residence, for their life, in the suit property.
4. She further stated that in terms of the Family Settlement, late Sh. Jagat Mohan Mehra executed a registered Will on 14/09/1994 with regard to the suit property and thereby bequeathed the said suit property in favour of Ms. Sheikha Mehra and Ms. Megha Mehra, who have been impleaded as defendants in the present suit and the said Will contained a stipulation, as mentioned in the Family Settlement dated 15/02/1994, to the effect that she alongwith her husband Sh. Vinay Mehra will have the right to reside in the suit property for their life.
5. She stated that late Sh. Jagat Mohan Mehra died on 02/01/1998 at Delhi, therefore, his above referred last Will and Testament dated 14/09/1994 came into operation and she alongwith her husband became entitled to the right of residence and live in the suit property for their life as much as they are in possession and utilising 4 the suit property and she alongwith her husband and other family members i.e. the defendants have been in continuous and peaceful possession of the suit premises and is enjoying the physical possession without any hindrance obstruction from any quarter and thereafter they entered into a Family Settlement with regard to her and her husband's rights to use and occupy the suit premises and the said Family Settlement was reduced into writing on 30/01/1999, according to which the defendants will not create any hindrance or obstruction in the peaceful possession of the suit property for its use and utilisation during her and her husband's lifetime and the defendants were permitted to stay and reside in the suit premises alongwith her being ultimately and joint beneficiaries of the suit property.
6. She further stated that it was also settled between her and the defendants that during her lifetime and of her husband, the right to live in the suit property would also include the right to enjoy the fruits of the property including the rights to let out the suit property either in parts or in whole and the rental income so from the suit property shall be treated as benefits/fruits arising out for the suit property and she alongwith her husband shall be entitled to the same during their lifetime and after their death the said benefits from the suit property will go to the defendants.
57. She further stated that it was one of the terms and conditions of the Family Settlement dated 30/01/1999 that she or her husband Sh. Vinay Mehra will have no right to create any part or lien or to put any encumbrance over the suit property and similarly the defendants were also restrained from alienating/to create mortgage or a part of lien over the suit property during their lifetime. She stated that by the passage of time, the defendants have started interfering into the peaceful enjoyment of the suit property under her occupation and are exerting that they are entitled to the income so derived from the suit property being exclusive owners of the suit property.
8. She further stated that the defendants have already got mutated their name in place of name of late Sh. Jagat Mohan Mehra, qua the suit property in the records of the Land Development Officer (L & DO) and on the strength of such mutation they are openly claiming that they being beneficiaries of the Will dated 14/09/1994 executed by late Sh. Jagat Mohan Mehra coupled with the fact that the property in records of L & DO stands in their name are within their rights to dispose of the suit property and on her verification, it has transpired that the suit property has been mutated in the name of the defendants by the L & DO on the basis of Will dated 14/09/1994 executed by Sh. Jagat Mohan Mehra without making any 6 endorsement with regard to her rights to live and enjoy the benefits of the suit property and she filed Objections on 04/08/2004 to such mutation having been carried out thereby showing the property in the name of the defendants and making no mention about the interest of the plaintiff in the said property by L & DO.
9. She further stated that she received a communication from the defendants wherein they refused to comply with the Family Settlement dated 30/01/1999 and threatened that since they are the legal owners of the suit property, the terms and conditions of the Family Settlement are not binding upon them and told to her that the said Settlement Deed be treated as null and void having no effects over the rights of the defendants and they also told her to handover the possession of the suit property to them as they intend to dispose of the suit property to settle in USA. She further stated that defendants also sent a communication of L & DO wherein they have sought the clearance/NOC to sell/dispose of the suit property.
10. She further stated that she came to know from the reliable sources that defendant No. 1 is negotiating with prospective buyers with regard to transferring the possession of the suit property to a third party in violation of the letter and spirit of the settlement dated 30/01/1999 and such acts of the defendants shall jeopardies her rights 7 in the suit property, which is illegal and unjustified and as such they are liable to be restrained from executing their threats.
11. Hence, she prayed that a decree be passed thereby declaring that she alongwith her husband Sh. Vinay Mehra has the right to live and enjoy the fruits (including right of letting out, either in whole or in part, on rent) the property bearing No. 14, Rajdoot Marg, Chanakya Puri, New Delhi, as per registered Will dated 14/09/1994 executed by Sh. Jagat Mohan Mehra and Deed of Family Settlement dated 30/01/1999 and also that the defendants are bound by the terms of the said Will and Family Settlement. She also prayed that a decree of Permanent Injunction be passed in her favour and against the defendants, their agent(s), representatives, assignees etc. thereby restraining them from creating any hindrance/ obstruction in her and her husband's peaceful enjoyment of the suit property also from creating any third party interest and/or hand over the possession of the property to any third party.
12. Joint written statement has been filed by the defendants No. 1 and 2 wherein they have taken the preliminary objections that the present suit has been filed by the plaintiff on false and baseless allegations with ulterior motive to grab the suit property and the suit property had been bequeathed in favour of the answering 8 defendants by their grand father late Sh. Jagat Mohan Mehra vide his last Will dated 14/09/1994 and the plaintiff is falsely claiming that she and her husband Sh. Vinay Mehra had been given the right of residence in the suit property till their lifetime.
13. They stated that their grand father late Sh. Jagat Mohan Mehra in his Will dated 14/09/1994 had incorporated the alleged right of residence to Sh. Vinay Mehra and his wife (the plaintiff) on the clear understanding that they were to look after the suit property till the time they complete their education and start their independent lives and thereafter the plaintiff and her husband have no concern whatsoever with the suit property bequeathed in their favour. They stated that Sh. Jagat Mohan Mehra died on 02/01/1998 and thereafter his Will dated 14/09/1994 came into operation and they became the absolute owners of the suit property jointly and accordingly the suit property was got mutated in their exclusive names in the records of the L & DO.
14. On merits, they stated that plaintiff is not descendant of late Sh. Jagat Mohan Mehra, however, they are the grand daughters of late Sh. Jagat Mohan Mehra. They admitted that it was one of the terms of the Family Settlement dated 15/02/1994 that the suit property, which had gone in the share of Sh. Jagat Mohan Mehra, their grand father, would be bequeathed in their favour in 9 equal share i.e. half each. However, they denied that plaintiff and her husband Sh. Vinay Mehra were given the rights of residence in the suit property for their life as the same was incorporated in the Will with clear understanding that the same would not be given effect to and when they complete their study, attain majority and start their independent life, the plaintiff and her husband would have no concern whatsoever in the suit property.
15. They denied that they sent any communication to the plaintiff whereby they refused to comply with the Family Settlement dated 30/01/1999 and the plaintiff has placed no such communication on record. They denied that they have extended any threat that they intend to dispose of the suit property with a view to settle in USA. Hence, they prayed that the suit of the plaintiff be dismissed with cost.
16. Replication has been filed by the plaintiff, wherein she has reiterated and reaffirmed all the facts as alleged in the plaint and denied all the facts, as contained in the written statement.
17. On the basis of pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 22/03/2005 :-
1. Whether the plaintiff is entitled to Declaration, as prayed for ? OPP.10
2. Whether the plaintiff is entitled to Injunction, as payed for ? OPP.
3. Relief.
18. Plaintiff Ms. Neeta Mehra has examined herself as PW-1.
19. On the other hand, defendants have examined only defendant No. 1 Ms. Shikha Mehra as DW-1.
20. I have heard counsels for the parties and carefully perused the record.
21. My issue-wise findings are as under :-
22. Findings on Issue No. 1 :-
The onus to prove this issue is on the plaintiff and in this issue the plaintiff is claiming three-fold reliefs
(i) that the plaintiff alongwith her husband Sh. Vinay Mehra has the right to live in the suit property; (ii) to enjoy the fruits (including right of letting out either in whole or in part on rent) of the suit property as per the Registered Will dated 14/09/1994 and Deed of Family Settlement dated 30/01/1999; and (iii) that the defendants are bound by the terms of the Registered Will dated 14/09/1994 and Deed of Family Settlement dated 30/01/1999.
23. The plaintiff Ms. Neeta Mehra has examined herself as PW-1 and she has stated that defendants No. 1 and 2 are her daughters and both are major and the suit pertains to the property bearing House No. 14, Rajdoot 11 Marg, Chanakya Puri, New Delhi and the suit property was part of HUF property of which late Sh. Jagat Mohan Mehra was the Karta and his sons namely Sh. Anand Mohan Mehra, Sh. Rajiv Mohan Mehra and Sh. Vinay Mehra were the co-parceners of the said HUF. She further stated that one of the members in the year 1998, namely, Sh. Anand Mohan Mehra had instituted the suit for partition and rendition of accounts with regard to the entire HUF property and in that suit the family settlement was arrived at between the parties on 15/02/1994 and the suit was disposed of in terms of family settlement vide order dated 19/10/1994 by the court of Sh. G. S. Jugti, Ld. ADJ, Delhi and in terms of the family settlement late Sh. Jagat Mohan Mehra executed a Registered Will on 14/09/1994 with regard to the suit property and after the death of Sh. Jagat Mohan Mehra, who died on 02/01/1998 the suit property came into possession of the plaintiff, her husband Sh. Vinay Mehra and the defendants as joint family property of HUF. She further deposed that a Deed of Family Settlement Ex. PW1/1 was reduced into writing and signed on 30/01/1999 by her and the defendants and now the defendants are not honouring the terms of Deed of Family Settlement dated 30/01/1999 Ex. PW1/1.
24. On the other hand the defendants have examined Ms. Shikha Mehra as DW-1 and she deposed 12 that the suit property belongs to her and her sister Ms. Megha Mehra i.e. defendant No. 2 jointly by virtue of Will executed on 22/07/1994 by their late grand father Sh. Jagat Mohan Mehra and the Will was registered on 14/09/1994. She further stated that the plaintiff or her husband Sh. Vinay Mehra were not given any right of residence in the suit property for their lifetime and the stipulation relating to the right of residence to the plaintiff and Sh. Vinay Mehra was incorporated in the Family Settlement dated 15/02/1994 or in the Registered Will dated 14/09/1994 with the clear understanding that the same would not given effect to when she and her sister complete their studies, attain majority and start their independent lives and the plaintiff or her husband would have no concern whatsoever in the suit property. She further stated that her grand father late Sh. Jagat Mohan Mehra died on 02/01/1998 and thereafter by virtue of operation of the Will dated 14/09/1994 she and her sister Ms. Megha Mehra have became the absolute owner of the suit property jointly and they also got mutated the suit property in their name in the record of Land & Development Office. She further deposed that after the death of her grand father she entered into a Family Settlement dated 30/01/1999 just for limited purpose for effective management and maintenance of the suit property and she executed the said Family Settlement for 13 herself and on behalf of her sister Ms. Megha (who was minor at that time) in the light of the Will of her grand father and the plaintiff and Sh. Vinay Mehra have no concern whatsoever with the suit property. She also deposed that after the execution of the said Family settlement dated 30/01/1999 Ex. PW1/1 the plaintiff has changed the colours and started abusing her right in the suit property and asserting authority in respect of the suit property as she is the sole and exclusive owner of the suit property.
25. In this case, there is no dispute between the parties as regard to the Family Settlement which was arrived at between the parties on 15/02/1994 in the suit which was filed by Sh. Anand Mohan Mehra and the said suit was decreed in terms of the Family Settlement on 19/10/1994 by the court of Sh. G. S. Jugti, Ld. ADJ, Delhi. There is also no dispute as regard to the Registered Will dated 14/09/1994 and the Family Settlement Deed dated 30/01/1999 Ex. PW1/1.
26. Ld. Counsel for the plaintiff submitted that the documentary evidence would prevail over the oral testimony. On the other hand, ld. Counsel for the defendants submitted that the defendants could not be precluded from leading oral evidence as to the same facts by virtue of Sections 91 & 92 of the Evidence Act, 1872.
1427. I would like to reproduce the relevant portion of the Family Settlement dated 15/02/1994, Registered Will dated 14/09/1994 and the Family Settlement Deed dated 30/01/1999 in order to resolve the controversies between the parties.
Relevant portion of the Family Settlement dated 15/02/1994 is as follows :-
"The immovable property at 14, Rajdoot Marg will be bequeathed to the two daughters of party of the 3rd part i.e. Sh. Vinay Mehra, the name of the daughters being Ms. Shiikha Mehra and Ms. Megha Mehra. However, party of the 3rd part alongwith his wife Smt. Neeta Mehra would be entitled to right of residence for their life in the said property".
Relevant portion of the Registered Will dated 14/09/1994 is as follows :-
"14, Rajdoot Marg, Chanakya Puri, New Delhi shall go to my two grand daughters Ms. Shikha Mehra and Ms. Megha Mehra, daughters of Sh. Vinay Mehra jointly. However, Sh. Vinay Mehra alongwith his wife Ms. Neeta Mehra would be entitled to right of residence for their life in the said property".
Relevant portion of the Family Settlement Deed dated 30/01/1999 is as follows :-
"That during the lifetime of second party i.e. Ms. Neeta Mehra, the right to live in the said property alongwith her husband Sh. Vinay Mehra shall also include the right to enjoy the fruits of the property including the right 15 of letting out either in part or the whole of the said property on rent by the second party and the income derived therefrom shall be treated as benefits/fruits of the property and the second party alongwith her husband Sh. Vinay Mehra shall be entitled to such benefits during their lifetime and after their death the First party alongwith her sister Ms. Megha Mehra shall be entitled to such benefits however, the First party will have the right to maintenance for livelihood and studies from such benefits/income drawing from the above said property".
28. First of all I would take up the Family Settlement dated 30/01/1999 Es. PW1/1. This Family Settlement cannot be given any effect since defendant No.1 Ms. Shikha Mehra, who has signed the said Settlement was major but at that time defendant No. 2 Ms. Megha Mehra was minor and Ms. Shikha Mehra could not act as guardian on behalf of defendant No. 2 in view of Sections 6 of the Hindu Minority and Guardianship Act, 1956 and the relevant portion is as follows :-
"The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of minor's property (excluding his or her undivided interest in joint family property), are :-
(a) in the case of a boy or an unmarried girl - the father, and after him, the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;16
(b) ............................"29. In the present case the defendant No. 1
Ms. Shikha Mehra is not the natural guardian of the defendant No. 2 Ms. Megha Mehra (minor at that time) and she has also not sought permission from the court to act as guardian for the defendant No. 2 Ms. Megha Mehra and moreover the defendant No. 2 Ms. Megha Mehra on attaining majority has not ratified the said Family Settlement dated 30/01/1999. Hence the Family Settlement dated 30/01/1999 Ex. PW1/1 is of no avail to the plaintiff.
30. The defendant No. 1 Ms. Shikha Mehra has alone deposed that the stipulation relating to right of residence to the plaintiff and her husband Sh. Vinay Mehra was incorporated in the Family Settlement dated 15/02/1994 and in the Will dated 14/09/1994 of his grand father with clear understanding that the same would not given effect when she and her sister complete their studies, attain majority and start their independent lives and the plaintiff and her husband would have no concern whatsoever in the suit property. But she has not examined any other witness to prove the said understanding. She could have examined her uncles Sh. Anand Mohan Mehra and Sh. Rajiv Mehra to prove the said understanding. But she failed to do so for the reasons best known to her.
1731. From the perusal of the terms of the Family Settlement dated 15/02/1994 and of Registered Will dated 14/09/1994, it is amply clear that the plaintiff i.e. Ms. Neeta Mehra and her husband were given the right of residence for their lifetime in the suit property.
32. In view of the aforesaid discussions, I am of the view that the plaintiff alongwith her husband Sh. Vinay Mehra have the right to live in the suit property for their lifetime and the other two reliefs i.e. enjoying the fruits of the suit property and to honour the terms of the Family Settlement Deed dated 30/01/1999 are declined.
33. Findings on Issue No. 2 :-
The onus to prove this issue is on the plaintiff and in this issue plaintiff has claimed two-fold reliefs (i) that a Permanent Injunction be passed in favour of the plaintiff and against the defendants etc. restraining them from creating any hindrance/obstruction in the peaceful enjoyment of the property by her and her husband; and (ii) from creating any third party interest or hand over the possession of the suit property to any third party.
34. The plaintiff Ms. Neeta Mehra stated that late Sh. Jagat Mohan Mehra died on 02/01/1998 and thereafter the defendants got the suit property mutated in their names in the record of the L & DO and are openly 18 claiming that they are within their right to dispose of the suit property in order to settle in USA.
35. The defendant No. 1 Ms. Shikha Mehra stated that after the death of their grand father late Sh. Jagat Mohan Mehra, she and her sister Ms. Megha Mehra became the absolute owner of the suit property jointly by virtue of operation of Will dated 14/09/1994 and also stated that she and her sister being the absolute and exclusive owner of the suit property have unfettered right in respect of the suit property including the right to sell or dispose of the same.
36. While deciding the Issue No. 1, I have held that the plaintiff and her husband Sh. Vinay Mehra have the right to live in the suit property till their lifetime. In view of this, the defendants are restrained from creating any hindrance/obstruction in the peaceful enjoyment of the suit property by plaintiff and her husband and from creating any third party interest or hand over the possession of the suit property to any third party during the lifetime of the plaintiff and her husband Sh. Vinay Mehra.
37. Relief :-
In view of my findings on Issues No. 1 and 2, I pass the decree of Declaration to the effect that plaintiff and her husband Sh. Vinay Mehra have the right to live in the suit property bearing No. 14, Rajdoot Marg, Chanakya 19 Puri, New Delhi, for their lifetime and also pass a Decree of Permanent Injunction in favour of the plaintiff and against the defendants,their agents, representatives, assignees etc. from creating any hindrance/obstruction in the peaceful enjoyment of the suit property by plaintiff and her husband and also from creating any third party interest or hand over the possession of the suit property to any third party during the lifetime of the plaintiff and her husband Sh. Vinay Mehra.
Decree Sheet be prepared accordingly. No order as to cost. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (N. K. SHARMA)
COURT ON 27/08/2007 ADDL. DISTT. JUDGE : DELHI
20
SUIT NO. :- 39/2006
27/08/2007
Present :- Proxy counsel for the parties.
Vide separate judgment announced today, the suit of the plaintiff is disposed of.
No order as to cost. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(N. K. SHARMA) ADDL. DISTT. JUDGE : DELHI 27/08/2007