Delhi High Court
Bharat Wadhwa & Anr vs Sushma Arora & Ors. on 8 July, 2013
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 8th July, 2013.
+ CS(OS) 353/2012 & IA No.2716/2012 (of the plaintiffs u/O-39 R-
1&2).
BHARAT WADHWA & ANR .... Plaintiffs
Through: Mr. Ratan K. Singh with Mr. Rajnesh
Kumar, Advs.
versus
SUSHMA ARORA & ORS. ..... Defendants
Through: Mr. T.R. Arora, Adv. for D-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
%
1. Though the hearing on 22 nd May, 2013 commenced on the application of the plaintiffs for interim relief and for the purpose of elucidating the issues arising for adjudication, but doubts having arisen as to the very maintainability of the suit, the counsels were heard on the said aspect also and orders reserved.
2. The two plaintiffs have instituted this suit pleading - (a) that Shri Om Prakash, paternal grandfather of the plaintiff No.2 Smt. Asha Wadhwa (plaintiff No.1 is the husband of the plaintiff No.2) was the owner of half portion i.e. 100 sq. yds. of property No.D-36, Moti Nagar, New Delhi CS(OS) No.353/2012 Page 1 of 16 admeasuring 200 sq. yds; (b) that Shri Om Prakash died in the year 1990 leaving behind four sons namely Shri Ram Kumar Budhiraja (defendant No.2 in this suit and who is/was the father of the plaintiff No.2), Shri Jeet Kumar Budhiraja (i.e. the predecessor of the defendant No.3 to 8 in this suit), Shri Budish Chand (i.e. the predecessor of the defendants 9 to 11 in this suit) and Shri Surinder (i.e. the predecessor of defendant No.12 in the suit) and one daughter (i.e. the defendant No.1 in this suit); (c) that Shri Om Prakash however vide registered Will dated 4th February, 1981 bequeathed the aforesaid portion of property D-36, Moti Nagar, New Delhi exclusively in favour of his son Ram Kumar Budhiraja (i.e. the defendant No.2 herein); (d) that the said defendant No.2 on 18 th May, 1998 executed a registered general power of attorney, a registered Will and an agreement to sell etc. with respect to the said property in favour of the plaintiff No.2 and put the plaintiff No.2 into possession of the said property and the plaintiff No.2 since then is in possession of the said property as owner thereof; that on 1 st May, 2011 the plaintiffs learnt from the defendant No.4 herein of a suit filed by the defendant No.1 in the District Court for partition of the said property and another property left by Shri Om Prakash; (e) that the plaintiffs on making further inquiries learnt that the defendant No.2 had in written statement filed CS(OS) No.353/2012 Page 2 of 16 in the said suit taken a plea of Shri Om Prakash having executed the Will dated 4th February, 1981 supra with respect to the said property in his favour;
(f) however none of the defendants in the aforesaid suit for partition disclosed about the sale of the said property by defendant No.2 in favour of the plaintiff No.2 herein and the plaintiffs thus remained oblivious of the said suit; (g) that after the filing of the written statement in the said suit for partition, the defendant No.2 went missing since 22 nd November, 2006 and a complaint dated 26th November, 2006 to that effect was lodged with PS Uttam Nagar, Delhi; (h) that the factum of the defendant No.2 herein having gone missing was also not disclosed in the partition suit; (i) that for the said reason the defendant No.2 could not contest the suit for partition and could not lead evidence of the Will therein and in the said circumstances a preliminary decree for partition of the said property as well as the other property subject matter of that suit was passed on 6 th October, 2010; (j) that though the defendants No. 3 and 4 herein filed RFA No. 20/2011 against the said preliminary decree but the same was dismissed by this Court vide order dated 18th March, 2011; (k) that the plaintiffs thereafter filed an application for impleadment in the suit for partition but the said application was dismissed by the Court of the Additional District Judge where the CS(OS) No.353/2012 Page 3 of 16 proceedings for final decree in the suit for partition were pending, vide order dated 5th May, 2011; (l) that the plaintiffs filed CM(M) against the said order before this Court but which was dismissed as withdrawn on 31 st January, 2012.
The plaintiffs thereafter filed this suit -
(a) for declaration that the judgment and preliminary decree dated 6th October, 2010 in the suit for partition aforesaid is null and void; (b) for declaration that the plaintiffs are the owners of the said property; and,
(c) for permanent injunction restraining the defendants from creating any third party interest in the property.
3. The plaintiffs alongwith the suit have filed this application for interim relief restraining the defendants from pressing for final decree in pursuance to the preliminary decree in the suit for partition and for restraining the defendants from creating any third party rights in the property.
4. Summons of the suit and notice of the application for interim relief were issued though no ex parte ad interim relief has been granted till now. The defendant No.1 has filed a written statement contesting the suit; the defendants No. 2 and 5 to 12 were proceeded against ex parte on 7th May, CS(OS) No.353/2012 Page 4 of 16 2012; though the counsel for the defendants No. 3 and 4 had appeared and subsequently claimed to have filed written statement on behalf of the defendant No.4 but neither any written statement is found on record nor did the defendants No. 3 and 4 appear thereafter and they also were proceeded against ex parte on 6th March, 2013.
5. Needless to state that the defendant No.1 controverts the Will dated 4 th February, 1981 of her father Shri Om Prakash in favour of her brother defendant No.2. It is also her contention (i) that it has already been decided in the suit for partition to which the predecessor of the plaintiff No.2 is a party that Shri Om Prakash died intestate; (ii) that though the predecessor of the plaintiff No.2 namely the defendant No.2 herein, in the suit for partition took a plea of Shri Om Prakash having left a Will dated 4 th February, 1981 but the said plea was dismissed and the said finding has been affirmed in the appeal preferred to this Court and cannot now be revisited; (iii) that the mother and brother of the plaintiff No.2 have been participating in the suit for partition; (iv) that the alleged transfer in favour of the plaintiff No.2 was never disclosed in the suit for partition; (v) that the attempt of the plaintiffs to join in the suit for partition has also been dismissed; (vi) that the allegation of the transfer of the property in favour of the plaintiffs is belied from the CS(OS) No.353/2012 Page 5 of 16 summons of the suit for partition having been served on the defendant No.2 i.e., the father of the plaintiff No.2 at the said property in the year 2006 and the Local Commissioner appointed in the said suit for partition having also reported having met the mother of the plaintiff in the suit property; (vii) that the plaintiffs were throughout aware of the suit for partition and having failed to prove the Will dated 4th February, 1981 of Shri Om Prakash in the suit for partition, cannot have a second round by way of this suit and nothing remains for adjudication qua the said Will.
6. There being only a power of attorney accompanied by agreement to sell and not a sale deed with respect to the property in favour of the plaintiffs, doubts as to the maintainability of the suit were raised during the hearing, on the ground of whether the plaintiffs are bound by the finding in the suit for partition qua the Will of 4 th February, 1981 of Shri Om Prakash and which forms the fulcrum of the case of the plaintiffs. It was also inquired from the counsel for the plaintiffs whether the plaintiffs had lodged any FIR against the defendant No.2 for the reason of having not disclosed about the suit for partition to the plaintiffs or for the reason of having not disclosed in the suit for partition about the transfer of the property to the plaintiffs. No FIR is stated to have been lodged. It was also inquired whether the plaintiffs had CS(OS) No.353/2012 Page 6 of 16 lodged any FIR against the brother of the plaintiff No.2 who was appearing in the suit for partition. No FIR against him also was informed to have been lodged. It was yet further inquired whether the plaintiffs had any dispute with the father of the plaintiff No.2. It was fairly conceded that there were no disputes.
7. The counsel for the plaintiffs relied on -
(i) Fatima Fouzia Vs. Walashan Prince Moazzam Jah Bahadur AIR 1980 Andhra Pradesh 315 to contend that when a decree is attacked as having been obtained by fraud, it is open to the Court to grant a temporary injunction restraining the decree holder from executing the decree pending disposal of the suit.
(ii) Kasa Krishna Ghorpade Vs. Vinayak Gangadhar AIR 1948 Bombay 193 to contend that a transferee is not estopped by a decree obtained in a suit against the transferor, commenced after the date of transfer.
(iii) Nagamma Shedthi Vs. Korathu Hengsu AIR 1950 Mad 546 to contend that even Explanation VI to Section 11 of the CPC attracts the principle of res judicata only where the persons CS(OS) No.353/2012 Page 7 of 16 'litigate bona fide' in respect of a right claimed in common and to further contend that it can be established only in trial whether the plaintiff knew of the suit for partition or not.
(iv) Talluri Venkata Seshayya Vs. Thadikonda Kotiswara Rao AIR 1937 PC 1 in support of the contention that the pleas of bona fides and collusion have to be tested only in trial.
(v) In Re: Goods of Mrs. Lillan Singh AIR 1943 Calcutta 93 in support of the proposition that injunction can be granted restraining a person from proceeding with an application in Court.
8. Per contra, the counsel for the defendant No.1 has argued that the plaintiffs have not challenged the decree for partition which has attained finality; that in the said decree for partition the plea of Shri Om Prakash having executed the Will dated 4th February, 1981 has already been decided; that the said plea cannot be decided afresh; that with the withdrawal by the plaintiffs of the CM(M) petition preferred against the dismissal of their application for impleadment in the suit for partition, the said order of dismissal holding that the issue about the Will dated 4 th February, 1981 is res judicata, has also attained finality; that though the plaintiffs had sought to CS(OS) No.353/2012 Page 8 of 16 withdraw the CM(M) petition with liberty to take appropriate legal remedy but the Court only dismissed the petition as withdrawn and did not grant any liberty to pursue any other proceeding; that the defendant No.2 through whom the plaintiffs claim was specifically directed in the partition suit to produce the original documents and did not deny that the original documents are in his possession and thus the plaintiffs cannot now be heard to state that the original Will dated 4 th February, 1981 of Shri Om Prakash was in their possession and thus could not have been produced by the defendant No.2 in the suit for partition.
9. I will first deal with the aspect of maintainability of the suit qua which doubts were expressed during the hearing. The question, as aforesaid, is whether the plaintiffs who as per their own claim are at best agreement purchasers from the defendant No.2, can be given a chance to prove the Will dated 4th February, 1981 of Shri Om Prakash when the defendant No.2 has lost the opportunity to prove the said Will.
10. The plaintiffs were not a party to the suit for partition and applied for impleadment after a preliminary decree for partition had been passed and appeal there against had been dismissed. A person is not bound by a decree in a proceeding to which he is not a party. The only difference here is that CS(OS) No.353/2012 Page 9 of 16 the plaintiffs are closely related to the defendant No.2 and are not transferees from the defendant No.2 in the strict sense, being only agreement purchasers and it being a settled position in law that an agreement to sell does not transfer any right in the property [see Jiwan Das Vs. Narain Das AIR 1981 Delhi 291 followed in Sunil Kapoor Vs. Himmat Singh 167 (2010) DLT 806]. Recently the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana (2012) 1 SCC 656 has also held so. However the fact remains that land underneath the subject property is lease hold, lease whereof (a copy of which is on record) prohibits transfer or alienation without prior permission and this Court in Asha M. Jain v. Canara Bank 94 (2001) DLT 841 has held that judicial notice is to be taken of transactions vide general power of attorney, Will and agreement to sell. Even though the Supreme Court in Suraj Lamp & Industries (supra) over ruled the dicta of Asha M. Jain but only prospectively, without affecting the transaction of dates prior thereto. The transaction alleged by the plaintiffs is of prior to the dicta in Suraj Lamp & Industries and thus will continue to be governed by Asha M.Jain (supra).
11. As far as the close relationship of the plaintiffs with the defendant No.2 is concerned, it is the plea of the plaintiffs that the defendant No.2 CS(OS) No.353/2012 Page 10 of 16 herein filed his written statement in the suit for partition on 16 th May, 2006 and went missing soon thereafter w.e.f. 22 nd November, 2006 and no intimation of the said fact was given to the Court and thus was not proceeded against ex parte but for this reason could not prove the Will dated 4 th February, 1981 of Shri Om Prakash. The defendant No.1 in her written statement in this suit though has generally denied the plea of defendant No.2 herein having gone missing but has at the same time not pleaded that he is still available or living or residing where. As far as the plea of the defendant No.1 herein of the son of the defendant No.2 (who is the brother of the plaintiff No.2 herein) having continued to participate in the suit for partition, again in law, the effect thereof will depend upon the nature of the participation. It will have to be decided whether the son of the defendant No.2 without being substituted in place of the defendant No.2 in the suit for partition, could be said to be authorized to represent the defendant No.2. Further, the statutory period, only after which a missing person can be presumed to be dead is also not over qua defendant no.2 as yet. The Court cannot thus presume the defendant No.2 to be dead as yet. As far as the challenge to sale in favour of plaintiff no.2 is concerned, it cannot be lost sight of that the GPA and Will executed by defendant no.2 in favour of CS(OS) No.353/2012 Page 11 of 16 plaintiff no.2 are registered documents, of a date much prior to the institution of suit for partition by defendant no.1 and there is no plea of the said documents having been executed and registered at that time owing to any simmering disputes or to take unfair advantage in any litigation. All these facts would require evidence to be led. It would also require evidence to be adduced whether the plaintiff was aware of the suit for partition or not and the effect of such awareness on the independent right in property as agreement purchaser asserted by the plaintiffs. As far as the argument of the counsel for the defendants of the plaintiffs having not pleaded any particulars of fraud within the meaning of Order VI Rule 4 CPC is concerned, it may be noted that the case of the plaintiffs is not based on any fraud having been practiced by the defendant No.2 but on the premise of the plaintiffs being not bound by the judgment and decree if any against the defendant No.2.
12. Though the judgments in Asha M. Jain and Suraj Lamp & Industries find mention in the order dated 16th December, 2011 of the learned Additional District Judge dismissing the applications of the plaintiffs for impleadment and though the said order also holds that the matter pertaining to the right of the predecessor in interest of the plaintiffs to the property in CS(OS) No.353/2012 Page 12 of 16 question was directly and substantially in issue in the suit for partition and the finding with respect thereto had attainted finality and operates as res judicata but I am of the view that the principles of res judicata are attracted only when earlier proceeding is between the same party or between the parties under whom they or any of them are claiming. Here the plaintiff No.2 though a daughter of the defendant No.2 who was a party to the earlier suit for partition, is not claiming as a heir of defendant No.2 but is claiming as an agreement purchaser of the property from the defendant No.2. The position of a transferee of immovable property, as the plaintiff No.2 would be on the basis of the dicta in Asha M. Jain and having rights under Section 53A of the Transfer of Property Act, would be different from the position of a heir. Section 11 of the CPC when uses the expression "between parties under whom they or any of them claim" can include only a heir or a transferee pendente lite or subsequent to the earlier proceedings and not a transferee prior to the institution of the earlier proceedings. A person, after effecting transfer of property ceases to have any right thereto and contest by such person of a proceeding with respect to the property which has already been transferred cannot bind the transferee. Reference in this regard can be made to Beli Ram & Brothers Vs. Chaudri Mohammad Afzal AIR 1948 CS(OS) No.353/2012 Page 13 of 16 PC 168 and to Vibhuti Singh Vs. Damari Lal AIR 1978 All 370.
13. I am prima facie also of the opinion that the observations in the order in the partition suit dismissing the application of the plaintiffs for impleadment, would not come in the way of the plaintiffs in this suit. The Supreme Court in Ragho Prasad Gupta Vs. Shri Krishna Poddar AIR 1969 SC 316 observed that the expression of opinion, while dismissing an application for impleadment, that the applicant seeking impleadment would not be bound by the decree cannot operate as res judicata as the question whether the applicant would be bound by the decree or not is not in issue while deciding the impleadment. Similarly in Bishwanath Prasad Singh Vs. Rajendra Prasad (2006) 4 SCC 432, it was held that the observations/finding in a proceeding which is procedural in nature cannot constitute res judicata as nothing is heard and finally decided in the said proceeding. Moreover, the said observations are on legal issues and qua which in any case there is no res judicata.
14. I thus prima facie hold the plaintiffs to be not bound by the decree in the suit for partition. It is also worthwhile to mention that the judgment and decree in the suit for partition holds Shri Om Prakash to have died intestate for the reason of the defendant No.2 herein who as a defendant in that suit had set up the plea of the Will dated 4th February, 1981 of Shri Om Prakash having failed to produce the original Will or to prove the same. It is thus not as if it has been held that the document dated 4th February, 1981 was not executed by or is not the Will of Shri Om Prakash.
CS(OS) No.353/2012 Page 14 of 16
15. Once the suit is prima facie found to be maintainable, and the plaintiffs are found entitled to an opportunity to prove the registered Will dated 4 th February, 1981 of Shri Om Prakash, the principles of grant of interim injunction require a status quo to be maintainable with respect to the property. The plaintiffs are thus found entitled to the interim relief restraining the defendants from dealing with the said property. As far as the other interim relief claimed by the plaintiffs of restraining the defendant particularly the defendant No.1 from pursuing for the final decree in the suit for partition is concerned it cannot be lost sight of that the suit for partition, besides with respect to the subject property, is also with respect to another property. Thus the stay if any of proceedings therein will have the impact of staying the partition of the other property qua which there is no challenge. That relief thus cannot be granted. However at the same time the subject property cannot be allowed to be partitioned or sold in the decree for partition till the adjudication of the claims of the plaintiff. In the circumstance it is deemed appropriate to direct that the execution of the decree for partition qua the subject property only and not qua the other property, would be subject to the outcome of the present suit.
16. The application for interim injunction is thus disposed of restraining CS(OS) No.353/2012 Page 15 of 16 the plaintiffs as well as the defendants from alienating, encumbering or parting with possession or otherwise dealing with the portion aforesaid of property no. D-36, Moti Nagar, New Delhi till the decision of the present suit and by further ordering that final decree for partition in the suit for partition filed by the defendant No.1herein, with respect to this property, shall be subject to the outcome of the present suit.
17. Needless to state that nothing contained herein shall be deemed to be an expression on merits of the case at the time of final adjudication.
RAJIV SAHAI ENDLAW, J JULY 8, 2013 M. CS(OS) No.353/2012 Page 16 of 16