Delhi District Court
Karan Nath vs Minakshi Nath And Ors on 24 January, 2024
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.754 of 2017
Mr. Karan Nath
S/o Sh. Kailash Nath
r/o E 7/21, Vasant Vihar
New Delhi-110057
Also at:
39, Prithviraj Road
New Delhi-110011
........ Plaintiff
Versus
1. Mrs. Minakshi Nath Srinivasan
W/o Sh. Prasanna Srinivasan
P-2, Hauz Khas, New Delhi
2. Mrs. Vinita Nath Sharma
W/o Sh. Sanjeev Sharma
C-63, IInd Floor, Defence Colony
New Delhi
3. Mrs. Shukla Kailash Nath
W/o Sh. Kailash Nath
39, Prithviraj Road
New Delhi-110011
4. Mr. Kailash Nath
S/o Late Sh. Amar Nath
39, Prithviraj Road
New Delhi-110011
...... Defendants
CS No. 754 of 2017
KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 1 of 36
JUDGMENT
1. By way of the present judgment, I shall be disposing of the application filed by the defendants no. 1 to 3 to dismiss the suit under Order XII Rule 6 CPC or, in the alternative, to reject the plaint under Order VII Rule 11 CPC.
2. The plaintiff has filed the present suit for declaration that the deed of settlement dated 01/07/1992 between the defendants be declared as null and void and that the deed of settlement cannot be relied upon by the defendants.
3. The suit was originally filed before the Hon'ble High Court of Delhi as CS (OS) No. 1630/2006 and, subsequently, the suit came to be transferred to the District Court upon the change in pecuniary jurisdiction.
4. The case of the plaintiff as pleaded in the plaint, in brief, is as follows:
4.1. The defendant no. 4 formed a joint hindu family with his father Sh. Amar Nath and his brother Sh.
Prakash Nath. The property situated at 39, Prithviraj Road, New Delhi-110011 (hereinafter referred to as the 'subject property') was a joint Hindu family property. There was a partition of the joint Hindu family in the year 1958 and the subject property fell to the share of the defendant no. 4. The property was mutated with the L&DO and also with the municipality in the name of the CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 2 of 36 defendant no. 4. It was also assessed by the income tax department as the property of the defendant no. 4.
4.2. Six years later, in the year 1964, the defendant no.
4 married the defendant no. 3 and from the marriage, two daughters i.e. the defendants nos. 1 and 2 were born.
4.3. The plaintiff is the son of the defendant no. 4 and Ms. Elma in the absence of any legal relationship between the plaintiff's mother and the defendant no. 4.
4.4. The plaintiff has been nursed, reared and brought up by the defendant no. 4 in his capacity as the plaintiff's father. The upbringing of the plaintiff has been exclusively as a Hindu and the plaintiff has been performing all religious rites and rituals as a Hindu since childhood under the due care and supervision of the defendant no.4, his Hindu father.
4.5. The defendants nos. 1 to 3 had filed a suit for permanent injunction being Suit no. 1257/03 against the defendant no. 4 before the Hon'ble High Court of Delhi.
4.6. The defendants nos. 1 and 2 had also filed a suit for permanent and mandatory injunction and CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 3 of 36 rendition of accounts being Suit no. 181/04 against the defendants nos. 3 and 4 and other defendants before the Hon'ble High Court of Delhi.
4.7. In both the suits, the defendants nos. 1 and 2 relied upon an alleged oral agreement arrived at in the year 1989 and purportedly reduced into writing vide an alleged deed of family settlement dated 01/07/1992 between all the defendants herein.
4.8. It was alleged by the defendants nos. 1 to 3 that by virtue of the family settlement, the defendants nos. 3 and 4 had relinquished, abandoned and given up their shares in the subject property except for a right to stay and enjoy the subject property.
4.9. The deed of family settlement was disputed and denied by the defendant no. 4 as being forged and unregistered. In his written statement in CS No. 1257/03, the defendant no.4 denied executing the document.
4.10. The document could have neither in law divested the defendant no. 4 of his title nor created any right and title in favour of the other defendants. The deed of family settlement was unstamped and unregistered.
CS No. 754 of 2017KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 4 of 36 4.11. No family settlement deed could have been executed behind the back of and without making the plaintiff a party, since under the Hindu law, notwithstanding his status as an illegitimate son of the defendant no.4, the plaintiff had an existing and vested right, title and interest in the properties/assets of the defendant no.4 and the joint properties of the family.
4.12. The purported family settlement was based on a Hindu undivided family consisting of the defendants. However, the defendant no. 1 was already married at the time of entering into the deed of settlement and could not have been a member of the Hindu undivided family.
4.13. It was wrongfully stated in the deed of family settlement that the defendant no. 4 had asked for partition, whereas the stand taken by the defendant no. 4 in the written statement in the aforesaid two suits was that it was his self- acquired property and that he did not ask for partition of his self-acquired property.
4.14. It was also wrongfully stated in the deed of family settlement that the Hindu undivided family was the owner of the subject property vide Suit No. 171/58 titled as Prakash Nath v. Amar Nath & Ors. decided on 31/11/1958. The said suit could not have partitioned the joint family property in CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 5 of 36 favour of the alleged Hindu undivided family as this family did not exist at the time of the decree in Suit No. 171/58. The defendant no.4 was unmarried at the time when this decree was passed and therefore, the subject property was partitioned only in the name of the defendant no.4.
4.15. Even assuming that a Hindu undivided family did exist, then also it was wrongfully stated in the deed of settlement that each member of the alleged family settlement deed was entitled to one-fourth share in the property.
4.16. As per law, when ancestral property has been divided amongst the owners, the share allotted to each member is ancestral property in his hands as regards his own issue. In case, the male issue was not in existence at the time of the partition, the male issue acquires an interest in it by birth immediately when he is born.
4.17. By virtue of section 16 of the Hindu Marriage Act, 1956, an illegitimate son has been conferred the status of a legitimate son and he also has a right of survivorship. A child of a void marriage is related to his parents within the meaning of section 3(1)(j) of the Hindu Succession Act by virtue of section 16 of the Hindu Marriage Act.
CS No. 754 of 2017KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 6 of 36 4.18. The defendant no. 4 was never the sole surviving coparcener. The plaintiff by virtue of his birth as the son of the defendant no. 4, albeit an illegitimate son, has all rights of a coparcener, save and except the right to claim partition during the lifetime of his father. In the event of succession opening, the legitimate son would be entitled to a share of the inheritance.
4.19. The defendants no. 1 and 2, being the married daughters of the plaintiff, under law, ceased to have any rights, present and/or vested, in the properties and assets of the father.
4.20. The plaintiff, in his capacity as the son, albeit illegitimate, of the defendant no. 4 not only had present and vested interest in the property/assets of his father but also the quality of his interest was far superior to that of the interest of the defendants no. 1, 2 and 3.
4.21. The defendants no. 1, 2 and 3 are trying to divest the plaintiff of his interest in the property/assets of the defendant no. 4 which continues to be an ancestral property with respect to the plaintiff.
4.22. By virtue of the deed of settlement, rights of new parties are sought to be created behind the back of the plaintiff, where none actually existed in law. The legal rights of the plaintiff were sought to be CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 7 of 36 alienated and defeated by the defendants nos. 1 to 3 based on the purported family settlement deed.
4.23. Under the settled provisions of Hindu law, even an illegitimate son of a Hindu father has the right and obligation to stay in his father's house and comply with his legal, moral and religious duty of surviving his father during his father old age. The defendants nos. 1 to 3, by misrepresenting facts, had wrongfully excluded the plaintiff from complying with his legal and religious duties towards his father.
4.24. The defendant no. 1 was continuously making addition and alteration to the suit premises and trying to change the whole structure of the premises which was causing irreparable loss and injury to the plaintiff.
5. On the basis of the aforesaid pleadings, the plaintiff has filed the present suit seeking the following reliefs:
"A) That decree may be passed by this Hon'ble court declaring that the Deed of Settlement dated 01.07.1992 is null and void in favour of plaintiff.
B) That decree may also be passed that the purported deed of settlement consequentially, cannot be relied upon by any of the defendants, before any forum, to claim valuable rights in property/assets.CS No. 754 of 2017
KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 8 of 36 C) That it be declared that the plaintiff has a right to stay with his father at his father's place of residence.
D) Any other or further relief which this Learned Court may deem fit and proper in the facts and circumstances of the case may also be passed."
6. The defendants no. 1 to 3 have filed their written statement seeking dismissal of the suit.
7. The defendant no. 4 filed his written statement supporting the plaintiff's case and praying that the suit may be decreed as prayed in the plaint.
8. It is pertinent to mention that the defendant no. 4 expired during the pendency of the suit on 31/10/2019.
9. The learned senior counsels for both the parties (Mr. A.S. Chandiok, Senior Advocate assisted by Ms. Amita Sehgal, advocate for the defendants nos. 1 to 3; and Mr. H.L. Tiku, Senior Advocate assisted by Mr. R.K. Krishnaamorthi, Advocate for the plaintiff) have made their respective submissions on the subject application.
10. Both the parties have also filed their respective written submissions on the subject application.
11. The submissions on behalf of the defendants no. 1 to 3, in brief, are as follows. It is submitted that when it is the own admitted case of the plaintiff in the plaint that he was the CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 9 of 36 son of the defendant no. 4 and the plaintiff's mother in the absence of any legal relationship, then the plaintiff did not have any independent vested right or interest in the subject property which was an ancestral property as per the own case of the plaintiff in the plaint. It is submitted that as such the plaintiff had no locus to challenge the family settlement. It is further submitted that the plaintiff could not plead any benefit of Section 16 of the Hindu Marriage Act since there was no marriage between the defendant no. 4 and the plaintiff's mother in the first place and also because the plaintiff's mother was not even a Hindu. It is further submitted that the plaintiff, in any case, also cannot challenge the family settlement by claiming any interest through defendant no. 4, since the defendant no.4 himself had admitted and accepted the family settlement as per which the subject property stood vested in the defendants nos. 1 and 2. It is submitted that the admitted position is that the Hon'ble High Court of Delhi had passed judgment dated 07/11/2007 decreeing the suits CS (OS) No.1257/2003 and CS (OS) No.181/2004 in terms of the compromise between the defendants inter se. It is submitted that the defendants no.1 and 2 herein had filed the aforesaid two suits. The defendant no.3 and 4 in the present suit were also parties in the aforesaid suits. It is submitted that during the pendency of the aforesaid two suits, the defendants herein had amicably compromised their disputes and the defendant no.4 herein had agreed to abide by the family settlement dated 01/07/1992 and had confirmed that the subject property shall be owned by the CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 10 of 36 plaintiffs no.1 and 2 only in terms of the family settlement dated 01/07/1992. It is submitted that the two suits were decreed and disposed of in terms of the compromise between the parties and the compromise decree has attained finality. It is submitted that when the defendant no. 4 himself was estopped from challenging the family settlement in view of the compromise and the decree in terms of the compromise, the plaintiff could also not challenge the family settlement by claiming any rights through the defendant no. 4. It is further submitted that the defendant no.4 herein had also subsequently filed a suit being CS (OS) No.1408/2011 (subsequently numbered as CS No. 240/2016) for declaration that the deed of family settlement dated 01/07/1992 was null and void, and that the said suit was rejected under Order VII Rule 11 CPC vide order dated 15.05.2019. It is submitted that, as such, the present proceedings challenging the family settlement are an abuse of process and the suit ought to be dismissed.
12. It is submitted, in the alternative, that the plaint deserves to be rejected as the plaint has not been properly valued and adequate court fees has not been paid. It is submitted that even though the declaration sought is with respect to the deed of settlement dated 01/07/1992, the plaintiff is essentially seeking relief with respect to the subject immoveable property which would be valued more than Rs. 100 crores. It is submitted that the plaintiff has put an arbitrary value to the suit of Rs. 20 lacs only, which was not permissible.
CS No. 754 of 2017KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 11 of 36
13. The submissions on behalf of the plaintiff, in brief, are as follows. The learned senior counsel has meticulously referred to the averments made by the plaintiff in the various paragraphs of the plaint and it is submitted that the plaintiff has raised serious triable issues, and that at this stage, without a trial, the suit cannot be dismissed under Order XII Rule 6 CPC or be rejected under Order VII Rule 11 CPC. It is submitted that the deed of settlement seriously prejudiced the right and interest of the plaintiff in the subject property as mentioned in detail in the plaint, and that the challenge to the settlement deed would be a matter of trial which cannot be dealt with in a summary manner without trial. It is further submitted that in the order dated 07/11/2007 in CS (OS) No.1257/2003 and CS (OS) No.181/2004, the Hon'ble High Court took note that the plaintiff herein had filed the present suit and it was specifically observed that the compromise arrived at by the defendants herein was not binding of the plaintiff herein. It is submitted that as such the defendants nos. 1 and 2 could not rely upon the compromise to defeat the present suit. It is submitted that the plaintiff has in the plaint set out various grounds of challenge to the deed of family settlement and that the same would be a matter of trial. It is also submitted that ownership of the subject property could not be transferred by the defendant no. 4 to defendants no. 1 and 2 in the absence of a duly registered and stamped document. It is submitted that the alleged family settlement and the compromise between the defendants was unregistered and unstamped and could not CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 12 of 36 be given effect to. It is further submitted that the plaintiff was a legatee in his father's will dated 23/06/2015 which was subject matter of probate proceedings which were pending. On this basis, it is submitted that the defendants no. 1 and 2 cannot seek dismissal of the suit at this stage and that the trial of the suit ought to continue.
14. It is further submitted, in respect of the contention of the defendants no. 1 and 2 regarding rejection of the plaint, that the plaint cannot be rejected in part. It is submitted that the suit has been properly valued. It is submitted that the defendants nos. 1 and 2 had themselves valued the suit property in their suits at Rs. 20,05,20//- and that the plaintiff has also valued the present suit at the same value.
15. The learned counsel for the plaintiff, Mr. R.K. Krishnaamorthi, has also made some further submissions today. It is submitted that the plaintiff has specifically pleaded in the plaint that even if the plaintiff was an illegitimate son, he would have the benefit of section 16 of the Hindu Marriage Act. It is submitted that this was a matter of trial. It is further submitted that in the amended decree passed pursuant to the order dated 07/11/2007 in CS (OS) No.1257/2003 and CS (OS) No.181/2004, it was clarified that the compromise arrived at by the defendants herein was not binding on the plaintiff herein.
16. I have considered the submissions of the learned counsels for the parties and I have perused the record.
CS No. 754 of 2017KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 13 of 36
17. Since it is the deed of family settlement dated 01/07/1992 which has been challenged by the plaintiff in the present suit, it would be appropriate to first refer to this deed. The parties to the deed of family settlement are the four defendants, i.e. the defendant no.4 who is the father, the defendant no.3 who is the mother and the defendants nos. 1 and 2 who are the daughters.
18. The deed of family settlement is extracted hereunder, in extenso:
"DEED OF FAMILY SETTLEMENT THIS DEED OF FAMILY SETTLEMENT made this first day of July 1992 between Shri Kailash Nath son of Shri Amar Nath Caste Vaish, aged 62 years, resident of 39, Prithvi Raj Road, New Delhi, and his wife Mrs. Shukla Kailash Nath, aged 50 years, wife of Shri Kailash Nath R/o 39, Prithvi Raj Road, New Delhi, and Ms. Meenakshi Nath W/o Prasanna Srinivasan aged 27 years resident of 22A/3, Takshila Mahakali Cores Road, Andheri, East Bombay and Ms. Vinita Nath D/o Shri Kailash Nath aged 25 years, R/o 39, Prithvi Raj Road, New Delhi.
WHEREAS Shri Kailash Nath is the Karta of the Hindu Undivided Family consisting of the above said four persons.CS No. 754 of 2017
KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 14 of 36 AND WHEREAS in around September, 1989 differences arose between the parties and Shri Kailash Nath asked for partition of the joint Hindu Family property consisting of 39, Prithvi Raj Road, New Delhi.
AND WHEREAS the said Hindu Undivided Family is the owner of House No. 39, Prithvi Raj Road, New Delhi vide Suit No. 171/58 entitled Prakash Nath Plaintiff Vs. Shri Amar Nath & Others decided on 31.11.1958.
AND WHEREAS there has been a past family arrangement and oral partition between the four parties in and around September, 1989 whereby Mr. Kailash Nath of the one part, Mrs. Shukla Kailash Nath of the second part Ms. Meenakshi Nath of the third part and Ms. Vinita Nath of the fourth part are each entitled to 1/4th share in the said property of 39, Prithvi Raj Road, New Delhi and are hereby reducing the said family arrangement into writing for the sake of clarity in order to preserve peace and goodwill to the family.
AND WHEREAS for the purpose of division of the said property into separate lots in accordance with their respective shares as aforesaid, and for more convenient and exclusive possession and better enjoyment of the divided portion, the said four parties have mutually agreed and decided in the CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 15 of 36 past to have the said properties partitioned by metes and bounds at a later date.
AND WHEREAS the said property measures i.e. acre and is bounded as hereunder:-
On the North East by Plot No.4 On the South East by Service Road On the South West by Plot No.2 A On the North West by Prithvi Raj Road AND WHEREAS each party is entitled to 1/4th of the entire property No. 39, Prithvi Raj Road, New Delhi.
AND WHEREAS in view of the past family arrangement and in order to avoid any differences and settle the dispute, if any, in the past and in the future between Ms. Meenakshi Nath and Ms. Vinita Nath the parties of the first and second parts, namely Mr. Kailash Nath and Mrs. Shukla Kailash Nath have in view of the family arrangement relinquished their absolute right to their respective shares of property No. 39, Prithvi Raj Road, New Delhi and have retained only a life interest in the said property including a right to develop their share and to sell or dispose the same in case of necessity, which after their life time shall devolve upon their daughters Ms. Meenakshi Nath and Ms. Vinita Nath. The share of Mr. Kailash Nath shall devolve after his life time equally on Ms. Meenakshi CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 16 of 36 Nath and to the extent of ½ each Ms. Vinita Nath and similarly the share of Mrs. Shukla Kailash Nath shall alter her life time devolve equally upon Ms. Meenakshi Nath and Ms. Vinita Nath to the extent of ½th each.
That during the life time of Mr. Kailash Nath and Mrs. Shukla Kailash Nath, the party of the first and second part respectively shall have a life interest in the property. The said family arrangement is being reduced to writing in order to lend finality to the partition and family arrangement that was agreed between the parties in September, 1989. It is hereby agreed that each party shall enjoy their 1/4th share without any claim or interest by any other party in their share except to the extent that the shares allotted to Mr. Kailash Nath of the first part and Mrs. Shukla Kailash Nath of the second part only operate as a life interest.
It is further agreed and declared that all disputes and differences between the parties have been fully and finally adjudicated and settled and this deed of past family settlement shall not be reopened on any grounds whatsoever and the parties hereto in so far as it relates to their respective acts, deeds and things convenient with each other that they have not done, executed, performed nor suffered any thing to the contrary whereby or by reason whereof the CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 17 of 36 properties hereunder settled may be in any way affect or prejudice any title or estate or they or any of them are hindered or prevented from settling the same in the present deed. The schedule of the properties is annexed hereto.
IN WITNESS WHEREOF the said Mr. Kailash Nath, Mrs. Shukla Kailash Nath, Ms. Meenakshi and Ms. Vinita Nath of the first, Second, third and fourth part have appended their signatures hereto in full and final acceptance of the family settlement entered between them in September, 1989 which has now been reduced into writing."
(Emphasis supplied by me)
19. The defendants no. 1 to 3 had filed a suit being CS (OS) No. 1257/2003 before the Hon'ble High Court of Delhi against the defendant no. 4, on the strength of the deed of family settlement dated 01/07/1992, seeking relief of permanent injunction restraining the defendant no. 4 from selling, transferring, alienating, parting with the possession or creating any third-party rights in the subject property.
20. The defendant no. 4 filed his written statement in CS (OS) No. 1257/2003 as well as counter-claim. The defendant no. 4 admitted that earlier he had formed a joint Hindu family with his father and his brother and that the subject property was a joint Hindu family property. He also admitted that there was a partition in the year 1958 and the subject property came to the share of the defendant no. 4 and that CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 18 of 36 the same was HUF property. The defendant no. 4 also admitted in his written statement that the defendants no. 1 to 3 were members of the Hindu undivided family of the defendant no. 4. However, it was the case of the defendant no. 4 that he was the only coparcener on the basis that only males could be coparceners. It was the case of the defendant no. 4 that the defendants no.1 and 2 ceased to have interest in the Hindu undivided family headed by the defendant no. 4 upon their marriage. It was further the case of the defendant no. 4 that the defendant no. 3, his wife, continued to be a member but her rights were limited only to maintenance, residence and other facilities and no more. It was the case of the defendant no. 4 that he was the sole surviving coparcener of the joint Hindu family and as such the subject property was owned solely by him. The defendant no. 4 also disputed the family settlement which was relied upon by the defendants no. 1 to 3. In the counter-claim, the defendant no. 4 sought the relief of declaration that it be declared that the subject property was owned solely by the defendant no. 4 and that the defendants no. 1 and 2 had no interest in the same, while the defendant no. 3 only had an interest limited to a charge for providing residence and maintenance.
21. The defendants no.1 and 2 had also filed a suit being CS (OS) No. 181/2004 before the Hon'ble High Court of Delhi against the defendants no. 3 and 4 and two other defendants, again on the strength of the deed of the family settlement dated 01/07/1992, seeking reliefs in respect of a CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 19 of 36 paying guest accommodation which was being run at the subject property.
22. The defendant no. 4 filed his written statement in CS (OS) No. 181/2004, again disputing the family settlement.
23. The defendants herein had gone to the mediation cell to explore possibility of settlement and ultimately arrived at a compromise. Ultimately, the CS (OS) No. 1257/2003 and CS (OS) No. 181/2004, was disposed of and decreed by the Hon'ble High Court vide order dated 07/11/2007 in terms of the compromise between the defendants herein.
24. It would be appropriate to set out, in extenso, the order dated 07/11/2007 passed by the Hon'ble High Court in CS (OS) No. 1257/2003 and CS (OS) No. 181/2004, as under:
"These are two suits both of which are stated to have been compromised by the parties before the Mediation Cell. The dispute basically is between the family members with regard to HUF property bearing No. 39, Prithviraj Road, New Delhi.
Plaintiffs No. 1 and 2 are the daughters, plaintiff No. 3 is the wife and the defendant is the husband. On 01.07.1992, a family settlement took place under which the aforementioned property went to the share of both the daughters being Plaintiffs No. 1 and 2 in CS(OS) No. 1257/2003. After this family settlement, some disputes and differences arose between the CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 20 of 36 parties due to which these two suits were filed. During pendency of these two suits, the parties have amicably compromised their differences pursuant to which the plaintiff No. 3 and the defendant in CS (OS) No. 1257/2003 have agreed to abide by the family settlement dated 01.07.1992 and have confirmed that the aforementioned property bearing No. 39, Prithviraj Road, New Delhi shall be owned by the plaintiffs No. 1 & 2 only in terms of family settlement dated 01.07.1992. The compromise was arrived at between the parties before the Mediation Cell. The proceedings before the Mediation Cell were signed by all the parties except plaintiff No. 3 who is the mother of plaintiffs No. 1 & 2 In CS(OS) No. 1257/2003. Plaintiff No. 3 being the mother of plaintiffs No. 1 & 2 is present before the Court and she admits the compromise arrived at before the Mediation Cell and she undertakes to abide by the said compromise arrived at before the Mediation Cell. Plaintiffs No. 1 & 2 are stated to had deposited Rs. 5.5. lacs with this Court by means of two cheques of Rs. 2.75 lacs each payable to the defendant and in terms of compromise between the parties, these two cheques shall be countermanded and cancelled and in lieu thereof plaintiffs No. 1 & 2 shall pay Rs. 5.5. lacs to the defendant by way of pay order and this will settle all disputes and differences between the parties in these two suits.CS No. 754 of 2017
KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 21 of 36 Civil Suit (OS) No. 181/2004 was filed by the plaintiffs against the defendant for recovery of certain amount. Pursuant to compromise between the partles, the plaintiffs do not want to continue with the said recovery suit and want to withdraw the same. However, Mr. Satender Kapoor is present on behalf of Mr. Karan Nath, illegitimate son of the defendant Kailash Nath. Mr. Karan Nath had filed an application for his Impleadment in these two suits before the case was sent to the Mediation Cell to bring out an acceptable settlement between the parties. This application for Impleadment has now become infructuous in View of settlement arrived at between the parties. It is submitted that Mr. Karan Nath has already flled a Civil Suit (05) No. 1630/2006 seeking a declaration of family settlement dated 01.07.1992 as null and void and that sult is pending before this Court. In view of pendency of the suit filed by Mr. Karan Nath, it is directed that any compromise that has been arrived at between the parties in these two suits shall not be binding on Mr. Karan Nath.
In view of the above, the application filed by Mr. Karan Nath for his impleadment in these two suits is dismissed as having become infructuous. The lAs as well as both the abovementioned suits stand disposed of in terms of compromise between the CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 22 of 36 parties as referred above. There shall be no orders as to costs. Decree sheet be prepared."
(Emphasis supplied by me)
25. Accordingly, by way of the order dated 07/11/2007 passed by the Hon'ble High Court in CS (OS) No. 1257/2003 and CS (OS) No. 181/2004, the said two suits came to be decreed in terms of the compromise between the defendants herein whereby the defendant no.4 agreed to abide by the family settlement dated 01/07/1992 and confirmed that the subject property shall be owned by the defendants nos. 1 and 2 herein only in terms of the family settlement dated 01/07/1992.
26. Subsequently, the defendant no. 4 herein filed a suit being CS (OS) No. 1408/2011 against the defendants no. 1 to 3 herein seeking, inter alia, a declaration that the deed of family settlement dated 01/07/1992 was null and void and non est. The said suit subsequently came to be transferred to the District Court due to change in pecuniary jurisdiction and was numbered as CS No. 240/2016.
27. The said suit of the defendant no. 4 being CS No. 240/2016 was rejected vide order dated 15/05/2019 on the basis that the defendant no.4 was barred from challenging the family settlement in light of the compromise decree dated 07/11/2007 in CS (OS) No. 1257/2003 and CS (OS) No. 181/2004 and the law of estoppel.
CS No. 754 of 2017KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 23 of 36
28. It would be appropriate to extract the relevant portion of the order dated 15/05/2019 passed by the Ld. ADJ-03, New Delhi District, Patiala House Courts, as under:
"Reasons for decision:
8. In brief the facts of the case are that plaintiff is father of defendant no.2 and defendant no.1.
Defendant no.3 is wife of the present plaintiff The present is a dispute involving immovable property between the parties bearing no. 39, Prithviraj Road, New Delhi. A suit was filed by the present defendant nos.1 and 2 against the present petitioner, bearing no. 1257/2003 tiled as Meenakshi Nath Vs. Kailash Nath before Hon'ble Delhi High Court. The said suit was filed on the basis of family arrangernent (FA hereinafter) between the parties dated 01.07.1992. In the said case, the present plaintiff/father filed a written statement thereby claiming that the family settlement dated 01.07.1992 was a forged document and he never executed the same. The said suit was settled between the parties and a decree was passed by Hon'ble Delhi High Court vide order dated 07.11.2007.
The present suit has been filed thereby claiming the following reliefs-
(i) To declare that the deed of family settlement dated 01.07.1992 is null and void CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 24 of 36 and non-est being a got up document and being not registered since it purports to vest valuable rights in Immovable property for the first time.
(ii) To declare that the settlement dated 19.09.2007 is not binding on the plaintiff since it has not been acted upon by the parties and not registered and it is based on the got up deed of family settlement dated 01.07.1982.
(iii) To pass a decree of permanent injunction in favour of the plaintiff and against the defendant directing the agents, servants and assigns of defendants 1 to 3 nct to interfere in the peaceful enjoyment by the plaintiff of property no.39, Prithvi Raj Road, New Delhi and also not to Interfere in the running of Paying Guest Accommodation by the plaintiff.
(iv) To direct defendants 1 to 3 to render full and complete accounts of the paying guest accorumodation at 39 PrithvirajRoad, Now Deini from 2003 t date since the cheques issued to plaintiff are either by defendant no.1, defendant no.2 and defendant no.3.
9. A bare perusal of the reliefs claimed herein would show that by yo present suit, the present CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 25 of 36 plaintiffs have not challenged the order dated 07.11.2007 by way of which the said suit was compromised. Nor, it mentioned anywhere in the entire plaint that plaintiff did I not give his consent for the settlement or that his consent was obtained by playing fraud upon him.
10. By way of present suit, present plaintiffs challenged the family settlement dated 01.07.1992 thereby claiming that the settlement in the Mediation on 19.09.2007 was arrived on the basis of this FA. Hence, they are seeking setting aside of family settlement dated 01.07.1992 and settlement of 19.09.2007.
11. However, the said family settlement has already merged into the decree of the Court 01.11.2007. Further the settlement which was entered into Mediation has also merged into the decree of the Court dated 01.11.2007.
12. This family arrangement was challenged by the present plaintiff in that suit also between the parties. However, the said matter was compromised between the parties. Hence, by way of compromise, plaintiff had given up all his rights with respect to the family settlement including right to challenge the same. All his rights have already culminated into the compromise decree. The said family settlement cannot be challenged herein again. Having given up CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 26 of 36 rights with respect to this family settlement, plaintiff is barred to reagitate the same rights herein again. Further as plaintiff could not have challenged the decree of Hon'ble Delhi High Court dated 01.11.2007 in view of the Order 23 Rule 3A CPC nor he has challenged the same, hence be cannot challenge the basis on which the sald decree was obtained. When the grounds of challenge to the family settlement which are set up in the present case were also taken up by the present plaintiff in the said case, and later on he compromised the said suit, he had given all his rights w.r.t the said FA.
13. It is further the case of the plaintiff that this FA was not registered nor adequate stamp duty was paid on this document, hence it could not be the basis of settlement. It is further submitted that the issue regarding insufficient stamp duty may be raised in any proceedings any time. However, this document was challenged in the said suit between the parties which was compromised and resulted in the Court decree dated 01.11.2007. After passing of the said decree, he never challenged that decree till date. Since he had given up his rights to challenge the said FA, he cannot challenge the same by way of this separate suit. Since that document cannot be challenged in this suit nor this Court is looking into that document for any purpose while deciding this application, it cannot be said that Court must CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 27 of 36 impound the document for the purpose of stamp duty. While deciding under Order 7 Rule 11 CPC application, the present Court is not looking into the said FA whether it was correctly entered or not, or whether it was registered or not, or whether it was stamped or not. This Court is only appreciating the fact that plaintiff has surrendered all his rights with respect to the said FA when he entered into compromise in mediation which resulted into the compromise decree of the Court of Hon'ble Delhi High Court. Hence, the question of impounding the said document does not arise.
14. It is the argument of Ld. Counsel for plaintiff that it was his self acquired property. Hence, it was wrongly observed in the family settlement that daughters have also right therein. It is submitted that after Hindu Succession Act, the property obtained after partition is self acquired property of plaintiff. However, this argument is immaterial herein as it has already been observed that plaintiff has already given up all his right to challenge the said document when he entered into the compromise between the parties which resulted in the compromise decree as well. Whether it was HUF property self acquired property is immaterial as by way of compromise decree, he assigned rights to his daughters after his life in the said property.
CS No. 754 of 2017KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 28 of 36
15. It is further the argument of Ld. Counsel for plaintiff that since the decree of Hon'ble High Court was not registered within four months hence it is no more binding. Further by way of said settlement, both father and mother had given up their rights in favour of their daughters. Hence, It created new rights. Further plaintiff is absolute owner of this property and hence by way of FA new rights were created in favour of daughters. Further by way of said compromise deed, now rights were created in favour of defendants. Hence, it required mandatorily registration. However, the said compromise decree is not challenged herein, hence the basis of said compromise decree cannot be challenged as well. Whether the basis wore correct or incorrect, the matter of fact was that plaintiff voluntarily entered into compromise in the said suit and whatever is written in the mediation settlement, was with consent of both parties. Now by way of present suit, he cannot argue that what is written in compromise decree or basis of compromise decree is not correct and hence decree created new rights and required registration.
16. It is argument of Ld. Counsel for plaintiff that said decree was not acted upon by the defendants and hence the present suit is filed. However, if the said decree was not acted upon, the remedy lies in CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 29 of 36 filing execution. The same cannot be challenged by way of a separate suit.
17. Coming to the decree of the Court dated 07.11.2007, even if it is presumed that a decree required registration and is not registered, at the most it can be said that it has become non- executable. But this non registration itself is not a ground to set aside the compromise decree or to say that the decree would become a non-est.
18. In view of above, the present suit is barred under Order 7 Rule 11 CPC and by law of estoppel as well as Section 11 CPC.
Accordingly, application is allowed.
Suit is rejected."
29. The defendant no.4 filed a review application assailing the aforesaid order. However, the defendant no.4 expired during the pendency of the review application. The application of the plaintiff herein for impleadment as the legal representative of the defendant no.4 was dismissed and the review application was deemed to be abated vide order dated 13/02/2020. It is informed that, thereafter, the plaintiff has filed an appeal against the order dated 13/02/2020 before the Hon'ble High Court of Delhi being FAO No. 41/2021 which is pending.
CS No. 754 of 2017KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 30 of 36
30. In the backdrop of the aforesaid scenario, I would now come to the case of the plaintiff in the present suit.
31. The plaintiff has stated in paragraph 3(i) of the plaint that earlier the defendant no. 4 formed a joint Hindu family with his father and brother and that upon a partition in 1958, the subject property as a joint Hindu family property fell to the share of the defendant no. 4. It is the case of the plaintiff that being the male issue of the defendant no.4, the plaintiff had a vested right and interest in the property/assets of the defendant no.4 and in the joint family properties. In paragraph 3 (xvi) of the plaint, the plaintiff has stated that by virtue of his birth as the son of the defendant no.4, the plaintiff had all the rights of a coparcener, save and except the right to claim partition during the lifetime of his father.
32. Unfortunately, for the plaintiff, his suit must fail. The plea of the plaintiff that he had a vested right, title or interest in the subject property as a coparcener or otherwise in his own right is unsustainable in law. I fail to see how the plaintiff can maintain the present suit when, admittedly, as per the own case of the plaintiff as pleaded in the plaint, he is the son of the defendant no.4 and the plaintiff's mother in the absence of any legal relationship between them. The plaintiff has admitted that he is an illegitimate son of the defendant no. 4 and there is even no pleading that there was any marriage at all, void or voidable, between the defendant no.4 and the plaintiff's mother.
CS No. 754 of 2017KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 31 of 36
33. Once, it is the plaintiff's own case that he is an illegitimate son of the defendant no.4 in the absence of any legal relationship between the defendant no.4 and the plaintiff's mother, the plaintiff cannot claim any vested right by birth in the ancestral property or any right as coparcener. Thus, the entire foundation of the case of the plaintiff falls to the ground.
34. Even assuming that the plaintiff could get benefit under section 16 of the Hindu Marriage Act, the same would not make the plaintiff a coparcener or confer any vested rights on the plaintiff in the joint or coparcenary properties of his own right. An illegitimate son is not equated to the status of a coparcener and therefore, the illegitimate son has no right in the joint family property or in the coparcenary property. (See Kenchegowda v. K.B. Krishnappa, 2008 SCC OnLine Kar 78: ILR 2008 Kar 3453: (2009) 4 Kant LJ 596: (2008) 6 AIR Kant R 267)
35. It is also pertinent to mention that the plaintiff herein had earlier filed another suit being Suit No. 380/08 before the Court of the Ld. Civil Judge-10, Central District, Tis Hazari Courts, Delhi against the defendants herein for declaration that he be declared as coparcener along with the defendant no.4 herein in the joint family properties. The plaintiff moved an application to withdraw the suit with liberty to file afresh, and vide order dated 01/10/2014, the suit was dismissed as withdrawn with liberty to file afresh on the same cause of action. The plaintiff, however, CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 32 of 36 did not file any fresh suit for declaration that the plaintiff was a coparcener in the joint Hindu family of the defendant no.4 herein and the joint family properties. This was well advised, since, in law, the plaintiff could not have been entitled to any such declaration in view of the plaintiff's own admission that he is the son of the defendant no.4 and the plaintiff's mother in the absence of any legal relationship.
36. Thus, the plaintiff cannot maintain a challenge to the deed of family settlement between the defendants on the basis of a claim of any independent vested right of his own in the subject property, since the plaintiff has no such independent vested right of his own in the subject property as is evident from the plaintiff's own admitted case as pleaded in the plaint.
37. Apart from this, the plaintiff cannot also maintain a challenge to the deed of family settlement by claiming any right through the defendant no. 4, who is now deceased, as a legal heir, inasmuch as the defendant no. 4 himself had already compromised with the defendants no. 1 to 3 and had accepted the deed of family settlement in the suit proceedings being CS (OS) No. 1257/2003 and CS (OS) No. 181/2004, and the suits had been decreed and disposed of by the Hon'ble High Court in terms of the compromise and acceptance of the deed of family settlement between the defendants. This compromise decree was never CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 33 of 36 challenged by the defendant no. 4 and the same has become final.
38. By virtue of the proceedings in CS (OS) No. 1257/2003 and CS (OS) No. 181/2004 which culminated in decreeing of the suits in terms of the compromise between the defendants whereby the defendant no.4 agreed to abide by the family settlement, the defendant no. 4 would be estopped from disputing or raising a challenge to the deed of family settlement.
39. A compromise decree creates an estoppel by judgment.
(See Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31) Once a party has persuaded the Court to pass orders in terms of a compromise under which the party has admitted and accepted a particular factual position and agreed to abide by the same, such party or any person claiming through such party cannot be permitted to turn around to challenge the factual position. The bar of estoppel would make such a challenge impermissible.
40. Thus, once the defendant no. 4 had compromised the matter with the defendants no. 1 to 3 and accepted and admitted the deed of family settlement and persuaded the Hon'ble High Court to decree the suits in terms of the compromise, the defendant no. 4 or anybody claiming through him was barred from laying any challenge to the deed of family settlement by the law of estoppel. When claiming through the defendant no.4, the rights of the CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 34 of 36 plaintiff could not be any higher than that of the defendant no.4.
41. The contention of the plaintiff that it was specifically observed in the order dated 07/11/2007 in CS (OS) No. 1257/2003 and CS(OS) No. 181/2004 and the decree passed pursuant thereto that the compromise arrived at between the defendants would not be binding on the plaintiff would be of no assistance to the plaintiff, since the plaintiff has no independent vested right of his own in the subject property. This may have had some consequence if the plaintiff had any independent vested right in the subject property, however, this is not the case.
42. The contention of the plaintiff regarding non-registration and non-stamping of the family settlement and compromise also does not help the case of the plaintiff, since the bar of estoppel in view of the decree passed in terms of the compromise would remain.
43. Hence, the conclusion is that the plaintiff cannot of his own right maintain any challenge to the family settlement deed. In so far as any challenge to the settlement deed on the basis of being legal heir of defendant no.4 is concerned, the same would be hit by the estoppel which works against defendant no.4.
44. In the result, the suit of the plaintiff must fail based on the plaintiff's own admitted case as set up in the plaint and the admitted position that the defendant no. 4 had already CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 35 of 36 agreed to abide by the deed of family settlement in the compromise in terms of which the suits CS (OS) No. 1257/2003 and CS (OS) No. 181/2004 had been decreed and which decree has become final.
45. The reliefs under prayer clauses (A) and (B) challenging the deed of family settlement deserve to be dismissed outright in view of the foregoing discussion. The relief under prayer clause (C) has become infructuous since the defendant no. 4 has already expired. Thus, I see no point in sending the suit for trial, and the case is a fit case for dismissal in exercise of powers under Order XII Rule 6 CPC.
46. Since I am inclined to exercise powers under Order XII Rule 6 CPC to dismiss the suit in view of the discussion in the foregoing paragraphs, I do not deem it necessary to deal with the other objections taken by the defendants no. 1 to 3 under Order VII Rule 11 CPC.
47. Accordingly, the application of the defendants no. 1 to 3 under Order XII Rule 6 CPC is allowed. The suit is dismissed. Parties to bear own costs.
Let the decree sheet be drawn up accordingly. File be consigned to record room after due compliance.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/24.01.2024 CS No. 754 of 2017 KARAN NATH Vs. MINAKSHI NATH AND ORS. Page No. 36 of 36