Delhi High Court
Pamela Manmohan Singh vs K.V.Kohli on 11 July, 2018
Equivalent citations: AIRONLINE 2018 DEL 1244
Author: Yogesh Khanna
Bench: Yogesh Khanna
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 04th July, 2018
Pronounced on: 11th July, 2018
+ CS(OS) 238/1989
PAMELA MANMOHAN SINGH ..... Plaintiff
Through : Mr.Ashwini Kr Matta, Sr
Advocate with Mr.Mahendra
Rana, Mr.Tanmaya Mehta,
Mr.Sourabh Gupta, Mr.Puneet
Yadav and Mr.Sumit Bhadana,
Advocates.
versus
K.V.KOHLI ..... Defendant
Through : Mr.Sanjay Jain, Sr Advocate with
Mr.Amit Mahajan, Mr.Rohan
Jaitley, Ms.Adrija Thakur and
Mr.Yuvraj Sharma, Advocates for
applicants - Chatwals.
Mr.Jasmeet Singh and Mr.Srivats
Kaushal, Advocate for applicants -
Ravinder Singh.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
IA Nos.8212/2018, 8184/2018
1. Before coming to the IAs it would be appropriate to state the facts of this case :
(i) Though the parties own various properties but the dispute centers around (a) property No.15, Jor Bagh, New Delhi and (b) property No. 198, Golf links, New Delhi;CS(OS) No.238/1989 Page 1 of 12
(ii) Property No.15, Jor Bagh, New Delhi, ad-measures 1283.3 square yards was jointly allotted by L&DO/DDA vide perpetual lease deed dated 30.01.1979 to late Dr.Raseel Kohli, Late Shri Kushal Vir Kohli and late Mrs. Pamela Manmohan Singh, all having 1/3rd share each;
(iii) Property No. 198, Golf Links, New Delhi, ad-measures 575 square yards was allotted by L&DO/DDA vide perpetual lease deed to late Dr.Raseel Kohli;
(iv) Dr.Raseel Kohli allegedly executed two Wills both dated 07.03.1986 one of which was typed/written and duly registered and another one was a hand written Will and as per these Wills she bequeathed her entire property in favour of her son Mr.Kushal Vir Kohli (now late);
(v) Mr.Karan Vir Singh filed an application for issue of probate on the basis of these two Wills which petition was dismissed for default after his death but was subsequently restored;
(vi) on death of Sh. Kushal Vir Kohli on 22.07.1991, as per alleged Wills dated 07.03.1986 his 1/3rd share in Jor Bagh property and entire property of Dr.Raseel Kohli, devolved upon his wife- Mrs.Minne Kohli and his children. However Mrs.Minne Kohlil also expired on 09.01.2009;
(vii) in the meanwhile Mrs.Pamela Manmohan Singh also asserted her rights over Golf Link property and 1/3rd share of Dr.Raseel Kohli in Jor Bagh property on the basis of yet another Will dated 23.09.1987, purportedly executed by Dr.Raseel Kohli, thus taking her total undivided share in Jor Bagh property to CS(OS) No.238/1989 Page 2 of 12 2/3rd share to be held jointly with Sh. Kushal Vir Kohli who already had 1/3rd undivided share and the Golf Link property was to be shared by her with Sh. Kushal Vir Kohli in the extent of 50% share each;
(viii) Mrs.Pamela Manmohan Singh also filed a probate petition in District Court but later it was transferred to Delhi High Court, registered as Test Case 19/1997. She also filed this partition suit viz. CS(OS) 238/1989;
(ix) the children of Late Sh. Kushal Vir Kohli sold 100% of their disputed and undisputed share in the said properties as aforesaid, which were the subject properties in Test Case 19/1997; Test Case 20/1997 and CS(OS) 238/1989. The applicants herein (IA No.8212/2018) agreed to purchase all rights, title and interest which falls to the children of Late Sh. Kushal Vir Kohli by virtue of law, decree settlement or compromise with Mrs.Pamela Manmohan Singh or any other person for a total consideration of 24 crores;
(x) it is alleged by the applicants that they have already paid an amount of 12.1 crores to the children of late Sh. Kushal Vir Kohli and now only 4 crores remained to be paid to them but whereas the Kushal group have settled the litigation with legal heirs of Mrs.Pamela without consulting the applicants and thus have committed fraud upon the Court by not disclosing that they have entered into a MoU dated 15.09.2012; agreement to sell dated 23.03.2015 and a mediation/conciliation agreement dated 27.07.2016 with the applicants by virtue of which they CS(OS) No.238/1989 Page 3 of 12 have agreed to transfer 100% of their rights, title and interest which may devolve upon them by virtue of Will dated 07.03.1986 or Will dated 23.09.1987 subject to the final decision of the Court in the above matter even by virtue of settlement or compromise, all in consideration of 24 crores;
(xi) similarly a suit CS(OS) 1440/2008 for specific performance was filed by one Sh.Ravinder Singh, seeking specific performance of an agreement dated 23.12.2005 which the children of late Sh. Kushal Vir Kohli had also entered into with one Mr.Ravinder Singh qua their share in Jor Bagh property;
(xii) Chatwals (applicants) allegedly paid further amount of 2.5 crores vide settlement dated 17.11.2016 on an understanding that Sh. Kushal Vir Kohli shall settle the issues with Mrs. Pamela only after consulting and taking consent of the applicants herein and secondly no such settlement would annihilate the right of Chatwals/applicants;
(xiii) Though the applicants, admittedly, for sometime were invited to the settlement talks but strangely enough the settlement entered into between the plaintiffs and defendants of this suit was without their consent and both the groups allegedly made drastic changes in their shares in such family settlement. It is alleged as per the settlement now the group of Late Sh. Kushal Vir Kohli would only get 2/3rd share in Jor Bagh property whereas they have given up their claim in entire Golf Link property in favour of children of Mrs. Pamela;
CS(OS) No.238/1989 Page 4 of 12(xiv) Further earlier Jor Bagh property was given on rent to Iranian Embassy but now it has been given to another tenant and though as per the agreement the applicants had with legal heirs of late Sh. Kushal Vir Kohli, they were to get 75% of the rentals but are paid nothing. Clause 8 & 9 of Settlement dated 17.11.2016 are relevant:
"8. It Is specifically hereinafter agreed that upon receipt of the amount of Rs.1,50,00,000/- (Rupees One Crore Fifty Lacs only), as stated hereinabove, on or before 15.01.2017, the FIRST PARTY shall only be entitled to receive 25% of the rent accrued with effect from the said date and that the balance 75% of the rent accrued from the said date in respect of both the properties shall be paid to the SECOND PARTY.
9. It Is agreed that the FIRST party shall immediately issue instructions to its bankers to pay 75% of the rental amount In respect of the said properties accrued on or after 15.01.2017 In favour of the SECOND PARTY."
(xv) it is also alleged one of the relatives from the side of Mrs.Pamela is mentally unsound and is incapable to enter into any settlement and hence such settlement, even otherwise, is voidable qua such mentally unsound person;
(xvi) hence it is argued since the legal heirs of Late Shri Kushal Vir Kohli have entered into various agreements qua the subject properties with the applicants, the applicants are necessary and proper party to the present lis and since the compromise recorded between the legal heirs of Late Shri Kushal Vir Kohli and of Late Mrs.Pamela Manmohan Singh is based on fraud committed upon the applicants so the decree be set aside and applicants be rather impleaded. The applicants refer to clause 7 of the agreement to sell dated 23.03.2015 and it reads :
"7. Subject to Clause 8, the Second Party will execute the sale deeds and other necessary documents in favour of the First Party and/or his nominee of the properties after the final adjudication/settlement of all CS(OS) No.238/1989 Page 5 of 12 the cases. It is further made clear that the Second Party shall to execute the aforesaid documents only when the First Party has made complete payment of consideration under this MOU without Default or Delay."
2. It is submitted that the compromise/settlement dated 17.11.2016 between the legal heirs of Late Kushal Vir and the applicants was made and signed by the Conciliator, hence is a decree executable at the instance of the applicants and thus the applicants be made a party to the plaint and the suit may proceed since the applicants are integral part of the transaction as were rather waiting for the conclusion of the proceedings between the parties but not in the manner as has been done by the legal heirs of Dr.Raseel Kohli.
3. It is argued by learned senior counsel for the applicants with such kind of rights in favour of the applicants; the legal heirs of Late Shri Kushal Vir Kohli could not have entered into any sort of compromise with the legal heirs of Smt.Pamela, without consulting the applicants herein and since they have concealed of their relations with the applicants from this Court as also qua the mental condition of one of the legal heirs, thus have committed fraud upon the Court and hence the decree be set aside.
4. Heard.
5. However, I may note on 05.06.2000 this Court granted a status quo order qua all the properties left by (Late) Dr.Raseel Kohli which continued even on 03.07.2000 and later was confirmed on 01.08.2016. Now since the year 2000 status quo qua the properties including the Golf Link property and Jor Bagh property was in operation. Was it possible then for the legal heirs of Late Shri Kushal Vir Kohli to have entered into CS(OS) No.238/1989 Page 6 of 12 any agreement to sell either with Mr.Ravinder Singh or with the applicants herein or with anyone else?
6. On 08.12.1999 a similar application under Order 22 Rule 10 CPC and under Order 1 Rule 10 CPC was moved in this suit by the purchasers of property no.6-B, Jangpura Extension, Mathura Road, New Delhi, allegedly sold to M/s Texla Service Centre, but was rejected vide order dated 08.12.1999 which run as under:
"On a consideration of these precedents also, I am of the opinion that this application deserves to be dismissed. The Applicants have no direct interest in the property. Even their 'commercial interest is suspected for the reason that their title is based on a transfer from the Defendant, late Shri K.V. Kohli, who had in turn predicated his title on an alleged Will of his mother in respect of which Probate was not granted. Their interest is also clogged because the transfer was in violation of Section 52 of the Transfer of Property Act. Be that as it may, a suit has already been filed by the applicants", which is pending adjudication in this Court. Therefore, there is no justification to broaden the scope of the present 'suit by impleading the Applicants. This is not a-case of which the facts are such, that the doctrine of dominus litis should be cast adrift and ignored in my view the application is vexatious having been filed at a stage where the suit itself was to be finally disposed of. No explanation for the filing of this application after a lapse of nine years has been even perfunctorily brought. In these circumstances, the application is dismissed with costs of Rs. 10,000/- half of which shall be paid to the Plaintiff and half to be deposited in Partial Legal Aid for Middle Income Group, High Court of Delhi, New Delhi."
7. The documents which the applicants are relying were executed in the year 2012 and all these years applicants were sitting on a fence yet did not prefer to move any application(s) for its impleadment despite having an agreement to sell and other documents in its favour, probably for the reason, they were aware of the proceedings in the present case and of the status quo orders dated 05.06.2000; 03.07.2000 and 01.08.2016.
8. In Marirudraiah & Ors. vs. B.Sarojamma & Ors. JT 2009 (6) SC 551 the Court held:
CS(OS) No.238/1989 Page 7 of 12"... In fact, the courts are not supposed to encourage pendente lite transactions and regularize their conduct by showing equity in their favour. In such circumstances, we are of the view that it is but proper to relegate all the issues in the final decree proceedings and in the case on hand, the same is pending before the trial Court."
9. Further in T.Ravi and another vs. B.Chinna Narasimha and others (2017) 7 SCC 342 the Court held:
"34. Reliance has been placed on A. Nawab John v. V.N. Subramaniyam (2012) 7 SCC 738, laying down thus :
"18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court.
10. It is also to note though the MoU dated 15.09.2012 was between Late Kushal Kohli group and Chatwals/applicants but in the agreement to sell dated 23.03.2015 one Mr.Vineet Malhotra also added, who is neither an applicant herein nor has asked for his impleadment. Moreso, the application moved on behalf of the applicants rather contain an affidavit of one Mr.Rakesh Bhutani and not of Chatwals or of Mr.Malhotra.
11. The documents filed by the applicants along with their applications, even otherwise, do support its case as the MoU dated 15.09.2012 executed between the legal heirs of Late Shri Kushal Vir Kohli and the applicants do show the applicants were duly aware of the properties being subject matter of various litigations pending interse the relatives and yet they agree to purchase the rights in the properties on as is where is basis subject to the outcome of the pending cases.
CS(OS) No.238/1989 Page 8 of 1212. The following clauses of the MoU would be relevant :
"AND WHEREAS against payment of the entire amount of consideration in the Payment Schedule and at definitive conclusion or settlement of the litigation the First Party shall be entitled to 100% of the entire right, title and interests in The Properties both disputed & undisputed share inherited by the party of the second part being the legal heirs of late Dr.Raseel Kohli and also her son Major (L) Kushal Vir Kohli on the terms and conditions enumerated hereinafter subject to any decree order passed by the Hoh'ble Court's in the pending cases in respect of the said two Wills.
The second party grants and transfers 100% of the rights, title, and interest in The Properties which devolves upon him and his two sisters on his behalf and on behalf of his two sisters namely Mrs. Pixy Kohli & Mrs.Mishka Kolhi Cira as their legally constituted attorney by virtue of Will dated 7/3/86 and /or Will dated 23rd Sept 87 subject to the final decision of the court in the above matters or any share in The Properties that falls to its share by virtue of settlement or comprmise and the 1/3rd undisputed share of "Property 15 JorBagh"
presently held by him independently of the Will of 86 or Will of 87 as is more particularly set out hereinafter, in favour of the First Party for a total Sale Consideration of Rs.24 Crore, provided that the entire amount of consideration described in the Payment Schedule is paid by the First Party without Default or Delay"
13. Similar are the clauses of agreement to sell dated 23.03.2015 viz.:
"AND WHEREAS In the meantime Mrs. Pamela Manmohan Singh ("PMS") (Daughter of Late Dr. Raseel Kohli & Aunt of the First Party) has also asserted her rights over the "RK Property" on the basis of alleged Will Dated 23rd September 1987 (un registered) purported/claimed to be executed by Dr. Raseel Kohli, whereby it is alleged that the one third undivided share of Dr. Raseel Kohli in the Jor Bagh Property is entirely given to RMS, taking her total undivided share in the Jor Bagh Property to 2/3rd to be held Jointly with KVS who already held 1/3rd undivided share therein. By way of said Will it is further alleged that the Golf Link Property is to be divided in two equal shares, and one half is bequeathed to Late Sh. Shri Kushal Vir Kohli & the other half is bequeathed to PMS.CS(OS) No.238/1989 Page 9 of 12
AND WHEREAS, the SECOND PARTY being desirous of purchasing all rights, title and interest of the RRST PARTY including 100% of the disputed and undisputed share In the "said properties", as aforesaid, subject matter of Test. Case No.l9 of 1997, Test. Case No.20/1997 and C.S. (O.S.) No.238 of 1989 and/or that all or any share which falls to the FIRST PARTY by virtue of law, decree, settlement or compromise with PMS or any person for a total sale consideration of Rs.24,00,00,000/- (Rupees Twenty Four Crores only).
1.That the Vendor has agreed to sell, transfer and assign to the Purchaser and the Purchaser has agreed to buy ail rights, title and interest of the FIRST PARTY including 100% of the disputed and undisputed share in the "said properties", as aforesaid,' subject matter of Test. Case No.19 of 1997, Test. Case No.20/1997 and- C.S. (O.S.) No.238 of 1989 and/or that ail or any share which fails to the FIRST PARTY by virtue of law, decree, settlement or compromise with PMS or any person for a total sale consideration of Rs.24,00,00,000/- (Rupees Twenty Four Crores only)."
14. Hence the applicants were well aware what they were purchasing and what they could loose in litigation. The alleged settlement decree relied upon by the applicants is an unregistered document without any stamp duty affixed. Even otherwise, per Section 44 of the Transfer of Property Act and Section 4 of the Partition Act a transferee may seek a right to partition in a joint undivided property but cannot seek forceful enjoyment of the same. Moreso till date the applicants rely upon agreements in its favour which do not even constitute „transfer‟ within the meaning of the Transfer of the Properties Act and when such documents itself reveal the applicants having agreed for the portions which may fell to the share of legal heirs of Late Kushal even on settlement/compromise, now cannot agitate such settlement.
15. Clearly the applicants are not seeking co-ownership of the properties on succession hence cannot be a party in a partition suit CS(OS) No.238/1989 Page 10 of 12 amongst the legal heirs of a common ancestor. Simply because properties to the dispute are same would not suffice the purpose.
16. If the applicants allege fraud by one of the parties/group to the lis it may take action against such party in appropriate proceedings but not in a partition suit amongst the family members. The applications are therefore dismissed.
I may leave here by quoting portion of Vidur Impex Traders Private Limited vs. Tosh Apartments Private Limited 2012 (8) SCC 384 as under:
"42. xxxx The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when respondent No.2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had restrained respondent No.2 from alienating the suit property or creating third party interest. To put it differently, the agreements for sale and the sale deeds executed by respondent No.2 in favour of the appellants did not have any legal sanctity. The status of the agreement for sale executed by the appellants in favour of Bhagwati Developers was no different. These transactions did not confer any right upon the appellants or Bhagwati Developers. xxxx
44. xxxx Therefore, it cannot be said that any valid title or interest has been acquired by the appellants in the suit property and the ratio of the judgment in Surjit Singh v. Harbans Singh (supra) would squarely apply to the appellants' case because they are claiming right on the basis of transactions made in defiance of the restraint order passed by the High Court. xxxxx"IA No.8210/2018
17. Since even after settlement, the legal heirs of Shri Kushal Vir Singh would get 2/3rd share in Jor Bagh property so the interest of CS(OS) No.238/1989 Page 11 of 12 applicant herein is not materially affected, hence there is no cause of action to move this application. The application is dismissed.
YOGESH KHANNA, J JULY 11, 2018 DU CS(OS) No.238/1989 Page 12 of 12