Delhi District Court
5 vs Kamal Mohan Soni Ex.336/2011 Page 5 Of 9 on 12 April, 2013
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 1, TIS HAZARI
COURTS, DELHI.
Ex. No.: 336/2011
Poonam Arora
....Decree Holder
Versus
Kamal Mohan Soni
....Judgment Debtor
O R D E R
The JD Kamal Mohan Soni has filed his objections in the execution petition filed by the decree holder Smt. Poonam Arora.
2. Brief facts are that the parties by a compromise agreed to partition properties bearing no. 4/2707, Gali No. 5, Goverdhan Bihari Colony Shahdara, Delhi measuring 100 sq. Yds. or thereabouts and property bearing 4/2249, Gali No.3, Goverdhan Bihari Colony, Shahdara, Delhi measuring 50 sq yds or thereabouts with 22.5% share coming to the share of DH and 77.5% coming to the share of JDs. A compromise decree was accordingly passed on 10.11.2010. Now the present execution has been filed to carry out the terms of decree.
3. Parties are related being siblings. The JD No. 3 Smt. Madhu Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 1 of 9 2 Kiran Malhotra is stated to have relinquished her share in favour of JD No. 2 Lalit Mohan Soni. In this execution petition, parties were heard as to how the compromise decree could be executed.
4. The objector has assailed the right of decree holder to maintain the present execution petition on the following grounds:
i) Compromise is not signed by all the parties to the suit and the statement of Madhu Kiran Malhotra in support of compromise is not recorded in Court.
ii) The compromise deed was required to be compulsory registered and it diminished the right of some of the parties and increased the right of the others and the same were valuing more than Rs. 100/.
5. I have heard Sh. T. M. Raghav, ld. counsel for the Objector/JD no. 1 and Sh. Raj Kumar, ld. counsel for the DH. The parties have also filed their written arguments which have been considered by me.
6. It is submitted by ld. counsel for Objector that the parents of the parties namely Sh. Bhola Singh (father) and Smt. Asha Rani (mother) have expired. There are four LRs i.e. Sh. Lalit Mohan Soni and Sh. Kamal Mohan Soni as sons and Smt. Madhu Kiran Malhotra and Smt. Poonam Arora as daughters. The settlement has been Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 2 of 9 3 entered into only on behalf of the three persons and Smt. Madhu Kiran Malhotra is not a party to the settlement or signatory to the deed of compromise. She has not appeared in Court to give her statement. Even otherwise, the transfer of any share by one party to other is without consideration and therefore, the transfer is void.
7. In another suit for declaration and partition the relinquishment deed dated 09.10.2007 executed by Smt. Madhu Kiran Malotra had been under challenge as to its validity and legality and therefore it is a non existent thing and cannot be stated to be subsisting.
8. It is further argued that settlement is also not valid as due to increase/decrease of share of the parties and therefore, the decree requires compulsory registration. As such, it is not binding on the parties and not capable of being executed.
9. The Ld. Counsel for objector has relied upon the following cases law:
i) Gurpreet Singh Vs. Chatur Bhuj Goel AIR 1988 SC 400, wherein it has been held that the compromise U/o 23 Rule 3 must be reduced to writing.
ii) K. Venkatachala Bhat and Anr. Vs. Krishna Nayak (D) by LRS & Ors 2005(3) SCALE, 77. wherein it has been held that the Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 3 of 9 4 interested parties must sign the settlement.
iii) K. Raghunandan and others Vs. Ali Hussain Sabir and others (2008) 13 SC cases 102, wherein it has been held that a decree which creates new rights and does not just declare the pre existing right in the immovable property of the value of Rs. 100/ upwards is compulsory registrable.
iv) Roshan Singh and others Vs. Zile Singh and others AIR 1988 SC 881, wherein it has been held that an instrument of partition which causes a change of legal relation to the property divided amongst the parties is compulsorily registrable.
v) Ataat Husain Vs. Mushtaq Ali AIR 1937, Allahabad 282, wherein it has been held that the non registration of the decree makes it ineffective and does not transfer any interest in the immovable property mentioned therein.
vi) Y. S. Manchanda Vs. Nand Singh, 175 (2010) DLT 393 wherein it has been held that an application would lie to recall the decree passed if it is obtained by fraud or unlawfully before the Court passing the decree which has all the powers of recall.
vii) Sh. A. A. Gopalakrishnan Vs. Cochin Devaswom Board and Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 4 of 9 5 others (2007) 7 SC cases 482, wherein it has been held that if a compromise is arrived by fraud its validity can be questioned even by a third party.
10. Ld. Counsel for DH has relied upon the following citations:
i) Manjeet Kaur & Anr. Vs. Amarjeet Kaur & Ors. 2005(83) DRJ 475, wherein it has been held that when under the settlement properties are required to be sold and division is not by metes and bounds and only the sale proceeds are to be divided in a particular manner, the decree would not fall within the definition of instrument of partition and no stamp duty is chargeable.
ii) Joginder Singh Bedi Vs. Bawa Darbara Singh & Ors. 39(1989) Delhi Law Times 270, wherein it has been held that in a suit for declaration for setting aside the compromise decree being effected on the basis of fraud, misrepresentation coercion, undue influence etc. Rule 3A of order 22 CPC is a complete bar to the maintainability of such a suit. It has further been relied upon on the aspect that in a suit for declaration for setting aside the compromise decree when the plaintiff acted upon compromise decree, took possession of portion given to him and got mutated in his favour and let it out he can not challenged the decree.
Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 5 of 9 6
11. First of all, let me examine the terms of settlement as contained in Ex.CW1/1 to cull out if the objections of Objector as to the said compromise creating new rights in immovable property and thus compulsorily registrable are sustainable or not. Para 4 of the settlement reads as under:.
'All the parties are agreed that both the properties shall be sold in market at the best possible price to the respective buyer (s).
All the parties shall have no objection for the same and they shall join in signing, execution and completion of the Sale documents right from the agreement to Sell to any of the sale documents which are required to be signed by the parties for the sale of the properties.
The said properties shall be sold or buy out, as the case may be within three months from the signing and execution of this compromise/settlement deed.'
12. A plain reading of the above clause along with the entire terms of settlement clearly spell out that no rights have been created in the immovable properties as the immovable properties are not to be partitioned by metes and bounds. The parties have settled different shares of amount which would be received by them on the sale of the immovable properties. Thus, what the parties will ultimately Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 6 of 9 7 received would be movable property i.e. the cash value of their respective defines shares realized on the sale of both the properties. As such, the settlement read as a whole and in a meaningful manner does not create and correspondingly does not extinguish any rights in the suit properties. What is to be done is that the parties have to share the sale proceeds in various proportions. The case law cited by ld. counsel for DH i.e. Manjeet Kaur & Anr. Vs. Amarjeet Kaur & Ors. 2005(83) DRJ 475 squarely applies in the facts and circumstances of the case. Hence, I do not subscribe to the arguments of ld. counsel for Objector that the decree was compulsorily registrable.
13. Now coming to the next point of objection i.e. Smt. Madhu Kiran Malhotra being not a party to the settlement. On this aspect, there is statement of JD no.1 Sh. Kamal Mohan Soni that the JD no.3 (Smt. Madhu Kiran Malhotra) had already relinquished her share in favour of JD no.2. Having made the statement on oath in Court on 08.02.2012, JD no.1 who is the objector herein is estopped from taking a contrary stand in the objections. This statement was also accepted on behalf of JD no.2 by his counsel in his statement recorded on 08.02.2012. Therefore, estoppel operates against both these JDs, Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 7 of 9 8 who cannot stake a contrary stand now. In the referred to suit, as per the arguments of JD no.1 he himself and the DH herein had challenged the relinquished deed executed by JD no.3 in favour of JD no.2. Apparently, now when the DH and JD no.1 and 2 had settled the matter in the suit for partition, they have accepted the factum of relinquishment deed executed by the JD no.3 (Ms. Madhu Kiran Malhotra) in favour of the JD no.2. Ostensibly, the JD no.1 wants to come out of the settlement by pressing into service hypertechnical objections.
14. The rule of estoppel is that a person cannot take a 'U' turn from his earlier stand when other parties have changed their position on the basis of the said statement. Thus, the JD no.1 cannot take a contrary stand.
15. The objection of JD no.1 that the compromise deed was not signed by all the parties for the reason that it does not bear the signatures of Smt. Madhu Kiran Malhotra carries no substance for the reason that through the JD no.2 namely Sh. Lalit Mohan Soni, the JD no.3 is duly represented as she had relinquished her share in favour of JD no.2 and this fact has been conceded to by all the parties. Though, Smt. Madhu Kiran Malhotra was a party in the original suit as Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 8 of 9 9 defendant no.3 and had filed her written statement.
16. Therefore, the objection of JD no.1 that the compromise agreement is void on the grounds pressed into service are not sustainable. Hence, the same are liable to be dismissed. As the objections are frivolous and vexatious, the same are dismissed with cost of Rs.10,000/ payable by Jd no. 1/Objector and the said cost be deposited with Prime Minister Relief Fund within one month from today.
Announced in open Court today i.e. 12.04.2013 (Man Mohan Sharma) ADJ(Central)1, Delhi Poonam Arora Vs. Kamal Mohan Soni Ex.336/2011 Page 9 of 9