Delhi High Court
Sh. Amarjeet Lal Suri vs Sh. Moti Sagar Suri And Ors. on 4 March, 2005
Equivalent citations: 119(2005)DLT295
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Vide order dated 20.1.2004, following issues were framed:-
1. Whether besides the properties mentioned in the plaint, properties being (i) No. 110/173 (Old No. 110/125), Mohalla Ram Kishan Nagar, Kanpur, (ii) No. 122/619, Shastri Nagar (Motiapurwa), Kanpur and (iii) No. A-1, Gali No. 4, Anand Parbat, Delhi, are joint properties and are also liable to be partitioned?OPD 4-7
2. Whether the memorandum of family settlement dated 30.5.1996 executed amongst the plaintiff and defendants Nos. 1,2 and 3 is admissible in evidence and if so, its effect? OPP
3. Whether the unregistered deed of family arrangement dated 10.8.1978 is admissible in evidence? If so, its effect? OPP
4. If aforesaid issue is answered in favor of the plaintiff, whether the same could be and was acted upon by the parties and if so, its effect?
5. Whether the plaintiff is entitled to a declaratory decree, as prayed for? OPP
6. In the event of aforesaid issue is decided against the plaintiff what are the shares, if any, of the parties in the joint properties and what directions are required to be given for the purposes of partition by metes and bounds? Onus on the parties.
7. Relief.
2. Pleadings of the parties which necessitated framing of the issues afore-noted may be noted.
3. Pedigree of the parties to the suit is as under:-
Late Nihal Chand Suri (Died 8.7.1967) :
:Late Smt. Satya Wati Suri :(wife)(Dies 16.2.1977) :
: : : :
Moti Sagar Suri Varsha Sethi Sudarshan Mehta : Amarjeet Lal Suri (Defdt.1) (Defdt.2) (Defdt.3) :
Late Devinder Nath Suri (Died 2.10.1995) :
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: : : : :
Vimla Suri Anoop Suri Rajeev Vijay Promila (Wife) (Son) Suri Suri Bakshi (Defdt.4) (Defdt.5) (Defdt.6) (Defdt.7) (Defdt.8)
4. As per the plaintiff, late Sh. Nihal Chand Suri and his wife Smt. Satyawati Suri died interstate and therefore the estate left behind by them was inherited by their sons and daughters in equal shares. Accordingly, the plaintiff, late Devender Nath Suri (Predecessor-in-interest of defendants No. 4 to 8), Moti Sagar Suri (defendant No. 1), Smt. Varsha Sethi (defendant No. 2) and Smt. Sudarshan Mehta (Defendant No. 3) inherited the estate of their parents, each having 1/5th share in the estate.
5. Plaint states that the properties owned by late Sh. Nihal Chand Suri and late Smt. Satyawati Suri were as under:-
Properties owned by late Shri Nihal Chand Suri
a) Property no. 111-A/230 (old plot No. 336, Block 'X', Scheme No. IV, Ghusramau), Ashok Nagar, Kanpur built on an area measuring 150 sq.yds.
b) Plot No. 508/3, Block no. 'S', Scheme No. II, Juhi Garha, Rakhi Mandi, Kanpur measuring approximately 900 sq.yds.
Properties owned by late Smt. Satya Wati Suri
a) Plot bearing No. 6 and 7/12, measuring 311 sq.yds. Situated at 'C' Block, Kakadeo, Kanpur.
b) Property No. B-51, New Delhi South Extension Pt. II, New Delhi, built on a plot of 250 sq.yds.
c) Industrial plot No. 8, Block 'P', Factory Area, Kanpur, measuring about 2871 sq.yds.
6. As per the plaint, as per an oral family settlement arrived at in the month of August 1978, the children of Nihal Chand Suri and Satyawati Suri partitioned the properties. In para 3 of the plaint, it is stated that the partition was as under:-
In the said family settlement, inter alia, it was agreed that property No. B-51, New Delhi South Extension Part II, New Delhi would exclusively belong to the plaintiff Amarjeet Lal Suri, plot bearing No. 6 and 7 situated at 'C' Block, Kakadeo, Kanpur would exclusively belong to defendant No. 1 Moti Sagar Suri, property No. 111-A/230 (old Plot No. 336, Block 'x', Scheme No. IV, Ghusramau), Ashok Nagar, Kanpur and Plot No. 508/3, Block No. 'S', Scheme No. 2, Juhi Garha, Rakhi Mandi, Kanpur would exclusively belong to Shri Devinder Nath Suri and lastly industrial plot No. 8, 'P' Block, Factory Area, Kanpur would exclusively belong in the ratios to Shri Devinder Nath Suri (521/2871), Amarjeet Lal Suri (900/2871), Smt. Varsha Sethi (900/2871) and Smt. Sudarshan Mehta (550 2871).
7. It is asserted in the plaint that on 10.8.1978 a deed of family arrangement was executed between the parties, deed of family arrangement reflected the aforesaid oral family settlement.
8. In para 4 of the plaint, it is asserted that the family arrangement aforesaid was acted upon and implemented in full as regards late Sh. Davinder Nath Suri but as regards defendant No. 1 and the plaintiff, there was some misunderstanding in the implementation of the family settlement.
9. Plaintiff filed a civil suit being number 2435/1991 in this court praying for a declaration and alternative partition of the estate of late Nihal Chand Suri and late Smt. Satyawati Suri. The suit was dismissed for non-prosecution on 19.9.1997.
10. In para 6 of the plaint, it is asserted that the plaintiff, defendant No. 1, defendant No. 2 and defendant No. 3 discussed the implementation of the memorandum of family settlement arrived at in the year 1978 qua the properties assigned to them. Inter-se said parties, an oral family settlement was arrived at which was reduced in a memorandum of family settlement dated 30.5.1996. Following settlement was arrived at in the year 1996.
According to the aforesaid oral settlement and as recorded in the said Memorandum of Family Settlement :
i) except for property no. 6 and 7/12 situated at C-Block, Kakadeo, Kanpur, defendants Nos. 2 and 3 Smt. Varsha Sethi and Smt. Sudarshan Mehta had relinquished all their undivided interests in all other properties left by their mother and father in favor of the plaintiff Amarjeet Lal Suri;
(ii) as regards property No. 6 and 7/12, C-Block, Kakadeo, Kanpur, the said defendants Nos. 2 and 3 had relinquished their interest in the said property in favor of defendant No. 1 Moti Sagar Suri;
(iii) defendant no. 1 Moti Sagar Suri had relinquished his undivided share in property No. B-51, New Delhi South Extension Part II, New Delhi, in favor of the plaintiff Amarjeet la Suri; and,
(iv) the plaintiff Amarjeet Lal Suri had relinquished his interest in property No. 6 and 7/12 situated at C-Block, Kakadeo, Kanpur, in favor of defendant No. 1 Moti Sagar Suri. It was agreed that the plaintiff Amarjeet Lal Suri would pay a sum of Rs. 50,000/- to defendant No. 1 Moti Sagar Suri which was accordingly paid by the plaintiff to the said defendant;
11. It is asserted in the plaint that pursuant to the inter se settlement arrived at amongst the plaintiff and defendants No. 1 to 3, defendant No. 1 executed a relinquishment deed on 4.9.1996 relinquishing his interest in property No. B-51, N.D.S.E., Part-II, relinquishment being in favor of the plaintiff. Likewise, defendants No. 2 and 3 also executed relinquishment deed on 4.9.1996 relinquishing their interest in property No. B-51, N.D.S.E., Part-II, New Delhi, relinquishment being in favor of the plaintiff.
12. Plaintiff accordingly states that he is entitled to a declaratory decree declaring that oral family settlement arrived at between the parties in August, 1978 as reduced in the deed of family arrangement dated 10.8.1978 binds the parties and coupled with the settlement arrived at in the year 1996 amongst the plaintiff and defendants No. 1 to 3, property No. B-51, N.D.S.E. Part-II exclusively belongs to the plaintiff. Plot No. 6 and 7/12, C-Block, Kaka Deo exclusively belongs to defendant No. 1. Property No. 111-A/230, Ashok Nagar, Kanpur and plot No. 508/3, Block-S, Scheme No. 2, Juhi Garh, Rakhi Mandi, Kanpur exclusively belongs to defendants No. 4 to 8. Industrial plot No. 8, P-Block, factory area, Kanpur exclusively belongs to the plaintiff and defendants No. 4 to 8, defendant No. 2 and defendant No. 3 in the ratio: 900/2871, 521/2871, 900/2871 and 550/2871 respectively.
13. Alternatively, plaintiff pleads that on the strength of the family settlement arrived at in 1996, followed by the relinquishment deeds, share of the parties in the properties would be as under:-
i) Property No. B-51, - 4/5th belongs to plaintiff New Delhi South Amarjeet Lal Suri while Extn. Part II, 1/5th belongs to late Devinder New Delhi Nath Suri represented by his LRs defendants 4 to 8.
ii) Plot of land - 4/5th belongs to defendant bearing No. 6 and 7/12, No. 1 Moti Sagar Suri and situated at 'C' Block, 1/5th belongs to late Devinder Kakadeo, Kanpur. Nath Suri represented by his LRs defendants 4 to 8.
iii) Property No. - 3/5th share belongs to 111-A/230 (old Plot plaintiff Amarjeet Lal Suri, No. 336, Block 'x', 1/5th to defendant No. 1 Moti Scheme No. IV, Ghusramau), Sagar Suri and 1/5th to late Ashok Nagar, Kanpur Devinder Nath Suri represented by his LRs defendants 4 to 8.
iv) Plot No.508/3, Block - 3/5th share belongs to No. 'S', Scheme No. 2, plaintiff Amarjeet Lal Juhi Sarha, Rakhi Mandi, Suri, 1/5th to defendant Kanpur. No. 1 Moti Sagar Suri and 1/5th to late Devinder Nath Suri represented by his LRs defendants 4 to 8.
v) Industrial Plot No. 8, - 3/5th share belongs to 'P' Block, Factory plaintiff Amarjeet Lal Area, Kanpur. Suri, 1/5th to defendant No. 1 Moti Sagar Suri and 1/5th to late Devinder Nath Suri represented by his LRs defendants 4 to 8.
14. Save and except defendants 4 to 7, none other defendant has joined issues with the plaintiff. In the written statement filed by defendants No.4 to 7, it is denied that the family arrangement arrived at in August, 1978 was acted upon. It is stated that the deed of family arrangement dated 10.8.1978 being an unregistered document, has no validity or sanctity in law for the reason it creates and extinguishes right, title and interest in immovable properties. Qua the settlement arrived at in the year 1996 and recorded in the memorandum of settlement dated 30.5.1996, said defendants state that since they are not signatories to the said settlement, it does not bind them.
15. It is asserted that apart from the properties referred to in the plaint, 3 other properties were purchased by late Sh. Nihal Chand Suri from the joint family funds and, thus, properties were also liable to be partitioned. The said three properties are :-
(i) 110/173 (Old No. 110/125), Mohalla Ram Kishan Nagar, Kanpur;
(ii) 122/619, Shastri Nagar, Sindhi Colony, Kanpur. (Earlier known as 122/619, Mattia Purwa, Kanpur); and
(iii) A-1, Gali No. 4, Anand Parbat Industrial Area, New Delhi.
16. In the replication, plaintiff asserts that property No. 110/173 (old No. 110/125) Mohalla Ram Kishan Nagar belonged to Smt. Dropadi Devi Suri, mother of Nihal Chand Suri and that it fell to the share of defendant No. 1 under the family settlement dated 10.8.1978. Qua property No. 122/619, Shastri Nagar (Mattia Purwa), Kanpur, it is asserted that the property was the personal property of defendant No. 1 which he sold quite sometime back. It is stated that property No. A-1, Gali No. 4, Anand Parbat, Delhi was the personal property of the plaintiff which he disposed of quite some time back.
17. Parties have led evidence. Deed of family arrangement executed on 10.8.1978, Ex.PW.1 records:-
NOW THESE PRESENTS ACCORDINGLY WITNESSETH AS UNDER:-
1. That property No. 110/173 (Old No. 110/125) Mohalla Ram Kishan Nagar Kanpur built on a plot area measuring 415 sq.yds. single storeyed which stands in the name of Smt. Daropati Devi Suri, shall henceforth belong exclusively to Shri Moti Sagar Suri, and he shall be entitled to realise rent from the tenants of the said property and appropriate the same exclusively to himself. The other parties to this agreement shall have no right, title or interest in the said property. This property is of the value of Rs. 1,50,000/- (One lakh and fifty thousand rupees). Shri Moti Sagar Suri shall further be entitled exclusively to the plot of land bearing No. 6 and 7/12 and measuring 311 sq.yds. situated at C-Block Kakadeo, Kanpur, standing in the name of late Smt.Satya Wat Suri, and he shall be the absolute owner thereof. The value of this plot is Rs. 10,000/- (Rupees ten thousand only). He shall be entitled to deal with the said plot in any way he likes and the other parties to this agreement shall have no right, tilter interest in the said plot. That apart, Shri Moti Sagar Suri will further get a sum of Rs.35,000/- (Rupees thirty five thousand only) which shall be paid to him in the following manner:
(1) Rs. 15,000/- paid by Shri Davinder Nath Suri by Bank Draft No. AK-832100 dated 10.8.1978 drawn in favor of Shri Moti Sagar Suri, on Canara Bank Kanpur. The receipt of this draft is hereby acknowledged by Shri Moti Sagar Suri.
(2) Rs. 20,000/- paid by Shri Amarjit Lal Suri by a post dated 10.10.1978 cheque No. HCB/SB/E 490471 drawn on Hindustan Commercial Bank Limited in favor of Shri Moti Sagar Suri. The receipt this cheque is acknowledged by Shri Moti Sagar Suri.
Except the properties given to Shri Moti Sagar Suri by this arrangement Deed, he shall have no right, title or interest of whatsoever nature in any other property, movable or immovable, left by late Shri Nihal Chand Suri or late Smt. Satya Wati Suri.
2. Smt. Daropati Devi Suri shall be paid a sum of Rs. 25,000/- (Rupees twenty five thousand only) by Shri Amarjit Lal Suri by Bank draft No. AK 832099 dated 10.8.1978 drawn by Canara Bank Parliament Street, new Delhi, in favor of Smt. Daropati Devi Suri, on Canara Bank, Kanpur. Smt. Daropati Devi Suri will deposit the same in the Bank in the form of fixed Deposit Receipt for 61 months. She shall be entitled to draw interest on the said Fixed Deposit Receipts on monthly basis and us the same for her own benefit/maintenance. Smt. Daropati Devi Suri shall not have any right, title or interest in any other property mentioned in this Deed of Arrangement on her receiving the amount of Rs.25,000/-. Smt. Daropati Devi hereby acknowledges the receipt of Rs.25,000/- by Bank draft stated herein above.
3. Property No. B-51, New Delhi South Extension Part-II, New Delhi built on a plot of 250 sq.yds. Double storeyed which stood in the name of late Smt. Satya Wati Suri in her life time, shall belong exclusively to Shri Amarjit Lal Suri and he shall be entitled to deal with the tenant thereof and also realise and appropriate all the outstanding and future rent of the said property to himself. This property is of the value of Rs. 1,50,000/- (One lacs fifty thousand only). The other parties to this Deed shall aver no right, title or interest in the said property or the accumulated rental thereof or which falls due hereafter. Shri Amarjit Lal Suri alone shall be entitled to take possession of first floor from the ex-tenant Sri Bhagwati Goel and also to realize all up to date rent/damages for use and occupation from him and entitled to live therein after obtaining possession thereof. The legal proceedings for recovery of rent/compensation for use and occupation and also for recovery of possession and for contempt t of court against Shri Bhagwati Goel have been instituted with the consent of all the parties.
4. Property No. 111A/230 (Old plot No. 336 Block X Scheme No. IV Ghusramau), Ashok Nagar Kanpur built on an area measuring 150 sq.yds. Double storeyed standing in the name of late Shri Nihal Chand Suri, shall belong exclusively to Shri Davinder Nath Suri and he shall be entitled to realise rent from the tenants thereof and to deal with the said property in any manner whatsoever he pleases. This property is of the value of Rs.80,000/- (Rupees Eighty thousand only). The other parties to this deed shall have no right, title or interest in the said property or the accumulated rental thereof or which falls due hereafter.
5. That plot No. 508/3 Block No. S Scheme No. II Juhi Garha Rakhi Mandi, Kanpur measuring approximately 900 sq.yds. which stood allotted in the name of late Shri Nihal Chand Suri by allotment letter of The Bikraya Adhikari, Nagar Mahapalika, Kanpur, dated 15.11.66 shall be owned exclusively by Shri Davinder Nath Suri. The balance amount due on this plot will be paid by Shri Davinder Nath Suri and he will get it registered in his name. The other parties to this Deed shall have no right, title, or interest in the said plot of land or the usufruct thereof. Shri Moti Sagar Suri will deliver the letter of allotment of the plot No. 508/3 Juhi Garha Rakhi Mandi Kanpur to Shri Davinder Nath Suri together with any other documents in connection with this plot. The market value of this plot is Rs.8,000/-.
6. That Industrial Plot No. 8 'P' Block, Factory Area, Kanpur measuring about 2871 square yards (two thousand eight hundred seventy one square yeards) of the value of Rs. 1,00,000/- (One lakh rupees) stood in the name of late Smt.Satya Wati Suri in her life time vide certificate of sale dated 14.9.1964 of the Government of India, Ministry of Works, Housing and Rehabilitation, Managing Officer, Lucknow Zone, Lucknow. The same now shall exclusively belong to Shri Davinder Nath Suri and Amarjit Lal Suri, Shrimati Varsha Sethi and Shrimati Sudarshan Mehta in the following respective ratios:
i) Shri D.N. Suri 521/2871ii) Shri Amarjit Lal Suri 900/2871
iii) Mrs. Varsha Sethi 900/2871
iv) Mrs. Sudarshan Mehta 550/2871 The other parties to this agreement shall have no right, title or interest in said plot. The registration certificate, other documents together with keys of door of open enclosure of the said Industrial Plot No. 8 'P'. Gadarian Purwa Factgory Area Kanpumeasuring 2871 sq.yds. will be handed over by Shri Moti Sagar Suri to Shri Davinder Nath Suri.
7. That there are movables in the shape of contents of locker bearing No. 147 with the United Commercial Bank Ltd., Karol Bagh, New Delhi, belonging to late Smt. Satya Wati Suri, in the joint names of late Shrimati Satyawati Suri and Smt. Varsha Sethi. The contents of this locker shall belong to Shri Amarjit Lal Suri and the other parties to this deed shall have no right title or interest in or upon the contents of the said locker. The contents of the locker are of the value of Rs.6,500/- (six thousand an five hundred only).
8. There is also amount of about Rs. 12,000/- (Rupees Twelve Thousand) standing in the Bank Accounts Nos. of late Shri Nihal Chand Suri with the Central bank of India, Gumti No. 5 Kanpur, and the same with the interest shall also be exclusively appropriated by Shri Amarjit Lal Suri and the other parties to this agreement shall have no right, title or interest in or upon the said amount. That Shri Moti Sagar Suri will handover the pass books of the accounts of late Shri Nihal Chand Suri and other papers to Shri Amarjit Lal Suri.
9. That the parties to this agreement will bear all property taxes and other local cresses and taxes etc. outstanding up to date and that falling due in future in respect of their respective properties individually. Shri Moti Sagar Suri shall have no liability of Estate Duty. In case any liability arises on Shri Moti Sagar Suri in respect of Estate Duty, he will be re-imbursed by Shri Devinder Nath Suri and Shri Amarjit Lal Suri.
10. That by this deed of arrangement all disputes between the parties have been settled and they have now no claim of whatsoever nature against each other.
18. Memorandum of family settlement dated 30.5.1996, Ex.PW.2 executed amongst the plaintiff and defendants No. 1 to 3 records:-
Our father Shri Nihal Chand Suri owned and possessed (i) Property No. 111A/230 (old Plot No. 336, Block-X, Scheme No. IV, Ghusra Mau), Ashok Nagar, Kanpur, built on an area measuring 150 sq.yds., double storeyed; and (ii) Plot No. 508/3, Block No. S, Scheme No. II, Juhi Gara Rakhi Mandi, Kanpur, measuring approx 900 sq.yds. Out mother Smt. Satyawati Suri owned and possessed (i) plot of land bearing No. 6 and 7/12, measuring 311 sq. yds., situated at C-Block, Kaka Deo, Kanpur; (ii) Property No. B-51, New Delhi South Extension Part-II, New Delhi, built on a plot measuring 250 Sq.Yds., double storeyed; and (iii) Industrial Plot No. 8, P Block, Factory Area, Kanpur, measuring about 2871 sq.yds.
Both our parents died interstate, father on 8/7/1967, and mother on 16/2/1977. We had also another brother Devender Nath Suri who died recently on 2nd October, 1995. With respect to the properties of our parents in the past, a family settlement was arrived at on 10th August, 1978 and was also reduced into writing but due to its non-registration and certain conditions mentioned therein which were not observed, it was not acted upon by the heirs. Consequently, a civil suit for partition of the estate let by the parents was also filed by one of us Amarjit Lal Suri in the Delhi High Court bearing No. 2435 of 1991.
In January 1996, Moti Sagar Suri had come to Delhi to deliberate with Amarjit Lal Suri and sisters Mrs. Varsha Sethi and Mrs. Sudershan Mehta about resolution of the family disputes regarding family properties left by the parents. In a meeting held at that time, certain decisions were taken. Both the sisters stated that they have lot of natural love and affection for Amarjit Lal Suri who is the youngest amongst all. So except for property No. 6 and 7/12 situated at C-Block, Kaka Deo, Kanpur, they relinquished their interest in the said property in favor of Moti Sagar Suri. They also expressed their complete consent and agreement to the transfer of the said property by Moti Sagar Suri in favor of a third party.
Moti Sagar Suri relinquished his undivided share in property No. B-51, New Delhi South Extension Part-II, New Delhi in favor of Amarjit Lal Suri. He further stated that if so required, he would also execute and get registered appropriate release deed. Moti Sagar Suri further stated that he has got the concurrence of his sons in the Family Settlement. It was also agreed that Amarjit Lal Suri would pay a sum of Rs.50,000/- to Moti Sagar Suri.
Amarjit Lal Suri relinquished his interest in property No. 6 and 7/12, situated at C-Block, Kaka Deo, Kanpur, in favor of Moti Sagar Suri. He further stated that he would execute release deed and get the same registered if so required.
As regards interest of Late Devender Nath Suri in the joint properties, it was agreed that his heirs would also be persuaded to settle the outstanding dispute with regard to the above said joint properties.
19. Ex.PW.3, Ex.PW.4 and Ex.PW.5 are three relinquishment deeds dated 4.12.1996 executed by defendant No. 1, defendant No. 2 and defendant No. 3 respectively.
20. By and under the said relinquishment deeds, duly registered, defendants 1, 2 and 3 have relinquished their 1/5th share in property No. B-51, NDSE Part-II, New Delhi in favor of the plaintiff.
21. Ex.PW.6, Ex.PW.7 and Ex.PW.8 are the affidavits of Om Prakash Suri, Satish Suri and Rakesh Suri, the three sons of defendant No. 1, regarding their consent to the family settlement dated 30.5.1996.
22. Exhibit PX is a certified copy of an agreement to sell dated 5.8.1980 executed by Devinder Nath Suri, Predecessor-in-interest of defendants No. 4 to 8. As per said agreement to sell, Sh. Devinder Nath Suri for self and as general attorney of his sister, Smt. Varsha Sethi (Defendant No. 2) had agreed to sell 1421 square yards of land from out of 2871 square yards of land in plots No. 8, Block-P, Factory Area, Kanpur. Said agreement to sell, Exhibit PX records the following recitals:-
AND WHEREAS the sellers and the said Sh. Moti Sagar Suri, Shri Amarjeet Lal Suri and Smt. Sudershan Mehta daughter of deceased Smt. Satyawati Suri have arrived at family partition to partition the ancestral properties and a deed of family settlement date 10th August, 1978 unregistered has been executed by the sellers, and the said Sh. Moti Sagar Suri shall have no right, title or interest or any sort of claim in the afore-mentioned property and the said property has fallen in the absolute lot of the sell yrs and through AmarjeetLal Suri and Smt. Sudarshan Mehta and the sellers for legal necessity have to get a partition deed registered.
23. The agreement to sell further records:-
The sellers hereby agree that the sellers shall got the partition deed afresh duly executed and registered to establish their clean title over plot.
24. It is the undisputed position between the parties that under the agreement to sell aforesaid, purchaser has been put in possession of half portion of plot No. 8, Block-P, Factory Area, Kanpur.
25. Evidenced by the agreement to sell, late Sh. Devinder Nath Suri was conscious of the fact that a family settlement had been arrived at. The settlement was reduced into writing but the said written family settlement required registration.
26. In his deposition being the affidavit by way of evidence filed by the plaintiff, plaintiff has stated as under:-
That before execution of the deed of family arrangement dated 10th August, 1978, there were talks amongst the parties thereto and certain decisions regarding partition of the common properties were taken. Those decisions were incorporated in the deed of family arrangement dated 10th August, 1978 which was duly signed by all the parties. The original deed of family arrangement dated 10th August, 1978 is Exh.PW.1. I identify the signatures of the executants thereon.
ECHO is on.
This family arrangement was acted upon and implemented in full as regards late Sh. Devinder Nath Suri. After execution of the said deed of family arrangement, all the heirs of late Sh. Nihal Chand Suri and late Smt. Satyawati Suri executed deeds of General Power of Attorney in favor of late Sh. Devinder Nath Suri to enable him to maintain and manage industrial plot No. 8, Block-P, Factory Area, Kanpur. On the strength of the said deeds of power of attorney, Sh. Devinder Nath Suri had disposed of half of the said industrial plots to some outsiders and apportioned the sale proceeds therefore exclusively to himself.
ECHO is on.
In January 1996, defendant No. 1 Moti Sagar Suri came to Delhi to have discussions to have resolved the family disputes regarding family properties. In a meeting held at that time between plaintiff, defendant No. 1, Moti Sagar Suri and their sisters, defendants No. 2 and 3 Smt. Varsha Sethi and Smt. Sudarshan Mehta, certain oral family arrangements were arrived at which were latter recorded in the form of writing by way of a memorandum of family settlement executed on 30.5.1996.
27. Plaintiff has thereafter deposed to the contents of the family arrangement dated 30.5.1996 and the execution of exhibits PW.2 to PW.8.
28. In cross-examination, plaintiff stated:-
It is correct that Ex.PW.1 was arrived on 10.8.1978 as mentioned in the deed. There were certain discussions going on between the parties prior to 10th August, 1978 but same were put into writing on 10th August, 1978.
ECHO is on.
It is correct that only discussions had taken place prior to 10th August, 1978 but no such agreement was arrived at.
ECHO is on.
It is wrong to suggest that the discussion did not take place prior to the execution of Ex.PW.1.
It is incorrect to suggest that the family arrangement dated 10th August, 1978 was not given effect to by late Devinder Nath Suri.
ECHO is on.
It is incorrect to suggest that Ex.PW.2 that I have admitted that the settlement with late Sh. Devinder Nath Suri was not given effect.
ECHO is on.
It is incorrect to suggest that property A-1, Gali No. 4, Anand Parbat Area, Delhi was a joint family property (Vol. the said property was not given/gifted by my mother Smt. Satyawati Suri. This property was purchased by me in my own name by the funds provided/gifted by my mother).
ECHO is on.
It is wrong to suggest that property number 122/619, Shastri Nagar, Sindhi Colony, Kanpur was purchased from the funds provided by my late father Sh. Nihal Chand Suri.
29. Defendant No. 5 who appeared as the witness for defendants 4 to 7 in his deposition stated that there was no oral family settlement and that the deed of family arrangement dated 10.8.1978 was executed without any oral family arrangement. Being not registered, the document has no sanctity in law. He stated that the agreement was never acted upon. In the affidavit by way of evidence, defendant No. 5 stated that defendants No. 2 and 3 had executed a General Power of Attorney in favor of late Sh. Devinder Nath Suri to enable him to maintain and manage industrial plot No. 8, Block-P, Factory Area, Kanpur. He denied that acting on the strength of the said power of attorney, his father had disposed of half share in the property at Kanpur. Defendant No. 5 admitted that the plaintiff sold property No. A-1, Gali No. 4, Anand Parbat Industrial Area.
30. In cross-examination, defendant No. 5 admitted that his father had executed an agreement in the year 1980 under which half of plot No. 8, Block-P, Industrial Area, Kanpur was handed over to Gulshan Kumar. He, however, stated that this was with the consent of all the brother and the sisters.
31. For record, I may note that the agreement executed by father of defendant No. 5 was not on record when witness was cross-examined. He was confronted with a photocopy of the agreement to sell dated 5.8.1980. Though he admitted that his father had entered into an agreement with Sh. Gulshan Kumar and after receiving consideration had parted with possession of half plot, defendant No. 5 did not admit that the photocopy shown to him was the agreement to sell. Plaintiff obtained a certified copy of the agreement to sell and filed the same in this court with permission of this court under IA No. 5054/2004 Order dated 19.1.2005 records consent of counsel for defendants 4 to 8 to take on record the document and exhibited the same as Ex.PX.
Issue No. 1 to 432. Since issues 1 to 4 relate to the dispute as to the extent of properties in which the parties claim an interest, partition thereto and past conduct of the parties relating to the properties, I shall be dealing with the issues 1 to 4 under one common head.
33. Onus of issue No. 1 was on defendants 4 to 7. Three properties No. 110/173 (Old No. 110/125) Mohalla Ram Kishan Nagar, Kanpur, 122/619, Shastri Nagar (Motiapurwa) Kanpur and A-1, Gali No. 4, Anand Parbat, Delhi are the subject matter of issue No. 1.
34. Property No. 110/173 (Old No. 110/125) Mohalla Ram Kishan Nagar, Kanpur was admittedly in the name of Smt. Daropati Devi, the grandmother of the plaintiff, defendants 1 to 3 and late Shri Devinder Nath Suri. It is one of the properties partitioned amongst the parties as per memorandum of settlement dated 10.8.1978. Plaintiff has stated that property No. 122/169, Shastri Nagar, (Mattia Pura) Kanpur was the personal property of defendant No. 1 which was sold by him and property No. A-1, Gali No. 4, Anand Pabat, Delhi was his which he had sold quite sometime back. Issue No. 1 shows that onus was on the defendants 4 to 7 to establish that these were joint family properties.
35. Plaintiff, in his cross-examination has admitted that he purchased property No. A-1, Gali No. 4, Anand Parbat, New Delhi from the money gifted to him by his mother. He has also admitted that his mother was a house wife and was not working.
36. Defendant No. 1 has not led any evidence and neither party has brought on record any evidence regarding source of purchase of said property.
37. That these 2 properties had been sold and were no longer available for partition was not disputed by Shri Sanjiv Mahajan, learned counsel for defendants, but he urged that their money value could be put in the kitty while affecting partition.
38. Shri Sanjiv Mahajan, learned counsel for defendants 4 to 7 urged that plaintiff has admitted that prior to 10.8.1978 parties were holding negotiations and had not affected any partition and that partition was effected only under the memorandum dated 10.8.1978 and therefore the document required registration since it created and extinguished rights in immovable properties. Being not registered, counsel urged that document was inadmissible in evidence.
39. In the decision reported as Kale and Ors. Vs. Deputy Director of Consolidation and Ors. their Lordships of the Supreme Court held that a document which effected partition as distinct from a document which contains terms and recitals of anoral partition requires registration but in paras 38 to 42 of the report, their Lordships dealt with the issue of estoppels where a party challenges a family settlement by and under a document which requires registration.
40. Under section 17 of the Registration Act, a document creating or extinguishing a right, title or interest in immovable property requires compulsory registration and in absence thereof cannot be relied upon to assert a right, title or interest in a property. But this is part of substantive law. Rules of evidence recognise estopple. The two laws operate in their respective fields. A grant may be fed by estopple. In para 38 of Kale's decision, their Lordships held:
Assuming, however, that said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppels by preventing the parties after having taken advantage under the arrangement to resale from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal v. Brij Lal, 45 Ind App 118 at p.124 = (AIR 1918 PC 70 at p. 74) the Privy Council applied the principle of estoppels to the facts of case and observed as follows:
Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships' opinion he is bound by it, and cannot claim as a reversionary.
41. In the decision reported as S. Shanmugam Pillai V.K. Shanmugam Pillai, their Lordships observed:
Equitable principles such as estoppels, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of law is to secure justice. In the recent tie in order to render to justice between the parties, courts have been liberally relying on those principles.
42. In para 44 of the report in Kale's case, their Lordships held:
The High Court further erred in law in not giving effect to the doctrine of estoppels which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose, of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppels which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resale from the settlement. In Shyam Sunder v. Siya Ram, it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title. The High Court observed as follows:
The decision in Ram Gopal vs. Tulshi Ram, (FB) is clear that such a recital can be relied upon as a piece of evidence.
x x x x x It is clear, therefore, that the compromise can be taken into consideration as a piece of evidence.
x x x To sum up, therefore, we are of the view that the compromise could have been relied upon as an admission of antecedent title.
43. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol.17, Third Edition, at pp.215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family be avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term family arrangement is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of he matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.
44. A bona-fide family settlement which resolves family disputes and rival claims by a fair and equitable division of the properties, if acted upon would bind the parties and even if partition is under an unregistered document, the document is evidence of conduct of the parties. Estopples can be invoked to estop a party from urging to the contrary.
45. Mr. Sanjiv Mahajan, learned counsel for the defendants 4 to 7 by placing reliance upon Ex.PW.2 urged that plaintiff and defendants 1 to 3 who were signatories thereto admitted in said document that partition effected in 1978 was not given effect to. He relied upon the second recital to the settlement dated 30.5.1996 (Ex.PW.2) wherein it is recorded:
but due to its non registration and certain conditions mentioned herein which were not observed, it was not acted upon by heirs.
46. Document are drafted by lawyers and parties seldom realize the consequence of recitals contained in written documents. Fortunately, law does not place recitals at the same footing as operative covenants in a document. Parole evidence is admissible to show that recitals incorrectly record the facts. Had the lawyer who drafted Ex.PW.2 been a little careful he would have noticed that Ex.PW.1 contains intrinsic evidence of the partition being acted upon.
47. Under the deed of family arrangement dated 10.8.1978 (Ex.PW.1) following acts of acted upon are recorded:
(i) Receipt of Rs.15,000/- by Moti Sagar Suri (defendant No. 1) from Devinder Nath Suri by and under a bank draft.
(ii) Receipt of Rs.20,000/- by Moti Sagar Suri (defendant No. 1) from Devinder Nath Suri by and under a bank draft.
(iii) Receipt of Rs.25,000/- by Smt. Daropati Devi Suri (mother of the parties) from Amrit Lal Suri (Plaintiff).
48. Clause 1 and 2 of Ex.PW.1 record and acknowledge receipt of the amounts aforesaid by the recipients.
49. Ex.PX, the agreement to sell dated 5.8.1980 executed by Devinder Nath Suri shows that he agreed to sell half plot No. 8, Block-P, Factory Area, Kanpur for Rs.1,06,575/- and received Rs.50,000/- as sale consideration. Ex. PX records that Devinder Nath Suri recorded that share in said property fell to his share under the partition dated 10.8.1978. Ex. PX records that Devinder Nath undertook to perfect his title by getting a fresh partition deed duly registered to establish clear title.
50. Devinder Nath, may have understood his right to be clouded but the fact of the matter is that the document shows the factum of Devinder Nath acting upon the family settlement.
51. A vigilant draftsman while drafting Ex.PW.2 should not have allowed the affronted acts of Devinder Nath to go past his eagle eyes. Lawyers still tend to act as Mufassil lawyers and courts have no option but to overlook bad drafting if otherwise facts are established by cogent, reliable and convincing evidence.
52. Smt. Dropadi Devi, mother of the parties, is an executants to the deed of family settlement dated 10.8.1978. So are the plaintiff, defendants 1 to 3 and Shri Devinder Nath, predecessor-in-interest of defendants 4 to 8. Let me revisit the document.
(i) Property No. 110/173 (Old No. 110/125) Mohalla Ram Kishan Nagar, Kanpur standing in the name of Daropati Devi has been valued at Rs. 1,50,000/- and has been allotted to defendant No. 1, Plot No. 6 and 7/12, Block-C, Kakadeo, Kanpur standing in the name of Smt. Satya Wati Suri has been valued at Rs. 10,000/- and has been allotted to defendant No. 1. He got Rs. 35,000/- in cash. Thus, defendant No. 1 got 2 immovable properties and cash totalling Rs. 1,95,000/-.
(ii) Plaintiff has got property No. B-51, NDSE part-II, New Delhi standing in the name of Smt. Satya Wati Suri. It has been valued at Rs. 1,50,000/-. He has got 900/2871 share in plot No. 8, Block-P, Factory Road, Kanpur. Plot being valued at Rs. 1,00,000/-, share of plaintiff comes to about Rs. 30,000/-. He got movables in a bank locker valued at Rs. 6,500/- and Rs. 12,000/- in various bank accounts. Plaintiff has thus got assets worth Rs. 1,98,500/-. He has however, paid Rs. 20,000/- to defendant No. 1 and Rs. 25,000/- to Smt. Daropati Devi, grandmother at the parties. Plaintiff thus get a net worth of Rs. 1,53,500/-. It may however be noted that right to realize rent, including arrears from the tenant have been assigned to the plaintiff. Amount of arrearss not reflected.
(iii) Devinder Nath Suri has got property no. 111A/230 (Old No. 336), Block-X, Ashok Nagar, Kanpur standing in the name of Shri Nihal Chand together with right to receive accumulated rent from the tenant. (Amount not stated). Property has been valued at Rs. 80,000/-. He also got plot No. 508/3, Block-3, Scheme No. II, Johi Garha, Rakhi Mandi, Kanpur allotted in name of Shri Nihal Chand. This plot has been valued at Rs. 8000/-. He got 521/2871 share in the Industrial Plot at Kanpur. His hare comes to about Rs. 17,000/-. Devinder Nath Suri thus got assets worth Rs.1,03,000/-. He however paid Rs. 15,000/- to defendant No. 1. He thus got a net worth of Rs.88,000/-.
(iv) Sisters got share in the industrial plot at Kanpur.
53. It may be true that the 3 brothers have not got same value of properties, but it has to be noted that the built up properties were tenanted. Industrial plot at Kanpur was in possession of the family. It was valued at Rs. 1,00,000/-. Within 2 years it's value got enhanced to Rs.2,13,000/-. (see Ex.PX where -+ plot was sold for Rs.1,06,575/-)
54. Possibility of parties being influenced by potential value of the properties cannot be ruled out.
55. Neither party suggested that Ex.PW.1 was a result of fraud, coercion or undue influence.
56. Ex.PW.2 settles properties between plaintiff and defendants 1 to 3 being the properties assigned to them under Ex.PW.1. Non execution of Ex.PW.2 by Devinder Nath is thus immaterial.
57.Of the three properties noted in issue No. 1, property No. 110/173 (Old No. 110/125), Mohalla Ram Kishan Nagar, Kanpur is a subject matter of family settlement arrived at in 1978. Parties were aware of the other other two. Yet, family settlement excludes them. Plaintiff asserts that they were already sold. By excluding the said 2 properties when family settlement was arrived at, parties, by conduct, treated them as no long available for partition. They would be estopped from urging to the contrary.
In any case, the transferees have not been imp leaded as parties. No claim can be made qua said properties.
58. Issue No. 1 is accordingly decided by holding that the property No. 122/619, Shastri Nagar, Kanpur and A-1, Gali no. 4, Anand Parbat, Delhi are not liable to be partitioned and that property No. 110/173 (Old No. 110/125) Mohalla Ram Kishan Nagar, Kanpur being already partitioned is no longer available for partition.
59. Issue No. 2 to 4 are decided by holding that deeds of settlement dated 10.8.1978 and 30.5.1996 are admissible as evidence of conduct of the parties and since they have been acted upon, parties are estopped from residing from the said deeds.
Issue No. 5 :
60. Issue No. 5 is accordingly decided by holding that the plaintiff is entitled to a decree of declaration declaring that property No. B-51, New Delhi, South Extension Part II, New Delhi exclusively belongs to the plaintiff Amarjeet Lal Suri, plot of land bearing No. 6 and 7/12 situated at 'C' Block, Kakadeo, Kanpur exclusively belongs to defendant No. 1 Moti Sagar Suri and the two properties i.e. Property No. 111-A/230 (old Plot No. 336, Block 'X', Scheme No. IV, Ghusramau), Ashok Nagar, Kanpur and Plot No. 5083, Block No.- 'S', Scheme No. 2, Juhi Garha, Rakhi Mandi, Kanpur Belongs exclusively to late Shri Devinder Nath Suri now represented by his legal heirs defendants Nos. 4 to 8 and industrial plot No. 8, 'P' Block, Factory Area, Kanpur exclusively belongs to Amarjeet Lal Suri, late Shri Devinder Nath Suri now represented by his legal representatives defendants Nos. 4 to 8, defendant No. 2 Smt. Varsha Sethi and defendant No. 3, Smt. Sudarshan Mehta in the ratio of 900/2871, 521/2871 and 550/2871 respectively.
Issue No. 6 :
61. In view of decision on issues No. 1 to 5, issue No. 6 needs no adjudication.
Issue No. 762. Sequitur to decision on issue No. 5, relief would be the decree of declaration as per para 59.
63. Defendants 4 to 7 have forced a litigation on the plaintiff. They must recompense with costs. Plaintiff is held entitled to costs in sum of Rs.50,000/- (Rupees fifty thousand) against defendants 4 to 7 to be paid jointly and severally.