Delhi District Court
Chandru G. Nathani vs Ms. Mohini G. Nathani on 5 January, 2013
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IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE-04 : CENTRAL : DELHI
In re :
Suit no. 387/08
Chandru G. Nathani
S/o Late Sh. Gobind Ram
R/o Flat 6-C, 41/1B, Jhowtala Road,
Kolkota - 19. ... Plaintiff
Versus
1. Ms. Mohini G. Nathani
D/o Late Sh. Gobind Ram
R/o III-J/22, Lajpat Nagar, New Delhi.
2. Mr. Pritam Johar
D-132, Defence Colony, New Delhi.
3. Mr. Ramesh G. Nathani
S/o Late Sh. Gobind Ram
R/o 13/81 A, Ground Floor,
Vikram Vihar, Lajpat Nagar IV,
New Delhi - 110024.
4. Mr. Kishin G. Nathani (Since Deceased)
S/o Late Sh. Gobind Ram
Through his legal representatives
(i) Mrs. Reshma Nathani
W/o Late Sh. Kishin G. Nathani
R/o BC-10A, DDA Flats, Munirka,
New Delhi-67
(ii) Ms. Vinita Nathani
D/o Late Sh. Kishin G. Nathani
R/o BC-10A, DDA Flats, Munirka,
New Delhi-67
Suit no. 387 of 08 Pg... 1 of 13
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(iii) Ms. Monica Maharishi
D/o Late Sh. Kishin G. Nathani
R/o Apartment No. 2104, Block 2,
Anriya Gren Berg, Judicial Layout,
Yelahanka, Bangalore - 560065.
5. Mr. Lachman G. Nathani
S/o Late Sh. Gobind Ram
R/o 49, Maitri Apartments,
Mayur Vihar, Phase-1,
Delhi-110091 ... Defendants
ORDER
1. These three suits are filed by the same plaintiff Chandru G. Nathani. All three suits were filed on 7.11.1996. The new number of all these three suits are 386/08/96 to 388/08/96.
2. In these suits, three separate applications Under Order 23 Rule 3 CPC are filed by the defendant no.1 Mohini G. Nathani and the defendant no.3 Ramesh Nathani. It is prayed in the applications that during pendency of these suits, a compromise dated 26.3.1999 was executed in writing and duly signed by the plaintiff, the defendant no.1, 3, 4 & 5. It is prayed that the said compromise be recorded and compromise decree be passed. Since the three suits are based on same set of facts and since matter in issue in these applications is same, therefore vide this common order, the applications Under Order 23 Rule 3 CPC filed in all these three cases are decided.
3. Suit no. 386/08 is in respect of cancellation of collaboration agreement, dated 10.1.1996, qua the ground floor and basement of the property no. III-J/45, Lajpat Suit no. 387 of 08 Pg... 2 of 13 -3- Nagar, New Delhi. In this suit, the defendant no.2 is M/s Johar Tower Pvt. Ltd.
4. In Suit no. 387/08, the prayer is for cancellation of sale deed dated 7.5.1996 in respect of the Second Floor of the same property wherein defendant no.2 is Pritam Johar.
5. In Suit no. 388/08, prayer is qua cancellation of Sale deed dated 7.5.1996 in respect of first floor of the same property. In this suit, defendant no.2 is Smt. Neelam Johar.
6. Besides the defendant no.2, all other parties in the three suits are same. LRs of the defendant no 4 and the defendant no.5 remained exparte in the suit.
7. Brief facts are that property no. III-J/45 Lajpat Nagar, New Delhi was owned by Sh. Gobind Ram. Plaintiff, defendant no.3, 4 & 5 are his sons. The defendant no.1 Mohini G. Nathani is his daughter. Sh. Gobind Ram died on 3.4.1966.
8. Plaintiff claims that Sh. Gobind Ram left behind a Will dated 27.6.1963, vide which the daughters were disinherited from the property and the four sons along with their mother were conferred ownership of this property. As per the Will, till the time all the daughters of Sh. Gobind Ram were married, the property was to be held in trust. The daughters were given right of residence in the property till their marriage. Otherwise, absolute ownership of the property was to vest in widow and sons of Gobind Ram. The property was also to be held as a trust till any debt or liability of Gobind Ram existed. There was no debt or liability of Sh. Gobind Ram, but defendant no.1 one of his daughters remained unmarried. Mother of parties Suit no. 387 of 08 Pg... 3 of 13 -4- also died on 5.2.1984. It is claimed that the plaintiff and his three brothers became absolute owners of the property, after death of mother. Subsequently, a family settlement was arrived at between the parties on 30.1.1996, pursuant to which the unmarried daughter i.e. defendant no.1 was allowed to reside in the property. Defendant no.3 one of his brother was also residing in the property. On 8.7.1996 when the plaintiff and other two brothers went to the property, they found the property was substantially demolished. They also learnt that the defendant no.1, their sister, was trying to sell property to the defendant no.2 builder.
8.1 Plaintiff claims that since the sister did not have any ownership, right, title or interest in the property and since she was only permitted to live in it, she could not have entered into any agreement for alienation of the property in any manner. Plaintiff also learnt that the sister got the property converted to free hold from the Land & Development Officer. It is claimed that the said act was done on the basis of some forged and fabricated documents including affidavit of one of the sister Rukmini who had died in 1984 but her affidavit was shown to be dated in 1988. The plaintiff also learnt that the sister entered into a collaboration agreement dated 10.1.1996 with the builder defendant no.2 under which the sister claimed that her mother executed a will bequeathing half share in the property to her. In the collaboration agreement, it was mentioned that the first floor and the second floor of the property was with the defendant no.2 builder and ground floor was to be handed over to the defendant no.2 for complete demolition and reconstruction of the property.
8.2 The plaintiff also learnt that the sister defendant no.1 executed two sale deeds dated 7.5.1996 in favour of the builder defendant no.2 qua the first floor and Suit no. 387 of 08 Pg... 4 of 13 -5- the second floor of the property.
8.3 Thus, in Suit no. 386 a decree of cancellation of collaboration agreement dated 10.1.1996 was prayed along with the possession of ground floor and basement of the property.
8.4 The suit no. 387 & 388 were respectively filed for cancellation of the sale deeds dated 7.5.1996 and for possession of the second floor and first floor of the property, respectively.
9. The stand of defendant no.1 & 3 was that neither the plaintiff nor the defendants no. 4 & 5 ever resided in the property. All of them were confirming parties to the collaboration agreement dated 10.1.1996 under which the property was to be reconstructed. It is also claimed that defendant no.4 & 5 as well as the plaintiff were throughout involved in the execution of collaboration agreement as well as the agreement to sell. Substantial part of the consideration, paid by the builder was taken by plaintiff, the defendant no. 4 & 5. It is also claimed that under the earlier family settlement between the plaintiff, defendant no.1, 4 & 5, dated 15.2.1995, the defendant no.1 was accepted as an absolute owner of the property. Defendant no.1 also claims ownership on the basis of Will executed by Gobind Ram and his wife i.e. father & mother of the siblings. The defendant no.1 claims that after death of Sh.Gobind Ram, the property was mutated in favour of widow i.e. mother Smt. Ram Devi Nathani and the defendant no.1 on 26.5.1973, which was allegedly done with the consent of plaintiff and the defendant no.3 to 5. Thus, it is claimed that she became owner of half share in the property. Thereafter, after death of Ram Devi on 5.2.1984, the entire property was mutated in favour of the Suit no. 387 of 08 Pg... 5 of 13 -6- defendant no.1, on the basis of a Will dated 2.1.1984, executed by Smt. Ram Devi. The mutation was done on 1.5.1989 and the defendant no.1, thus, became exclusive owner of the property. Subsequently, the property was got free hold on 14.9.1995. Subsequently she sold the first floor and second floor of the property on 7.5.1996 by registered sale deeds and she also entered into collaboration agreement in respect of the ground floor and basement of the property.
10. We need not go into other details of the written statement since it is an admitted position of both the sides that during pendency of these three suits the compromise/settlement, dated 26.3.1999, was executed. It is a written agreement between the parties. It is also signed by all the siblings litigating in these suits. It is not signed by the builder.
11. In these applications the applicants/defendant no.1 & 3 claims that after entering into the agreement dated 26.3.1999, in writing and duly signed, the agreement was acted upon since the criminal complaints filed between the parties have been withdrawn. Not only that, even the counsel for plaintiff vide a letter dated 22.10.09 addressed to the defendant no.1 and addressed to Smt. Neelam Johar and M/s Johar Tower Pvt. Ltd. (the defendants no.2), placed reliance upon the said compromise. Copies of said agreement were even sent with letter to MCD and the defendant no.3. The LRs of defendant no.4 and the plaintiff and defendant no.5 addressed a letter dated 24.3.2010 to the Commissioner of MCD relying upon the said compromise. In the application, it is also mentioned that the defendant no.2 builder, though not a signatory to the agreement, is ready and willing to perform his part of obligation.
Suit no. 387 of 08 Pg... 6 of 13 -7-
12. This application is opposed by the plaintiff on the ground that it is not supported with an affidavit of plaintiff and is a false, frivolous and vexatious application. The agreement is not lawful and cannot be framed as a compromise in view of the case of Star Construction & Transport Company Vs. India Cement Ltd. AIR 2001 SCC 941. It is claimed that unless, it is clearly established in the suit that compromise has been entered into between the parties, power Under Order 23 Rule 3 cannot be used. The stand of the plaintiff is that since the defendant no.1 defaulted in compliance of the agreement along with defendant no. 3 and since they never acted upon the said agreement, therefore now, they cannot be permitted to take advantage of their own wrongs. It is also claimed that this application is filed after eleven years and the compromise was never acted upon in respect of the entire ground floor. It is also claimed that builder is not a party to this agreement and compromise decree cannot be passed. The compromise agreement was never acted upon in letter and spirit.
13. Plaintiff does not deny his signatures on this agreement. The signatures are in fact admitted by all the parties i.e. all the siblings. The letter dated 22.10.2009 is not denied by the plaintiff.
14. The agreement dated 26.3.1999 is in writing and is also signed by the parties except the defendant no.2. As mentioned above the defendant no.2 is not a family member of others in these litigations. The plaintiff does not deny the factum of execution of this agreement. Its genuiness is not denied. Signature of plaintiff on this agreement are not denied. The plaintiff is party no.4 in this agreement. The defendant no.1 Mohini G.Nathani is party no.5; the defendant no. 3 Ramesh G.Nathani is party no.3; the deceased defendant no.4 Kishan G. Suit no. 387 of 08 Pg... 7 of 13 -8- Nathani is party no.1 and the defendant no.5 Mr.Laxman G.Nathani is party no.2 in this agreement. All the five pages of this agreement are signed by all the five parties. It is also notarised and it is also witnessed by two independent witnesses.
15. In this agreement, it is mentioned that although the name of sister Mohini G. Nathani was mutated in the records of the lesser but it was agreed between the parties that the four brothers shall become exclusive owner of the entire ground floor of the property and all the rights qua entire ground floor shall vest in them jointly and they will also have right to sell, mortgage, lease or create any lien for the ground floor. The sister undertook to do everything including executing any document for alteration or correction in the records of the lesser and for mutation of the name of the four brothers in respect of the ground floor of the property. She also undertook to ratify and confirm any sale, lease or mortgage deed/document as may be required by the brothers. The brothers were at liberty to partition the ground floor. It is also specifically recorded in this agreement that in case the parties agree to sell the ground floor, how the sale proceeds shall be divided amongst them.
16. It is specifically agreed in this agreement that the parties would withdraw all the civil disputes/civil cases at the time of getting the actual physical possession of the ground floor from the builder and they also agreed not to pursue the criminal complaint filed by the plaintiff and defendant no.4 & 5 in the present suit. It is specifically recorded in the agreement that this agreement shall have over writing effect over all the past agreements/transactions amongst the parties.
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17. Admittedly, the defendant no.4 & 5 had filed a suit for cancellation of Conveyance Deed dated 14.9.1995, which was executed in favour of defendant no.1 by the lessor of the property. Applicants claim that subsequently that suit was permitted to be dismissed in default on 1.11.2004 and thereafter, no efforts were made to revive the suit, consequent to the agreement in question.
18. Applicants also claim that the present suit were earlier adjourned sine die by Hon'ble Delhi High Court on 9.3.2001 and thereafter the pecuniary jurisdiction upto Rs.20 Lakhs came to District Courts and thus, the suit were transferred to District Courts sometime in March 2004. It is claimed that the service in the suit after transfer was completed on 20.4.2011 only as in between, the defendant no.4 expired and steps were taken to implead his LRs. It is claimed that the suits are at the same stage at which they were on the date of the compromise i.e. 26.3.1999.
19. The plaintiff objects to this application Under Order 23 rule 3 CPC on the ground that the application under order 23 R 3 CPC is not supported with an affidavit of the plaintiff.
20. This argument is fallacious. Under Order 23 Rule 3 CPC, all that is required is that the compromise must be in writing and signed by the parties. It nowhere requires that the application Under Order 23 Rule 3 CPC must be signed by the parties much less all the parties. It also nowhere requires that the application Under Order 23 Rule 3 CPC must be supported with the affidavits of all the parties. Under this provision, the compromise should be in writing and should be signed by the parties and that is all which is required. Reliance in this regard is placed upon the case of Pramod Kumar Rastogi Vs. Gyan Chand 63 (1996) DLT 231.
Suit no. 387 of 08 Pg... 9 of 13
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21. The second objection taken by the plaintiff is that the present application has been filed belatedly and it is not bonafide.
22. It is not in dispute that the suit has not progressed further and it is at the same stage at which it was at the time when the agreement was signed in 1999. It is claimed by the defendant no.1 & 3 that this compromise has been acted upon by the plaintiff and defendant no. 4 & 5 who got the other suit (challenging the conveyance deed) to be dismissed in default on 1.11.2004 and against it, no application was preferred for revival.
23. Admittedly, the criminal complaint has also been withdrawn subsequent to and consequent upon this agreement. Defendants no. 1 & 3 even claims that in the year 2009, the plaintiff and the LRs of deceased defendant no.4 wrote letters to Executive Engineer, MCD relying upon the agreement in question. It is not that the defendants no. 1 & 3 or any other signatory to the agreement has violated any of the terms of this agreement.
24. Defendants no.1 & 3 has relied upon the case of M/s Damodar Ropeways & Construction Co. Vs. Cristophar Martin 1990 UJ (SC) 251 wherein it was held that if the compromise is genuine and lawful, the delay in presentation in court could at the most, if at all, be in the realm of equity and would not be otherwise material.
25. Nothing has been shown by the plaintiff to prove that equity does not lie in his favour in implementing this agreement. The property prices have sky rocketed since 1999 till now. The suit property is located in one of the posh colonies of Delhi. In such circumstances, the plaintiff does not stand to lose anything. Nor has Suit no. 387 of 08 Pg... 10 of 13
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the defendant no. 3 to 5 lost anything.
26. In the case of Vinay Rai Vs. Anil Rai 2010 VII AD (Delhi) 769, a division bench of Hon'ble Delhi High Court, relying upon the case of Kale Vs. Deputy Director of Consolidation (1976) 3 SCC 119, Manish Mohan Sharma Vs. Ram Bahadur (2006) 4 SCC page 416 and Hari Shankar Singhania Vs. Gaur Hari Singhania (2006) 4 SCC 648 observed that family arrangements should be upheld rather than setting them at naught on technical or trivial grounds and that family arrangements command special equities and should be enforced.
27. In the present case also, the agreement is a family arrangement between the four brothers and the sister who are litigating with each other.
28. Does non-signature of defendant no.2 on this agreement vitiates the agreement altogether and also prohibits the invoking of Order 23 Rule 3 CPC? The defendant no.2 is a builder as mentioned above. He is not a family member between the litigants. The other parties are family members. Even though the defendant no. 2 is not a signatory to this agreement, still the defendant no.2 is ready to abide by the terms & conditions contained in this agreement. The defendant no.2 has supported the present application Under Order 23 Rule 3 CPC. During hearing of this application, the defendant no. 2 agreed to comply with the obligations on the defendant no. 2 under this agreement. The applicant defendant no.1 & 3 have also obtained willingness of defendant no.2 to hand over the possession of ground floor, if all the three suits are withdrawn. In reply to the application, the counsel for defendant no.2 stated that defendant no.2 is not opposing this application. In the ordersheet dated 3.03.2011, it is mentioned that Suit no. 387 of 08 Pg... 11 of 13
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the defendant no.2 has no objection. It is also noticed that there is an affidavit filed by the defendant no.2 undertaking to hand over possession of the ground floor of the property in case all the three suits are withdrawn. In such circumstances, when a person who is affected by a compromise, despite being not a party to it, and still is willing to do/discharge his obligation under the agreement, the agreement can be acted upon and Order 23 Rule 3 CPC can be invoked.
29. The defendant no.1 & 3 has placed reliance upon the cases of AIR 2010 SC 3753 Pyare Mohan Lal Vs. State of Jharkhand; Manohar Lal Vs. Ugrasen JT 2010 (6) SC 41; JP Builders Vs. A.Ramadass Rao JT 2010 (12) SC 588, all these judgments are not applicable to the facts & circumstances of the present case.
30. As mentioned by me above, not only the agreement between the parties is in writing and signed by all the five siblings but it is also lawful. The suit has not proceeded further from the stage as it was on the date of execution of this agreement. Equity still lies in favour of enforcement of this family arrangement and not against it.
31. The stand of the plaintiff that now he should be offered more by the other siblings is therefore unjustified and appears to be guided by greed only. As mentioned above, price of the property has increased manifold which goes in favour of the plaintiff, still the plaintiff wants something more to be offered by his siblings and on this ground he is not allowing the family arrangement to take effect. He is not allowing the arrangement to take effect despite the fact that not only all the signatories to this agreement are willing to discharge their obligation Suit no. 387 of 08 Pg... 12 of 13
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under the agreement but even the builder who is not signatory to this agreement is willing to discharge his part of obligations. There is no other party affected by this agreement besides the plaintiff and the five defendants.
32. The judgment relied upon by the plaintiff in the case of Star Construction & Transport Company Vs. India Cement Ltd. AIR 2001 SCC 941 is not applicable to the facts & circumstances of the present case. In that case, the agreement was not signed by all the parties concerned and it was signed only by the respondents. In the present case, all the siblings have signed the agreement in question and the defendant no.2 is ready to perform his part of obligation under the agreement.
33. In such circumstances, the application Under Order 23 Rule 3 CPC is accepted. It is ordered that all these three suits be decreed in terms of the agreement dated 26-03-1999. The terms & conditions of the agreement dated 26.03.1999 shall form part of the decree in all the three suits. Decree Sheet be prepared accordingly. A signed copy of this order be placed in all the three suit files. Files be consigned to the record room.
Announced in the open court Dig Vinay Singh
on 5.01.2013 ADJ-04 (Central)
Delhi
Suit no. 387 of 08 Pg... 13 of 13