Delhi High Court - Orders
Shauna Singh Baldwin vs Hemant S. Singh Pasrich & Ors on 25 April, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 114/2021 & I.As. 3144/2022, 3145/2022, 6236/2022.
SHAUNA SINGH BALDWIN ..... Plaintiff
Through: Ms. Surbhi Anand, Advocate.
versus
HEMANT S. SINGH PASRICH & ORS. ..... Defendants
Through: Mr. Arvind K. Nigam, Senior
Advocate with Mr. Divjyot Singh,
Mr. Nipun Dwivedi and Ms. Aditi
Saxena, Advocates for D-1.
Ms. Meera Mathur Harchandani and
Ms. Mohana Malhotra, Advocates for
D-2 & 4.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 25.04.2022 I.A. No. 2473/2021 (u/Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908, for ex-parte ad-interim temporary injunction)
1. The present suit for partition and permanent injunction is filed by the daughter of the Late Sardar Sukhcharan Singh Pasrich against her mother [Defendant No. 1], brother [Defendant No. 2] and two nieces [Defendant Nos 3 & 4] in respect of the estate of her deceased father, which includes the following immovable properties: (a) property bearing house no. 212, Jor Bagh New Delhi - 110003 [hereinafter, 'Jor Bagh property'] and, (b) half undivided share in Pasrich Farm, Rajansani House, comprised in Kila No. 16,19 and 20 Rect 28 and 29, Village Jaunapur, Tehsil, Mehrauli, Delhi-
Signature Not Verified Digitally Signed CS(OS) 114/2021 Page 1 of 7 By:AKANSHA SINGH Signing Date:28.04.2022 17:53:24110047 [hereinafter, 'Pasrich Farm'][hereinafter collectively referred to as 'suit properties'].
2. Vide Order dated 23rd September, 2021, the Defendants were restrained from creating any third-party interest with respect of the suit properties. At the same time, Defendant No. 1 was given liberty to induct tenants in the Jor Bagh property, as an interim arrangement. This order is continuing. Mediation attempt has failed and the suit is now to proceed for adjudication.
3. Today, Mr. Arvind K. Nigam, Senior Counsel for Defendant No. 1, prays for permission to induct tenants in the Pasrich Farm as well. He states that the Defendants have been in actual possession of the suit properties for many years. Moreover, the suit properties are owned by the Defendants, in the manner explained below, and the Plaintiff has wrongly asserted her right to the same by claiming the same to be HUF properties. Thus, the Defendants should be allowed to enjoy the fruits of their assets.
4. He states that Pasrich Farm was never a part of the HUF- which anyway now stands dissolved - as is being claimed by the Plaintiff. He traces the ownership of suit properties and explains that the Pasrich Farm was purchased in 1993 by two separate Sale Deeds, one in favour of Late Sardar Sukhcharan Singh Pasrich dated 10th March, 1993 and the other in favour of Defendant No. 1 dated 15 th March, 1993. Thus, Defendant No. 1 is the absolute owner of half share in the property at Pasrich Farm. Late Sardar Sukhcharan Singh Pasrich bequeathed his undivided share in the Pasrich Signature Not Verified Digitally Signed CS(OS) 114/2021 Page 2 of 7 By:AKANSHA SINGH Signing Date:28.04.2022 17:53:24 Farm in favour of Defendant No. 2, under his registered Will dated 11th August, 2014 and Codicil dated 30th May, 2018 [hereinafter, 'Will']. Thus, upon the demise of Late Sardar Sukhcharan Singh Pasrich, Defendant No. 1 and 2 have become joint owners of Pasrich Farm, having equal undivided share therein.
5. Qua the Jor Bagh property, Mr. Nigam submits that it is a self- acquired property of Late Sardar Sukhcharan Singh Pasrich. It was earlier the subject matter of a partition between the family members and brothers of Late Sardar Sukhcharan Singh Pasrich, vide document dated 20th January 1998 titled 'Memorandum of complete partition of HUF: "Kishan Singh & sons HUF' which records the "complete partition of "KISHAN SINGH & SONS HUF" and record of oral family settlement", which has been filed on record by Defendant No. 1. The said partition is stated to have been duly implemented with execution of relinquishment deeds inter se the parties, which has also been placed on record. Pursuant thereto, Jor Bagh property was converted from lease hold to free hold and a Conveyance Lease dated 6th December 1999 was executed in favour of Late Sardar Sukhcharan Singh Pasrich. The said deed is also on record. It was then bequeathed exclusively to Defendant No. 1 under the afore-noted Will and Codicil, copy whereof has also been placed on record. Thus, as of today, Defendant No. 1 is the exclusive owner of the said property.
ANALYSIS
6. Plaintiff's suit is premised on the plea that Late Sardar Sukhcharan Singh Pasrich died intestate. She disputes his testamentary capacity and also Signature Not Verified Digitally Signed CS(OS) 114/2021 Page 3 of 7 By:AKANSHA SINGH Signing Date:28.04.2022 17:53:24 the purported self-acquired ownership of the suit properties, by claiming rights under HUF. The contentions of the Plaintiff would require trial and thus the suit properties have to preserved pending adjudication of the suit. Defendants cannot be permitted to alienate, sell or encumber the same, during the pendency of the suit.
7. Today, the Defendants seek permission to lease out Pasrich Farm, as part of their right to enjoy the properties. To consider the same, the court has to analyse whether there is any prima facie merit in the argument made by the Defendants and the case put forth by the Plaintiff.
8. Although the Plaintiff disputes the Will and Codicil by contending that the testator was not in a sound and deposing state of mind on the date of writing the Will, but, no cogent material has been shown to the court to take a prima facie view in agreement with this contention. It therefore remains a bald assertion, warranting no adverse view on the document at this stage.
9. The court has also examined the merits of the case of the Plaintiff to take a prima facie view. The Plaintiff has claimed rights under HUF which have been prima facie demonstrated to not exist, in light of the documents placed on record by the Defendant, including the 'Memorandum of complete partition of HUF' and Relinquishment Deed both dated 20th January 1998, and the Conveyance Lease dated 6th December 1999. It emerges that the Jor Bagh property is a self-acquired property of Late Sardar Sukhcharan Singh Pasrich.
Signature Not Verified Digitally Signed CS(OS) 114/2021 Page 4 of 7 By:AKANSHA SINGH Signing Date:28.04.2022 17:53:2410. As regards Pasrich Farm is concerned, from the submissions of Mr. Nigam, it emerges that the same was never part of the erstwhile HUF and was purchased by the deceased and his son together in 1993. By way of bequeathment under the afore-noted Will and Codicil, Defendant No. 2 is the owner of 50% undivided interest therein, and the remaining 50% undivided share remains with Defendant No. 1 as acquired through the afore-noted sale deeds. Thus, as of today, Defendants No. 1 and 2 appear to be the joint owners of Pasrich Farm. Mr. Nigam further states that Defendant No. 1 and her late husband had allowed possession and occupation of some parts of this property since 2019 to Defendant No. 2 and his family. Thus, the said Defendants are in possession of the entire property.
11. From the above it emerges that the suit properties are in the settled possession of Defendants, in the manner as described above. On the other hand, Plaintiff has not shown any actual possession of any of the suit properties. The plaint records that she is an OCI card holder and has been living outside the country since 1982. No documents have been shown to claim possession or ownership of the suit properties. Defendants have contended that they have maintained and improved the Pasrich Farm since 2007, for which the Plaintiff has had no participation or role in, and further claim that she has not even visited the same since 2010. Accordingly, there is no justification to deny to the Defendants the permission for leasing out the suit properties. There exists a prima facie case in favour of the Defendants. The balance of convenience also tilts in their favour. Defendants have the right to earn income from the properties, and Signature Not Verified Digitally Signed CS(OS) 114/2021 Page 5 of 7 By:AKANSHA SINGH Signing Date:28.04.2022 17:53:24 irreparable harm is likely to be caused if they are restrained from enjoying the fruits of their property, particularly when Defendant No. 1 has purchased half of the Pasrich Farm by way of a sale deed in her lifetime. Similarly, Defendant No. 2, after spending money and maintaining the same cannot be deprived of the right to earn income from the property bequeathed to him by way of inheritance. The same is also true for Jor Bagh property bequeathed entirely to Defendant No. 1.
12. For the foregoing reasons, the Court, is inclined to allow the request made by Defendants No. 1 and 2.
13. Accordingly, it is directed that Defendants 1 & 2 shall not alienate or sell or mortgage or encumber the suit property during the pendency of the suit. Both of them would be entitled to let out their respective shares in the properties. This permission would be subject to the condition that the lease deeds/ agreements executed by the Defendants with prospective lessees/ tenants, shall be filed in the Court. Said agreements should contain a condition binding the lessees to vacate the property as and when directed by the Court. The rights and obligations of the parties under the aforenoted arrangement shall be adjudicated at the final stage.
14. With the above directions, the application is disposed of.
I.A. No. 6235/2022 (u/Order XI Rule 1 of the Code of Civil Procedure, 1908, for leave to deliver interrogatories to the Defendants No. 1 & 2)
15. Counsel for the Applicant/Plaintiff states that she will send a Signature Not Verified Digitally Signed CS(OS) 114/2021 Page 6 of 7 By:AKANSHA SINGH Signing Date:28.04.2022 17:53:24 communication to the counsel for the Defendants listing out the documents she would like to inspect. Mr. Nigam without prejudice, states that all such documents if they are in possession of the Defendants, will be offered for inspection to the counsel for the Plaintiff.
16. For this purpose, list before the Joint Registrar for carrying out the inspection on 20th May, 2022.
CS(OS) 114/2021
17. Defendant No. 3 has not been served as yet. Mr. Nigam states that they will provide e-mail address of Defendant No. 3 to the counsel for the Plaintiff today itself. Issue fresh summons to Defendant No.3 by all permissible modes, upon filing of process fee, returnable on the date fixed.
18. List before the Joint Registrar for completion of service and pleadings qua Defendant No. 3 on 20th May, 2022.
SANJEEV NARULA, J APRIL 25, 2022 as Signature Not Verified Digitally Signed CS(OS) 114/2021 Page 7 of 7 By:AKANSHA SINGH Signing Date:28.04.2022 17:53:24