Delhi District Court
) Smt. Kiran Nirula vs Yudhishtar Nirula (Since Deceased) on 6 July, 2023
DLND010000021999
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 57141/2016
Anil Nirula (since deceased)
through his legal heirs:
1) Smt. Kiran Nirula
W/o Late Sh. Anil Nirula
R/o 50, Beverly Glen, Boulevard,
Scarborough, Ontario,
Canada M1W1W2
2) Smt. Latika Nirula
D/o Late Sh. Anil Nirula
R/o 508, Eastern Avenue,
Toronto, Ontario,
Canada M4M 1C5
3) Sh. Rahul Nirula
S/o Late Sh. Anil Nirula
R/o 17 Colonel Marr Road,
Markham, Ontario,
Canada L3R 9E8
........ Plaintiffs
Versus
Yudhishtar Nirula (since deceased)
through his legal heirs:
1 Ajay Nirula
S/o Late Sh. Yudhishtar Nirula
R/o B-2/2, Vasant Vihar, New Delhi
CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 1 of 58
2 Rati Basu
D/o Late Sh. Yudhishtar Nirula
R/o B-2/2, Vasant Vihar New Delhi
........ Defendants
Suit presented On : 11.11.1999
Arguments Concluded On : 22.03.2023
Judgment Pronounced On : 06.07.2023
JUDGMENT
1. This suit was filed by Late Sh. Anil Nirula (hereinafter, referred to as 'the plaintiff') against his eldest brother Late Sh. Yudhishtar Nirula (hereinafter, referred to as 'the defendant') (both are now deceased and are represented by their LRs) seeking declaration of ownership of Ground Floor, B-2/2, Vasant Vihar, New Delhi (hereinafter, referred to as 'the suit property'), permanent injunction to restrain the defendant from leasing out or occupying or creating third party interest in the suit property and also claiming possession of the suit property.
PLAINT
2. As per the amended plaint (amended vide order dated 30.05.2006), it is the case of the plaintiff (a) that Sh. G.C. Nirula (father of the parties) died intestate and was survived by the plaintiff, the defendant and their two brothers Sh. Suresh C. Nirula and Sh. Naveen C. Nirula (hereinafter, referred to as 'Suresh' and 'Navin'); (b) that the suit property (owned by Sh. G.C. Nirula) devolved upon his four sons in equal shares after his death on 16.04.1965 (subsequently, clarified as 21.11.1971); (c) CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 2 of 58 that the plaintiff, Suresh and Navin agreed to transfer their share in the suit property for consideration in favour of the defendant and on this understanding, the three brothers also executed relinquishment deed dated 30.04.1974 in favour of the defendant;
(d) that a consideration of Rs. 30,000/- each, was paid by the defendant to Suresh and Navin but no consideration was paid by the defendant to the plaintiff; (e) that thereafter, as no consideration was paid to the plaintiff, the plaintiff and the defendant agreed that the suit property would belong to both the parties; (f) that the plaintiff contributed Rs.40,000/- towards the total construction cost of the ground floor of the suit property which was around Rs.2,50,000/-; (g) that a family settlement was arrived at on 30.12.1997, between the parties and it was agreed that the ground floor would be owned by the plaintiff and that the family arrangement dated 30.12.1997 was pursuant to prior oral settlement between the parties; (h) that symbolic possession of the suit property was also handed over to the plaintiff as then, the suit property was occupied by tenant REEBOK which vacated the same only on 31.10.1999; (i) that apart from other terms of settlement, the plaintiff also derived the right to enjoy the ground floor without any interruption from the defendant or his legal heirs; (j) that the defendant attempted to wriggle out of the family settlement and threatened to dilute the rights of the plaintiff under the family settlement by leasing out the property to another tenant ; (k) that despite order dated 11.11.1999, the defendant in gross violation of the same occupied the suit property and therefore, the plaintiff also became constrained to seek possession of the "suit property i.e. property bearing No. B- 2/2, Vasant Vihar, New Delhi".
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 3 of 58 WRITTEN STATEMENT
3. The defendant resisted the suit and vide amended written statement (verified on 17.10.2006) alleged that the plaintiff did not approach the Court with clean hands. Relationship between the parties has been admitted. It is also admitted that late Sh. G.C. Nirula was the owner of the suit property and that he died intestate. However, it is contended that Late Sh. G.C. Nirula during his lifetime desired that the suit plot be inherited by the defendant, to the exclusion of other sons and therefore, had shown, the defendant as a nominee of the suit plot before the Government of India Co-operative Housing Building Society Ltd (hereinafter, referred to as 'housing society'). Hence, it is stated that all the brother implemented the desire of their father and the plaintiff, Suresh and Navin jointly executed registered irrevocable relinquishment deed dated 30.04.1974 in favour of the defendant. It is averred that the relinquishment deed was acted upon as all concerned authorities namely, DDA, MCD and the housing society were informed about its execution. On 06.12.1974, mutation of the suit property in the name of the defendant was also conveyed to the defendant by the DDA. It is stated that subsequently, on the basis of the relinquishment deed and mutation, the housing society substituted the defendant as a member of the society, affirmed by certificate dated 16.03.1975. Thereafter, the defendant has stated that in the year 1978, after obtaining requisite permissions, he constructed a single storyed house from his personal and self-acquired funds (sourced from gratuity, commuted pension, sale proceeds of his car, personal CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 4 of 58 savings, loan of Rs.65,000/- from Life Insurance Corporation (LIC), loan of Rs.12,500/- from Suresh and piecemeal loan of Rs. 40,000/- from the plaintiff which was a post retirement gift but subsequently, repaid). It is mentioned that the piecemeal loans amounting to Rs.40,000/- was disclosed in the income tax returns of the defendant and interest repayment @ Rs.4800/- per annum was also disclosed by the defendant, therein. It is denied that there was any oral family arrangement preceding family arrangement dated 30.12.1997 and it is alleged that the document was obtained by force, emotional blackmail and therefore, is a coerced settlement. It is stated that the family settlement was in the nature of security against the loan given by the plaintiff which was subsequently, repaid and written off. In addition, it is also the case of the defendant that there was no feud in the family for which any family settlement was occasioned to sink any differences in the family. A reference has also been made to the correspondences between the parties to show that due to uncertain political scenario in Canada and fear of the defendant losing his job, he resorted to emotional blackmail and coercion of the defendant as he wanted a place to stay in India. It is stated that the plaintiff also made a disclosure that he did not have any property in India, at the time accepting Canadian Citizenship. It is further pleaded that the first floor in the property was only added in the year 1983 from the funds of the plaintiff and his son. It is averred that the plaintiff's case is entirely based upon a family arrangement dated 30.12.1997 but the document itself is strangely worded as it sometimes seeks to transfer rights in the suit property and sometimes provides for future consequences after the death of the defendant. In the former case, it is required CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 5 of 58 to be duly registered to be relied upon. It is also averred that the document itself records "the title cannot be transferred to the second party" and thus, it cannot become the basis of granting any declaration of title to the plaintiff. The genuineness of the family arrangement dated 30.12.1997 has also been assailed as it did not join the other two brothers. The defendant has also urged that there is no proof of 'oral agreement' preceding family settlement dated 30.12.1997. Also, it is stated that wealth tax return and assessment orders show the property to be owned and assessed in the name of the defendant (though, for sometime it was shown as the HUF property in the hands of defendant's HUF but was amended, as none of the brothers despite the advice of the defendant showed the property as a HUF in their Income Tax Returns). In addition, it is stated that the plaintiff at the relevant time merely had suggested that instead of the defendant selling off the plot, raise a construction thereupon, for which, the plaintiff would contribute half of the expense without anything in return due to applicable Foreign Exchange laws. He had wanted to use some portion in the property as and when he visited India but the plaintiff did not contribute money for construction as was suggested by him and the defendant had to raise funds all by himself. It is denied that any symbolic possession of the suit property had been given to the defendant. It is also denied that the defendant has violated the interim order1, as the order merely prevented creation of third party interest in the suit property. 1 On 11.11.1999, while deciding IA No 11185/99, it was ordered as under :
"In the meanwhile, the defendant, his servants, agents, assigns or any other person acting on his behalf are restrained from entering into any transaction, from leasing out the ground floor of the suit property bearing No. B-2/2, Vasant Vihar, New Delhi or inducting a tenant therein to any person or permitting any person to occupy the same or occupying the same himself or create third party interest therein in favour of any other person / party.CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 6 of 58 REPLICATION
4. No replication has been filed by the plaintiff to the written statement of the defendant.
ADMISSION AND DENIAL OF DOCUMENTS
5. Vide order dated 17.03.2005 and 18.07.2005 admission and denial of documents were conducted as under :
Sr. Documents Exhibited
No. as
1 Letter dated 21.07.1979 Ex. P1
(admitted by
defendant)
2 Brief history regarding the suit property Ex. P2
(admitted by
defendant)
3 The computation of share in the joint Ex. P3
property of each joint holder as on (admitted by
31.03.1979 defendant)
4 Letter dated 11.07.1986 Ex. P4
(admitted by
defendant)
5 Letter dated 25.08.1986 Ex. P5
(admitted by
defendant)
6 Letter dated 31.08.1995 Ex. P6
(admitted by
defendant)
7 General Power of attorney dated Ex. P7
10.10.1974 by the defendant (since
deceased) in favour of Sh. S.C. Narula
8 Family arrangement between plaintiff Ex. P8
and defendant dated 30.12.1997 (contents
CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 7 of 58
denied but
signatures
admitted by the
defendant)
9 Irrevocable relinquishment deed duly Ex. D1
registered with Sub-registrar, Delhi as doc no 4034 in Book No. 3383, at pages 43 to 45 on 02.08.1974 ISSUES
6. Vide order dated 25.07.2007, the following issues were framed:
1. Whether the Family Settlement dated 30.12.1997 is legal and valid, if so its effect? OPP (However, as the legality and validity of the document was challenged by the defendant, the onus has been corrected to be upon the defendant vide order of even date)
2. Whether the Family Settlement dated 30.12.1997 requires registration, if so its effect? OPD
3. Whether the plaintiff is entitled to a decree for declaration that he is the owner of the Ground Floor of the property bearing No. B-2/2 Vasant Vihar, New Delhi? OPP
4. Whether the plaintiff is entitled to the possession of the Ground Floor of the property bearing No. B-2/2, Vasant Vihar, New Delhi? OPP
5. Whether the plaintiff is entitled to a decree for injunction as prayed for? OPP
6. Relief.
6.1 Vide order dated 29.11.2007, following additional issue was also framed :CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 8 of 58 Whether the relinquishment deed dated 30.04.1974 executed by the plaintiff relinquishing his share in the suit property was not valid and binding on the parties and if so, to what effect? OPP
7. At this stage, it would also be of relevance to refer to order dated 09.09.2002 which identified the scope of controversy between the parties as under while deciding IA no. 4409 of 2002 seeking the following reliefs :
"(i) Pending disposal of the present suit, allow the Plaintiff to use the said ground floor of the Suit Property being B-2/2, Vasant Vihar, New Delhi for self accommodation whenever the Plaintiff is in India, subject to the outcome of the present suit and without prejudice to rights and contentions of the parties.
(ii) Pass such other and further orders as may be deemed fit and proper in the facts and circumstances of the present case."
7.1 Order dated 09.09.2002 reads as under :
"Considering the facts that the relations between the parties are not amicable and also the submissions of learned counsel for the defendant that the main suit itself can be disposed of by the interpretation of the memorandum of settlement propounded by the plaintiff, no order need be passed on this application, which is accordingly dismissed with liberty to the plaintiff to file application afresh in case this suit is not decided by the end of this year."
7.2 Yet again on 13.08.2014 in CM No. 526/2014 in FAO (OS) no. 21/2014 and CM No. 577/2014 in FAO (OS) no. 24/2014 it has been held as under :
"11. Order dated July 25, 2007 would evidence that the real issue between the parties is : Whether the family settlement was executed on December 30, 1997 as claimed by the plaintiff. A technical issue whether the same requires registration, and if so its effect, has been settled. The other issue is whether the plaintiff is entitled to a declaration that he is the owner of the ground floor and thereafter possess the same."CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 9 of 58 PLAINTIFF EVIDENCE
8. To prove his case, the plaintiff Sh. Anil Nirula examined himself as PW-1 to prove his contentions. He tendered his affidavit Ex. PW-1/A alongwith following documents:
Sr. No. Documents Exhibited as
1 Letter dated 10.04.1995 written by the Ex. PW1/1
defendant to the plaintiff
2 Letter dated 19.03.1997 written by the Ex. PW1/2
defendant to the plaintiff
3 Letter dated 23.05.1997 written by the Ex. PW1/3
defendant to the plaintiff
4 Letter dated 13.04.1998 written by the Ex. PW1/4
defendant to the plaintiff
5 Letter dated 19.07.1998 written by the Ex. PW1/5
defendant to the plaintiff
6 General Power of Attorney dated Ex. PW1/6
25.10.2004 given by the plaintiff in the name of Suresh 7 General Power of Attorney dated Ex. PW1/7 10.02.2006 given by the plaintiff in the Mark A name of Suresh 8 Letter dated 16.05.1977 written by the Ex. PW1/10 plaintiff to the defendant 9 Letter dated 03.03.1980 written by the Ex. PW1/11 plaintiff to the defendant 10 Letter dated 04.11.1981 written by the Ex. PW1/12 plaintiff to the defendant 11 Letter dated 25.04.1995 written by the Ex. PW1/13 plaintiff to the defendant 12 Copy of Power of attorney dated Ex. PW1/D1 11.02.1974 between the plaintiff and Suresh CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 10 of 58 Sr. No. Documents Exhibited as 13 Photocopy of bank draft dated Ex. PW1/D2 10.02.1997 for Rs.25,000/-
14 Photocopy of bank draft dated Ex. PW1/D3 01.04.1997 for Rs.20,000/-
15 Photocopy of bank draft dated Ex. PW1/D4 10.12.1996 for Rs.30,000/-
16 Photocopy of bank draft dated Ex. PW1/D5 07.07.1994 for Rs.10,000/-
17 Photocopy of bank draft dated Ex. PW1/D6 17.12.1991 for Rs.20,000/-
18 Letter dated 27.07.1978 written by the Ex. PW1/D7 plaintiff to the defendant 19 Letter dated 27.05.1997 written by the Ex. PW1/D8 plaintiff to the defendant 20 Letter dated 07.12.1996 written by the Ex. PW1/D9 plaintiff to the defendant He was duly cross-examined by the Ld. Counsel for the defendant.
9. Suresh deposed as PW-2. He tendered his evidence by way of affidavit Ex. PW-2/A. In his affidavit Ex. PW-2/A, PW-2 has supported the case of the plaintiff and has placed reliance on the following documents:-
Sr.No. Documents Exhibited as
1 General Power of Attorney dated Ex. PW2/1
11.12.2007
2 General Power of Attorney dated Ex. P7
10.10.1974
9.1 He also deposed that relinquishment deed dated
30.04.1974 (Ex. DW1/4) by the remaining three brothers CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 11 of 58 (including him) in favor of the defendant had only been executed for "ease of management" and the understanding continued to be that B-2/2, Vasant Vihar, New Delhi would be the joint property of all the brothers. According to his testimony, in 1977, all the four brothers decided to pool their resources to construct a house on the suit plot but in the year 1982/83, he and Navin accepted consideration of Rs.30,000/- each, to permanently relinquish their claim to the property and it is then that a oral family arrangement between the plaintiff and the defendant was arrived at. He also relied upon letter dated 21.07.1979 (Ex. P1), whereby the defendant had confirmed and acknowledged plaintiff's right in the suit property and given a brief history of the property as well as computation of the share in the joint property of each co- owner including the plaintiff as on 31.03.1979.
He was duly cross examined by the defendant.
10. Sh. Navin C. Nirula brother of plaintiff deposed as PW-3. He tendered his evidence by way of affidavit Ex. PW-3/A. In his affidavit Ex. PW-3/A, PW-3 has supported the case of the plaintiff and has placed reliance on the following documents:-
Sr.No. Documents Exhibited as 1 Carbon copy of typed letter dated Ex. PW3/1
21.07.1979 written by the defendant (Ex.P1) to Navin 2 Envelope Ex. PW3/2 3 General Power of Attorney dated Ex. PW3/D-1 23.01.1974 between Navin and Suresh 4 Original letter dated 01.10.1978 Ex.PW3/3 written by the defendant to Navin CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 12 of 58 10.1 He also deposed that the family arrangement (Ex. P8) was prepared under guidance and consultation of Sh. B.R. Narang Ld. Advocate and it was only on request of the plaintiff and the defendant that he had witnessed the family arrangement. He stated that the defendant had executed the document out of free will.
He was duly cross-examined by the Ld. Counsel for the defendant.
DEFENDANT EVIDENCE
11. The defendant himself deposed as DW1. He tendered his evidence by way of affidavit Ex. DW1/A and reiterated the averments made by in the written statement and has placed reliance on the following documents2:-
Sr.No. Documents Exhibited as 1 Copy of power of attorney executed by Ex. PW1/D1
plaintiff dated 11.02.21974 in favour of Suresh 2 Copy of power of attorney executed by Ex. PW3/D1 Navin dated 23.01.1974 in favour of Suresh 3 Perpetual sub lease deed dated Ex. DW1/2 16.12.1969 issued by Delhi Administration (L&DO) and Housing Society in favour of Sh. G.C. Nirula 2 Vide order dated 01.07.2019, Ld. Predecessor of this Court directed to release certified copies of documents issued by the Delhi High Court (which was filed on behalf of defendant no.1) if the corresponding certified copies issued the Copying Agency was available on record.
CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 13 of 58
Sr.No. Documents Exhibited as
4 Agreement dated 05.08.1969 between Ex. DW1/3
Sh. G.C. Nirula and the housing society (objected to on the ground of mode of proof) Court Observation:
Admittedly, sub-lease in favour of father of the parties is not a disputed fact.
5 Irrevocable relinquishment deed duly Ex. DW1/4 registered with Sub-registrar, Delhi as (objected to on doc no 4034 in Book No. 3383, at the ground of pages 43 to 45 on 02.08.1974 mode of proof) Court Observation:
However, it is a document already admitted as Ex. D1 on 18.07.2005 6 Original DDA letter dated 06.12.1974 Ex. DW1/5 (objected to on the ground of mode of proof) Court observation :
However, mutation of the title of the suit property in favour of the defendant is not a disputed fact CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 14 of 58 Sr.No. Documents Exhibited as 7 Certificate of the society dated Ex. DW1/6 16.03.1975 (objected to being photocopies and as such cannot be exhibited besides mode of proof) Court observation :
However, mutation of the title of the suit property in favour of the defendant is not a disputed fact 8 General Power of attorney dated Ex. DW1/7 10.10.1974 by the defendant (since also Ex. P-7 deceased) in favour of Sh. S.C. Narula 9 Sanction letter in favour of the Ex. DW1/9 defendant dated 17.01.1978 issued by (objected to on DDA (building section) for raising the ground of construction in Plot no. 2, block no. B2, mode of proof) Vasant Vihar, New Delhi. Court observation :
Factum of
construction
of super
structure
(uptill ground
floor prior to
1982-83) is
not disputed.
CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 15 of 58
Sr.No. Documents Exhibited as
10 Original building sanction plan Ex. DW1/10
(objected to on
the ground of
mode of proof)
Court
observation :
The factum of
construction of
super structure
(uptill ground
floor prior to
1982-83) is not
disputed.
11 Original letter of DDA dated Ex. DW1/11
18.07.1978 extending the time for (objected to on completion of construction the ground of mode of proof) Court observation :
The factum of construction of super structure (uptill ground floor prior to 1982-83) is not disputed.
12 Original letter of DDA dated Ex. DW1/12 18.07.1978 granting permission to (objected to on create mortgage in favour of LIC the ground of mode of proof) Court observation :
The factum that the defendant obtained loan from LIC is not disputed.
CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 16 of 58 Sr.No. Documents Exhibited as 13 Original mortgage deed dated Ex. DW1/13 28.08.1978 (objected to on the ground of mode of proof) Court observation : The factum that the defendant obtained loan from LIC is not disputed. 14 LIC letter dated 18.11.1987 returning Ex. DW1/14 the original documents (objected to on the ground of mode of proof) Court observation : The factum that the defendant obtained loan from LIC is not disputed. 15 Original Deed of Redemption dated Ex. DW1/15 01.12.1987 (objected to on the ground of mode of proof) Court observation : The factum that the defendant obtained loan from LIC in his name is not disputed and even the repayment of loan is not a contentious issue. CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 17 of 58 Sr.No. Documents Exhibited as 16 Letter dated 06.03.1988 confirming Ex. DW1/16 the registration of the Redemption (objected to Deed being photocopies and as such cannot be exhibited besides mode of proof) Court Observation : However, it has been tendered in evidence by the author himself, so the objection is dismissed. 17 Original receipt no. 159561 dated Ex. DW1/17 29.02.1988 18 Letter dated 27.10.1987 from LIC Ex. DW1/18
regarding Mortgage loan a/c no. (objected to on N2473 the ground of mode of proof) Court observation :
The factum that the defendant obtained loan from LIC is not disputed.
19 Notice of demand under Section 156 Ex. DW1/19
of the Income Tax Act, 1961 (colly)
(objected to on
the ground of
mode of proof
and some of the
pages in the
exhibits are
copies)
CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 18 of 58
Sr.No. Documents Exhibited as
20 Email dated 16.02.1999 sent to Navin Ex. DW1/20
(Mark B)
21 Original copies of wealth tax returns Ex. DW1/21
(colly)
(objected to on
the ground of
mode of proof
and some of the
pages in the
exhibits are
copies)
He was duly cross-examined by Ld. Counsel for the plaintiff.
FINAL ARGUMENTS
12. Final arguments have been advanced by Sh. Sanjiv Kakra, Ld. Senior Advocate assisted by Sh. Akash Madan, Ld. Counsel for the LRs of the plaintiff and Sh. Anil Sapra, Ld. Senior Advocate assisted by Sh. Dilip Mehra, Ld. Counsel for the LRs of the defendant.
13. It has been submitted on behalf of the plaintiff that the transactions between the parties can be better understood by analyzing how the brothers treated the suit property from 1971 to 1974, then from 1974 to 1982/83 and followed between 1983 to 1997. The undertone of the arguments has been that a voluntary family arrangement is to be treated at a higher pedestal in view of Kale & Others Vs. Deputy Director of Consolidation (1976) 3 Supreme Court Cases 119.
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 19 of 58
14. Thereafter, it has been sought to be shown after the execution of relinquishment deed dated 30.04.1974 (Ex. DW1/4 and also Ex. D1) and registered on 02.08.1974, the conduct of the brothers (including the defendant, in specific) has been to treat the suit property as a joint family property of all the four brothers atleast till 1982/83. To elucidate the same, the following examples have been given :
(a) General Power of Attorneys (Ex. P7, Ex. PW1/6, Ex.PW1/7, Ex. PW1/D1, Ex. PW2/1, Ex. PW3/D1 and Ex. DW1/7) provide that they had been executed for "ease of management" of the joint properties for the benefit of all the brothers. It has been adumbrated that the general power of attorney (Ex. P7) executed by the defendant in favour of Suresh records intention contrary to the terms of the relinquishment deed (Ex. DW1/4) and therefore, if the defendant deemed himself to have become the absolute owner of the suit property, it was unnatural for him to have then executed General Power of Attorney.
(b) Thereafter, the Court has been tediously led through letter (Ex. P1) and brief history of the property attached with it which had been prepared by the defendant himself (Ex. P2) to show the reason why relinquishment deed was necessitated and admission therein of the defendant that it was "For ease of management all the other three brothers gave a relinquishment deed in my favour... I was then able to get this plot of land transferred in my name on 09 Dec. 74 from DDA, Delhi, vide Govt. Servants' Co-
Operative House building Society letter dated 14 March 75... The understanding continues to be that this is a joint property. Since then this property has been managed by me or by my CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 20 of 58 younger brother Sh. Suresh C. Nirula in Delhi who has been given necessary Power of Attorney by me."
(c) Further, by referring to a prior letter dated 16.05.1977 (Ex. PW1/10) written by the plaintiff to the defendant, it can be gathered that the plaintiff advised that the Vasant Vihar property should not be sold off as it is a symbol of family unity. It is stated therein that he also offered to contribute about Rs.1,00,000/- for the construction of the super structure and hoped that "it would remain family property for the next generation..."
(d) Again, attention of the Court has been drawn to letter dated 28.07.1978 (Ex. PW1/D7), where the plaintiff has encouraged the defendant to construct a house in the plot for a decent place to live post his retirement and also offered to contribute towards the development.
(e) Then, again referring to letter dated 01.10.1978 (Ex. PW3/3) written by the defendant to Navin, it has been urged that despite relinquishment deed, the defendant acknowledged in his letter the stand of all brothers qua the suit property before finally deciding to "retain it". Vide the same letter, he has also evaluated the cost of construction and split it up between the brothers towards which, he also acknowledged the contribution of the plaintiff for a sum of Rs.20,000/- towards the development of the property. He also informed that loan of Rs.60,000/- from LIC had been sanctioned. He also informed that a loan of Rs.10,000/- borrowed from "chachaji" had been returned. The defendant also vide the same letter updated about the stage of construction of the super structure.
(f) Leading the Court through letter dated 03.03.1980 (Ex.
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 21 of 58 PW1/11), yet again, it is shown that the plaintiff was opposed to selling the suit property and once again, advised the defendant against it stating that :
"I am extremely disturbed at this sudden reversal on the house front. My understanding was that the rice of the land at the time the house was completed, was around Rs. 1 lakh. The cost of the of the house was about Rs.2 lakhs you said, at that time, that in addition to half the price of the house, I had to contribute Rs.25,000/- or so towards the price of the land share while you would be making a similar contribution to buy out the other two shares. I thought all four of us agreed to that and there the matter rested. That is why dear Brother in Amlai made no contribution and dear Brother in Delhi was to be repaid his contribution. Then they both were to receive their share for the price of land. I was to continue contributing till such time I had paid my complete half share in the property. Only the details of this arrangement were to be finalized by you when you had a completed account. The house was to stay rented until you were ready to take over after retirement. The fluctuating house market is totally irrelevant to this. I think it would be a grave error to even think of selling. Are your planning never to retire. Where do you plan to live after you do retire? I don't see any reason why you should be tempted by this paper money which may be worthless due to inflation by the time you do retire. You may recall that you were worried that the house may not be a good investment. Do you still have doubts? For these and many other reasons I am totally opposed to the idea of selling. We will never be able to have real property like this again. Let us not lose nerve at this stage when everything is settled. I am coming to India later this year anyway. We can then discuss this matter at length"
(g) On 04.11.1981 (Ex. PW1/12), the plaintiff expressed satisfaction that the defendant had paid off the second installment of Rs.30,000/- to Suresh purportedly, in lieu of his share in the suit property.
15. Thus, suggesting that thereafter, since, Navin and Suresh had been paid off their share in the suit property, the plaintiff and the defendant had agreed to retain the suit property between themselves. Relying heavily upon letter dated 11.07.1986 (Ex. P4) which was written till 15.07.1986 (and therefore, stated to be CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 22 of 58 a well thought out letter) by the defendant, it has been argued that 15 years pursuant to the death of the father and 12 years since the execution of relinquishment deed (Ex. DW1/4 and also Ex. D1), the defendant had been exploring ways of how the ground floor would legally vest in the plaintiff, though all through out his ownership rights continued to be recognized by the defendant. Referring to paragraph no. 13 which summarizes the computation towards cost of building and miscellaneous expenses it has been urged that the claim of the defendant that the plaintiff gave Rs.40,000/- as a post retirement gift and was repaid by the defendant is belied. It has been stated that paragraph no.15 once again explains why relinquishment deed (Ex. DW1/4 and also Ex. D1) was necessitated, how loan from LIC was obtained by the defendant, how Navin and Suresh had been paid Rs.30,000/- each and how contribution of Rs.40,000/- by the plaintiff has been shown as loan to the defendant. It has been submitted that paragraph no.16 of the letter is specific as to the intention behind the discussion because the plaintiff wanted a clear cut ownership in his name qua the ground floor of property no. B-2/2, Vasant Vihar, New Delhi. In pursuance thereof, letter dated 26.08.1986 (Ex. P5) was also issued by the defendant and moots the idea that individual ownership of flats in Vasant Vihar was not legally permissible being a lease hold property. Hence, it has been submitted that antecedent title of the plaintiff was always acknowledged by the defendant. It has further been submitted that the aforesaid discussion continued even in letter dated 10.04.1995 (Ex. PW1/1) of the defendant to the plaintiff where the defendant admits that legal consultation was being sought for working out family arrangement (Ex. P8) and Will. This was CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 23 of 58 replied vide letter dated 25.04.1995 (Ex PW1/D-13) where the plaintiff sought clarifications of his rights under the arrangement. Then, averring to letter dated 07.12.1996 (Ex PW1/D-9), it has been argued that the plaintiff was contributing to the ground floor of property no. B-2/2, Vasant Vihar, New Delhi. Again through letter dated 19.03.1997 (Ex. PW1/2) of the defendant, it has been shown that the defendant was updating the plaintiff qua the ground floor and also demanded a sum of Rs.20,000/- towards mounting expenses towards the house and also, letter dated 23.05.1997 (Ex PW1/3) informing the plaintiff that a tenant had been found and how the rent of Rs.60,000/- had to be fixed for the suit property which would only have been done if the defendant recognized the rights of the plaintiff in the suit property. Much reliance has been placed upon letter dated 13.04.1998 (Ex PW1/4) where the defendant after the execution of family arrangement gave the following statement of account of the rent to the plaintiff:
"Regarding the B-2/2 G.F., the quarterly payment received after you left was in first week of March. It was Rs.1,80,000/- minus Rs.21,150 (tax deducted at sources as per Govt. Order). So I actually received only Rs. 1,58,850.00. Out of this Rs.40,400 has been paid as Income Tax by me and your Bhabhiji and Rs. 20,000.00 has been paid as advance Home Tax partially. The exact amount of Home Tax has as yet to be intimated by the M.C.D. This has left Rs. 98,450.00. I have deposited Rs.45,000/- in your a/c and transfers Rs.45,000/- in my a/c leaving Rs.8,450.00 for sundry expenses in the next 3 months till the next receipt in June 98.
Regarding the payments received earlier, I have yet to work out the detailed final a/c. Out of that in any case Rs.70,000/- (reimbursement of money sent by you) plus another Rs. 50,000/- were already paid to you when you were here."
and finally, letter dated 19.07.1998 (Ex PW1/5) has been referred to, to show that the defendant made certain investments in the CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 24 of 58 name of the plaintiff, paid Rs.40,000/- to Suresh towards hospitalization, informed about registration of Will dated 17.07.1998 and also provided the account of rent of the ground floor/ suit property from 01.07 onwards.
16. As regards the objection of the defendant that the family arrangement (Ex P-8) was not admissible in evidence being unregistered, it has been submitted that the letters exchanged between the parties to the suit and testimonies other brothers, establish that the family arrangement is a mere memorandum of past oral settlement and requires no registration. During course of arguments, reliance has been placed upon :
(a) Kale & Others Vs. Deputy Director of Consolidation (Supra)
(b) S. Shanmugam Pillai & Ors Vs. K. Shanmugam Pillai & Ors. 1973 (2) SCC 312
(c) Roshan Singh & Ors. Vs. Zile Singh & Ors. AIR 1988 SC 881
(d) Khushi Ram & Ors. vs Nawal Singh & Ors. 2021 SCC OnLine SC 128
17. As regards valid execution of family arrangement (Ex P-
8), it has been submitted that the defendant has been unable to prove coercion or undue influence considering that it was a well discussed act on the part of the parties under proper legal guidance.
18. Per contra, Ld. Senior Advocate for the defendant has argued that the case set up during trial is beyond the pleadings and therefore, the evidence beyond the pleading should be rejected. Reliance has been placed upon :
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 25 of 58
(a) National Textile Corporation Limited vs Naresh Kumar Badrikumar Jagag and others and TATA Mills (A unit of the National Textile Corporation Limited) Vs. TATA Housing Development Company Limited (2011) 12 SCC 695
(b) Bachhaj Nahar Vs. Nilima Mandal and Anr. (2008) 17 SCC 491
(c) Kalyan Singh Chouhan Vs. C.P. Joshi (2011) 11 SCC 786
19. Drawing the attention of the Court to paragraph no.2 of the plaint, it has been shown that the case set up by the plaintiff is that the relinquishment deed (Ex. DW1/4) was void because no consideration was paid to him and the agreement mentioned therein, does not specify that only 'ground floor' would belong to the plaintiff. But, during the evidence, the case set up is that the relinquishment deed (Ex. DW1/4) was for 'ease of management' and in view of bar under Section 91 of The Indian Evidence Act, 1882 (hereinafter, referred to as 'The Evidence Act'), oral evidence contrary to the recitals of the relinquishment deed would not be admissible in evidence. Reliance has been placed upon Karan Madan & Ors. Vs. Nageshwar Pandey 209 (2014) Delhi Law Times 241. Leading the Court through the relinquishment deed (Ex. DW1/4) it has been shown that it recited that the reason for execution for the same was that Late Sh. G.C. Nirula 'wished that the said property known as Plot No. B-2/2 in street No. B/2 Vasant Vihar should have been mutated and transferred to the name of Brig. Y. Nirula during the lifetime of the deceased, but he could not get this done and he died on 21st Nov., 1971.' and so, being obedient sons, the executants having full regard of the wishes of their deceased father were relinquishing their shares in favor of the defendant. Therefore, CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 26 of 58 there was no reference of oral settlement to do so merely for ease of business. Also, it has been argued that the relinquishment deed (Ex.DW1/4) without consideration was in the nature of 'gift'. Reliance has been placed upon Kuppuswami Chettiar Vs. A.S.P.A. Arumugam Chetiar and Anr AIR 1967 SC 1395 and the only remedy available to the plaintiff was to seek recovery of compensation within prescribed period of limitation. Reliance has been placed upon Kaliaperumal Vs. Rajagopal and Anr (2009) 4 SCC 193. Even though not pleaded, the argument that 'ease of management' was the basis for execution of relinquishment deed (Ex.DW1/4), it has been submitted that at the relevant time in 1974, the defendant was working at Secundrabad (as evidenced in General Power of Attorney (Ex.P7) so, this reason for execution of relinquishment deed (Ex. DW1/4) is implausible. Further, it has also been submitted that the letters extensively relied upon by the plaintiff were never referred to in the pleadings and so cannot be relied upon. Additionally, it has been argued by the Ld. Senior Advocate that the letters at best were negotiations which culminated into family arrangement (Ex. P8) and so, the letters lose all their significance.
20. Thereafter, on family arrangement (Ex. P8), once again placing reliance upon Kale & Others Vs. Deputy Director of Consolidation (Supra), it has been argued that since it is only by virtue of the arrangement that right, title and interest is being created as is pleaded in paragraph no.4 & 5 of the plaint, the document mandatorily required registration under Section 17 of The Registration Act, 1908 (herein, after referred to as 'The Registration Act') and so, is inadmissible in evidence by virtue of CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 27 of 58 Section 49 of The Registration Act and also, cannot be looked into for collateral purposes by virtue of Section 35 of The Stamp Act, 1899 (herein, after referred to as 'The Stamp Act'). It has been argued that prior 'oral settlement' finds mention only in paragraph no.7A of the plaint (introduced by way of amendment) to cover up the objection of mandatory registration of family arrangement (Ex. P8), however, the same was never expounded and the pleadings qua it remained vague. It has been submitted that the oral agreement between the plaintiff and the defendant has not been proved preceding the family arrangement (Ex P8) and even otherwise, the recitals of family arrangement (Ex. P8) is different from the pleadings. For example, it has been shown that if the parties had agreed that the ground floor would be given to the plaintiff, there is no evidence of any of rent qua ground floor of property no. B-2/2, Vasant Vihar, New Delhi being given to the plaintiff since 1982-83 and all that has been proved are two letters dated 13.04.1998 (Ex PW1/4) and 19.07.1998 (Ex PW1/5) from which it can be gathered that rent from ground floor was being shared by the plaintiff and the defendant and was not exclusively being accepted by the plaintiff, therefore, there are only two instances in almost 21 years since oral settlement is sought to be set up to show that ground floor rent was to be received by the plaintiff. Thus, it has been submitted that the parties have not acted as per the family arrangement (Ex. P8). Inconsistency in the claim of oral agreement is also highlighted by showing that in the year 1982/83, the property only consisted of the ground floor and it is incomprehensible that the plaintiff would have then agreed to completely give the existing property at that time to the plaintiff when he only contributed Rs.40,000/-
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 28 of 58 towards the construction of the property (as stated by the plaintiff) out of Rs.2.5 lakhs. It has hence, also been submitted that the since the plaintiff (PW-1) also admitted during cross- examination that he was not showing any income from the suit property in his income tax returns, the oral settlement sought to be set up since 1982-83 also falls flat.
21. Finally, leading the Court through the family arrangement (Ex. P8), it has been argued that the document is strangely worded and itself records that the title cannot transferred to the plaintiff therefore, a reference to a Will of the defendant has been made but the case of the plaintiff is not premised upon any Will. Therefore, relief of declaration cannot be granted. It has been submitted that as per the terms of the family arrangement, the plaintiff was merely given the right to use, possess and occupy the ground floor as and when he proposed to settle in Delhi and the rights were exclusive to the plaintiff and not to his legal heirs. However, the plaintiff has not sought any possessory rights by way of the present suit.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
22. This Court has considered the submissions and material on record.
ISSUEWISE FINDINGS A) Whether the relinquishment deed dated 30.04.1974 executed by the plaintiff relinquishing his share in the suit CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 29 of 58 property was not valid and binding on the parties and if so, to what effect? OPP
23. The onus to prove the issue was upon the plaintiff.
23.1 The parties to the present suit are at a common ground that the ownership of the suit plot vested in their father who expired on 21.11.1971 and so, the parties to the present suit and their brothers Navin and Suresh also inherited the same. Execution of the relinquishment deed (Ex. DW1/4 and also Ex. D1) has not been disputed by the plaintiff. However, parties are at variance with regard to the purpose for which the relinquishment deed was executed. It has been sought to be canvased by the plaintiff that the relinquishment deed in favor of the plaintiff was necessitated for "ease of management" of the suit plot. Per contra, the contention of the plaintiff has been refuted by the defendant as it is contrary to the terms of the relinquishment deed which specifies that the same was in pursuance of the wish of deceased father of the plaintiffs and therefore, is inadmissible by virtue of Section 91 of The Indian Evidence Act as well as, the said case of "ease of management" was never pleaded by the plaintiff and therefore, is beyond the pleadings which should not be considered by the Court.
23.2 Yet, for the sake of convenience, the relinquishment deed (Ex. DW1/4 and also Ex. D1) is as under :
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 30 of 58 CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 31 of 58 CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 32 of 58 23.3 Thus, the intention of the executants as captured by the relinquishment deed is to give effect to the wish of their father that the suit plot should be transferred to the defendant. The same, on behalf of the plaintiff was executed by Suresh on the strength of General Power of Attorney dated. 11.02.1974 (Ex.
PW1/D1). Neither the General Power of Attorney (Ex. PW1/D1) CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 33 of 58 nor the relinquishment deed (Ex. DW1/4 and also Ex. D1) has been challenged before any forum at any point of time. No declaratory suit against the relinquishment deed within limitation was ever preferred. However, now the plaintiff sought to give a different intention for its execution. Indeed, in letter Ex. P2, the defendant has admitted that the relinquishment deed was for ease of management, it is to be borne in mind that such is not the pleaded case of the plaintiff. In paragraph no.2 of the amended plaint, it is stated as under :
"Thereafter, it was agreed between the brother that the Plaintiff, Sh. Suresh C. Nirula and Shri Navin C. Nirula would transfer their share in the said property for consideration in favour of the Defendant and on this understanding, these three brother executed Relinquishment Deeds in favour of the Defendant. However, no consideration was paid by the Defendant to the Plaintiff whereas, Sh. Suresh C. Nirula and Sh. Navin C. Nirula were paid a consideration of Rs.30,000/- each by the Defendant for relinquishment of their claim permanently in the suit property. As no consideration was paid to the plaintiff, it was further agreed between the Plaintiff and the Defendant that the property shall belong to the Plaintiff and Defendant and in fact, the Plaintiff contributed Rs.40,000/- towards the construction of house on the suit property. The total cost of construction on the ground floor was approximately Rs.2.50 lacs"
Thus "ease of management" though canvased as the reason for execution of relinquishment deed (Ex. DW1/4) was not the pleaded case of the plaintiff. "It is trite law that no amount of evidence or argument in the absence of pleadings can be gone into by the Court In Trojan & Co. Ltd. V. Rm. N. N. Nagappa Chettiar, AIR 1953 SC 235, the Supreme Court held that decisions cannot be founded on grounds outside the pleadings and what has to be considered or granted is the case pleaded. It was also held that without amendment of the pleading in light of CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 34 of 58 facts disclosed or discovered subsequently, the Court would not be entitled to modify or alter the relief claimed. This was based on a previous ruling of the Privy Council in Mahant Govind Rao v. Sita Ram Kesho and Ors., (1898) 25 IA 195 (PC). These rulings were subsequently followed in Ram Kumar Barnwal v. Ram Lakhan (dead), 2007 (5) SCC 660." Reliance is placed upon Mrs. Lata Chauhan vs. Sh. L.S. Bisht and Ors CS(OS) 2311/1989 decided on 02.07.2010.
23.4 Further, here, it becomes imperative to also refer to Section 91 and 92 of the Indian Evidence Act, 1872 which provide as under :
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents :- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.
92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last words section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1).-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of receipt and capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law:
Proviso (2). The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 35 of 58 to the degree of formality of the document: Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:
Proviso (4). The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:
Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:
Proviso (6).-Any fact may be proved which shows in what manner the language of a document is related to existing facts."
23.5 In Karan Madaan & Ors Vs. Nageshwar Pandey (Supra) relied upon by the defendant, it has been held as under :
"32. In Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595, the Supreme Court commented on section 91 of the Evidence Act by observing that:
"13. ... ... ... This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the 'best-evidence rule'. It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thayer's Preliminary Law on Evidence, p. 397 and p. 398; Phipson's Evidence, 7th Edn., p. 546; Wigmore's Evidence, p. 2406.)... ... ...."
(emphasis supplied)
33. The Court further observed that:
"16. ... .... .... This rule is based upon an assumed intention on the part of the contracting parties, evidenced by the existence of the written contract, to place themselves above the uncertainties of oral evidence and on a disinclination of the courts to defeat this object. When persons express their agreements in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 36 of 58 there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. Written contracts presume deliberation on the part of the contracting parties and it is natural they should be treated with careful consideration by the courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties. (See McKelvey's Evidence, p. 294.) As observed in Greenlear's Evidence, p. 563, one of the most common and important of the concrete rules presumed under the general notion that the best evidence must be produced and that one with which the phrase ―best evidence is now exclusively associated is the rule that when the contents of a writing are to be proved, the writing itself must be produced before the court or its absence accounted for before testimony to its contents is admitted.
17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence, p. 648.)". (emphasis supplied)... ...
38. The court also dealt with the issue whether a party can give oral evidence concerning the intention of the parties at the time of the execution of a document, which is not reflected in such a document. In this context, Roop Kumar (supra) was relied upon. The court rejected the defence set up by the defendant which was contrary to the terms of the registered instruments. In the light of the above discussion, I reject the reliance placed by the defendant on the Ist proviso to Section 92 of the Evidence Act....
41. Proviso 4 to Section 92 permits the establishment of the existence of any "distinct, subsequent oral agreement to rescind or modify" the contract, grant or disposition of property, except in cases in which such contract, grant or disposition of property is required, by law, to be in writing, or has been registered as per the law for the time being as to registration of documents. ...
42. In the present case, the disposition of the suit property was required by law to be in writing and by a registered instrument, and it has been so executed in writing and CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 37 of 58 registered. Proviso 4, therefore, cannot be invoked by the defendant, in any case. Moreover, the defendant is not claiming a "subsequent" oral agreement. He is claiming an oral agreement/understanding which, according to him, existed at the time of execution of the sale deed. Consequently, Proviso 4 has no application to the defence/ case set up by the defendant. Provisos 5 & 6 have no application to the facts of the present case, as the defendant does not plead any custom, or any issue with regard to the language used." (Emphasis applied).
23.6 It has not been shown by the plaintiff as to how benefit under Proviso 4 to Section 92 of Indian Evidence Act can be afforded to him qua the disposition of the suit property which is required by law to be by way of registered documents.
23.7 Also, during cross examination, the plaintiff admitted as under :
"It is wrong to suggest that it was the common knowledge among all the four brothers that it was the wish of our father that the suit property will devolve upon the defendant. Relinquishment Deed dated 30.04.1974 Ex. D1 was not within my knowledge before its registration. It is correct that I authorized my brother Sh. Suresh C. Nirula to sign this Relinquishment Deed on my behalf but it was done for ease of management and for obtaining finance only. We all three brother had executed separate Power of Attorney in favour of our brother Sh. Suresh C. Nirula. It is correct that I executed Power of attorney on 11.2.1974 in favour of Mr. Suresh C Narula at London and I got the same notorized and authenticated in London on 12.2.1974. Copy of the same is Ex.PW1/D1. I believe that Mr. Naveen Nirula had also executed similar type of Power of attorney in the name of Suresh C. Nirula. I had gone through the contents of the attorney EX.PW1/D1 before it was sent to India. I executed Ex.PW1/D1 at my free will and without any pressure of any kind after fully understanding the contents of the same. I am aware that matter was discussed for execution of Relinquishment Deed but at that time I was not in India and it was executed for the ease of management and to obtain finance only. It is correct that reasons have been mentioned in Ex.PW1/D1 to execute the same but it was executed for the ease of management and for obtaining finance only. It is correct that reason for execution of Relinquishment Deed are mentioned in the same but the same was executed for the ease of management CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 38 of 58 and for obtaining finance only. I am not aware whether Relinquishment Deed was registered. I saw the copy of Relinquishment Deed for the first time after the year 2000. Vol. I had no reason to see the same earlier to the year 2000. I do not remember what was the occasion when I saw the copy of Relinquishment Deed for the first time after the year 2000 but I saw the same during my visits to India. Vol. I have never seen the original Relinquishment Deed. I am not aware whether Power of Attorney of the defendant was executed after the execution of Relinquishment Deed."
"It is correct that relinquishment deed had been executed well before the payment of Rs. 30,000/- each to Mr. Suresh C. Nirula and Sh. Naveen C. Nirula. It is correct that amount of Rs. 30,000 each was paid after more than seven years from the date of execution and registration of the relinquishment deed. Vol. Relinquishment deed was executed and registered for the ease of management and to obtain finance.
Q. I put it to you that it was your understanding that relinquishment deed was being executed for the sole purpose of ease of management and obtaining finance? If that is correct then after the loan was repaid, did you or any other brother take any step for their induction as co- owner of the suit premises in the society records?
A. I did not take any step and it is not in my knowledge whether my other brothers took any step or not."
"I myself did not sign the relinquishment deed of 1974 but it was signed by Mr. Suresh C. Nirula as my attorney. It is wrong to suggest that I was informed by Mr. Suresh C. Nirula and by the defendant about the execution of relinquishment deed. I do not remember whether I was having knowledge of execution of relinquishment deed since 1974 and it was also revealed in the correspondence exchanged between me and defendant till 1986. I am not aware whether any document of transfer of title of portion of suit property has been executed in my favour from 1974 till date."
"My father had not left a Will and he passed away in 1971. It is correct that the defendant became the exclusive owner of the suit property after relinquishment deed was executed by the three of us in 1974. Again said, that it I not correct statement and in fact the relinquishment deed was executed for ease of management and obtain financing by the defendant."
23.8 Even for the sake of arguments, if the contention of "ease of management" of the suit plot as reason for execution of relinquishment deed is considered, the same in view of cross- examination of PW2 that in August 1974, possibly among all the CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 39 of 58 brothers, he was the only one present in Delhi and best suited to manage the property, the contention does not inspire confidence. It is also observed that as per General Power of Attorney (Ex.P7) the defendant at the relevant time seems to have been posted at Secunderabad. Further, PW2 was also controverted qua existence of any rules that loan could only be given to a single allottee though he testified that the relinquishment deed was in the format required by the society.
23.9 Thus, in view of the above discussion the issue is decided against the plaintiff.
B) Whether the family settlement dated 30.12.1997 is legal and valid, if so its effect? OPD (Issue no.1)
24. The onus to prove the issue was upon the defendant.
24.1 It is the case of the defendant that the family arrangement was obtained by way of coercion and emotional blackmail by the plaintiff due to uncertain political scenario in Canada on account of which the plaintiff feared losing his job. During cross examination the following responses were elicited from the defendant :
"Q.102 I put it to you that your allegation that there was uncertain economic / job scenario in Canada or that the Plaintiff restored to force, emotional blackmail or got the memo of Family Agreement signed from you is totally false.
A. It is incorrect. Vol. the insecurity of job in Canada of Anil Nirula and his wife has been mentioned in several letters by Anil Nirula.
It is wrong to suggest that the volunteered portion of my answer is false.CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 40 of 58 Q.103 Did you in any of your communication to Sh. Anil Nirula or any other brother, at any point of time, mention that force, emotional blackmail had been used against you for writing any of letters or signing the Family Arrangement or executing the Will?
Ans. Mr. Suresh Nirula and Mr. Naveen Nirula were not at all involved in signing of the Family Arrangement and they saw it after the Agreement was signed. So, they had no idea about the circumstances under which this document was signed.
It is incorrect to suggest that Sh. Suresh Nirula and Naveen Nirula were involved with the Family Settlement. ....
Q 109 Is it correct that you met Mr. B.R. Narang, Advocate for the first time on 23.02.1997 in his office for preparation of Family Arrangement and your Will?
A. The date must be matter of record. Vol. I did meet him at the insistence of Anil Nirula.
It is wrong to suggest that the volunteered portion of my answer is wrong.
Q 110 Is it correct that Mr. B.R. Narang had asked for the full brief of the history alongwith supporting documents regarding the suit property from you for preparation of the Family Arrangement and your Will?
A. It is true that I did give lot of information with regard to the property for enabling him to make the family arrangement and may be Will also which I do not remember. Q 111 Is it correct that you had spoken to Mr. B.R. Narang on several occasions on 02.04.1995 and 03.04.1995 and had met him on 04.04.1995 and had given him the brief history as well as supporting documents for preparation of the memorandum of Family Arrangement and your Will? A. I do not remember the dates but I did meet him to give him the information.
Q 112 Is it correct that you paid Rs.11,000/- to Sh. B.R. Narang towards his professional charges for drafting the Family Arrangement and your Will?
A. This is true and it was paid completely out of my resources.
Q 113 Is it correct that the Family Arrangement, Exhibit P8 in the suit record, bears your signatures, signatures of Sh. Anil Nirula and those of Sh. Naveen Nirula who had gone alongwith you to the hose of Sh. B.R. Narang? A. Myself and Anil Nirula only had gone to sign the Agreement in office of Sh. B.R. Narang. It is not true that Sh. Naveen Nirula had any knowledge of this agreement and he came only to sign as a witness to my signature. I am not sure if Naveen Nirula accompanied us, possibly he was there initially or came later, I do not remember. I confirm my signature at points "A" on all the page of Exhibit P8.CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 41 of 58 Signatures at points "B" appears to be that of Anil Nirula. It is true that the signature at point "C" are of Naveen C. Nirula. However, Naveen had no knowledge of the contents of the Agreement.
It is wrong to suggest that Sh. Naveen C. Narula was aware of the family arrangement and he had driven the car with both me and Sh. Anil Nirula in the car to the house of Sh. B.R. Narang, Advocate."
24.2 Further, contents of letter Ex. P4 especially paragraphs no. 16 and 17 and Ex. P5 are evidentiary of the deliberations that the parties were having regarding the family arrangement. Also, Ex. PW1/D13 and Ex. PW1/1 also reflects that the parties were acting under legal advise. Draft copy of the family arrangement (Ex P8) and Will dated 17.07.1998 were also exchanged as can be gathered from Ex. P6.
24.3 Therefore, to now urge that on account of emotional blackmail and coercion, the defendant who retired as Brigadier from Indian Army was coerced to enter into family arrangement fails to inspire confidence of this Court. Even the testimony of Navin (PW3) to the effect that family arrangement (Ex P8) was voluntarily signed by the plaintiff has remained unrebutted.
24.4 Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
C) Whether the family settlement dated 30.12.1997 requires registration, if so its effect? OPD (issue no.2)
25. The onus to prove the issue was upon the defendant.
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 42 of 58 25.1 On behalf of the defendant, the necessity of registration of family arrangement (Ex. P8) has been contended on the premise that no previous oral agreement could be proved by the plaintiff and hence, the agreement is not a mere memorandum of past settlement. To further bolster the arguments, reliance has also been placed upon averments in paragraphs no. 4 and 5 of the plaint that it only by virtue of "the said settlement", the plaintiff became the owner of the suit property to show that the plaintiff has based his claim upon the family settlement only. Further, drawing the attention of the Court to paragraph no. 7A of the plaint (introduced by way of amendment), "oral settlement" finds mention but particulars of same have not been given. Relying upon, Kale & Others Vs. Deputy Director of Consolidation (Supra), it has been urged that family arrangement (Ex. P8) compulsorily required registration.
25.2 Per contra, relying extensively upon the epistolary communication between the plaintiff and the defendant as well as relying upon testimonies of plaintiff's witnesses, it has been sought to be proved that an oral family arrangement was in place which was reduced into writing by way of family arrangement (Ex. P8) and therefore, it did not require registration and was admissible in evidence.
25.3 In rebuttal, it has been explained that the letters exchanged between the plaintiff and the defendant were not pleaded and even otherwise, all such discussions contained therein, were of no significance when they culminated in execution of so called family arrangement which would crystallize the settlement terms.
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 43 of 58 Further, it has also been contended that the terms of family settlement are at variance with prior oral settlement, if any, sought to be propounded by the plaintiff.
25.4 In Kale & Others Vs. Deputy Director of Consolidation (Supra), the Apex Court has delved deep into the general effect and value of family arrangements between parties for resolving disputes once for all. It has recognized that "family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made." It has held as under :
"9. ... ... The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes succession is so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 44 of 58 dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. ... ..."
25.5 Further in paragraph no. 10 of the judgment, the Supreme Court has also observed as under :
"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence: (3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 45 of 58 25.6 It would be relevant here to first peruse the family arrangement (Ex P8) which is re-produced as under for convenience :
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 46 of 58 CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 47 of 58 CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 48 of 58 CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 49 of 58 CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 50 of 58 25.7 The following are the important takeaways from meaningful reading of family arrangement (Ex P8) :
(a) The document is silent as to why relinquishment deed in favour of the defendant was executed by the remaining brothers.
(b) It mentions that the defendant on execution of relinquishment deed became the owner of the plot.CS no. 57141/2016
Anil Nirula Vs. Yudhisthar Nirula Page no. 51 of 58
(c) It states that against any "claim" to the suit property, Navin and Suresh were paid Rs. 30,000/- each, sometime in the year 1982 / 83 which is about 08-09 years after execution of relinquishment deed.
(d) It records that the agreement between the plaintiff and the defendant was contingent upon the plaintiff returning from Canada where he was settled and as per the agreement, the ground floor was to be made available to the plaintiff on his return.
(f) The document specifically mentions that "the title cannot be transferred to the Second Party", i.e. the plaintiff and therefore, the defendant also executed a Will which would take effect on his death to make the plaintiff absolute owner of the suit property.
(g) The arrangement recognized that the plaintiff would have the right to deal with and use , the suit property in any manner to his liking. However, this was subject to the rider "whatever has been stated hereinbefore".
(h) It mentions that the plaintiff "shall be entitled to 1/3 (one / third) undivided share in the land ."
25.8 To urge that the above was a mere memorandum of previous family settlement, heavy reliance has been placed upon letters exchanged between the parties. However, the brief history of the suit property mentioned in Ex. P2 was with suggestion in Ex. P1, issued by the defendant to all his brothers that in their income tax returns, HUF comprising of the brothers and their children with 1/4th share each in property no. B2/2 Vasant Vihar, New Delhi should be declared. But none of the brothers, as can CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 52 of 58 be gathered from their cross examination acted to show the suit property as HUF. Even though vide Ex. PW1/D10 and Ex. PW1/D7, the plaintiff volunteered to contribute Rs. 1,00,000/- towards the construction of the house, his contribution was in total of Rs. 40,000/- only and during cross examination he admitted that he had not paid the amount as undertaken by him but volunteered that the defendant was able to arrange for finance in India which was to be considered as joint liability in India of both the plaintiff and the defendant. However,, the plainitff also admitted during cross examination on 12.12.2007 as under :
"I have no personal knowledge as to what amount was spent for the construction of the suit premises in the year 1978. I have no personal knowledge as to what was shown as income and expenditure in the joint account. I have no personal knowledge as to how the defendant was treating money in the joint account. I am not aware whether defendant never treated this account as a joint account and only treated it as rent and property account."
He also in response to contents of letter Ex. P4 that Rs.40,000/- contributed by him was not required back by him and was his contribution to post retirement settling down of the defendant, the plaintiff admitted that he did not timely respond to the contention of the defendant. He also did not controvert the letter to the effect that the aforementioned Rs.40,000/- was being shown as loan due to him with interest in the income tax return of the defendant. All throughout, the defendant continued to show the rental income from the suit property also as his taxable income. Thus, considering that the defendant himself carried out construction in the suit property with little contribution from the plaintiff (as well) and discharged the liabilities attached with enjoyment of the property, solely by himself, even the CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 53 of 58 supervening equities are in favour of the defendant. The communication between the parties at best appears to be an intention by the defendant to re-introduce the plaintiff into the suit property which culminated into the family arrangement (Ex P8) and Will dated 17.07.1998 (not proved). It is only thereafter that the plaintiff has proof of rental deposits his favour. Even then, the rent from the ground floor was still being shared between the plaintiff and the defendant which is not contemplated in the family arrangement. Therefore, the material on record only suggests that the letters exchanged between the parties are discussions of contingent intention of the parties which saw light of the day only by way of family arrangement (Ex P8).
25.9 Also, as regards regards specific plea of oral settlement it is observed that paragraph no. 7A of the plaint is silent regarding its material particulars. In affidavit Ex. PW1/A, oral family settlement is stated to have been entered into in the year 1982 /
83. The same has been explained as under :
"... It was sometime in 1982/83 that Sh. Suresh C. Nirula and Navin C. Nirula agreed to accept a consideration of Rs.30,000/- each for the relinquishment of their claim permanently to the property bearing No. B-2/2, Vasant Vihar, New Delhi plot, and at that time the family arrangement arrived at between the parties was that I would be the owner of the Ground Floor and Garage and the Defendant would be the owner of the residuary part of the property. I contributed a sum of Rs.40,000/- towards construction of the house on the suit property. The total cost of construction on the ground floor was approximately Rs.2.50 lacs."
25.10 Thereafter, during his cross-examination stated as under :
"Family arrangement was from 1974 and it was amended when two brothers quit later on and then it became CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 54 of 58 arrangement between two brothers i.e. myself and defendant. Family arrangement of 1974 is verbal one and I cannot show any document of the same. Again said, there is a document which was submitted to the income tax department by the defendant. The said document is not signed by all the four brothers. The said document is signed by the defendant. The same is Ex.P-2. I cannot show any document of 1992-93 when the other two brother quit from the abovesaid proposal. The significant event took place in the year 1982- 83 was that the two brothers quit from the proposal. I cannot show any document in this respect."
25.11 PW2 Suresh stated that the family arrangement between the plaintiff and the defendant was arrived at sometime in 1982/83 as per which, the parties to the suit had agreed that the plaintiff would be the owner of the ground floor and garage and the defendant would be the owner of the residuary part of the property. However, PW3 Navin stated that the oral family settlement had been arrived at in the year 1982 however, during cross examination was unable to answer whether in the year 1982, the construction for first floor had been raised or not.
25.12 During cross examination the plaintiff admitted that as per Canadian Laws, there is a procedure for declaration of income, movable and immovable assets of a person (even if possessed out of Canada) and expressed his inability to produce any document to show that he had declared his ownership of suit property and rental income being earned therefrom to the Canadian Authorities despite filing his return. He also admitted that he did not declare income from the suit property because he was not receiving any income from it. He also stated that he only received some part of rental income and most of it was defrayed in repayment of loan and other outstanding dues. He pleaded ignorance whether the CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 55 of 58 defendant had been showing the entire rental income as his and had been paying tax on the same. He also claimed ignorance as to what was the income and expenditure from joint account, if any and whether there was any joint account of the parties. Subsequently, he admitted that the income tax on the rental income was paid by the defendant, only. Therefore, the only irreversible conclusion which can be drawn (on the test of pre- ponderance of probabilities) is that the plaintiff was freshly required to be inducted as a co-owner with a clear cut title. There are steps as per law required to re-conveyance of the property. Hence, it is not a mere memorandum of past settlement. Therefore, it is a document which compulsorily requires registration.
25.13 The issue is accordingly, decided against the plaintiff and in favour of the defendant.
C) Whether the plaintiff is entitled to a decree for declaration that he is the owner of the ground floor of the property bearing no.B-2/2, Vasant Vihar, New Delhi? OPP (Issue no.3)
26. The onus to prove the issue was upon the plaintiff.
26.1 To establish ownership, the plaintiff has relied upon family arrangement (Ex P8) which is inadmissible in evidence. Even otherwise, as it is admitted by the plaintiff that on execution of relinquishment deed (Ex.DW1/4 and also Ex. D1) the defendant became the absolute owner of the suit property, the CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 56 of 58 relinquishment deed not having been challenged (and now being barred by time), the declaration as sought cannot be given to the plaintiff. Pertinently, even the document upon which the plaintiff has premised his case recognizes the inability of transfer of ownership to the plaintiff and so, collaterally, Will of the defendant bequeathing the suit property to the plaintiff was also necessitated. Thus, the issue is decided against the plaintiff.
D) Whether the plaintiff is entitled to the possession of the ground floor of the property bearing no.B-2/2 Vasant Vihar New Delhi?OPP
27. The onus to prove the issue was upon the plaintiff.
27.1 In view of the above discussion, as the plaintiff has not been able to establish his title, the consequential relief cannot be granted. Issue is accordingly decided against the plaintiff.
E) Whether the plaintiff is entitled to a decree for injunction as prayed for? OPP (Issue no.5)
28. The onus to prove the issue was upon the plaintiff.
28.1 In view of the above discussion, as the plaintiff has not been able to establish a prima facie case in his favour, the consequential relief is also declined. Issue is therefore decided against the plaintiff.
CS no. 57141/2016Anil Nirula Vs. Yudhisthar Nirula Page no. 57 of 58 RELIEF
29. In view of the findings and observations herein above, the suit of the plaintiff stands dismissed. Parties to bear their own costs.
30. Decree Sheet be prepared accordingly.
31. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 06.07.2023 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS no. 57141/2016 Anil Nirula Vs. Yudhisthar Nirula Page no. 58 of 58