Satish Kumar Batra vs Harish Kumar Batra & Ors on 9 February, 2018

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Delhi High Court

Satish Kumar Batra vs Harish Kumar Batra & Ors on 9 February, 2018

1. Late Shri Jiwan Dass Batra and Smt. Krishna Batra are the parents of the Appellant and the Respondent No. 1 and Respondent No. 2. Harish Kumar Batra/Respondent No.1/Plaintiff (hereinafter, 'Plaintiff') filed a suit for declaration, permanent injunction and in alternate, for partition and possession against his brothers Devender Kumar Batra/Respondent No. 2/Defendant No. 1 (hereinafter, 'D1'), Satish Kumar Batra/Appellant/Defendant No. 2 (hereinafter, 'D2') and Sabina Maini/Respondent No. 3/Defendant No. 3 (hereinafter, 'D3').

2. Father of the parties was the owner of property bearing No. 20 Sector, 16A, Chandigarh, a residential house (hereinafter, 'Chandigarh property'). Mother of the parties was the owner of property No.61, Old Gupta Colony, Delhi (hereinafter, 'Delhi property').

RFA 776/2016 Page 1 of 11

Plaintiff's case

3. Plaintiff submits that in March 1993, a family settlement was entered into, whereby the Plaintiff was given absolute rights in the Chandigarh property, D1 was given absolute rights in the ground floor of the Delhi property and D2 was given absolute rights in the first floor of the Delhi property. This family settlement dated 28th March, 1993 was drawn and executed by the father as his last Will and in supersession of his Will dated February, 1986. The father, the Plaintiff and D1 and D2 were the signatories to the said document and it was agreed between the parties that the wishes of father contained in the said document would be given effect to after his lifetime. Father of the parties passed away on 2nd March, 2010.

4. Plaintiff's case is that he had exclusive possession of the Chandigarh property and that he had partly rented out the said property. He had retained a small portion of the property with himself. Plaintiff further pleads that in April 2008, he had sent a Power of Attorney to the Defendants in order to enable them to get the Delhi property mutated in their names. However, in that process the Defendants raised a claim to the Chandigarh property. The Defendants had, even applied for transfer of ownership of the Chandigarh property on the basis of an earlier Will of the father dated 6th February, 1986 which was superseded by the family settlement dated 28th March, 1993. The Estate Officer, Chandigarh had issued a notice in respect of the mutation request of the Defendants, which was replied to by the Plaintiff. The present suit for declaration was then filed. Plaintiff's case in effect is that the family settlement should be given full effect to and in a situation where the Defendants continued to claim rights to the Chandigarh property, Plaintiff RFA 776/2016 Page 2 of 11 should be entitled to 1/3rd share of the Delhi property. Prayers are set out below:

" a) A Decree declaring the document dated 28.03.1993 binding on the plaintiff and Defendants 1 & 2, whereby the Defendants 1 & 2 are the owners in respect of the Ground Floor and the First Floor with barsati of the Property No.61, Old Gupta Colony, Delhi and the Plaintiff is the owner of the property No.20, Sector-16-A, Chandigarh.

b) A Decree of Permanent Injunction restraining Defendants 1 & 2, their legal heirs, assigns, servants etc. from disobeying the terms of the family arrangement and restraining them permanently from interfering in any manner or to deal with the Property bearing no.20, Sector 16-A, Chandigarh.

c) The cost of the suit be awarded in favour of the Plaintiff.

In the alternative, if this Hon'ble Court comes to the conclusion that the document dated 28th March, 1993 is a partial testamentary in nature and the decree of declaration as prayed in Prayer

(a) above about Property No. 61, Old Gupta Colony, Delhi only cannot be granted due to any reason what so ever then in that eventuality this Hon'ble Court may pass:

d) A decree declaring the document dated 28.03.1993 to be partial testamentary document executed by Late Shri Jiwan Dass Batra i respect of his property No.20, Sector-16-A, Chandigarh.

e) A decree for partition to the extent of 1/3rd share by metes and bounds and separate possession in favour of the Plaintiff in respect of Property No.61, Old Gupta Colony, Delhi. If the property is not capable of being divided by metes and bounds then the same be sold by way of auction and the sale proceeds be distributed in the RFA 776/2016 Page 3 of 11 share of 1/3rd each to Plaintiff and Defendants 1 &

2."

Stand of Defendant Nos.1 & 2

5. D1 & D2 contended that there was a Will dated 6th February, 1986 and thereafter a codicil which was also executed on 3rd December, 1995. As per the said codicil, the Defendants claimed equal rights in the Chandigarh property. Apart from this, the defence raised by the Defendants is that the Plaintiff had moved away to USA with his son and had, therefore, not expected any estate from the father.

Following issues were framed in the suit:

"1. Whether the suit of the Plaintiff is bad for misjoinder of the Defendant No. 3 being not the legal heir of the deceased parents of the Plaintiff and Defendant Nos. 1 and 2? OPD-2.

2. Whether the suit of the Plaintiff is bad for non- joinder of Smt. Pushp Lata Kataria and Smt. Saroj Gulati? OPD-2

3. Whether the family settlement dated 28th March, 1993 is binding on the parties either as the Settlement Deed or a Partial Testamentary Document? OPP

4. Whether late Shri Jiwan Dass Batra executed a codicil dated 3rd December, 1995? OPD-2

5. Whether the Plaintiff is entitled to the declaration as prayed for in the plaint? OPP

6. Whether the Plaintiff is entitled to permanent injunction as prayed for in the plaint? OPP

7. Whether the Plaintiff is entitled to seek partition as prayed for in the plaint? OPP

8. Whether the Plaintiff is entitled to seek possession as prayed for in the plaint? OPP

9. Whether the Defendant No. 1 and 2 are entitled to seek rendition of accounts from the Plaintiff and RFA 776/2016 Page 4 of 11 the Defendant No. 3? OPD-2

10. Relief."

6. Plaintiff led the evidence of PW-1, Plaintiff himself; PW-2 official from MCD; PW-3, official from State Bank of India. The Defendants led the evidence of DW-1 (Satish Kumar Batra).

Trial Court judgement

7. The Trial Court held that the suit is not bad for non-joinder of the parties on issue nos. 1 & 2. The main issue was issue no.3 i.e. the effect of the family settlement dated 28th March 1993. The Trial Court records that the original family settlement date 28th March 1993 was placed on record as Ex.PW-1/2. The said document was signed by all parties and hence the same stood proved. The Trial Court further finds that the claim of D1 & D2 to the Chandigarh property is belied, not just by the family settlement dated 28th March 1993 but also by the earlier Will dated 6th February 1986, by which the Chandigarh property was bequeathed by the father in favour of the Plaintiff. D1 & D2 had signed as witnesses to this Will. The Trial Court thereafter records that PW-2, the official from MCD and PW-3 the Deputy Manager of the bank had proved that the Plaintiff had relinquished his share in the Delhi property. The stand of the Defendants that the family settlement is not binding was rejected as D1 & D2 had obtained mutation of the Delhi property in their names, as per the family settlement. The Trial Court concluded that the Will dated 6th February 1986 was revoked upon the execution of the family settlement. Thus, the Trial Court held that the family settlement was proved.

8. On issue no.4, the Trial Court held that no codicil was placed on record. Accordingly, the Trial Court held that the Plaintiff is the absolute RFA 776/2016 Page 5 of 11 owner of the Chandigarh and restrained the Defendants from interfering in the Plaintiff's enjoyment of the said property. Appeal proceedings

9. D2, in appeal, submits as under:

a. That the family settlement cannot override the registered Will dated 6th February 1986.

b. That the family settlement document is not in original and hence cannot be read in evidence.

c. The said document is not stamped properly, as the stamp paper is a photocopy as admitted by the Plaintiff in his cross examination. d. That the family settlement is a document which requires registration and since the same is not registered, it cannot be read in evidence as per Section 49 of the Registration Act. e. D2 relies upon emails dated 2nd March, 2008 to the effect that the Plaintiff is willing to give up 1/4th share in the Chandigarh house.

10. In reply, the Plaintiff submits that D2 was working in State Bank of India and in fact relied upon the Will in order to avail reimbursements from the bank. He relies upon Ex.PW-1/3 to submit that D2 cannot act contrary to the said document. He further relies on cross examination of the D2 in respect of the Ex.PW-1/3.

Analysis and findings

11. A perusal of the record reveals that the original family settlement has been placed on record, and the same bears the signatures of all the brothers and father. The Court has seen the original family settlement and the same is RFA 776/2016 Page 6 of 11 exhibited as Ex.P-1. The signatures of D1 & D2 are admitted. The signatures appear on both pages of the document. There can be no doubt that the family settlement was entered into between the parties. The family settlement has reference to the Will dated 30th November, 1985 executed by Smt. Krishna Batra. As per the family settlement, the ground floor of the Delhi property was to vest with D1 and the first floor with D2. Chandigarh property would be the absolute property of the Plaintiff. The three brothers were to bear the property tax and other liabilities for their respective shares.

12. The Will dated 6th February 1986, Ex.PW-1/1 which bequeathed all the properties of the father equally to three brothers is also an admitted document. However, the family settlement is clearly subsequent and overrides the Will of 1986. Ex.PW-1/3 is a set of documents obtained by the Plaintiff from the State Bank of India under RTI. They show that D3 had claimed reimbursement of a sum of Rs. 5,000/- as HRA by showing that his wife owned the Delhi property. In this set of documents given by the SBI, there is another Will dated 15th October, 1995 purported to be executed by Sh. Jiwan Das Batra showing that the Chandigarh property is to exclusively vest in the Plaintiff. This Will according to the Plaintiff was a fabricated document, but reflects the conduct of the D3 who, for the purpose of claiming HRA, had shown that the Delhi property was in his wife's name. Reliance by the Plaintiff on this document clearly establishes that in order to claim HRA a Will was set up by the D3 showing that the Delhi property had been bequeathed to his wife and that he was living on rent of Rs.5,000/- in the said property. This set of documents was duly proved by the witness from the Bank. Insofar as the Delhi property is concerned, the Plaintiff had relinquished his share and thus, the same was mutated by the Defendants in RFA 776/2016 Page 7 of 11 their respective names.

13. During the pendency of the suit an application under Order XXIII Rule 3 of the CPC was filed recording a settlement between the Plaintiff and D1 to the effect that D1 has no right, interest, share and title in the Chandigarh property. This settlement was recorded on 24th January, 2012. All the above documents go to show that the family settlement was executed between parties and it was acted upon and accepted by everybody.

14. Law relating to family settlements is well settled as enunciated in Kale & Ors. v. Deputy Directors of Consolidation & Ors. (1976) 3 SCC 119 and is to the effect that no technicalities are to come in the way of enforcing family settlements. The observations of the Supreme Court are:

"10. In other words to put the binding effect and the essentials of a family settlement in a concretized 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 arrangements 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 RFA 776/2016 Page 8 of 11 been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) 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 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.

....................................

38..........In the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the court of the Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be registered, RFA 776/2016 Page 9 of 11 therefore, the principle that there is no estoppel against the statute does not apply to the present case. Assuming, however, that the said document was compulsorily registrable the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppels by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it."

This position has reiterated by the Supreme Court in Smt. Badami v. Bhali AIR 2012 SC 858 and Prakash v. Phulvati AIR 2016 SC 769.

15. Even recently, the Supreme Court in Subraya M.N. v. Vittala M.N. (2016) 8 SCC 705 has held that once family settlements are reduced in writing, they require registration. However, if the same are not registered, the contents thereof can be used to corroborate the existence of an arrangement between the family, as also to explain the conduct of the parties.

16. The family settlement is unregistered but is an exhibited document and is admitted by the parties. The fact that the signatures on the same are in original before the Court, even if the same were not on original stamp paper, it would be valid and binding on the parties. Objections raised by D2 to the family settlement are not tenable as he has acted as per the said family settlement. The Trial Court has rightly decreed the suit in favour of the Plaintiff. D2 having derived the benefits from the family settlement has unnecessarily created a long standing dispute. Plaintiff had, in fact, executed a Will bequeathing the Chandigarh property to his daughter. The said Will is witnessed by the D1 & D2. Impediments created by D2 by raising objections to the enforcement of the family settlement are contrary to his own conduct.

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D2 has taken benefits during his employment on the basis of the family settlement. It is now not open to D2 to challenge the same or to re-open the same. Family settlements are intended to maintain and continue peace and cordiality among family members. Even if one family member does not abide by it, the harmony of the family is disturbed. Courts, therefore, are to enforce the letter and spirit of family settlements without going into technicalities. The court, after perusing the pleadings and documents does not find any illegality or perversity in the impugned judgement of the Trial court.

17. Trial court judgment is affirmed. In view of the conduct of D2 who kept the family embroiled in a long standing dispute, after having fully derived benefit from the family settlement, the appeal is liable to be dismissed with costs.

18. The appeal is accordingly dismissed with Rs.1 lakh as costs, payable to the Plaintiff within 4 weeks. All miscellaneous applications also stand disposed of.

PRATHIBA M. SINGH, J.

Judge FEBRUARY 09, 2018/dk RFA 776/2016 Page 11 of 11

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