Delhi District Court
Smt. Alka Bhatia vs Sh. Kanhiya Lal Bhatia on 22 November, 2011
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No. 6/2010
Unique ID No. 02401C001060202008
Smt. Alka Bhatia
W/o Late Sh. Laxman Dass Bhatia,
R/o 20, Shiva Enclave,
2nd Floor, Pitampura,
Delhi ...... Plaintiff
Versus
Sh. Kanhiya Lal Bhatia
S/o Sh. Udho Dass Bhatia,
R/o 9171, Gali Jameer Wali,
Azad Market,
Delhi-06 ...... Defendant
Date of institution of suit : 12.01.2010
Date on which reserved for judgment : 31.10.2011
Date of Judgment : 22.11.2011
JUDGMENT:
1. This is a suit for Declaration, Mandatory Injunction and Permanent Injunction. Vide separate statement recorded on 31.10.2011, the plaintiff has submitted that she does not wish to press the relief of Mandatory Injunction.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as follows.
2.1. The Plaintiff and the Defendant are relatives. The Defendant is elder brother-in-law of the plaintiff. The Plaintiff and the Defendant, both are the LRs of late Sh.Udho Dass Bhatia. Mr.Udho Dass Bhatia had three sons namely Kanhaiya Lal, who is the defendant in the present suit, Bhawan Dass & Laxman Dass. The Plaintiffs are the LRs of Sh.Laxman ALKA BHATIA VS. KANHIYA LAL BHATIA Suit No.6/2010 Page 1 of 6 Dass Bhatia.
2.2 On 10.07.2002 a deed of family settlement was entered into between Mr.Udho Dass Bhatia and his three sons wherein it was decided as to who shall have which property. As per family settlement, Sh.Laxman Dass, deceased husband of the plaintiff, in addition to other properties, got 1/3rd share of M/s Udho Dass Bhatia and sons i.e. HUF family property. 2.4 It was agreed between the parties that the plaintiff shall release her 1/3rd share in the property no.737, Gali No.1, Sadar Bazar by way of Release Deed. In pursuance to this, the plaintiff executed a Release Deed in defendant's favour on 13.01.2009 which was duly registered before the Sub Registrar office. The Plaintiff's husband had rights in M/s Vikram Footwear at 6, Kaushalaya Bhawan, Shoe Market, Sadar Bazar, Delhi. The plaintiff relinquished her rights in this firm also in the defendant's favour vide Disclaimer Deed dt.16.01.2009. This document was also duly registered. As per the agreement, the defendant also executed a Gift Deed dt.13.01.2009 in favour of plaintiff gifting his half undivided share in first floor of the property no.9174, Gali Jameer Wali, Ward No.XII, Nawab Ganj, Azad Market, Delhi. 2.5 Sh.Udho Dass Bhatia executed a Will dt.06.05.2004 which was registered in which he acknowledged the execution of the family settlement deed dt.10.07.2002. In the Will dt.06.05.2004, Sh.Udho Dass Bhatia disowned the defendant from inheriting any of the properties belonging to him. He had also got published a publication to this effect on 16.12.2001 in daily newspaper "Dainik Jagaran." Vide Will dt.06.05.2004, Sh.Udho Dass Bhatia left his properties, movable & immovable in favour of Sh.Laxman Dass, deceased husband of the plaintiff & his other son namely Sh.Bhawan Dass Bhatia in equal shares. The Plaintiff has submitted that as per the family settlement dt.10.07.2002 and Will dt. 06.05.2004 she has performed all her part of agreement, but the defendant has failed to perform his part despite repeated requests.
ALKA BHATIA VS. KANHIYA LAL BHATIA Suit No.6/2010 Page 2 of 6Hence, the plaintiff has filed the present suit seeking declaration of Release Deed & Disclaimer Deed dated 13.01.2009 & 16.01.2009 respectively as null & void.
3. Summons of the suit were served upon the Defendant. The Defendant filed the Written Statement. The defendant has admitted the family settlement dt.10.07.2002, but submitted that the terms and conditions could not be performed due to certain differences between the parties. However, it is submitted that after the expiry of Sh.Laxman Dass & Sh.Udho Dass Bhatia, the Plaintiff, the defendant and Sh.Bhawan Dass had arranged a meeting to divide the properties and the matter was put before Sh.Chaman Lal Taneja who was appointed as Arbitrator. The matter was settled on 09.04.2009 and the parties were directed to execute respective Release Deed, Sale Deed & Disclaimer Deed. As per this settlement, the property no.656, Sector-6, Bahadurgarh fell in the share of the defendant. Hence, it is submitted that the present suit is not maintainable in view of this settlement. Hence, this suit may be dismissed.
4. Replication was filed by the Plaintiff wherein, the Plaintiff reiterated the facts as alleged in the plaint and denied those alleged by the Defendant. However, due to non appearance, the defendant was proceeded against ex-parte vide order dated 29.11.2010.
5. Thereafter, the matter was fixed for ex-parte Plaintiff's evidence. The Plaintiff got examined herself as PW1 and another witness namely Sh. Deepak, Ahlmad to the court of Ms.Charu Aggrawal, Ld.MM, Tis Hazari Courts, Delhi as PW2. The plaintiff's witness exhibited the following documents :
Ex.PW1/1 Copy of the death certificate (OSR)
ALKA BHATIA VS. KANHIYA LAL BHATIA Suit No.6/2010 Page 3 of 6
Ex.PW1/2 Copy of the legal notice
alongwith postal receipt and UPC,
AD Card (colly)
Ex.PW1/3 Copy of the reply dated 21.11.2009
Ex.PW1/4 Copy of the complaint dated 11.01.2010
alongwith postal receipts (colly)
Ex.PW1/5 Copy of the legal notice dated 15.9.2010
alongwith postal receipt and UPC (colly)
Ex.PW2/1 Copy of the release deed dated 13.01.2009
Ex.PW2/2 Copy of the disclaimer deed dated 16.01.2009
Mark A Copy of the deed of family settlement
Mark F Copy of the Will
Mark G Copy of the deed of conveyance
Mark H Copy of the affidavit
Note : The other documents marked as Mark B to E and Mark I to J
were got de-exhibited on 06.05.2011. The same had been mentioned in the examination-in-chief of PW1 recorded on 06.05.2011.
6. Thereafter, the matter was fixed for ex-parte final arguments. I have heard the arguments of the counsel for plaintiff and have gone through the record carefully. My findings are as follows.
7. It is an admitted fact that the Plaintiff and the Defendant belong to the same family. Further, it is admitted that a Deed of Settlement dt.10.07.2002 was executed between the defendant, his father and his two brothers including deceased husband of the plaintiff. The Plaintiff has based her claim over the suit property on the basis of this Deed of Family Settlement which is marked as Mark A and the Will dt. 06.05.2004 executed by Sh.Udho Dass Bhatia marked as Mark F. The Defendant has not denied the execution of the document Mark A. However, it was alleged by the defendant that after the demise of Sh.Udho Dass Bhatia and Sh.Laxman Dass, the Plaintiff, the Defendant and Sh.Bhawan Dass had put the matter before Sh.Chaman Lal Taneja, who acted as an Arbitrator and a settlement was arrived at on 09.04.2009. The ALKA BHATIA VS. KANHIYA LAL BHATIA Suit No.6/2010 Page 4 of 6 Plaintiff has denied this family settlement.
8. The Plaintiff has submitted that as per the family settlement, Mark A, the Defendant was supposed to transfer certain properties in plaintiff's favour. However, perusal of Mark A does not indicate the same. Mark A which is the Deed of Settlement dated 10.07.2002 merely lays down the details of the properties of the four persons who were parties to this Deed. Furthermore, the Settlement Deed, Mark A, is a photocopy. The same is also unregistered. Hence, the same cannot be taken into consideration. Under the Registration Act, any document vide which a right, title or interest in an immovable property is transferred, must be registered.
9. The plaintiff also pressed her claim on the basis of the Will which was allegedly executed by Sh.Udho Dass Bhatia, who was father- in-law of the plaintiff. However, again this document is also unregistered and the original has not been produced on record. No attesting witness is brought forward for examination. Hence, this document is also not admissible and has not been proved. Hence, in the opinion of the court, the Plaintiff has failed to even prima-facie show that she is the rightful claimant of the properties in question.
10. Further, the Plaintiff seeks declaration that the Release Deed Ex.PW2/1 & Disclaimer Deed Ex.PW2/2 be declared as null & void on the pretext that the Defendant had failed to honour his part of obligations (As discussed earlier, there is nothing to show that the defendant was required to perform some act). The execution of these documents is not disputed. It is not the allegation of the Plaintiff that these documents were got executed by her through fraud or coercion etc. ALKA BHATIA VS. KANHIYA LAL BHATIA Suit No.6/2010 Page 5 of 6
11. Perusal of these documents shows that the Release Deed and Disclaimer Deed had been executed in favour of the Defendant for a consideration of Rs.2,80,000/-. There is no other condition mentioned in either the Release Deed or Disclaimer Deed regarding any obligation to be performed by the Defendant. Moreover, in the Release Deed Ex.PW2/1 in para 1 at page 4, it is stated that the Release Deed is being made by the plaintiff in favour of the defendant for a consideration of Rs.2,80,000/-, which has "already been received in cash". This is a very relevant statement. This document as alleged by the plaintiff herself is a registered document.
12. The plaintiff has been unable to show that the defendant had promised to do something which he failed to do. The plaintiff's title itself is not clear as neither the family settlement dt.10.07.2002 can be relied on nor the Will dt.06.05.2004 has been properly proved. In the opinion of the court, the plaintiff is not entitled for any relief. Hence, the suit is dismissed.
No order as to costs.
Decree-sheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 22.11.2011 CIVIL JUDGE-01 (NORTH)
DELHI
Certified that this judgment contains 06 number of pages and all pages are signed by me.
[RUCHIKA SINGLA]
CIVIL JUDGE-01 (NORTH)
DELHI
ALKA BHATIA VS. KANHIYA LAL BHATIA Suit No.6/2010 Page 6 of 6
Suit No.6/10
22.11.2011
Present : None
Vide separate judgment of even date, the suit of Plaintiff stands dismissed.
No orders as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
[RUCHIKA SINGLA] CIVIL JUDGE01 (NORTH) DELHI ALKA BHATIA VS. KANHIYA LAL BHATIA Suit No.6/2010 Page 7 of 6