Delhi High Court
Sohan Singh Talwar vs S Kuldeep Singh Talwar & Anr. on 27 November, 2018
Equivalent citations: AIRONLINE 2018 DEL 2523
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 12th October, 2018
Date of decision :27th November, 2018
+ CS (OS) 1941/2014
SOHAN SINGH TALWAR ..... Plaintiff
Through: Mr. G. K. Sharma, Advocate.
versus
S KULDEEP SINGH TALWAR & ANR. ..... Defendants
Through: Mr. Amiet Andlay and Mr. Arun K.
Sharma, Advocates. (M:9891685368)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. Late Sardar Parkash Singh Talwar, who migrated to India after partition was married to Smt. Harbans Kaur, who is Defendant No.4. She did not have any children. Thereafter, he married Smt. Agya Kaur and they had three sons and one daughter. Plaintiff - Sardar Sohan Singh Talwar, Defendant No.1- Mr. Kuldeep Singh Talwar and Defendant No.2- Shri Rajinder Singh Talwar are the three sons. Defendant No.5- Smt. Trilochan Kaur was the daughter. Both wives of Sh. Parkash Singh Talwar are alive.
2. Plaintiff has instituted the present suit for permanent injunction, rendition of accounts, partition, declaration and possession of the following properties.
"PROPERTY NO. 1D-4/1 (PART), KRISHNA NAGAR, DELHI-110051MEASURING 116.6 SQ. YDS.
PROPERTY NO. 2 CS (OS) 1941/2014 Page 1 of 25D-4/2, KRISHNA NAGAR, DELHI-110051 (MEASURING 233 SQ. YDS.) PROPERTY NO. 3 C-2/3, SECOND FLOOR, KRISHNA NAGAR, DELHI-110051MEASURING 60 SQ. YDS."
3. Insofar as property no.3 i.e. C-2/3 Second Floor, Krishna Nagar, Delhi-110051, admeasuring 60 sq. yards is concerned, the Plaintiff does not insist on the partition of the said property in the present suit. The Plaintiff is residing in the house and the same belongs to his mother Smt. Agya Kaur. This is clear from his cross-examination where it is recorded as under:
"Q.128. Are you claiming partition qua property bearing No.C-2/3, Second Floor, Krishna Nagar?
A. No. I am not."
4. Insofar as property no.1 bearing no.D-4/1, Krishna Nagar, Delhi, admeasuring 116 sq. yards is concerned, the same is a commercial property consisting of four shops (hereinafter „commercial property‟). It is the admitted position that out of four shops, three shops are currently tenanted. The Defendants do not dispute that the Plaintiff enjoys 1/3rd share in this property.
5. Insofar as property no. 2 bearing no.D-4/2, Krishna Nagar, Delhi (hereinafter „residential premises‟) is concerned, apart from the Plaintiff and his family, other family members namely two brothers and their families and their two mothers are residing in this premises. The Plaintiff is not in physical possession of this property. The said residential premises is in the name of the Late father and the Defendant No.2 Shri Rajinder Singh Talwar.
6. In the plaint, the case of the Plaintiff is that the entire assets were CS (OS) 1941/2014 Page 2 of 25 made by his father. It‟s his case that his father had started business of jewellery and thereafter the brothers had together started the business of readymade garments by the name M/s. Talwar Collections. Plaintiff claimed he had a share in the said businesses and according to him, he was receiving an amount of Rs.9,000/- per month from the said businesses. He claimed that he is in joint possession of the commercial property and that the rent from the tenants of the three shops is being collected by the Defendants. Thus, the Plaintiff seeks rendition of accounts in respect of business of M/s. Talwar Collections and rendition of accounts from the three shops. Plaintiff claims 1/4th share in the residential premises and 1/3rd share in the commercial property. The relief sought by the Plaintiff in the present suit are as under:
"(i) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants, their agent, attorney representatives restraining them from parting with the possession or creating third party interest in the suit properties or raising any construction, with respect to 1/4th share of the plaintiff in the properties owned by the father of the plaintiff as mentioned in Annexure-A, annexed to the plaint;
(ii) Pass a decree for permanent injunction in favour of the plaintiff and against the defendants their representatives, associates, agents and assigns thereby restraining them from interfering into the peaceful possession of the plaintiff of the property bearing No. C-2/3, 2nd Floor, Krishna Nagar, Delhi-110051.
(iii) Pass a decree/order of rendition of accounts directing the defendants no. 1 to 4 to provide the details of accounts of M/s. Talwar Collections from 2003 to 2014, accounts of rent received by the defendants from 4 tenants from 2003 to 2014 and accounts of the funds received after selling the CS (OS) 1941/2014 Page 3 of 25 property bearing No. IX/6132, Gandhi Nagar Delhi-
110031 and invested in different properties between the year 2003 to 2014.
(iv) Pass a decree of partition by metes and bounds in respect of the immoveable properties mentioned in Annexure 'A', annexed with the plaint.
(v) Pass a decree of declaration in favour of the plaintiff and against the defendants, declaring the plaintiff as the owner of the 1/4th share of the properties left by Sh. Parkash Singh Talwar and owner of 1/3rd share already in the name of the plaintiff in the property bearing No. D-4/1, Krishna Nagar, Delhi-
110051.
(vi) Pass a decree of possession in favour of the plaintiff and against the defendants in respect to the 1/4th share of the plaintiff in the properties left by Sh. Parkash Singh Talwar and for the 1/3rd portion owned by the plaintiff in property Bearing No. D-4/1, Krishna Nagar, Delhi- 110051.
(vii) Any other relief/reliefs this Hon'ble Court deems fit and proper in the circumstances of the present case may kindly be passed in favour of the plaintiff."
7. The case of the Defendants in the written statement is that the suit has not been properly valued as the Plaintiff is not in possession of any of the two properties i.e., the commercial property and the residential property. The third property is in the possession of the Plaintiff and partition of the said property is not sought. The Defendants have set up a defense of an oral family settlement claimed to have been arrived at in the year 2002. According to the Defendants, the terms of the said settlement are as under:
1) That the Plaintiff would be given a separate property to stay with his wife and children and that the same was to be transferred in his name once he got over his alcohol addiction.CS (OS) 1941/2014 Page 4 of 25
2) That the Plaintiff would be given a share from the future sale proceeds of a property in Gandhi Nagar and the Plaintiff shall be given some money and jewellery.
3) According to the Defendants, the Gandhi Nagar property, which was exclusively in possession of Smt. Agya Kaur, was accordingly sold on 6th June, 2002 and part of the proceeds were given to the Plaintiff.
Another property in Hargobind Enclave was also sold and sale proceeds were divided with the Plaintiff. Thereafter, the property where the Plaintiff resides currently i.e. C-2/3, Second Floor, Krishna Nagar was purchased on 22nd November, 2005 and sole/exclusive possession of the same was handed over to the Plaintiff.
4) That with the purchase of the property C-2/3, Plaintiff had relinquished/accepted his ouster/exclusion from the suit properties i.e. both the residential premises and the commercial property.
5) That the amount of Rs.9,000/- was basically given out of compassion by the mother considering the jobless status of the Plaintiff. Money was being paid to the Plaintiff‟s wife. According to the Defendants, Plaintiff had executed a disclaimer deed confirming the full and final settlement.
8. The Defendants state that the Plaintiff‟s wife is instrumental in filing of the present litigation and that she is being encouraged by a builder/property dealer by the name Mr. Ashok Kumar Ratan, who was apprehended with the Plaintiff‟s wife by the customs authorities at Madras airport.
9. The following issues were framed in the suit on 10th August, 2016.
CS (OS) 1941/2014 Page 5 of 25"1) Whether the suit is under valued and the plaint has been insufficiently stamped? (OPD)
2) Whether any oral family settlement had been arrived at between the parties to the suit in the year 2002 and if so, the effect thereof? (OPD)
3) Whether the plaintiff is entitled for the decree for permanent injunction as prayed in prayer clause (i) and (ii)? (OPP)
4) Whether the plaintiff is entitled for the decree/order of rendition of account, as prayed for in prayer clause
(iii)? (OPP)
5) Whether the plaintiff is entitled to a decree of partition by metes and bounds in respect of the three suit properties? (OPP)
6) Whether the plaintiff is entitled to a decree of declaration declaring him as the owner of 1/4 th undivided share in the properties at No.1 and 2 mentioned in the schedule attached to the plaint, owned by late Shri Prakash Singh Talwar? (OPP)
7) Whether the plaintiff is entitled to a decree of declaration declaring him as the owner of 1/3rd undivided share in the property at No.3 mentioned in the Schedule attached to the plaint? (OPP)
8) Whether any oral settlement had been arrived at between the parties to the suit in the year 2002 and if so, the effect thereof? (onus on the parties)
9) Relief."
10. A Local Commissioner was appointed for recording the evidence. On 16th February, 2017, an additional issue was also framed, which reads as under:
"Whether disclaimer dated March 2011 was executed by the plaintiff in favour of the third defendant? If so, its effect? OPD"
11. On behalf of Plaintiff the following witnesses were examined.
CS (OS) 1941/2014 Page 6 of 25 Mr. Sohan Singh Talawar - PW-1 Mr. Gopal Datta - record keeper, Sub-Registrar-IV, - PW-2 Mr. Bahadur Singh Talwar, nephew of Parkash Singh Talwar and cousin of Plaintiff - PW-3
12. On behalf of Defendants, following witnesses were examined.
Pritam Singh Talwar - DW-6 Smt. Trilochan Kaur - DW-5 Rajender Singh Talwar - DW-2 Shri Surjeet Singh - DW-8
13. The following are the documents exhibited in the matter.
List of documents on behalf of the plaintiff:
Sl. Documents Exhibit Pg. No
No No.
1. Site Plan of the property bearing No. D-4/1, Krishna PW- 1/1 Pg.2
Nagar, Delhi- 110051. Vol.III A
2. Site Plan of the property bearing No. D-4/2, Krishna PW- 1/2 Pg.3
Nagar, Delhi- 110051. Vol.III A
3. Site Plan of the property bearing No. C-2/3, Krishna PW- 1/3 Pg.4
Nagar, Delhi- 110051. Vol.III A
4. Copy of the Sale Deed dated 4th December 1986 executed Mark Pg. 5 to
between by Shri Vinod Kumar in favour of Shri Prakash A/PW- 22
Singh Talwar concerning the property bearing No. D-4/2, 2/1 Vol III A
Krishna Nagar.
5. Copy of the Sale Deed dated 13th May 1996 executed Mark Pg. 23 to
between by Shri Vinod Kumar in favour of Shri Prakash B/PW- 49
Singh Talwar concerning the property bearing No. D-4/1, 2/2 Vol III A
Krishna Nagar.
6. Copy of the Panchayat Letter dated 11th April 2012, to Mark C Pg. 53 to
Panchayat (Jadiya Biradri), signed by the plaintiff, 57
defendant 2,3 and Panchayat Pardhan. Vol III A
7. Translated typed copy of the letter in sl. No 6 Mark C Pg. 58 to
62
Vol III A
8. Copy of the Panchayat Letter dated 2nd December 2012, to Mark C Pg. 63 to
Panchayat (Jadiya Biradri), by the plaintiff along with the 65
typed translated copy. Vol III A
CS (OS) 1941/2014 Page 7 of 25
9. Copy of the school fee receipt of Tansihq Talwar dated Pg. 66
18th October 2014. Vol III A
10. Copy of the school fee receipt of Krish Talwar dated 18th Pg. 67
October 2014. Vol III A
11. Photographs of the suit property, D-4/1, Krishna Nagar, Mark D Pg. 68
Delhi- 110051. and E Vol III A
12. Photographs of the suit property, D-4/2, Krishna Nagar, Mark F Pg. 69
Delhi- 110051. Vol III A
13. Copy of the judgement of District and Sessions Judge, DW- Pg. 70 to
Karkardooma Courts in Civil Suit No: 39/07 between Sh. 2/P1 99 Vol
Rajinder Singh Talwar and Prem Prakash, decided on 8th III A
October 2007.
14. Site map of property bearing no D-4/1, Krishna Nagar, P/5 Volume
showing the share of the plaintiff after partition. I A.
15. Consent terms on behalf of the plaintiff. P/5 Volume
I A.
16. Judgment copy of Krishna Gupta and Anr. v. Rajinder P/6 Volume
Nath & Co. HUF and Ors, CS(OS) No 663 of 2011- I A.
decided on 11th February 2013.
18. Valuation report of the property bearing no C-2/3, Second P/9 Pages 2-
Floor, Krishna Nagar, Delhi- 110051. 3 of
physical
file
Volume
I A.
20. Calculation of shares of the parties in property bearing D- P/9 Page 9
4/1, Krishna Nagar measuring 116.66 Sq. Yds. of
Volume
I A.
21. Calculation of shares of the parties in property bearing D- P/9 Page 5
4/2, Krishna Nagar measuring 233.33 Sq. Yds. of
Volume
I A.
List of documents on behalf of the defendants:
Sl. Documents Exhibit Pg. No
No No.
1. Copy of the Sale Deed dated. 6th June 2002. Pg. 1 to
- 16 of
Vol III B
2. Copy of the Sale Deed dated. 21st May, 2004. PW-1/ Pg. 17 to
D2 24 of
Vol III
CS (OS) 1941/2014 Page 8 of 25
B.
st
3. Copy of the Sale Deed dated. 21 May 2004. Pg. 25 to
- 39 of
Vol III
B.
4. Copy of the Sale Deed dated. 22nd November 2005. PW- Pg. 41 to
1/D1 52 of
Vol III
B.
6. Copy of the newspaper publication dated 8th February Pg. 56 to
2012. - 58 of
Vol III
B.
7. Copy of the valuation report dated 24th October 2014 for DW 8/1 Pg. 59 to
property bearing no D-4/2, Krishna Nagar. 62 of
Vol III
B.
8. Copy of the valuation report dated 24th October 2014 for DW 8/2 Pg. 63 to
property bearing no D-4/1, Krishna Nagar. 66 of
Vol III
B.
9. Original Disclaimer Deed dated 2nd March 2011. DW 6/1 Pg. 68 to
69 of
Vol III
B.
10. Copy of the Sale Deed dated. 21st May, 2004. PW- Pg. 87 to
1/D3 111 of
Vol III
B.
14. Arguments in the matter were heard after conclusion of evidence. On 26th September, 2018 parties were directed to bring calculations in respect of their shares in the properties along with the market price. On 5 th October, 2018, there appeared to be broad agreement between the parties, However, on 12th October, 2018, a statement was made that there was no possibility of settlement. Accordingly, after hearing arguments, this Court had reserved judgment on 12th October, 2018.
Analysis of documents and evidence
15. The main issue in the present case is as to whether there was an oral CS (OS) 1941/2014 Page 9 of 25 settlement between the parties. In order to establish the oral settlement, the Defendants have placed on record the disclaimer deed dated 2nd March, 2011 executed by Plaintiff. The text of the disclaimer deed reads as under:
"DISCLAIMER DEED This Deed of Disclaimer Deed is made at Delhi on this March, 2011 By Sh. Sohan Singh Talwar S/o Late Sh. Parkash Singh Talwar R/o C-2/3, Krishna Nagar, Delhi-51, hereinafter called the Executant. Whereas Smt. Agya Kaur Talwar W/o late. Sh. Parkash Singh Talwar R/o D-4/2, Krishna Nagar, Delhi-51, is the mother of Executant.
And whereas the Executant with his free will and consent without any pressure or compulsion from other and in his sound disposing mind hereby agrees and undertakes that I have taken my full and final share from my mother, in respect of all kinds of movable and immovable properties of my mother, which are at present, or which would be acquired by her hereafter, in full and final settlement and after today the executants, his wife & children shall have no right or concern or interest or possession whatsoever with the all kinds of movable and immovable property of his mother, in future in any case.
And After today the Executant, his wife & his children shall not do any claim or demand anything more, from his mother, in future in any case, in respect of all kinds of movable and Immovable properties of his mother, in her life time or after her death from her other legal heirs.
And whereas the Executant hereby also declare that I have closed all my further relation with my mother, absolutely and for ever. I shall liable and responsible for all my activities, dealing etc. whatsoever, to which my mother and her legal heirs shall not be responsible & liable.
And if the executants, his wife & children shall arise any objection, demand anything else from the his CS (OS) 1941/2014 Page 10 of 25 mother, then the same objection/demand shall be considered as NULL & VOID before the Biradary Punchayat and any Court of Law.
In Witness whereof the Executant has signed this Disclaimer deed on the date month and year first above written. "
16. The above document is signed by the Plaintiff - Mr. Sohan Singh Talwar and in the presence of Shri Narender Singh Talwar and Mr. Pritam Singh Talwar and one Shri Vinay Kumar. The document is exhibited as Ex.DW-6/1. By this disclaimer deed, the submission of the Defendants is that, the Plaintiff confirmed that he had received his full and final share from his mother in respect of all the movable and immovable properties, which included the assets of his father. While the Defendants submit that the disclaimer deed, in effect, means that the Plaintiff no longer has any share in the properties of the family/his father, on the other hand, it is submitted by learned counsel for the Plaintiff that the disclaimer deed is only in respect of movable and immovable property of the mother and not of the father. Thus, in order to decide this issue, a mere perusal of the disclaimer deed does not establish either case conclusively. Admittedly, the father- Shri Parkash Singh Talwar passed away on 29th January, 2001.
17. In his cross-examination, Plaintiff admits that the C-2/3, Krishna Nagar property, where he resides, was purchased by his mother in her name in the year 2005. He confirmed that the property stands in his mother‟s name. Plaintiff confirms that the commercial property was purchased jointly in the name of father, Defendant No.1 and Plaintiff‟s name. He further confirms that the residential premises was bought jointly in the name of his father and Defendant No.2. The father had 2/3rd share in the property and CS (OS) 1941/2014 Page 11 of 25 Defendant No.2 had 1/3rd share. He confirmed in question number 40 as under:
"Q.40. I put it to you that each of your father's heirs would be entitle to 1/6th share of the property owned by Sh. Prakash Singh Talwar.
A. It would be as per the papers."
18. Plaintiff also stated that his father did not leave any Will. He further stated that both his mothers together are entitled to one share in his father‟s property and all the sons are entitled to 1/4th share each. He claimed that his sister i.e. Trilochan Kaur is not entitled to any share. He further confirmed that he did not have any share in the Gandhi Nagar property. Plaintiff also identified and confirmed his signatures on the sale deed dated 21st May, 2004 qua the Hargobind Enclave property, which was then exhibited as Ex.PW-1/D2. He further claimed that he did not receive any money from sale of the said property. He identified his signatures on the document. Plaintiff also admitted another sale deed dated 21st May, 2004 qua the Hargobind Enclave property. The said document was exhibited as Ex.PW- 1/D3. As per these two documents, the Defendants claim that a sum of more than Rs.3 Lakhs was received by Plaintiff. Plaintiff refused to disclose the details of the bank accounts held by him. He admitted the receipt of amount of Rs.4,000/- per month from his mother and brothers since the year 2005. Thereafter, the sum was increased to Rs.9,000/- per month in 2012. He confirmed that M/s. Talwar Jewellers was not in operation though his brother would execute orders which they received. The Plaintiff further confirms that three out of four shops are tenanted and the tenants were there prior to his father purchasing the property. Insofar as M/s. Talwar CS (OS) 1941/2014 Page 12 of 25 Collections is concerned, he admitted that his father never worked under the name and style M/s. Talwar Collections. The Plaintiff further confirmed that he has filed a case against one of the tenants, Mr. Madan Mohan Khurana in the Karkardooma courts seeking eviction of the said tenant. He claimed that his brothers were collecting rent from tenants on his behalf. He also confirmed that he never received any share of profit even when his father was alive. He denied the suggestion that he was an employee of his brothers. Plaintiff was also confronted with a number of newspaper clippings to the effect that Plaintiff‟s wife- Pooja Talwar was arrested while illegally importing memory cards. Plaintiff confirmed that he was residing with his family i.e. with his brother and his mother till November, 2005 in the residential premises. He also confirmed in his cross-examination as under:
"Q.124. Is it true that Mrs. Harbans Kaur was collecting rent from the tenants of the property bearing No. D-4/1, Krishna Nagar?
A. No. The rent was collected by my father in his lifetime and after his demised, it was being deposited in the Court.
.................................... Q.129. In response to Q. No. 124, you have stated that the rent accruing from the property bearing No. D-4/1, Krishna Nagar was being deposited in the Court. Therefore, I put it to you, that your share of the rent can be given to you by the Court and not by the defendants.
A. Yes."
19. He further confirmed that in the residential premises he claimed his share only from the share of his father who had 2/3rd of the said property and not from his brother who had 1/3rd share. Insofar as the commercial CS (OS) 1941/2014 Page 13 of 25 property is concerned, the Plaintiff deposed that he is entitled to 38.86 sq. yards, which is 1/3rd share and that he is also entitled to a share from his father‟s share in the said property . He denies the suggestion that he is only entitled to 1/6th share in the residential property.
20. PW-2 confirmed the two sale deeds dated 4th December, 1986 in respect of residential premises and sale deed dated 13th May, 1996 in respect of the commercial property. The said documents are exhibited as Mark „A‟/Ex.PW-2/1 and Mark „B‟/Ex.PW-2/2.
21. PW-3, one of the nephews of Shri Parkash Singh Talwar i.e. cousin brother of Plaintiff, confirmed that he had signed the disclaimer deed Ex.DW-6/1. He further confirmed that he was present when the said deed was executed. He confirmed that all the sons of Mr. Parkash Singh Talwar worked with him in the Kundan Jewellery business. He further stated that the wife of the Plaintiff is the granddaughter of his aunt (Bua‟s granddaughter). He stated that he was instrumental in intervening and getting monthly amount being paid to Plaintiff increased. He denied that the Plaintiff was an alcoholic. He further confirmed that he is the president of a community called Jaria Beradiri and the members of the said beradiri follow the advice given. In response to the question number 38, he answered as under:
"Q38. Was the settlement between the family, inter se oral or recorded in writing?
A. It was recorded in writing. (Vol. It is there in the register and in the court file)."
22. In response to question 14, DW-6 confirmed that no family settlement qua transfer of property had taken place. Question is relevant and is CS (OS) 1941/2014 Page 14 of 25 extracted herein below:
"Q.14. I put it to you that no family settlement qua property transfer had ever taken place, between the parties.
A. Yes, it had never taken place."
23. Smt. Trilochan Kaur - DW-5, daughter of Shri Parkash Singh Talwar, simply confirmed that the affidavit was prepared and got signed by her brother Shri Rajinder Singh Talwar. She said that her brother told the lawyer the manner in which the contents had to be incorporated. Thus, her affidavit lacks credibility.
24. DW-2 - Shri Rajinder Singh Talwar confirmed that apart from Ex.DW-6/1 there was no other relinquishment deed executed by the Plaintiff. He confirmed that no property was transferred in the name of the Plaintiff and no receipt was taken for the money or jewellery that was given to the Plaintiff. However, he confirmed that jewellery and money was given in front of the family members of his mother. On a specific question about the oral family settlement, he stated that the written statement does not give any particulars about the date of the oral settlement or persons who were present at the time when the settlement took place. He further confirmed that the said settlement was never reduced to writing and that the disclaimer deed also does not mention any oral family settlement. He claimed that the oral family settlement was meant for separating the share of the Plaintiff and did not relate to inter se distribution among other family members. He was confronted with the decree sheet drawn in civil suit no.39/2007 instituted by him against the tenant where there was no mention of the oral family settlement. He claimed that his family used to take care of the Plaintiff.
CS (OS) 1941/2014 Page 15 of 25Questions 41 & 42 are relevant and set out herein below:
"Q.41. Why was the aforestated oral family settlement that took place allegedly in 2002, never reduced in writing, despite opportunities presenting themselves before you?
Ans. Since we bought a separate house for him in 2005 and also gave him gold and jewellery in 2002 itself, we never felt the need to reduce the terms of the aforestated oral family settlement in writing. In any case, Sohan Singh Talwar executed a Disclaimer Deed Ex.DW6/1 in favour of my mother, Agya Kaur. Q.42. The separate house that you say you bought in 2005, kindly give the address and the name pf the purchaser.
Ans. C-2/3, 2nd Floor, Krishna Nagar, Delhi-110051. The purchase of the said flat took place in my mother Smt. Agya Kaur's name. (Vol. it was decided that when Sohan Singh stopped drinking and his children would be of age, the flat would be transferred in the name of Sohan Singh."
25. He claimed that shop in the commercial property by the name M/s. Talwar Collection was started in 2003 and is his sole proprietorship. He confirmed that the place where the Plaintiff is currently residing, has not been transferred in the Plaintiff‟s name. He further submitted that the keys of the property bearing No.C-2/3, Krishna Nagar where the Plaintiff resides, were given to the Plaintiff, by their mother Smt. Agya Kaur and the reason why nothing was asked for in writing from the Plaintiff was because these oral settlements were agreements between the family and there was no intention to have anything in writing. Question Nos.61 to 64 are set out below:
"Q.61 Who gave him the keys of C-2/3, Krishna Nagar, Delhl-51 ?CS (OS) 1941/2014 Page 16 of 25
A. My mother Smt. Agya Kayr delivered the keys to him.
Q.62 Were the keys delivered in the presence of all the family members?
A. Yes.
Q.63 Did you ask for anything in writing, while giving him the keys of C-2/3, Krishna Nagar, Deihi-51? A. No. Q.64 I put it to you that you could have asked for anything in writing while delivering the keys to Sohan Singh Talwar?
A. It did not occur to us to have anything in writing at the time. (Vol. Since there were oral agreements and understandings, we did not think of having anything in writing)"
26. He further stated that the Plaintiff‟s wife had taken away jewellery and cash from his mother‟s cupboard prior to 2005 as she had the duplicate keys of the cupboard. Same has not been reduced to writing because Plaintiff‟s wife had apologized to the family.
27. DW-8 - Valuer Shri Surjit Singh exhibited the valuation report being Ex.DW-8/1 & Ex.DW-8/2. He submitted that same were made at the behest of Defendant No.2 - Shri Rajinder Singh Talwar.
28. As per the valuation reports filed by the valuer, two properties being D-4/1 and 4/2 i.e. commercial property and residential premises have been valued as under:
"
S. No. Property No. Valuation
1 D-4/2, Block-D, Plot 2, (Entire Rs.3.55 Crores
House),Khewat/Khata No.1/42,
Khasra No.356, Krishna
Nagar, Delhi-110051
2 D-4/1, Block D, Plot No.l, Rs.2.40 Crores
CS (OS) 1941/2014 Page 17 of 25
(Entire House), Krishna Nagar,
Delhi-110051
"
29. A perusal of the evidence on record shows that apart from the disclaimer deed, there is no other evidence to prove the existence of an oral family settlement. There is no doubt that the mother did provide for a separate residence for the Plaintiff. However, the most important fact is that the Plaintiff has not been confronted with any facts about the oral family settlement. DW-6 - Shri Pritam Singh Talwar confirmed his signatures on the disclaimer deed. He further stated that there was no family settlement. DW-2, states that the Plaintiff was given residential premises where he currently resides pursuant to the oral family settlement. Considering the disclaimer deed, the depositions of DW-6 and DW-2 and the lack of any cross-examination by the Defendants of the Plaintiff on this issue, the elements required for establishing that there was an oral family settlement between the parties in respect of the movable and immovable assets of Shri Parkash Singh Talwar are completely absent. In fact, the disclaimer deed specifically mentions only the mother i.e. Smt. Agya Kaur. Considering that Smt. Agya Kaur had various properties in her name, she may have given a residence to her son. However, that does not mean that there was a family settlement. The answers given by the Plaintiff and the categorical statement by DW-6 in their respective cross-examination show that there was no oral family settlement. Even the sister Smt. Trilochan Kaur seems to be a reluctant witness who did not confirm that there was any family settlement. Thus, it is held that there was no family settlement between the parties. Issue no. 2 and the subsequent issue in respect of the Disclaimer deed as CS (OS) 1941/2014 Page 18 of 25 framed on 16th February 2017 and related issues are, accordingly, decided in favour of the Plaintiff.
30. Coming to the shares of the Plaintiff in the properties in question and relief of rendition of accounts etc. it is clear from the cross-examination of DW-2 that the jewellery business was conducted by the father of Plaintiff and thereafter brothers did their own businesses. Garment business by the name M/s. Talwar Collections was started in 2003 after the death of the father. Insofar the rental amounts are concerned, there appears to be a clear contradiction in the depositions of the witnesses, which is as under:
a) It is deposited in the Court by the tenants;
b) Rent by one tenant is being paid to the mother; and
c) Some part of the rental amount is collected by the Defendant Nos.1 & 2.
31. Plaintiff has not been able to establish clearly that any rental amounts have been collected by the Defendants for which the accounts deserve to be rendered. It is the admitted position that three out of four shops are on tenancy and only one shop is being run by Defendant No.2 under the name M/s. Talwar Collections. The Defendant No.1, who is one of the co-owner of the property, is involved in the business of Defendant No.2 from the said shop. Thus, the relief of rendition of accounts in respect of the tenanted premises and businesses run therefrom are not liable to be granted inasmuch as no evidence has come on record as to any rent receipts or turnover of the business etc. Plaintiff having not been able to discharge his onus on this issue, is not entitled to any relief of rendition of accounts.
32. Insofar as the property no.3 i.e. C-2/3, Krishna Nagar New Delhi is concerned, it is admitted position that same is owned by Smt. Agya Kaur.
CS (OS) 1941/2014 Page 19 of 25Plaintiff does not dispute this fact. The keys of this property were given to him by Smt. Agya Kaur. Accordingly, Plaintiff is neither seeking partition of this property nor can he can seek any possession of the property because he is already residing therein. He would be liable to hand over this property back to his mother.
33. Insofar as the residential property bearing No.D-4/2, Krishna Nagar is concerned, this is the residential premises admeasuring 233 Sq. Yards. Late Shri Parkash Singh Talwar had 2/3rd share in the said property and the Defendant No.2 has 1/3rd share. The two brothers along with their families and mothers are living in the said property, which is their only residence. As per section 10 of the Hindu Succession Act, 1956 if the deceased leaves behind more than one widow, then all the widows together are entitled to one share. Further, in the present case, death of Shri Parkash Singh Talwar took place in 2001 i.e. prior to the enactment of Hindu Succession Act (Amendment) Act, 2005. However, properties in question are self-acquired of Shri Parkash Singh Talwar. Thus, while both widows together are entitled to one share, the daughter would be entitled to a share in the property. Thus, share of the Plaintiff in the property of his father would be 1/5th. The residential house being the only residence of a large family consisting of the Defendants their wives and children along with the two mothers, partition of this property by metes and bounds is not feasible. The Plaintiff, therefore, at best is entitled to 1/5th share in monetary terms. This house also being the place of residence, auction or sale of the property, in the opinion of this court, is also not feasible. Valuation of this property as per Ex.DW-8/1 is Rs.3.55 crores. The Plaintiff has not proferred or put up any valuation of this property. Valuer has been examined and the valuation CS (OS) 1941/2014 Page 20 of 25 report has been duly exhibited. Cross-examination of the said valuer does not impinge on the credibility of the valuer in any way. Thus, value of the property bearing no.D-4/2, Krishna Nagar is taken as Rs.3.55 crores. Plaintiff being entitled to 1/5th share in the property would be liable to be given a sum of Rs.71 lakhs by the Defendants. Upon the said payment being received, the Plaintiff would be liable to return the keys of the property bearing no.C-2/3, Second Floor, Krishna Nagar to his mother where he is currently residing. Alternatively, if the Plaintiff wishes to retain the said residence, valuation of the same may be done jointly by the parties and adjustment from the amount of Rs.71 Lakhs would suitably be made and the remaining payment is directed to be made to the Plaintiff. Upon receiving the said payment of Rs.71 Lakhs, the Plaintiff shall have no right or interest in the property bearing no.D-4/2, Block-D, Plot 2, Krishna Nagar, Delhi-110051.
34. Insofar the commercial property is concerned, the same consists of four shops, out of which three shops are tenanted. As per the site plan filed by Plaintiff, the total area of four shops jointly is about 116 Sq. Yards. Plaintiff himself is 1/3rd owner of the said property, he is also entitled to 1/5th share from the 1/3rd share of his father. Plaintiff is thus entitled to 2/5th share of the property which is approximately 46.6 Sq. Yards. Since there are four shops and they all are demarcated, there is no difficulty in demarcating 46.6 Sq. Yards from the said property. This property is liable to be divided by metes and bounds and considering that same is a commercial property, Plaintiff would be entitled to his physical share in the said property. Since the property is tenanted, Plaintiff is entitled to seek impleadment or file eviction proceedings in respect of the tenants and upon CS (OS) 1941/2014 Page 21 of 25 the same being vacated, the Plaintiff is entitled to take possession of 46.6 Sq. Yards of this property. Mr. Shishu Chauhan (M: 9711159781) is appointed as Engineer to demarcate 46.6 Sq. Yards of the said property by making physical marking in the property from the right extreme corner on the south of the property moving towards the northern side as shown in Ex.PW-1/1. Upon the eviction of the tenants, a wall would be erected on the basis of the physical marking made by the Court Commissioner and the possession of the same shall be handed over to the Plaintiff. Since the Defendants are already in possession of business of M/s. Talwar Collections, which is being run from the shops located on the northern end, partition by metes and bounds is not being granted from the northern end, but from the southern end moving towards the northern end.
35. Issues are accordingly decided as under:
Issue No.1- Whether the suit is under valued and the plaint has been insufficiently stamped?
Insofar as issue no.1 i.e. the court fee is concerned, valuation of the residential property bearing No.D-4/2, Krishna Nagar, being Rs.71 Lakhs and the Plaintiff not being in possession of the same, Plaintiff is liable to pay the court fee in respect of this property. Insofar as the commercial property bearing No.D-4/1 is concerned, since the property is under tenancy, the Plaintiff is held to be in constructive possession of the said property and no court fee would be liable to be paid.
Issue No. 2- Whether any oral family settlement had been arrived at between the parties to the suit in the year 2002 and if so, the effect thereof?
Additional issue-Whether disclaimer dated March 2011 was executed CS (OS) 1941/2014 Page 22 of 25 by the plaintiff in favour of the third defendant? If so, its effect? Issue No.8 - Whether any oral settlement had been arrived at between the parties to the suit in the year 2002 and if so, the effect thereof? It is held that there was no oral family settlement arrived at between the parties in respect of the assets of Late Shri Parkash Singh Talwar. Further the disclaimer deed only mentions the relinquishment of the properties that were solely in the name of Smt. Agya Kaur. Thus, it is held that the disclaimer deed does not in any way bar the Plaintiff from asking for his respective share from the properties owned by his father. Issue No.3 - Whether the plaintiff is entitled for the decree for permanent injunction as prayed in prayer clause (i) and (ii)? Plaintiff in prayer clause (i) seeks a decree for permanent injunction restraining the Defendants from parting with or creating third party interests or raising any construction with respect to his share in the suit properties. In view of the fact that a monetary equivalent of the value of his 1/5th share in the residential premises is being granted, no permanent injunction is liable to be granted. In respect of the commercial property, the 2/5th share equalling 46.6 Sq. Yards is to be demarcated. Until the demarcation, takes place, there shall be an injunction restraining all parties from creating any third party rights. Prayer clause (ii) is in respect of property bearing no. C-2/3, 2nd Floor, Krishna Nagar, Delhi-110051, qua which the Plaintiff has given up his claims.
Issue No.4 - Whether the plaintiff is entitled for the decree/order of rendition of account, as prayed for in prayer clause (iii)? It is held that the prayer of rendition of accounts as prayed for by the Plaintiff is rejected for want of conclusive evidence as held above.
CS (OS) 1941/2014 Page 23 of 25Issue No.5 - Whether the plaintiff is entitled to a decree of partition by metes and bounds in respect of the three suit properties? It is held that in respect of the residential property i.e. D-4/2 Krishna Nagar, partition by metes and bounds is not feasible. It is deemed proper, to grant the monetary equivalent of 1/5th share of the Plaintiff. In respect of the commercial property i.e. D-4/1 Krishna Nagar, partition by metes and bounds is possible. Accordingly, it is held that the Plaintiff is entitled to his 2/5th share of 46.6. sq.yards. The same would be demarcated from the extreme southern end moving towards the northern end. Issue No.6 - Whether the plaintiff is entitled to a decree of declaration declaring him as the owner of 1/4th undivided share in the properties at No. l and 2 mentioned in the Schedule attached to the plaint, owned by late Shri Prakash Singh Talwar ?
The Plaintiff is held entitled to declaration to the effect that he is the owner of 1/5th share in the residential property and 2/5th share i.e., 46.6 sq. Yards in the commercial property. But in respect of the residential property, the Plaintiff would only be entitled to the monetary value of his share. Issue No.7 - Whether the plaintiff is entitled to a decree of declaration declaring him as the owner of 1/3rd undivided share in the property at No.3 mentioned in the Schedule attached to the plaint? The Plaintiff has given up his claim to this property.
36. The suit is decreed in the above terms. The Commissioner Mr. Shishu Chauhan, Civil Engineer is directed to execute and carry out demarcation in the commercial property within a period of six weeks after ascertaining convenience from counsels for both the parties. Compliance report be CS (OS) 1941/2014 Page 24 of 25 filed by the Local Commissioner. Fee of the Local Commissioner is fixed at Rs.25,000/- to be shared by the Plaintiff and the Defendants equally. Decree sheet be drawn. All pending I.As., if any are disposed of.
PRATHIBA M. SINGH, J.
JUDGE NOVEMBER 27, 2018/dk CS (OS) 1941/2014 Page 25 of 25