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Ramesh Khosla vs . Kanchan Khosla & Ors. Judgement Dt. ... on 19 September, 2015

Ramesh Khosla Vs. Kanchan Khosla & Ors.              Judgement dt. 19.9.2015

 IN THE COURT OF ADDITIONAL DISTRICT JUDGE­13, CENTRAL,
                TIS HAZARI COURTS, DELHI
                                  ID No. 02401C0524752009
RCA No. 41/2009

        Shri Ramesh Khosla
        S/o Sh. Jagdish Chander Khosla,
        R/o 15­A, Ground Floor, Lajpat Nagar,
        New Delhi
                                                .....Appellant(Plaintiff)
Versus
   1. Smt. Kanchan Khosla
      W/o Sh. Rakesh Khosla
   2. Shri Rakesh Khosla (since expired)
      S/o Late Jagdish Chander Khosla
   3. Surender Khosla
   4. Sunil Khosla
      Both sons of Sh. Rakesh Khosla & Smt. Kanchan Khosla
      All R/o 15­A, Lajpat Nagar­III,
      Second Floor, New Delhi.          .....Respondents(Defendants)

Date of Institution : 16.11.2009
Date of arguments : 19.08.2015
Date of judgment : 19.09.2015

JUDGEMENT

1. This is an appeal directed against the judgment and decree dated 09.10.2009 passed by Sh. Rakesh Kumar­1, Ld. Civil Judge, North District, Tis Hazari Courts, Delhi in Civil Suit no.

Ramesh Khosla Vs. Kanchan Khosla & Ors. Judgement dt. 19.9.2015 125/05 whereby the suit of appellant was dismissed.

2. The appellant/plaintiff filed the suit alleging that Sh.

Jagdish Chander Khosla, the owner of the House No. 15­A, Lajpat Nagar No.­III, New Delhi had expired on 12.12.1994. Appellant/plaintiff is the son of Late Sh. Jagdish Chander Khosla and is residing on the ground floor of the suit property. It is alleged in the plaint that Sh. Rakesh Khosla, defendant no. 2, is the brother of the plaintiff. Respondent no.1/Defendant no. 1 is wife of defendant no. 2, respondents no. 3 & 4/defendants no. 3 & 4 are the son's of defendant no. 2.

3. It is alleged in the plaint that all these defendants were residing on the second floor of the said property.

4. It is alleged in the plaint that Late Sh. Jagdish Chander Khosla had executed a Will dated 16.02.1990 duly registered with Sub­Registrar. It is alleged in para 7 of the plaint that defendant no. 2 indulged in drinking and other bad habits and ignored the welfare of his own family. Therefore, instead of giving any share in the Will to defendant no. 2, Sh. Jagdish Chander Khosla bequeathed a share in favour of defendants no. 3 & 4 through their mother/guardian i.e. defendant no. 1 because at that time defendants no. 3 & 4 were minors. Thus by RCA No.41/2009 Page 2 of 9 Ramesh Khosla Vs. Kanchan Khosla & Ors. Judgement dt. 19.9.2015 the aforesaid Will, half share of the movable and immovable property was desired to be given to plaintiff and half share of the same to defendants no. 3 & 4.

5. In para 12 of the plaint, the main features of the said Will have been described as under:­ "(I) The name of the beneficiaries with their shares in the estate (moveable and immoveable properties) in half and half ratio are given:

(i) Shri Ramesh Khosla eldest son: Half Share

(ii)(i) Master Surender Khosla: Sons of younger

(ii) Master Sunil Khosla: brother Sh. Rakesh Khosla half share.

Through their guardian Smt. Kanchan Khosla.

(II) Before division of the above properties, the beneficiaries shall realize the rent, interest on F.D.R'S. And other income and out of these expenses shall pay expenses towards Late father's Funeral and Last rites, (b) administration of Estate, and (c) towards the debts, if any, due from late father.

(III) After disbursement of the above amount all incomes from the house property, bank and companies etc. shall be divided in two equal shares between the above beneficiaries. Share of money collected every month by the guardian of the minor sons will be spent on their education and upbringing etc. and on attaining of their majority, half share of the immoveable property (house) shall stand transferred to them in their equal shares apart from the half share of the property (house) of eldest son the plaintiff.

(IV) The jewelleries, cash, lockers, Bank Accounts, fixed deposit, of the Bank and companies and share of the Companies etc. etc. whatever remains after the death of Late father shall go to the plaintiff and the above two minor sons, the defendants no. 3 & 4 through their guardian the defendant no. 1 in half­half shares and minor's share shall be divisible in half­half ratio to each minor."

Ramesh Khosla Vs. Kanchan Khosla & Ors. Judgement dt. 19.9.2015

6. It is alleged in the plaint that after death of Sh. Jagdish Chander Khosla, defendant no. 2 created havoc and made the living of plaintiff and his family member terribly miserable. Therefore, under compulsion, the plaintiff consented to divide the movable properties by 50­50 share. Sh. R. S. Mehta, maternal uncle of plaintiff and defendant no. 2 intervened and on 27.01.1995 he got an agreement executed between the parties by putting the plaintiff and his wife under severe pressure and threat of implicating them in false cases. Therefore, plaintiff and his wife rescinded this agreement by sending a letter dated 25.02.1995 by registered post. It is submitted that first floor of the suit property was under tenancy of one Sh. Laxman Mokand and defendant no.1 & 2 are illegally receiving rent from him. Plaintiff prays that this agreement dated 27.01.1995 may be declared null and void on account of having been executed on the basis of mis­representation, undue influence, coercion and fraud as well as to defeat the object and spirit of the Will dated 16.02.1990.

7. It is further prayed that plaintiff and other beneficiaries may be declared to be entitled to their respective shares in the suit property.

Ramesh Khosla Vs. Kanchan Khosla & Ors. Judgement dt. 19.9.2015

8. The defendants no. 1, 3 and 4 filed a Written Statement stating that suit is barred under Order 2 Rule 2 CPC. It is further stated that the agreement dated 27.01.1995 has been implemented with regards to the movable and immovable properties and the rent of the tenancy premises. It is also stated that tenant has vacated the first floor. Defendants denied that the agreement dated 27.1.1995 was executed by the plaintiff under coercion, undue influence etc.

9. As per the Trial Court records defendant no. 2 had expired on 31.10.1999 (see application dated 15.11.1999), therefore, he did not file the Written Statement.

10. On the basis of these pleadings, the trial court framed following issues as under:­ ISSUE NO. 1­ Whether plaintiff is entitled for decree of declaration as per prayer clause A & B? OPP ISSUE NO. 2:­ Whether the suit is barred by the provision of Order 2 Rule 2 CPC? OPD ISSUE NO. 3:­ Whether the plaintiff has concealed material facts, if so, to what effect? OPD ISSUE NO. 4:­ Relief RCA No.41/2009 Page 5 of 9 Ramesh Khosla Vs. Kanchan Khosla & Ors. Judgement dt. 19.9.2015

11. Plaintiff examined himself as PW­1 and his wife Smt. Kamlesh Khosla as PW­2. Defendants examined Smt. Kanchan Khosla as DW­1. Issues no. 2 & 3 were decided by the Trial Court holding that nothing was brought on record by the defendants to prove the said issues. Therefore, issues no. 2 & 3 have been decided in favour of plaintiff and against the defendants. On perusal of the record, I fully agree with these findings. Therefore, the only contentious issue is issue no. 1. Trial Court dealt in detail the evidence led by the parties and held that the agreement dated 27.01.1995 does not suffer from any taint like fraud, collusion or undue influence.

12. I fully agree with this findings of the Trial Court. In fact plaintiff has not pleaded any fraud or undue influence in his suit. The only question is as to whether the plaintiff had signed the agreement under 'coercion' as define in Section 15 of Contract Act 1872. Ld. Counsel for appellant/plaintiff has pointed out to the letter Ex. PW1/9 dated 13.03.1995 sent by the plaintiff to Sh. R. S. Mehta, maternal uncle in which he has specifically stated that plaintiff was coerced to enter into the agreement and therefore, the said agreement was rescinded. My attention has been brought to an earlier letter dated RCA No.41/2009 Page 6 of 9 Ramesh Khosla Vs. Kanchan Khosla & Ors. Judgement dt. 19.9.2015 25.02.1995 Ex. PW1/3 written by Smt. Kamlesh Khosla stating that this agreement was got executed under pressure and it is not acceptable. The Trial Court was of the opinion that sufficient evidence has not been brought on record by the plaintiff to prove that agreement was got executed under pressure. I may point out that the impugned agreement has been admittedly written in the writing of Smt. Kamlesh Khosla, the wife of the plaintiff (see evidence of PW1 & PW2 on affidavits). If plaintiff and his wife signed the impugned agreement on 27.01.1995 under severe threats and coercion by maternal uncle of plaintiff and defendant no.2, there should be some plausible explanation as to why it took about one month in writing the letters dated 25.02.1995 and 13.03.1995, rescinding the agreement. In absence of any convincing explanation by plaintiff, I find myself in agreement with the Trial Court that it can not be said that the agreement was written and signed under coercion by the plaintiff and his wife. Hence, the impugned agreement is valid so far as the movable properties are concerned. However, so far as the impugned agreement refers to the partition of the immovable property i.e. the suit house, the same has no legal effect, it being an RCA No.41/2009 Page 7 of 9 Ramesh Khosla Vs. Kanchan Khosla & Ors. Judgement dt. 19.9.2015 unregistered document. The impugned written agreement partitions the suit property by allotting exclusive portion of a suit property to one party and other portion to another party. This document evidences partition by metes and bounds and therefore, is hit by Section 17 (1) (b) of Registration Act 1908. It appears that this aspect was neither raised by the plaintiff before the trial court nor the trial court suo­moto took notice of it. Such documents are required to be compulsorily registered and unless the same are registered, it will have no legal effect. I may refer to Nani Bai Vs. Geeta Bai AIR 1958 Supreme Court

706. Hence, although the impugned agreement can not be held to be null and void but the portion of agreement by which it partitions the suit property by metes and bounds has no legal effect being hit by Section 17 of Registration Act 1908.

13. Accordingly, I set aside the Trial Court judgment and pass a decree of declaration to the effect that the written agreement dated 27.01.1995 does not have the effect of partitioning the suit property by metes and bound, till it is duly registered with the office of Sub­Registrar under Registration Act 1908. Applicant/plaintiff has also sought a second relief to the effect of declaration of respective shares of he parties in the suit property RCA No.41/2009 Page 8 of 9 Ramesh Khosla Vs. Kanchan Khosla & Ors. Judgement dt. 19.9.2015 as per registered Will. Respondent/defendant no.3 & 4 have admittedly become majors during the course of the trial. The registered Will dated 16.02.1990 is not in dispute. Therefore, appellant/plaintiff and respondent/defendant no.3 & 4 are declared to be the co­owners of the suit property to the extent of their share described in the Will i.e. 50% of the suit property in favour of plaintiff and 25% in favour of respondent/defendant no.3 and 25% in favour of respondent/defendant no.4. Issue no.1 is decided accordingly.

14. Appeal is thus allowed. The suit is decreed. Decree sheet be drawn. Copy of judgment and decree alongwith trial court record be returned to the Trial Court for its consignment to record room. Appeal file be consigned to Record Room. Announced in the open court on 19.9.2015.

(Vinod Kumar) Additional District Judge­13, (Central), Tis Hazari Courts, Delhi RCA No.41/2009 Page 9 of 9