Delhi High Court
Smt. Chanchal Chopra & Ors vs Shri Sunil Chopra & Ors on 23 February, 2015
Author: Jayant Nath
Bench: Jayant Nath
$~A-6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:23.02.2015
+ CS(OS) 1241/2008
SMT. CHANCHAL CHOPRA & ORS ..... Plaintiffs
Through Mr. A.K.Thakur and Mr.R.K. Mishra,
Advocates
versus
SHRI SUNIL CHOPRA & ORS ..... Defendants
Through Mr.Mohinder Madan, Ms.Rashmi
B.Singh and Ms.Kalpana Thakur,
Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. The present suit is filed by the plaintiff seeking a decree of partition by metes and bounds in respect of two tenements in double storey building bearing No.1/5 and 1/5A, Moti Nagar, New Delhi-110015. Other connected reliefs including mesne profits are also sought.
2. As per the plaint the plaintiffs and defendants are related to each other. The property in question belonged to Mrs. Lajwanti. A lease/conveyance deed in favour of Smt. Lajwanti, in respect of the said property was executed before the Sub Registrar on 28/30.7.1965. Smt. Lajwanti left behind three sons and one daughter. The daughter Ms.Raj Chopra was unmarried. The plaintiffs are the widow, son and daughter of Mr. Suraj Prakash Chopra one of the sons of late Smt.Lajwanti. One of the sons of the said Shri Suraj Prakash Chopra is impleaded as defendant No.6. Defendants No.1 to 3 are the legal heirs of late Shri Dilbagh Rai Chopra another son. Defendant No.4 and 5 are the widow and son of Late Mr.Om Prakash Chopra, another deceased son of Smt.Lajwanti. The defendants CS(OS)1241/2008 Page 1 of 15 No.1 to 5 i.e. legal heirs of two sons of Smt. Lajwanti are opposing the present suit for partition. As per the plaint Smt.Lajwanti died intestate and her rights in the said suit property devolved by inheritance on her three sons in equal shares. Hence, it is averred that plaintiffs alongwith defendant No.6 have 1/3 share in the suit property while defendants No.1 to 3 together have 1/3 and defendants No.4 and 5 have balance 1/3 rd share. It is further averred that plaintiffs were in possession of the rear portion of ground floor of property No.1/5, Moti Nagar, New Delhi and continued to be in possession till 13.4.2008 when they were dispossessed forcibly by defendants No.1, 2 and 5. It is stated that a police complaint was lodged on 15.4.2008 and 18.4.2008. Complaint was also lodged with Executive Engineer, Building Section, MCD as defendant started raising unauthorised construction.
3. Defendants No.1,2,4 and 5 have filed a joint written statement. In the written statement it is averred that the suit property was partitioned amongst the legal heirs of Smt.Lajwanti by way of an oral family settlement during the lifetime of the father and the present suit is filed at a very belated stage and suffers from delay, latches and limitations. It is not denied that Smt.Lajwanti died intestate but it is urged that the three surviving sons entered into a family settlement whereby predecessor of the plaintiff Shri Suraj Prakash Chopra was paid by the other two brothers, namely, predecessor of defendants No.1 to 3 and 4 and 5. With the said funds Shri Suraj Chopra acquired a separate property and he shifted to H.No.A.1/9, Moti Nagar, Delhi in 1965. It is urged that the plaintiffs have thereafter never occupied any part/portion of the property at any point of time. The tenements in question are said to be only rehabilitation quarters measuring 255 sq.ft. for which the cost at that time was Rs.6,334/-.
CS(OS)1241/2008 Page 2 of 154. No written statement was filed by other defendants.
5. The issues were framed on 20.10.2010 which read as follows:-
"1.Whether this suit is properly valued for the purpose of Court fee and jurisdiction? OPP
2. Whether there was an oral partition of properties during the lifetime of late Sh.Dilbagh Rai Chopra, as alleged in the written statement? OPD
3. Whether the plaintiffs are entitled to mesne profit and, if so, at what rate and for what period? OPP
4.Relief."
6. The plaintiffs have led the evidence of PW-1 Mr.Deepak Chopra/plaintiff No.2. He has exhibited 19 documents Ex.PW1/1 to Ex.PW1/19. The defendants have led the evidence of three witnesses i.e. DW-1 Mr.Sunil Chopra/defendant No.1, DW-2 Mr.Yashpal Mahendroo and DW-3 Shri Shiv Darshan @ Sudershan Sabharwal. DW1 has exhibited 19 documents Ex.DW1/1 to DW1/19.
7. I will first deal with issue No.2 which deals with oral partition and which reads as follows:-
"2. Whether there was an oral partition of properties during the lifetime of late Sh.Dilbagh Rai Chopra, as alleged in the written statement? OPD"
8. Learned counsel appearing for the defendant has reiterated the submissions made in the written statement. He has further urged that the father of the plaintiff was paid Rs.3600 and he moved out of the house and he or the plaintiff has not been in possession of the house or any portion since 1965. There is nothing to show that thereafter plaintiff were in possession of any portion. It is urged that there is a contradiction in the plaintiff‟s case as in the plaint it is stated that he was in possession till 2008 CS(OS)1241/2008 Page 3 of 15 whereas in cross-examination PW-1 admits that the family had moved out in 1965. It is further urged that the mother of the plaintiff No.2, namely, plaintiff No.1 has not appeared in the witness box. This is of significance as she was a material witness as she was privy to the family settlement. It is next urged that plaintiff No.2 is of quarrelsome nature and has fought with his brother defendant No. 6 over the family inheritance and has some pendency litigation with his brother. It is stated that he has instituted the present litigation and disturbed the quietus of the family which existed for 22 years after the death of Smt.Lajwanti in 1985-86. This litigation, it is urged, is on account of greed of the plaintiff No.2.
9. Learned counsel for the plaintiffs has reiterated his submission in the plaint. He has stressed on the police complaints Ex.PW1/2 to PW1/6 to state that till 2008 plaintiff were in physical possession of portion of the suit property. He states that the evidence of the defendant witness who claim to be eye witness to the family settlement are unreliable.
10. The onus to prove the oral partition as pleaded in the written statement was on the defendants. DW-1 Shri Sunil Chopra/defendant No.1 in his affidavit by way of evidence has stated that Shri Suraj Prakash Chopra the father of plaintiff No.2 and husband of plaintiff No.1 received cash amounts in lieu of his share in the property. From the money received he acquired another property with the funds received and shifted to H.No.1/9, Moti Nagar, Delhi. He further states that plaintiff is not in possession of any part/portion of the suit property as his father had shifted out. It is further stated that there was no dispute regarding the oral family settlement/arrangement and parties have been residing in their respective portions/properties for long and uninterrupted period. The defendants No. 1 CS(OS)1241/2008 Page 4 of 15 to 5 have been in continuous use and occupation of the suit property and are carrying on a small business from the suit property. They are said to have invested huge amount for improvement of the premises as they were exclusive owners. Defendants are running a shop on the ground floor.
11. In his cross-examination he has answered that the partition took place in 1965-66 when he was about 15-16 years old. He has confirmed that the partition took place in his presence in November/December 1965-1966 at 1/5A, Moti Nagar, New Delhi in the presence of the three brothers and three friends, namely, Shri Yashpal Mahendroo DW2, Shri Sudershan Sabharwal DW3 and Shri Surinder Kohli and other family members. He stated that the said friends were his friends as well as friends of the father of plaintiff No.2. He has further reiterated that plaintiffs have stayed in the property till 1965/January-February 1966. He has denied that a room in the suit property remained in the occupation of the plaintiff after 1966. He denied that there was any attempt to dispossess the plaintiffs from the said room. He has clarified that he was getting some repairs done on the back side of the property when plaintiff No.2 came to the spot and quarrelled and that he was only making an excuse to file the present case.
12. Some relevant portion of his cross-examination reads as follows:-
"Q.Are you aware that late Shri Suraj Prakash Chopra and his family continued to be in possession of the property No.1/5, Moti Nagar, New Delhi till 2008?
Ans. It is incorrect. He remained in possession of the property upto 1965-66.
Q.Are you aware that all the assessment orders of sales tax, income tax notices and demands were sent to Mr.Suraj Prakash Chopra and his family on the property 1/5, Moti Nagar, New Delhi upto 1984?
Ans. I am not aware. Vol. There was no office of Suraj CS(OS)1241/2008 Page 5 of 15 Prakash Chopra and his family at 1/5, Moti Nagar, New Delhi. Vol. They were in possession only upto 1965-66."
13. DW-2 Shri Yash Pal Mahendroo and DW-3 Shri Shiv Darshan have in their affidavit by way of evidence reiterated that they were present when the oral partition of the family members took place. Both have filed almost identical affidavits. DW-2 in his cross-examination has confirmed that the brothers were aged between 50-52 years when the partition took place whereas DW-2 himself was 18-19 years old. He has stated that he is not aware that any money transaction took place.
14. PW-1 Shri Deepak Chopra plaintiff No.2 in his affidavit has stressed on the fact that the plaintiffs remained in possession of the rear portion of the ground floor of property No.1/5 Moti Nagar, New Delhi which they continued till 13.4.2008 when defendant No.1, defendant No.2 and defendant No.5 broke open the lock illegally and took away the statues of god and goddesses alongwith silver jewellery of the plaintiffs and put their own lock. The complaint to said effect to SHO, Moti Nagar dated 13.4.2008 is marked as Ex.PW1/2. Complaint to DCP West, Commissioner of Police are marked as Ex.PW1/3 and PW1/4 and 1/6. The complaint regarding unauthorised construction dated 15.4.2008 is Ex.PW 1/5. He has also placed on record various documents Ex.PW1/7 and Ex.PW1/19 which are stated to be various statutory assessment orders notices etc. with the address of the plaintiff‟s firm, as that of the suit property. In his cross-examination he admits that his parents stayed in the suit property till 1965. He has denied that his parents have no concern with the said property. To a question as to why a suit was filed 22 years after the death of Smt. Lajwanti in 2008 he CS(OS)1241/2008 Page 6 of 15 has replied that the suit was not filed earlier as they continued to be in possession and there was no threat.
15. In the light of the above evidence, the issue is as to whether any oral settlement took place in or around 1965 as is sought to be pleaded by the defendants. The evidence led by the defendant is that of DW-1/defendant No.1, DW-2 and DW-3 . All three of them are stated to be eye witnesses. As far as DW-2 and DW-3 are concerned, in my opinion, their evidence is entirely untrustworthy. There can be no reason as to why elders aged about 50 years old would carry out a family settlement amongst the three brothers in the midst of friends of their son who were about 18 years old. DW-2 in his cross-examination has confirmed that on the date of the family settlement Shri Suraj Prakash Chopra was 50 years old. Dilbagh Rai Chopra was 52-53 years old, Om Prakash Chopra was 52 years old and DW-2 Shri Yashpal Mahindroo was 18-19 years old. Similarly, PW-3 also confirms that he was 17-18 years old at the time of the family settlement. Even as per DW-1 he was 15-16 years old when the partition took place.
16. Hence, the testimony of the so-called eye witness DW-2 and DW-3 is unreliable. Three elder brothers aged around 50 years, if they wanted to enter into an oral family settlement would have got witnesses who would have been their family members or friends of their age group and not friends of their children aged 18 years old or there around. The evidence on this issue is difficult to accept.
17. However, it is quite clear from the pleadings, documents and evidence on record that there has been a long quietus to the situation. Admittedly, as per PW-1 the parents left the suit property in 1965. PW-1 in his cross- examination admits that he himself has never stayed in the suit property. He CS(OS)1241/2008 Page 7 of 15 admits that his parents have stayed in the suit property till the year 1965 when they voluntarily shifted to a new house later. The mother of the brothers Smt.Lajwanti has died around 1985-86. The father of the plaintiffs No.2 and 3 and husband of plaintiff No.1. Shri Suraj Prakash Chopra also died on 13.04.1996.
18. The father of plaintiffs No.2 and 3 Shri Suraj Prakash Chopra lived for around 10 years after the death of his mother Smt.Lajwanti in 1985-86. In his lifetime in the said period he never claimed any right, title or interest in the suit property. The present suit is filed in 2008. Hence, for 22 years after the death of Smt. Lajwanti none of the plaintiffs thought it appropriate to claim any right, title or interest in the suit property. This shows that Shri Suraj Prakash Chopra and his family having moved out in 1965 had entered into some arrangement with the brothers regarding succession to the suit property whereby they had agreed not to claim any right, title or interest in the suit property.
19. I will now deal with the submission of the plaintiffs that no steps were taken to claim title to the suit property as it is averred that the plaintiffs were in possession of rear portion of the ground floor of property 1/5 Moti Nagar, New Delhi and they continued to be in possession till 13.04.2008 when they were dispossessed. In my opinion, from the facts on record, there is no reason to accept the said explanation given by the plaintiffs for this belated suit now filed. The plaintiff have not been in possession of any portion of the suit property since 1965.
20. The claim of the plaintiff regarding possession of a small portion of the suit property is sought to be proved by two different sets of facts. The first set of facts is the series of complaints made in 2008 to the police and CS(OS)1241/2008 Page 8 of 15 the municipal authorities about illegal dispossession of the plaintiff and unauthorised construction being carried out by some of the defendants. PW1/2 is a letter dated 13.4.2008 written to SHO Moti Nagar pointing out about the lock having been broken open and unauthorised construction being carried out. PW1/3 is a similar complaint by plaintiff No.1 to Deputy Commissioner of Police dated 15.4.2008. On the same date complaint is sent to Executive Engineer, MCD by plaintiff No.2. PW1/4 is also a complaint dated 15.4.2008 sent to Commissioner of Police. Ex.PW1/6 is a complaint to Deputy Commissioner dated 18.4.2008. Present suit is filed on 28.5.2008. It is obvious that several complaints have been made within a short period prior to filing of the present suit. As is apparent the police and Municipal authorities have taken no proper action pursuant to the complaints. Plaintiff No.2 has thereafter failed to approach the Court with a private complaint or with a petition for registration of an FIR before the Metropolitan Magistrate.
21. It is apparent that all the complaints had been filed repeatedly in a short frame of time creating flurry of activity only as an excuse or justification to file the present suit to overcome the difficulty of delay, latches and limitation. These complaints inspire no confidence.
22. The next leg of arguments of the plaintiff regarding the alleged possession of a portion of the suit property till 2008 revolves around certain documents placed on record which are addressed to plaintiff‟s father/father‟s proprietorship concern with the address of the suit property. The reliance of the plaintiff on Ex.PW1/7 to Ex.PW1/19 is baseless. These are orders and notices received from the Sales Tax and Income Tax Department showing address of 1/5, Moti Nagar, Delhi. The existence of this address can be on account of various reasons and not necessarily has anything to do with the CS(OS)1241/2008 Page 9 of 15 actual physical possession of the suit property. Admittedly, the parents of plaintiff No.2 had been residing in the suit property till 1965. The plaintiffs have given the explanation that they were in possession of the back portion of the suit property 1/5 Moti Nagar till 2008. In the plaint it is urged that on 13.4.2008 defendants No.1,2 and 5 have broken the locks of the area in possession of the plaintiff and have taken away metal statues of gods and goddesses along with silver jewellery of the plaintiff and have put their lock. In his evidence by way of affidavit PW- 1 has reiterated the averments of the plaint. He adds that there was a sole proprietorship firm in the name of ALLEN which was being run by his late father from the suit premises. He relies on various forms, orders of assessment of sales tax, demands under the Income Tax Act, the Assessment Orders under the Income Tax Act to claim that the address in all these statutory documents is that of the rear portion of the suit property 1/5, Moti Nagar, New Delhi.
23. In his cross-examination the relevant portion regarding the alleged possession till 2008 of property No.1/5 Moti Nagar is as follows:-
"My parents had stayed there till the year 1965. (Vol. They shifted to a new house later). It is incorrect to suggest that the plaintiffs have no concern with the property 1/5 and 1/5A, Moti Nagar, New Delhi at any point of time or that I have wrongfully or falsely claimed the same to be under our possession or occupied by my parents.(Vol.We were having a office in the premises-1/5, Moti Nagar, New Delhi, till 1985).
I had informed my counsel about the above office, before filing of the plaint. It is incorrect to suggest that I am trying to improve upon or that since I or my parents were never having any office in the said premises, it is for this reason that the same does not find any mention in the plaint.
Q. As you claimed that you were running an office in the premises-1/5, Moti Nagar, New Delhi till the year 1985, can you CS(OS)1241/2008 Page 10 of 15 tell as to in whose name the electric/water connection existed? Ans.The same was in the name of my grandmother Smt.Lajwanti. It is incorrect to suggest that the above fact shows that no such office was ever being run in the said premises.
........
"Have you placed on record any proof of your possession over property-1/5, Moti Nagar, New Delhi?
Ans. Yes. Copies of the ITR as well as Sales Tax registration of the business of my father at that address has been placed on record.
I had informed my counsel about the existence of such records at that time of preparation of the plaint. I do not know whether the same were not filed along with the plaint or that there were no pleadings in that regard or that it is only subsequently that the same were placed by the plaintiffs on record.
It is correct that my stand is that the office being run at 1/5, Moti Nagar, New Delhi, belonged to the business of my father. My father was the Sole Proprietor of the said business. As of now I am the sole proprietor of the said business. It is correct that there was a shop being run from the front portion of the premises-1/5, Moti Nagar, New Delhi."
PW-1 also admits that the manufacturing unit from which he is doing his business is at Okhla and the office is at B-65 Moti Nagar.
24. Clearly the evidence of plaintiff is unreliable. The plaintiff has his manufacturing unit in Okhla. The office is at B-65, Moti Nagar where he has been residing since 1986. He also clarifies that he is in business since 1986. Why would there be a need to run two parallel offices i.e. one at B-65 Moti Nagar and one at the suit property is not known. Further the office at 1/5, Moti Nagar he claims was the office of his father. If it was an office, it is not clear as to why idols and silver jewellery were kept there. If it was an office CS(OS)1241/2008 Page 11 of 15 normally only office furniture, files and office equipments was required to be kept over there.
25. In all probability, only on account of convenience the father of the plaintiff No.2 Shri Suraj Prakash Chopra continued to retain the address as a correspondence address with the Income Tax and Sales Tax Department. There was no reason to continue running of two offices one from 1/5, Moti Nagar and another from B-65 Moti Nagar as claimed.
26. The evidence filed by the plaintiff to claim possession of a portion of the suit property inspires no confidence. I hold that the plaintiff/plaintiff‟s family have moved out from the suit property around 1965 and have not been in physical possession of any portion of the same since then.
27. On the issue of family arrangement, an oral family arrangement is recognised in law.
28. In Tek Bahadur Bhujil v. Debi Singh Bhujil and Ors, AIR 1966 SC 292, the Supreme Court held as under:-
"12. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. ...."
29. In Kale & others vs. Deputy Director of Consolidation & Ors., CS(OS)1241/2008 Page 12 of 15 (1976) 3 SCR 202 the Hon'ble Supreme Court held as follows:-
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied."
30. On the issue proof required to prove the family arrangement, the Supreme Court in Sahu Madho Das and Ors. v. Mukand Ram and Anr. AIR 1955 SC 481 held as follows:
"28. A family arrangement can, as a matter of law, be implied from a long course of dealings between the parties:-"Clifton v. Cockburn‟(1834) 3 My & K. 76 (B) and - „Williams v. Williams‟(1867) 2 Ch. 294 (C); & we have such a course of dealing here..."
......
"35. ....
The conduct of the various members of the family is relevant to show that their actings, viewed as a whole, suggest the existence of the family arrangement on which the defendants rely. At this distance of time gaps in evidence that would otherwise be available have to be filled in from inferences that would normally have little but corroborative value. But circumstanced as we are, inferences from the conduct of the family is all that can reasonably be expected in proof of an arrangement said to have been made in 1875. The statements that Har Devi and Maha Devi made as witnesses are therefore as relevant as recitals made by them in deeds and statements made by them in pleadings. They do not in themselves prove CS(OS)1241/2008 Page 13 of 15 the fact in issue, namely the family arrangement, because, in the absence of Section 32(3), they are not admissible for that purpose, but as their conduct is relevant these statements are admissible as evidence of that conduct."
31. Hence, we may look at the conduct of various members of the family for the purpose of determining existence of the family arrangement. The plaintiffs/predecessors have not been in physical possession of the property since 1965. Defendants No.1 to 5 have enjoyed uninterrupted and unhindered possession of the suit property for 43 years till filing of the present suit. Smt. Lajwanti died in 1985-86. For 22 years after her death defendants No. 1 to 5 have enjoyed uninterrupted and unhindered possession of the suit property. As per DW-1, the defendants have been running a small business from the suit property. They have invested huge amounts for the improvement of the suit premises as they were exclusive owners. There is no cogent cross-examination done of defendant No.1 by the plaintiff on this aspect of his evidence. Defendants have dealt with the property as exclusive owners. Hence, in my opinion the conduct of various members of the family i.e. the parties shows that the parties have arrived at a family arrangement. As per the family arrangement, the family of Sh.Suraj Prakash Chopra did not have any right, title or interest in the suit property as compensation has been given to Sh.Suraj Prakash Chopra. Issue No. 2 is answered accordingly.
32. Coming now to issue No.1, which reads as follows:
"Whether this suit is properly valued for the purpose of Court fee and jurisdiction? OPP"
33. Defendant has not argued or led any evidence on the above. I, hence, CS(OS)1241/2008 Page 14 of 15 hold that the suit is properly valued for the purpose of court fees and jurisdiction.
34. Issue No.3 reads as follows:
"Whether the plaintiffs are entitled to mesne profit and, if so, at what rate and for what period? OPP"
35. As the plaintiffs have no right, title or interest in the suit property, the plaintiffs are not entitled to any mesne profit.
36. The present suit is without any merits and is dismissed with costs.
(JAYANT NATH) JUDGE FEBRUARY 23, 2015 raj CS(OS)1241/2008 Page 15 of 15