Sanjay Malhotra vs Jyoti Malhotra & Anr on 23 May, 2018

[Cites 2, Cited by 1]

Delhi High Court

Sanjay Malhotra vs Jyoti Malhotra & Anr on 23 May, 2018

1. In the instant case, the appellant assails the order dated 13 th October, 2017 passed by the learned Single Judge in I.A. No.11861/2017 filed by the appellant/plaintiff herein under Order XXXIX Rule 1 & 2 of the CPC in CS(OS) 567/2017 whereby an ad interim exparte injunction sought in respect of four properties was not granted.

2. Sh. Sanjay Malhotra, the appellant herein had filed CS(OS) FAO(OS) 273/2017 Page 1 of 11 567/2017 seeking declaration, partition, recovery of amounts upon rendition of accounts and permanent injunction against the respondents/defendants. He has impleaded his mother Smt. Jyoti Malhotra as respondent no.1/defendant no.1 and his younger brother Shri Samir Malhotra as respondent no.2/defendant no.2 in the suit.

3. The father of the plaintiff and the respondent no.2/defendant no.2 had expired intestate on 12th August, 2017.

4. That the plaintiff and the respondents/defendants are the only surviving Class I legal heirs is also not disputed.

5. The suit was filed with regard to the estate of Late Col. Satish Chandra Malhotra. Inasmuch as for the present, we are concerned only with the immovable properties that are the subject matter of the suit, we have tabulated the details hereunder:

            Sl.              Description of property
            No.

1. House No.1051, Sector-37, Noida, Uttar Pradesh.

2. House No.20-21, B-2, DDA SFS, Vasant Kunj, New Delhi

3. Sainik Farm property forming part of Khasra No. 342, min admeasuring 2 bighas and 8 biswas situated at Village Khanpur, Tehsil Mehrauli, New Delhi

4. Sainik Farm property having khasra no.341/2, (0-16), 341/ min (0-13) min (0-19), admeasuring 2 bighas and 8 biswas situated at FAO(OS) 273/2017 Page 2 of 11 Village Khanpur, Tehsil Mehrauli, New Delhi

6. So far as the ownership of these properties is concerned, the appellant/plaintiff has made the following averments in his plaint which are summed up as under:

"3. That the property forming part of Khasra No.342 min admeasuring 2 bighas and 8 biswas, situated at Village Khanpur, Tehsil Mehrauli, New Delhi and property having Khasra No. 341/2 (0-16), 341/1 min. (0-13), 342 min (0-

19) admeasuring 2 bighas and 8 biswas situated in village Khanpur, Tehsil Mehrauli, New Delhi, popularly known as Sainik Farm, were purchased vide two separate registered sale deeds registered as document No. 3886, Book No. I, Volume No.7381 on pages 112- 118 and document No.3885, Book No. I, Volume No. 7381 on pages 105-111 respectively, both executed on 19.05.1992 from the contribution towards cost of land by Late Sh. S.C. Malhotra, Plaintiff, Defendant No.1 and Defendant No.2.

However, the sale deeds were executed and registered only in the name of Defendant No.1 for khasra No.342 min of land measuring 2 bighas and 8 biswas and in favour of late Sh. S.C. Malhotra for khasra No. 341/2 (0-16), 341/1 min. (0-13), 342 min (0-19) admeasuring 2 bighas and 8 biswas situated in the village Khanpur, Tehsil Mehrauli, New Delhi.

4. That thereafter, from the funds of the family business three houses were constructed in the abovesaid land at Sainik Farm which were numbered as W5B/3/1, W5B/3/2 and W5B/3A. The houses bearing No. W5B/3/1 and W5B/3/2 were identical in its construction and appearance whereas the house bearing No.W5B/3A was a duplex house.

5. That the plaintiff resided in House bearing No.W5B/3/2 constructed within the land at Sainik Farm whereas the Defendants and Late Sh. S.C. Malhotra resided in House bearing No. W5B/3/1 constructed within the land at Sainik Farms. In accordance with the wishes FAO(OS) 273/2017 Page 3 of 11 of the family, the duplex house bearing No.W5B/3A constructed within the land at Sainik Farm was leased out from time to time to third parties wherein plaintiff and defendant No.1 were shown as co-owners.

6. That Late Sh. S.C. Malhotra purchased another immovable property bearing No.20-21, B-2, DDA SFS, Vasant Kunj, New Delhi from his exclusive funds but in the name of Defendant No.1 by a Registered sale deed. Sh. S.C. Malhotra had purchased another immovable Property from his own funds bearing House No. 1051, AWHO Scheme, Sector 37 Noida, U.P. Any further details of these two properties is not with the Plaintiff since all documents pertaining to the aforesaid two properties are kept with the Defendants who refused to share the details of the same after death of the Sh. S.C. Malhotra. However, parties continue to remain in joint possession of the abovementioned Immovable Properties.

7. That during the life time of Late. Sh. S.C. Malhotra, the entire family had faced certain Income Tax Proceedings in the year 1991-1992 wherein the joint ownership of the properties forming part of Khasra No. 342 min admeasuring 2 bighas and 8 biswas, situated at Village Khanpur, Tehsil Mehrauli, New Delhi and property having Khasra No. 341/2 (0-16), 341/1 min.(0-

13), 342 min (0-19) admeasuring 2 bighas and 8 biswas situated in Village Khanpur, Tehsil Mehrauli, New Delhi, popularly known as Sainik Farm, was duly admitted by the entire family. The fact that the property bearing No. 20- 21, B-2, DDA SFS, Vasant Kunj, New Delhi was purchased from the exclusive funds of Late Sh. S.C. Malhotra in the name of Defendant No.1, was also acknowledged during the Income Tax Proceedings.

8. That Late Sh. S.C. Malhotra had also opened several Bank Accounts, both individual and joint, the details of which is, comprehensively mentioned in Para 2 in a tabular form with account numbers and the name of owners of the accounts. The plaintiff has found out that the defendants, in connivance with each other, have FAO(OS) 273/2017 Page 4 of 11 already misappropriated several funds from the same and illegally converted the same to their own use either before or after the death of Late Sh. S.C. Malhotra by forging his signatures. It is pertinent to mention that Late Sh. S.C. Malhotra was not in a position to put his signatures on any of the documents during his last days due to his deteriorating health since his hands had started to shiver. The plaintiff is in the process of collecting further details pertaining to the Accounts of Late Sh. Satish Chandra Malhotra and shall furnish the said details as and when the same are made available to him. The plaintiff is entitled to one third share in all the funds which belonged to Late Sh. S.C. Malhotra in the above said Bank Accounts. The plaintiff is further entitled to all the funds which have been misappropriated by the Defendants before or after the death of Late Sh. S.C. Malhotra."

7. It is submitted by Mr. Rajat Wadhwa, learned counsel for the appellant/plaintiff that the appellant/plaintiff has averred that the properties were purchased out of the income of late Col. Satish Chandra Malhotra.

8. It is further submitted that in view of the provisions of the Section 2(9)(A)(iii) of the Prohibition of Benami Property Transaction Act, as amended upto date, the properties which may have been purchased in the name of her mother Smt. Jyoti Malhotra, the same were held benami by Smt. Jyoti Malhotra on behalf of her deceased husband late Col. Satish Chandra Malhotra.

9. While considering a prayer for grant of ad interim injunction under Order XXXIX Rules 1 and 2 of CPC, the court has to take a prima facie view. Inasmuch as the appellant/plaintiff has raised FAO(OS) 273/2017 Page 5 of 11 such an issue, the matter has to be decided after trial by the learned Single Judge. When the appeal was listed before us, we had directed status quo with regard to title, possession and construction of the above properties which have been mentioned at Sr. Nos.1 to 3 in para 2 of the plaint in CS(OS) 567/2017.

10. We are informed by Mr. Sanjeev Sindhwani, learned senior counsel for the respondents/defendants that so far as the H.No.1051, Sector 37, Noida, U.P. is concerned, the same was let out by late Col. Satish Chandra Malhotra and Smt. Jyoti Malhotra i.e. respondent no.1/defendant no.1, for the last number of years and that the rental income is being received by Smt. Jyoti Malhotra.

11. With regard to H.No.20-21, B-2, SFS DDA, Vasant Kunj New Delhi, Mr.Sanjeev Sindhwani, on instructions from Mr. Aniruddha Chaudhary, Advocate submits that though Smt. Jyoti Malhotra (respondent no.1/defendant no.1) is a sole owner thereof under a registered conveyance deed, she would not sell the property without permission of the learned Single Judge. A prayer is made that, she may be permitted to let out the property inasmuch as she is in need of income in order to maintain herself as well as all the properties.

12. The same is the position in respect of the third property forming part of Khasra No.342 min. admeasuring 2 bighas and 8 FAO(OS) 273/2017 Page 6 of 11 biswas, situated at village Khanpur, Tehsil Mehrauli, New Delhi. It is pointed out by Mr.Sanjeev Sindhwani that this property is fully owned by Smt. Jyoti Malhotra under a registered sale deed dated 19th May, 1992 which position is not disputed.

13. It is further submitted that earlier the property had been let out by the respondent no.1/defendant no.1, however, now the same is in her vacant possession and that she may be permitted to let out the same.

14. So far as the fourth property being a portion of Khasra no.341, Sainik Farm House, Village Khanpur, Tehsil Mehrauli is concerned, the same was owned by Late Col. Satish Chandra Malhotra having been purchased vide a sale deed dated 19th May, 1992. On this plot of land, three individual houses (W5B/3/1, W5B/3/2 and W5B/3A) were constructed. The appellant/plaintiff is occupying one of the houses which was numbered by Late Col. Satish Chandra Malhotra as W5B/3/2.

15. So far as the property private number W5B/3/1 built on Khasra no.341 is concerned, the same was occupied by Late Col. Satish Chandra Malhotra and the respondent no.1/defendant no.1 Smt. Jyoti Malhotra, and respondent no.2/defendant no.2 was stated to be visiting his parents during the lifetime of his father. The respondent no.1/defendant no.1 continues to occupy this property. The third house built on Khasra no.342 being private FAO(OS) 273/2017 Page 7 of 11 no.W5B/3A was leased to third parties from time to time wherein the lease was lastly executed by the appellant/plaintiff and respondent no.1/defendant no.1 jointly.

16. So far as the possession of the properties is concerned, the Noida property stands leased out and the rent is received by respondent no.1/defendant no.1.

17. Additionally, the property which forms part of Khasra no.342, stands in the name of the respondent no.1/defendant no.1 and had been leased out earlier but is presently lying in vacant possession of the respondent no.1/defendant no.1. The same is the position qua the property at Vasant Kunj.

18. The plaintiff has placed reliance on two writings i.e. at page nos. 169 and 171 of the appeal paper book, executed between Col. late Satish Chandra Malhotra and the two sons i.e. the appellant/plaintiff and the respondent no.2/defendant no.2. The same refer to the three houses bearing private nos. WB5/3/1, WB5/3/2 and WB5/3A. There is no reference to any other property which is subject matter of the suit in these writings.

19. So far as the title of the property in terms of the registered conveyance deed is concerned, there is no dispute in these writings.

20. So far as the writing at page no.169 of the paper book is FAO(OS) 273/2017 Page 8 of 11 concerned, the same is undated and relates to property no.W5B/3A. The documents are similar in terms to each other.

21. Be that as it may, the plaintiff has yet to establish his claim to the properties in the suit during trial.

22. By considering the prayer for grant of injunction, balance of convenience and equity has to be weighed while making such order as would preserve the properties during the pendency of the suit.

23. During the course of hearing, Mr.Sanjeev Sindhwani, learned senior counsel for the respondents/defendants submits that he has been instructed to state that the respondents/defendants have no objection for partition of the properties to the extent that they form estate of Col. late Satish Chandra Malhotra in three shares in order to fully and finally resolve the disputes.

24. Mr.Rajat Wadhwa, learned counsel for the appellant/plaintiff, submits that according to his client, he is entitled to his share in all the properties which are part of the litigation were actually owned by Late Col. Satish Chandra Malhotra and this offer is not acceptable to his client.

25. We are of the view that given the above narration of facts, the interim order dated 17th October, 2017 granted by us deserves to be modified.

FAO(OS) 273/2017 Page 9 of 11

26. We are informed that proceedings before the learned Single Judge are now fixed on 27th July, 2018.

27. In view of the above, this appeal is disposed of with the following directions in respect of the properties which shall abide till the same are modified by the learned Single Judge upon consideration of I.A. No.11861/2017 or any other application for injunction filed by either of the parties:

(i) All parties shall stand prohibited from selling or permanently alienating the four properties detailed in para 3 above.

(ii) So far as the property no.1051, Sector-37, Noida, U.P. is concerned, the respondent no.1/defendant no.1 shall continue to receive the rent thereof. In case the tenant vacates the said property, the respondent no.1 shall be permitted to let out the same only with the prior permission of the Ld. Single Judge.

(iii) The respondent no.1 shall maintain status quo so far as ownership of the following properties are concerned: The property forming part of the Sainik Farm House, Khasra no.342, village Khanpur, Tehsil Mehrauli, New Delhi. However, the respondent no.1/defendant no.1 is permitted to let out the same by way of lease deed executed in accordance with law, copy of which shall be placed on record of CS(OS) 567/2017.

Additionally, the respondent no.1/defendant no.1 shall FAO(OS) 273/2017 Page 10 of 11 maintain accounts of the rental income received by her.

(iv) So far as the properties constructed on Khasra no.341, situated at village Khanpur, Tehsil Mehrauli, New Delhi land which was purchased by Late Col. Satish Chand Malhotra vide sale deed dated 19th May, 1992, the parties shall maintain status quo with regard to title as well as occupation of the W5B/3/1 and W5B/3/2.

(v) With regard to the third property bearing private no.WB5/3A, the respondent no.1/defendant no.1 is permitted to let out the same. The respondent no.1/defendant no.1 shall place the copy of the lease deed on the record of CS(OS) 567/2017. The respondent no.1/defendant no.1 shall maintain accounts of the rental income.

28. The present appeal is disposed of in view of the above terms. The parties shall appear before the learned Single Judge on 27 th July, 2018.

Order dasti be given under the signatures of the Court Master.

ACTING CHIEF JUSTICE C.HARI SHANKAR, J MAY 23, 2018/rk FAO(OS) 273/2017 Page 11 of 11

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