Delhi District Court
Mr. Rajesh Grover vs Mrs. Razia Grover on 20 April, 2023
DLND010000732008
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No.57652/2016
(SENIOR CITIZEN)
1. Mr. Rajesh Grover
S/o Late Sh. K.C. Grover
R/o Holmbladsgade 86, 2.tv.
2300 Copenhagaen S,
Denmark
Local Address
C/o Neelam Mehta
T24/1 F.F, DLF City III,
Gurgaon 122002
......... Plaintiff no.1
2. Mrs. Neelam Mehta
W/o Sh. Manmohan Singh Mehta
T24/1 F.F, DLF City III,
Gurgaon 122002
......... Plaintiff no.2
Versus
1. Mrs. Razia Grover
W/o Late Sh. Satish Grover
R/o B 3, Hira Mahal Apartment,
CS No. 57652/2016
Rajesh Grover vs. Razia Grover Pages 1 of 37
44 Amrita Shergil Marg,
New Delhi-110003
........ Defendant no.1
2. Mr. Nirad Grover
S/o Late Sh. Satish Chander
R/o B-3, Hira Mahal Apartments
44 Amrita Shergil Marg,
New Delhi-110003
........ Defendant no.2
3. Ms. Naira Grover
D/o Late Sh. Satish Grover
33 Nizamuddin East, G. Floor
New Delhi-110014
........ Defendant no.3
Suit presented On : 25.01.2008
Arguments Concluded On : 17.03.2023
Judgment Pronounced On : 20.04.2023
JUDGMENT
1. This is a suit for partition and perpetual injunction filed by the plaintiffs against LRs of their elder brother (Late Sh. Satish Grover) seeking following reliefs :
"(a) A preliminary decree for partition be passed in favour of the plaintiffs and against the defendants, with regard to Apartment no. B-3, Hira Mahal Apartments, 44 Amrita Shergill Marg, New Delhi - 110003.
(b) A commissioner be appointed to suggest a mode of partition of the immovable assets and a final decree for partition be passed in favour of the Plaintiffs and against the Defendants about the properties in question.
(c) Final decree for partition be passed and the Plaintiffs be put in possession of their share in the property bearing No. B-3, Hira Mahal Apartments, 44 Amrita Shergill Marg, New Delhi and in case the division of the property in CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 2 of 37 question is not possible by meets and bounds, the same may be sold and the sale proceeds thereof may be divided between the parties as per the preliminary decree.
(d) A decree for Perpetual injunction be passed against the Defendants, restraining the Defendants from encumbering, alienating or otherwise disposing of the property in question at Apartment No. B-3, Hira Mahal Apartments, 44 Amrita Shergill Marg, New Delhi - 110003 and other assets of the joint family to prejudice the right, title and interest of the Plaintiffs in the properties in dispute.
(e) Mesne profits may also be awarded at the rate of Rs.
3 Lakhs per month in favour of the Plaintiffs as the Defendants are wrongfully and illegally resisting the occupation of the flat by the Plaintiffs who are the joint owners of the property.
(f) Interest at the rate of 15% per annum may also be awarded on the mesne profits which this Hon'ble Court may determine on adjudication.
(g) Cost of this suit be also awarded to the Plaintiffs."
THE PLAINT
2. The case as set out in the plaint is that (a) that apartment no. B-3, Hira Mahal Apartment, Amrita Shergill Marg, New Delhi 110003 (hereinafter, referred to as the suit property) is the joint property of the plaintiffs and the defendants ; (b) that the same was purchased on 19.02.1976 from the family fund which had been generated by the sale of a vacant plot bearing no. 30, Paschimi Marg, Vasant Vihar, New Delhi admeasuring 868 sq. yds. of Late Sh. K.C. Grover (father of the plaintiffs and Late Sh. Satish Grover, [hereinafter, referred to as 'Satish']) who expired in the year 1973, on the strength of some mis-represented sale documents dated 25.09.1974 which were got signed from the plaintiffs on the pretext of the same being agreement for construction ; (c) That, Satish CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 3 of 37 utilized the sale proceeds aforementioned and entered into Flat Buyers Agreement dated 19.02.1976 (for a sum of Rs. 1,85,000/-) wherein the plaintiffs, their mother and Satish were shown as buyers ; (d) That after purchasing the suit property, Satish did not allow plaintiff no.2 and their mother to live in the suit property on the ground that he was not getting alongwith defendant no.1 and they were put up initially, in a rented accommodation at Jangpura Extension and then, at South Extension from where they were evicted for being unlawful sub-tenants in 1977 ; (e) That pursuant to death of their father, Satish domineered over the other family members having control of the family funds ; (f) That pursuant to the marriage of plaintiff no.2 in the year 1978, Satish also requested plaintiff no.2 to keep their mother with them and used to send Rs.2,000/- to Rs.5,000/- to plaintiff no.2 and against it also took rent receipts from her for purposes of tax ; (g) That it was plaintiff no.1 who financially supported their mother ; (h) That in 1992, when plaintiff no.2 on account of her emotional break down due to financial crises of her family, requested Satish to take their mother with him to the suit property (which he was occupying with his family and to the exclusion of the other co- owners), he did not accept their mother and she was sometime, in the year 1992 shifted to Arya Samaj Mahila Ashram, Rajender Nagar (Old) where she died in January, 1996 (the plaint is replete with ill treatment of plaintiff no.2 and their mother by Satish); (h) That pursuant to the death of their mother, the plaintiffs kept demanding from Satish a division of the suit property which was postponed by him on one pretext or the other; (i) That Satish died in September, 2005 and is survived by the CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 4 of 37 defendants of whom, defendant no.2 approached the plaintiffs to sign a relinquishment deed (a draft of which was received by plaintiff no.1 vide email dated 24.08.2006) which was declined ; (j) That plaintiff no.2 was also approached for executing the relinquishment deed which she refused ; (k) That when plaintiff no.2 applied to the office of L&DO for obtaining the details of the suit property, it was declined stating that the builder continues to be the owner of the property as per records ; (l) that the plaintiffs assert that the defendants are hostile towards the plaintiffs and are manipulating to sell the suit property and hence, the present suit.
3. At times, the plaintiffs have also stated that they are deemed to be in possession of the suit property as co-owners of it. They have also averred that the defendants are not allowing the plaintiffs to occupy and enjoy the property and it is also admitted that the plaintiffs are not in possession of the suit property.
WRITTEN STATEMENT OF DEFENDANT NO.1.
4. Defendant no. 1 in her written statement has taken the following preliminary objections :
(a) That the suit is under valued because admittedly, the plaintiffs are not in physical possession of any portion of the suit property and therefore, are liable to pay ad valorem Court fees.
(b) That the plaintiffs have not approached the Court with clean hands as they have concealed the existence of an oral family settlement arrived CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 5 of 37 at with Satish in the year 1974, as per which, names of the plaintiffs and their mother was incorporated in the Flat Buyers Agreement (for the suit property) by way of a collateral, for securing their shares out of the sale proceeds of the Vasant Vihar property which they had lent to Satish and, their loan had been repaid.
5. On merits, to elaborate upon the family settlement, it is averred by defendant no.1 that Late Sh. K.C. Grover, father of the plaintiffs and Satish, sometime in the year 1960 was allotted the Vasant Vihar plot for a consideration of Rs.24,000/-. However, as he was falling short of money, Satish stepped in and paid last few installments amounting to Rs.18,000/- in the allotment of the plot. Pursuant to the death of Late Sh. K.C. Grover in 1973, in the year 1974, the Vasant Vihar plot was sold for a consideration of Rs.70,000/- and the money was received by way of bank draft in the joint account of the plaintiffs and Satish. It is stated that in the contemporaneous time, Satish who was an architect and Director of M/s Grover Gupta Associates Pvt. Ltd., was awarded a contract for designing the Hira Mahal Complex and so he saw an opportunity to purchase an apartment in the said complex. Accordingly, the sale proceeds of Vasant Vihar plot was invested and it was the understanding between him and the plaintiffs that they would lend their share, as stated below which would be repaid back to them :
Total Sale proceeds received Rs.70,000/-
Less amount paid by Rs.18,000/-
Mr. Satish Grover(a*)
CS No. 57652/2016
Rajesh Grover vs. Razia Grover Pages 6 of 37
Balance to be shared equally Rs.52,000/-
Individual shares of heirs (4)(b*) Rs.13,000/-
6. Thus, it is the case of defendant no.1 that it was only by way of collateral that plaintiffs names figure in the 'Flat Buyers Agreement'. It is stated that the cost of the suit property then was Rs.1,85,000/-. Further, a sum of Rs.38,000/- was paid on 10.03.1977 only by Satish and the remaining amount was adjusted from the fees of defendant no.1. As proof of repayment of contribution of the plaintiffs, it is stated that 40,000 Dirhums had been paid in June 1977 by Satish to plaintiff no.1, as evidenced by letter dated 03.08.1977 by National Bank of Dubai. It is stated that Satish also paid the share of contribution to plaintiff no.2 over the year. Thereafter, it is stated that since the builders of Hira Mahal Apartments, M/s Suresh Kumar Satish Kumar Pvt. Ltd went into liquidation, the Official Liquidator, on 12.07.1995, endorsed on the Flat Buyers Agreement that the suit property stood transferred in the name of Satish and defendant no.1. Hence, it has been denied that the plaintiffs have any right, title or interest in the suit property.
7. The allegations of atrocities committed upon the mother of the plaintiffs and neglect by defendant no.1 of his responsibility towards plaintiff no.2, have been denied and it has been sought to be shown that plaintiff no.2 had financially exploited their mother and further, that Satish had done all within his means to support plaintiff no.2 during her matrimonial crisis. It is stated that Late Smt. Daya Grover resided in an CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 7 of 37 Ashram by her own choice.
WRITTEN STATEMENT OF DEFENDANT NO.2.
8. The written statement of defendant no.2 is akin to that of defendant no.1. In variance, he has averred that the oral family arrangement crystallized over a period of time. It has also been stated that huge sums of money from time to time had been paid by his father Satish to the plaintiffs, in lieu of which, they had agreed to transfer all their rights and interests in the suit property in favour of Satish and defendant no.1 and that had also agreed to execute necessary documents, whenever required to. According to him, it is only in pursuance to such family agreement, his grandmother (who was cared for by his father), decided to relinquish/ transfer her rights and interest in the suit property in favour of Satish and defendant no.1. It is stated that her relinquishment deed has not been challenged.
REPLICATIONS
9. By way of replications, it is denied (a) that the suit has been under valued and it is asserted that the suit property was purchased jointly by the plaintiffs and Satish and therefore, the defendants cannot in any manner dispute the possession of the plaintiffs and mere physical possession of the property as on date by the defendants does not entitle them to claim exclusive ownership. As regards, mesne profits, it is CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 8 of 37 undertaken to pay the requisite court fees after adjudication by the Court.
(b) It is denied that the plaintiffs have concealed material facts from this Court as there existed no oral agreement as claimed by the defendants. It is stated that no money was lent to by Satish at the time of purchase of the suit property which was only purchased as a joint property. It is also denied that 40,000 Dirhums had been paid to plaintiff no.1 in 1977. Plaintiff no.2 states that it is incorrect that she was paid her share in installments of Rs.3,000/- to Rs.5,000/- over a period of time through Sh. Vinod Grover and Sh. Hari Singh. (c) It is denied that pursuant to supplemental agreement, possession was exclusively handed over on 11.03.1977 to Satish and it is asserted that the possession of the suit property was handed over jointly to all co-owners on 30.06.1976. (d) It is denied that Rs.38,000/- was paid by Satish from his own funds and it is stated that he was in possession of the assets of the family after the demise of the father and all payments for purchase of the suit property was and from the joint family fund. It is also denied that any supplementary agreement dated 10.03.1977 could have not been entered into only between Satish and the developer and to the exclusion of the plaintiffs. Hence, such an agreement is a nullity. (e) It is also denied that the professional fees payable to Satish was adjusted from the remaining dues towards the purchase amount of the suit property. (f) It is specifically denied that there was any understanding between Satish and the plaintiffs that the plaintiffs would execute relinquishment deeds on receiving the loan amount. (g) The endorsement by the Official Liquidator transferring the suit property in favour of Satish and defendant CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 9 of 37 no. 1 is brushed aside for being forged and fabricated. (h) Plaintiff no.2 has denied the allegations of financially exploiting their mother.
ADMISSION AND DENIAL OF DOCUMENTS
10. During admission and denial of documents, the following documents are admitted:
Sr.No. Document Exhibited Admitted by
as
1 Copy of agreement dated Ex. P-1 Defendant no.1
19.02.1976
2 Copy of e-mail sent to Rajesh Ex. P-2 Defendant no.1
Grover dated 24.08.2006
3 Copy of draft relinquishment/ Ex. P-3 Defendant no.1
Release deed
4 Copy of Special Power of Attorney Ex. P-4 Defendant no.1
5 Copy of a document dated Ex. P-5 Defendant no.1
12.07.1995
6 Copy of affidavit of defendant no.1 Ex. P-6 Defendants
Razia Grover no.1 & 3
7 Letter dated 21.05.2007 sent to Ex. P-7 Defendants
House Tax Department, NDMC no.1, 2 & 3
8 Copy of no objection certificate of Ex. P-8 Defendants
Naira Jenson no.1 & 3
9 Copy of application of mutation Ex. P-9 Defendants
no.1 & 3
10 Copy of letter dated 27.06.2007 sent Ex. P-10 Defendants
to the defendant by Dy. Director no.1 & 3
NDMC
11 Copy of no objection certificate of Ex. P-11 Defendants
CS No. 57652/2016
Rajesh Grover vs. Razia Grover Pages 10 of 37
Nirad Grover no.2 & 3
12 Copy of letter dated 22.11.2007 sent Ex. P-12 Defendants
to Nirad Grover by Dr. Director no.2 & 3
NDMC
ISSUES
11. Vide order dated 01.03.2011 following issues were finally settled as under:
i) Whether the suit is barred by time? OPD
ii) Whether the plaint is liable to be rejected under Order VII Rule
11(b) CPC? OPD
iii) Whether the plaintiffs are entitled to the partition of the property bearing No B-3, Hira Mahal Apartment, 44 Amrita Shergill Marg, New Delhi, if so, to what share and to what effect? OPP.
iv) Whether the plaintiffs are entitled for injunction as prayed for?
OPP
v) Whether the plaintiffs are entitled to mesne profit @ Rs.3,00,000/- per month, if so, for what period? OPP
vi) Whether the plaintiffs are entitled to interest@15%, if so, to what effect and for what period? OPP
vii) Relief COUNTER CLAIM
i) Whether the defendants are the owners of the suit property bearing No. B-3, Hira Mahal Apartment, 44 Amrita Shergill Marg, New Delhi, if so to what effect? OPD
ii) If the answer to issue no.(i) is in affirmative, whether the defendants are entitled to declaration as prayed for? OPD
iii) Relief.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 11 of 37 PLAINTIFF EVIDENCE
12. In order to prove its case, the plaintiff examined the following witnesses in evidence.
12.1 PW-1 Ms. Neelam Mehta was examined who tendered her evidence by way of affidavit Ex. PW1/A and tendered the following documents in evidence.
Sr. No. Documents Exhibited as
1 Copy of agreement dated 19.02.1976 Ex. P-1
2 Original agreement dated 19.02.1976 filed by Ex. D-1
defendants
2 Copy of e-mail sent to Rajesh Grover dated Ex. P-2
24.08.2006
3 Copy of draft relinquishment/ Release deed Ex. P-3
4 Copy of draft Special Power of Attorney Ex. P-4
5 Copy of a document dated 12.07.1995 Ex. P-5
6 Copy of affidavit of defendant no.1 Razia Ex. P-6
Grover
7 Letter dated 21.05.2007 sent to House Tax Ex. P-7
Department, NDMC
8 Copy of no objection certificate of Naira Ex. P-8
Jenson
9 Copy of application of mutation Ex. P-9
10 Copy of letter dated 27.06.2007 sent to the Ex. P-10
defendant by Dy. Director NDMC
11 Copy of no objection certificate of Nirad Ex. P-11
Grover
CS No. 57652/2016
Rajesh Grover vs. Razia Grover Pages 12 of 37
12 Copy of letter dated 22.11.2007 sent to Nirad Ex. P-12
Grover by Dr. Director NDMC
12.2 PW-2 Mr. Umesh Chandra, Sr. Asstt., NDMC, House Tax Department produced the summoned record relating to assessment of the suit property. Copy of record running into 1-80 pages is Ex. PW-2/A (colly). (Objected to as to mode of proof and non-production of certified copy).
12.3 PW-3 Mr. Manoj Kumar LDC, L&DO produced the summoned record pertaining to the suit property. Copy of the same running into 1-48 pages is Ex. PW-3/A (colly). (Objected to as to mode of proof and non- production of certified copy).
12.4 PW-4 Mr. Rajesh Grover tendered his evidence by way of affidavit Ex. PW-4/A and deposed on the lines of PW1 and also relied upon the documents as relied upon by PW1.
All the witnesses were duly cross-examined by Ld. Counsel for the defendants.
DEFENDANT EVIDENCE
13. To prove their case, the defendants examined the following witnesses :
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 13 of 37 13.1 DW-1 Ms. Razia Grover who tendered her evidence by way of affidavit Ex. DW-1/A relied upon the following documents documents in evidence:
Sr. No Document Exhibited as
1 Original telegram dated June, 1977 sent Ex. DW-1/1 (earlier
by the plaintiff to Mr. Satish Grover Mark A)
2 Receipt from National Bank of Dubai Ex. DW-1/2 (earlier
dated 03.08.1977 in favour of Sh. Satish Mark B) Grover
3. Perpetual sub-lease Ex. DW-1/X2
4. Affidavit dated 15.03.1972 Ex. DW-1/X3
5. Letter dated 24.12.1973 Ex. DW-1/X4
6. Affidavit dated 12.05.1973 Ex. DW-1/X5
7. Indemnity bond dated 13.06.1973 Ex. DW-1/X6
8. Relinquishment deed dated 12.06.1973 Ex. DW-1/X7
9. Agreement of construction dated Ex. DW-1/X-1 25.09.1974 (earlier Mark X-1 She was duly cross-examined by Ld. Counsel for the plaintiff.
13.2 DW-2 Sh. Nirad Grover tendered his evidence by way of affidavit which is Ex. DW-2/A and relied upon the documents :
Sr. No Document Exhibited as
1. Original Agreement dated 19.02.1976 Ex. D-1
2. Allotment letter dated 01.11.1974 Ex. D-2
CS No. 57652/2016
Rajesh Grover vs. Razia Grover Pages 14 of 37
3. Supplementary Agreement dated Ex. D-3
10.03.1977
4. Agreement of Sale dated 25.09.1974 Ex. D-4
5. Original telegram dated June 1977 Ex. D-5
6. Original Remittance receipt dated Ex. D-6
03.08.1977
7. Relinquishment / release deeds emails Ex. P-2 dated 24.08.2006 He was duly cross-examined by Ld. Counsel for the plaintiff.
13.3 DW-3 Sh. Sirichand Gulati who tendered his evidence by way of affidavit which is Ex. DW-3/A and deposed that on the instructions of Satish, he visited the National Bank of Dubai, submitted application for transfer of 40,000 Dirhums to the account of Sh. Rajesh Grover's account in Algemene Bank Denmark on 03.08.1977 and had personally handed over the receipt to Satish in October, 1977.
He was duly cross-examined by Ld. Counsel for the defendant.
13.4 DW-4 Sh Bhagwan Das Grover who tendered his evidence by way of affidavit which is Ex. DW-4/A to prove about the financial status of Late Sh. K.C. Grover.
He was duly cross-examined by Ld. Counsel for the defendant.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 15 of 37 13.5 DW-5 Sh. Bikram Singh who tendered his evidence by way of affidavit Ex. DW-5/A and deposed that he knew Razia Grover and Rani Singh and took possession of the flat on behalf of Rani Singh after Neelam and Manmohan Mehta vacated the flat of Rani without any notice.
He was duly cross-examined by Ld. Counsel for the defendant.
13.6 DW-6 Sh. Anil Mehta who tendered his evidence by way of affidavit Ex. DW-6/A deposed that he is a Chartered Accountant by profession and joined as Auditor of Grover Gupta Associates Pt. Ltd. and Design Corporation. He deposed that he was aware of the personal accounts of Satish. He further testified that Satish had settled all outstandings / dues to Ms. Neelam Grover / Mehta before he had joined as an Auditor.
He was duly cross-examined by Ld. Counsel for the defendant.
13.7 DW-7 Sh. Anil Trehan who tendered his evidence by way of affidavit Ex. DW-7/A and stated on oath that he is an architect by profession and Satish involved him in the project of designing Hira Mahal. He deposed that Satish had booked a flat in Hira Mahal and part payment towards the flat was settled against Satish's fees for designing Hira Mahal by the builders. He further deposed about payments made by Satish to Ms. Neelam Grover.
He was duly cross-examined by Ld. Counsel for the defendant.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 16 of 37 13.8 DW-8 Sh. Hari Singh Sharma who tendered his evidence by way of affidavit Ex. DW-8/A and deposed that he was working in Satish's company and was also given personal errands. He further testified that he used to deliver cash to Ms. Neelam Grover / Mehta on the instructions of Satish. He also deposed that he used to take Satish's car to pick up Mrs. Daya Grover from the Arya Mahila Ashram.
He was duly cross-examined by Ld. Counsel for the defendant.
13.9 DW-9 Sh. Vinod Grover who tendered his evidence by way of affidavit Ex. DW-9/A deposed that he being close family relation of Satish stayed with Mrs. Daya Grover. He deposed that before passing his Chartered Accounts exam in the year 1979 he started handling Satish accounts from1977. He further deposed that he had standing instructions to inform Satish, whenever he had requisite funds in his accounts as Satish needed to repay Ms. Neelam Grover / Mehta's share of the sale of Vasant Vihar plot. He deposed that he himself had handed over a larger part of Rs.30,000/- to Ms. Neelam Grover.
He was duly cross-examined by Ld. Counsel for the defendant.
13.10 DW-10 Sh. Mahesh Sahai who tendered his evidence by way of affidavit Ex. DW-10/A and deposed that Hira Mahal was always known as Satish's flat and was also described as such by his brother, sister and his mother He was duly cross-examined by Ld. Counsel for the defendant.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 17 of 37 13.11 CW1 Sh. Pradeep Kumar, Dealing Assistant, Cooperative Society DDA brought the summoned record of property no. 30, Paschimi Marg, Vasant Vihar, New Delhi.
13.12 CW2 Sh. Bal Kishan Yadav, Cashier, Government Servant Cooperative House Building Society, brought the summoned record relating to property no. 30, Paschimi Marg, Vasant Vihar, New Delhi.
FINAL ARGUMENTS
14. Final arguments have been advanced by Sh. Ashim Sood and Sh. Kunal Kohli on behalf of the plaintiffs and Sh. Bakshi Siri Rang Singh on behalf of the defendants.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
15. The Court has gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.
ISSUEWISE FINDINGS A) Whether the suit is barred by time? OPD (Issue no.1)
16. The onus to prove the issue was upon the defendant.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 18 of 37 16.1 It has been submitted on behalf of the defendant that the suit is barred by limitation in view of Section 65 of The Limitation Act, 1963 (hereinafter, referred to as 'The Limitation Act') as it was required to be filed within 12 years since the possession of the suit property became adverse to that of the plaintiff. To urge that the possession became adverse, it has been adumbrated that the plaintiffs have averred in the plaint itself that they have been ousted w.e.f. 1976 itself. To develop on the argument that the possession of the defendants had become adverse, reliance has been made to Wuntakal Yalpi Chenabasavana Gowd Vs. Rao Bahadur Y Mahabaleshwarappa and Anr AIR 1954 SC 337, P. Lakshmi Reddy Vs. L. Lakshmi Reddy AIR 1957 SC 314 and Govindrao and another Vs. Rajabai and Another AIR 1931 Privy Council 48 and it has been argued that once the possession of a co-owner became adverse to the other co-sharers as a result of ouster, the mere assertion of joint title by the dispossessed would not interrupt the running of adverse possession until and unless there is re-entry upon the property or there is resumption of possession. Leading the Court through the plaint and in specific to pleadings in paragraphs number 5(g), 5(h)(i), 6 and 7(a), it is emphasized that there is clear admission on the part of the plaintiffs of their exclusion from the suit property.
16.2 Per contra, it has been submitted on behalf of the plaintiffs that the article would not apply to the facts of the present case because the possession of the suit property against the defendants was never adverse because yet again, relying upon P. Lakshmi Reddy Vs. L. Lakshmi CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 19 of 37 Reddy (Supra), it has been argued that to establish adverse possession of one co-owner against another, it is not enough to show that one out of them was in sole possession of the suit property as possession of co- owner would be considered in-law as possession of all the co-owners. It has further been stated that "secret hostile animus" on the part of one co owner who is in possession of property on the basis of joint title, does not render his possession adverse to the other co-owners. It has been submitted that the defendants have not been able to prove ouster of the plaintiffs from the suit property. It has been argued that during his lifetime the elder brother of the plaintiffs (Satish) never did any act to the detriment of the title of the plaintiffs and the suit is within limitations as the cause of action only arose when defendant no.2, on 24.08.2006, sought relinquishment of the rights of plaintiff no.1 and thereafter, also from plaintiff no.2. It has also been adumbrated that the plea of adverse possession has to be specifically pleaded. Reliance has also been placed upon Kanak Jain and Ors Vs. Chakresh Kumar Jain CS(OS) no. 1599/2008 and CC No. 25/2009 decided on 15.04.2019 by Delhi High Court, Chhote Khan, deceased, Represented by his son, Harmat and Ors Vs. Mal Khan and Ors AIR 1954 SC 575, Abubakar Abdul Inamdar (Dead) by LRs and Ors Vs. Harun Abdul Inamdar and Ors (1995) 5 SCC 612, Md. Mohammad Ali (Dead) by LRs Vs. Jagdish Kalita and Others (2004) 1 Supreme Court Cases 271, B.R. Patil Vs. Tulsa Y. Sawkar and Others 2022 SCC OnLine SC 240 decided on 09.02.2022, and Mohammadbhai Kasambhai Sheikh and others Vs. Abdulla Kasambhai Sheikh (2004) 13 Supreme Court Cases 385.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 20 of 37 16.3 Indeed, in paragraph no. 5(i), there is an admission on the part of the plaintiffs as under :
"5(i) From 1985 to 1992, the Plaintiff No. 2 and her husband lived in different accommodations along with the mother, and Mr. Satish Grover did not allow her to live in the apartment in question. In 1990 Plaintiff No. 2 had a breakdown and in 1991 the Plaintiff No.2 and her husband suffered huge business losses and were going through financial crisis, when the Plaintiff No.2 asked her older brother to keep their mother in the family house / apartment, which he was occupying with his family, and to the exclusion of the other co-owners. Mr. Satish Grover however, did not allow the mother to live in her house and continued to live with Plaintiff No. 2 and her family."
16.4 But in Wuntakal Yalpi Chenabasavana Gowd Vs. Rao Bahadur Y Mahabaleshwarappa and Anr (supra) it has also been held as under :
"9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the dispossessed co- sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co- owner or discontinues his exclusive possession of the property. On the materials on the record, none of these things seems to have been proved in the present case. Resumption of physical possession or re-entry upon the property was absolutely out of the question, as the property was in the possession of the lessee."
16.5 Thus, if a co-sharer in exclusive possession acknowledges the title of co-owner, it would check the running of time. Here, the very act of the defendants to seek relinquishment deeds from the plaintiffs is an CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 21 of 37 acknowledgment of the rights of the plaintiffs qua the suit property and therefore, in the humble view of this Court, it cannot be held that the suit would be barred by limitation. Issue is accordingly, decided in favour of the plaintiff.
C) Whether the defendants are the owners of the suit property bearing No. B-3, Hira Mahal Apartment, 44 Amrita Shergill Marg, New Delhi, if so, to what effect? OPD (Issue no. 1 counter claim) D). If answer to issue no.1 is in affirmative, whether the defendants are entitled to declaration as prayed for? OPD (Issue no. 2 counter claim)
17. Before adverting to the issues, this Court deems it appropriate to put in perspective the rights of the parties that this Court has been called upon to adjudicate.
17.1 As the Court began to hear the arguments, a specific query was put to the parties as to the nature of rights derived by them qua the suit property on the basis of the Flat Buyers Agreement. In response to Court's query in this regard, the Ld. Counsel for the plaintiffs sought to rely upon Section 4 and 5 of The Delhi Apartment Ownership Act, 1986 to urge that by virtue of the aforesaid Act, they were entitled to exclusive ownership and possession of the apartment and this right was inheritable and transferable.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 22 of 37 17.2 Both parties have relied upon the following documents to set up their rights albeit, the defendants thereafter, have also pleaded oral agreement between plaintiffs and Satish vide which their names were introduced in the Flat Buyers Agreement by way of a collateral against loan by way of a collateral against loan (from joint family fund created by sale of property no. 30, Paschimi Marg, Vasant Vihar) which was subsequently repaid :
(a) Flat Buyers Agreement / Hira Mahal Agreement (Ex. P1 and Ex. D1)
(b) Allotment Letter (Ex. D2)
(c) Supplementary Agreement (Ex. D3).
17.3 Both parties are on the same ground regarding generation of at least Rs.70,000/- (as family fund) from sale of property no. 30, Paschimi Marg, Vasant Vihar in the year 1974 out of which, Rs.67,000/- was part payment towards Hira Mahal Agreement (Ex. P1 and Ex. D1). But, what is the nature of rights which the parties acquired under the Hira Mahal Agreement (Ex. P1) followed by Supplementary Agreement (Ex. D3)? It can be deduced from the Hira Mahal Agreement (Ex. P1 and Ex. D1) that by way of the same the developer M/s Suresh Kumar Satish Kumar (A Partnership Concern) through its Partners agreed to lease out the suit property in perpetuity to the buyers as a covenant in the agreement as under :
AND WHEREAS the buyer has taken inspection of the documents mentioned herein including the Indenture of perpetual lease dated 11th August, 1992 and other documents of title in respect of the said plot and the plans of the said CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 23 of 37 building and has satisfied himself regarding the right of the Seller to enter into this agreement and other agreements pertaining to the Sale of the various apartments in the said multi-storeyd building and the Buyer has satisfied himself fully in all respects and has agreed to take on lease in perpetuity, on residential apartment bearing private No. B/3 on Second floor, including car parking space in the basement, in all comprising an area of approximately 2000 sq. ft. in the said building upon the terms and conditions set out hereunder."
17.4 Thereafter, by way of Allotment Letter dated 01.11.1974 (Ex. D2), the allotment of the suit property was confirmed by the developer. The Supplementary Agreement (Ex. D3) is only with respect to possession and did not improve upon the rights which had been transferred by way of Hira Mahal Agreement (Ex. P1 / Ex. D1). However, neither parties have proved that thereafter, any registered lease agreement transferring leasehold rights in the suit property in perpetuity to the plaintiffs and Satish had been executed. All that has been sought to be shown by the defendant is an endorsement on the Flat Buyers Agreement by Liquidator Sh. V.S. Aggarwal which reads as under :
"Now, the said flat No. B-3 stands transferred to Sh. Satish Grover s/o Late Sh. K.C. Grover and Smt. Razia Grover w/o Sh. Satish Grover both residents of flat no. B-3 Hira Mahal Apartments, 44 Amrita Shergill Marg, New Delhi."
17.5 But the same was disputed by the plaintiffs and was not duly proved. Even otherwise, an endorsement that the suit property "stands transferred" to Satish and defendant no.1 is not a conveyance contemplated by law. Neither of the parties have thereafter, taken any steps for execution of recogonized transfer documents. This is further CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 24 of 37 coupled with letter no. 1841/DD(T) dated 27.06.2007 (Ex. P10) whereby the Deputy Director (Tax) of NDMC requested defendant no.1 on her application for mutation of the suit property in her favour for house tax purposes "to kindly get above said property from the Land and Development Office in the first instance and furnish the copy of Mutation Letter issued by L&DO to this Office. Thereafter the above said property will be mutated in your name in NDMC record." Also even in the plaint, the plaintiffs have categorically stated that the Apartment building had been constructed on lease hold land and no sale deed / lease deed had been registered in the name of the purchasers and so, the market value of the suit property could not be assessed. Hence, it is more than apparent that the title in the suit property does not vest either with the plaintiffs or the defendants.
17.6 As such, even the argument that was advanced by the Ld. Counsel for the plaintiffs that Delhi Apartment Ownership Act would confer ownership upon the parties, does not seem convincing to this Court as the object of the Delhi Apartment Ownership Act was to secure ownership and control of material resources to the benefit of all and the Act is not in derogation of other law affecting transfer of immovable property. By taking shelter under this Act, it cannot be pleaded that the requirement of payment of appropriate stamp duty and registration charges can be skirted.
17.7 Therefore, in the considered opinion of this Court a declaration CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 25 of 37 that the defendants are the owners of the suit property cannot be granted. Accordingly, issues no. C and D are decided against the defendants / counter claimants.
B) Whether the plaintiffs are entitled to the partition of the property bearing No. B-3, Hira Mahal Apartment, 44 Amrita Shergill Marg, New Delhi, if so, to what share and to what effect? OPP (Issue no.3)
18. Onus to prove this issue was upon the plaintiffs.
18.1 As already observed above, there is no title vesting in the parties which can be the basis on which partition can be granted. However, what is also bearing upon the mind of this Court is that whether it would be sufficient to therefore, non suit the plaintiffs considering that matter has been tirelessly pursued for 14 years and there is no third party asserting any right over the suit property. Pursuant to the Hira Mahal Agreement (Ex. P1 and Ex. D1), the buyers were handed possession of the suit property (though it is disputed by the defendants that the possession was only given to Satish). Hence, there is some possessory right which flowed from the agreement and such possessory rights can therefore be considered for partition on the grounds of justice and equity. Reliance is placed upon Surjit Singh and Ors. Vs. Ekta Gulati and Ors RFA 166/2012 & CM No. 6147/2012 decided on 16.08.2012 by Delhi High Court, Shyam Behari & Ors. Vs. Ram Kishan & Ors 2013 (10) AD 236, CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 26 of 37 Pathukutty and Anr Vs. Aisakutty & Ors SA no. 642/2000 decided on 19.03.2015 by High Court of Kerala which, recognize that possessory right is available for partition and can be partitioned unless and until parties prove a better title suggesting impartibility of a property.
18.2 The question which now arises is what would be the share of the plaintiffs and the defendants in such possessory rights?
18.3 It has been argued on behalf of the plaintiffs that the suit property has been duly proved to have been acquired from the common family fund which was managed by Satish and it showed the plaintiffs, Satish and their mother as the buyers of whom, the latter to have expired intestate and as such, the share of both the plaintiffs would be 1/3 rd each and of the defendants would be 1/3rd jointly. It has been submitted that neither have the defendants been able to establish oral settlement nor that any payment pursuant thereto was ever made to the plaintiffs. It has been argued that if any payments had been made to pay back the purported loan given by the plaintiffs from the joint family fund, there is no explanation as to why during his lifetime Satish did not take any steps to get the title cleared only in his name. Therefore, it has been suggested that the defence of the oral family settlement is concocted. The Ld. Counsel for the plaintiffs has also found fault in the defence raised that Satish had contributed Rs.18,000/- towards the final installments for purchase of vacant plot (no. 30, Paschimi Marg, Vasant Vihar, New Delhi) arguing that incapacity of Late Sh. K.C.Grover to acquire the CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 27 of 37 aforementioned property all by himself stood belied by document which is letter dated 24.12.1973 sent by Satish to the Hony. Secretary, Government Servants' Co-operative House Building Society Ltd. (Ex. DW1/X4), which shows that after all payments made there was a credit refundable to Late Sh. K.C. Grover. Reliance has also been placed upon documents Ex. C1 to C11 (which pertain to the records of the Co- operative House Building Society) and in specific to letter issued by Sh. K.C. Grover to the Housing Co-operative Society, undertaking that he had made complete payments. It has also been submitted that if there remained any dues which had not been paid by Sh. K.C. Grover, there is no explanation as to how thereafter the property at Vasant Vihar could have been conveyed. It has also been argued that the defendants have also not been able to conclusively prove that Rs.38,000/-, under the Supplementary Agreement was paid out of the income of Satish or that his fees as an architect for designing the Heera Mahal Apartment had been adjusted.
18.4 Per contra, it has been argued on behalf of the defendants that the plaintiffs have failed to establish their rights qua the suit property and therefore, are not entitled to any share therein. Much emphasis has been laid to the existence of oral family settlement pursuant to which placing reliance upon testimony of Sh. Srichand Gulati (DW3), Sh. Hari Singh (DW8) and Sh. Vinod Grover (DW9) to prove the repayment of loan amount to the plaintiffs. It has also been sought to be shown through the testimony of Sh. Bhagwandas (DW4), Sh. Anil Mehta (DW6) and Sh.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 28 of 37 Anil Trehan (DW7) that the suit property all throughout was deemed to be the property of the defendants. It has also been a submission on behalf of the defendants that at best, the defendants would also be entitled to the benefit U/s 45 of The Transfer of Property Act, 1882 (hereinafter referred to as 'The Transfer of Property Act').
18.5 In rebuttal, it has been argued that the plea of Section 45 of The Transfer of Property Act cannot be taken as the same was never pleaded in the defence.
18.6 Before proceeding further, it is first imperative to deal with the defence of oral family settlement set up by the defendants in pursuance of which the plaintiffs are stated to have been paid off their loan procured from common family fund and therefore, a denial of any right or interest of the plaintiffs in the suit property.
18.7 Both plaintiffs have denied the existence of any such oral settlement and no material to the contrary was elicited from them from their cross examination. The onus was upon the defendants to prove the same. In that regard, relevant cross-examination of DW1 is as under :
Q. Did your husband have any correspondence with Rajesh Grover and Neelam Grover before purchasing the Hira Mahal Property?
A. I do not know.
Q. As per the agreement for purchase of the Hira Mahal
property, there are three owners of the property? A. No, there are four names on the said agreement.CS No. 57652/2016
Rajesh Grover vs. Razia Grover Pages 29 of 37
Q. Can you give the names?
A. Satish Grover, Rajesh Grover, Neelam Grover and Daya Grover.
Q. Did Daya Grover execute any kid of relinquishment deed regarding Hira Mahal property in favour of your husband?
A. Yes, she did.
Q. Can you produce the same?
A. No, I cannot.
Q. In your written statement, you have stated that Mrs.
Daya Grover had relinquished her share in favour of your husband in respect of Hira Mahal property. What is the basis of the said statement?
A. In fact, Mrs. Daya Grover had no share in the Hira Mahal property as she had relinquished her share in the Vasat Vihar property. My husband had purchased the Hira Mahal property after taking loan from his brother and sister. The name of Mrs. Daya Grover was added for her security by my husband. However, he thought it prudent to have a relinquishment deed from her.
Q. Can you give any date of the so called relinquishment deed?
A. I think, it was sometime in early 1995.
Q. I put it to you that as per the agreement of purchase
of Hira Mahal property, there were four owners of the
said property?
A. There are four names in the purchase agreement.
Q. I put to you that there were two agreements with
respect to Hira Mahal property and in the second
agreement, which is called supplementary agreement, there were also four names?
A. That is right.
Q. Is it correct that Rajesh Grover and Neelam Grover
never relinquished their share in Hira Mahal property in favour of your husband?CS No. 57652/2016
Rajesh Grover vs. Razia Grover Pages 30 of 37
A. There was no formal relinquishment because it was
all on trust.
Q. Can you tell the court as to what do you mean by an
"Oral Family Settlement" mentioned in para 4 of your written statement?
A. As I was told by my husband, there was an
understanding that the share of the Plaintiffs in the
sale proceeds of the Vasant Vihar property would be borrowed by my husband and as and when it is returned, the Hira Mahal property would be solely owned by my husband. And their money was returned by him, if fact more than returned.
Q. Your source of information is your husband only? A. It is my husband, the people who have returned the money and the documents on record, I mean the people through whom the money was returned.
Q. You were personally not witness to any "Oral Family Settlement"?
A. No.
Q. When did you collect the information with regard to
the so called "Oral Family Settlement"?
A. Through the years.
Q. Please tell the court as to whether the alleged Oral
Family Settlement was prior to the purchase of the
Hira Mahal property or after the said purchase?
A. Since I was not a witness to the Oral Family
Settlement, I cannot say.
Q. I put it to you that there were two agreements which
were signed for Hira Mahal property, one is dated 19th February, 1976 and the other is dated 10th March, 1977. As per the said agreements, all the four persons had paid the money to the Builders?
A. Their names are there in the agreements.
Q. Do you have any document to show that your
husband had taken loan of the money received from the sale of Vasant Vihar property from the Plaintiffs?CS No. 57652/2016
Rajesh Grover vs. Razia Grover Pages 31 of 37
A. It was completely on trust and verbal agreement.
Q. I put it to you that there was no family
settlement/agreement between your husband, his mother and the Plaintiffs when Hira Mahal property was purchased? A. My husband told me that there was an agreement / settlement before the purchase of Hira Mahal property.
Q. Was the Hira Mahal purchased benami in the name of
your husband?
A. I have no idea what benami means
Q. I put it to you that the property continues to be in the
name of four persons till today in Municipal records?
A. That is correct and that it exactly why we had
approached the Plaintiffs for necessary documents as my husband had postponed doing it because he did not foresee the situation which has arisen today.
Q. I put it to you that there was no correspondence between your husband, his mother and the Plaintiffs with regard to the ownership of Hira Mahal property?
A. It was all verbal.
Q. I put it to you that there is no document of any kind of
settlement or agreement in the year 1974 on in the year 1976 or in the year 1995 between your husband and the Plaintiffs?
A. I do not have a record of any such document.
Q. I put it to you that there was no settlement in 1995?
A. I do not know since my husband was dealing with the
matter."
18.8 Thus, it can be inferred that the witness has been successfully traversed on the assertion that there was an oral family arrangement between the plaintiffs and Satish prior to entering into the Flat Buyers Agreement. Even, the cross examination of DW2 on the aspect of any oral family settlement is hearsay. Therefore, it also has not been CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 32 of 37 established that inclusion of the names of the plaintiffs in the Flat Buyers Agreement (EX. P1 and Ex. D1) was therefore, as a collateral.
Accordingly, any financial transactions sought to be relied upon by the defendants between Satish and the plaintiffs loses its relevance that the same was for return of any purported loan.
18.9 Though it has been sought to be shown from the cross examination of the plaintiffs that they did not personally contribute for the purchase of the suit property or that the joint family fund was not sufficient to acquire the suit property, in the absence of concrete documentary evidence that Rs.38,000/- (as mentioned in Supplementary Agreement [Ex. P3]) was paid from the income of the Satish and that the developer set off the professional fees of Satish for the remaining dues. As the Hira Mahal Agreement (Ex. P1 and Ex. D1) and Supplementary Agreement (Ex. P3), both bear the names of all co-owners, a presumption in favour of the property having a joint family character has not been rebutted.
18.10 Further, it has been pleaded that Late Smt Daya Grover relinquished her share in favour of Satish, no registered relinquishment deed has been proved. Therefore, pursuant to her death, her share would equally devolve upon the plaintiffs and Satish.
18.11 In view of the above discussions, it is hereby decided that both plaintiffs are entitled to 1/3rd and the defendants jointly are entitled to 1/3rd of the rights that they derive under the Flat Buyers Agreement (Ex.
CS No. 57652/2016Rajesh Grover vs. Razia Grover Pages 33 of 37 P1 and D1) and Supplementary Agreement (Ex. P3). The issue is accordingly, decided.
E) Whether the plaintiffs are entitled for injunction as prayed for? OPP (Issue no.4)
19. The onus to prove the issue was upon the plaintiff.
19.1 No arguments have been advanced on this issue.
19.2 As has already been opined above, the title has not been established by either parties. However, the parties are restrained till the passing of final decree from transferring / selling / creating any third party interest in their rights under the Flat Buyers Agreement / Hira Mahal Agreement (Ex.P1 and D1).
F) Whether the plaintiffs are entitled to mesne profit@ Rs.3,00,000/- per month, if so, for what period? OPP (Issue no.5) G) Whether the plaintiffs are entitled to interest@15%, if so, to what effect and for what period? OPP (Issue no.6)
20. The onus to prove the issues was upon the plaintiffs.
20.1 No arguments have been advanced on this issue. The evidence of affidavit of the plaintiffs is silent on this relief. There is no material on the basis of which a finding can be arrived at. Hence, the issues are decided against the plaintiffs.
H) Whether the plaint is liable to be rejected under Order VII Rule CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 34 of 37 11 (b) and (c) of CPC? OPD (Issue no. 2)
21. The onus to prove this issue is upon the defendants.
21.2 No arguments have been advanced by either sides on the valuation of the suit and court fees. However, the issue was decided vide order dated 31.03.2009 after which an amendment of the plaint was sought and court fees of Rs.1,09,550/- had been deposited. After amending the plaint, the suit property was valued at Rs.1.2 crores for the share of both the plaintiffs and at Rs.3,00,000/- per month for the relief of mesne profits. Thereafter, vide order dated 16.07.2009, it was observed as under:
"5. Having considered the submissions of learned counsel for the parties this Court is of the considered view that keeping in view the settled law as regards the scope of the amendments permissible under Order VI Rule 17 CPC the amendments sought to be made to the plaint by the Plaintiffs out to be permitted. None of these amendments change the fundamental character of the suit. The objections that the Defendants may have as to the correct value of the suit property, and the contention regarding inconsistent pleas will obviously be reflected in their respective additional written statements to be filed in response to the amended plaint. Consequently the issues, which will be framed on the basis of such pleadings can also reflect these contentions. Therefore, the defendants at this stage cannot be said to be prejudiced if the amendments are allowed."
21.3 Thereafter, another application bearing IA no. 9292 of 2010 under Order VII Rule 11 of CPC was moved stating that the correct value of the suit property was Rs.8.15 crores. The same was decided vide order dated CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 35 of 37 01.11.2010 wherein it was held as under :
"9. The argument of the learned counsel for the defendants / applicants that provisions of Section 7(v) would apply in the instant case, according to me, is without merit. The averments in the plaint (which have been referred to hereinabove), clearly indicate that the plaintiffs' claim that suit property is bought out from family funds and whether or not this is factually correct will only be determined at the stage of trial. At this juncture, the averments made in the paint have to be accepted. Therefore today for the defendants/applicants to contend that the plaint ought to be rejected on the ground that there is deficiency of court fee because tte suit property is not a joint family property would be putting the cart before the horse. In any case, the plaintiffs have averred quite clearly in paragraph 7(a) of the plaint that if there is any deficiency in the court fee, they are willing to pay the deficient court fee at the stage of final adjudication. Therefore, this objection being without merit, is rejected."
Accordingly, the issue was framed.
21.4 In the written statements, both the defendants merely stated that the suit continued to be under valued. Also, no evidence has also been led to show what the price of the suit property is Rs.8.15 crores and that how the plaintiff has under valued it. Therefore, the defendant failed to discharge the onus. Issue is accordingly, decided against them.
RELIEF
22. In view of the above findings :
(a) The plaintiffs are entitled to 1/3rd and the defendants are jointly entitled to 1/3rd rights that they derive under the Flat Buyers Agreement CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 36 of 37 (Ex. P1 and D1), Supplementary Agreement (Ex. P3) in the suit property.
(b) The parties are restrained till the passing of final decree from transferring / selling / creating any third party interest in their rights under the Flat Buyers Agreement / Hira Mahal Agreement (Ex. P1 and D1).
22.1 It is made clear that since title of either parties has not been established as such preliminary decree of partition is passed on the basis of pleadings of the parties and the same is binding interse the parties, their successors, assignees, transferees etc.
23. Decree sheet be prepared, accordingly on filing of requisite court fees.
24. Be put up for suggesting modes of partition on 04.08.2023.
Pronounced in open Court (Vijeta Singh Rawat) on 20.04.2023 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS No. 57652/2016 Rajesh Grover vs. Razia Grover Pages 37 of 37