Delhi District Court
Ms Baljeet Kaur Bhasin vs Sh. Ravinder Jeet Singh Bhasin on 27 November, 2019
: 1 :
IN THE COURT OF DR. SUGANDHA AGGARWAL,
ADDL. DISTRICT JUDGE, WEST,TIS HAZARI, DELHI
CIVIL SUIT NO. 610269/16
1. Ms Baljeet Kaur Bhasin,
W/O Late Sh. Gurcharan Singh Bhasin
2. Sh. Sarabdeep Singh Bhasin,
S/O late Sh. Gurcharan Singh Bhasin
Both R/O House no. 14/51,
Punjabi Bagh West
New Delhi110026
3. Ms Gagandeep Kaur,
D/O Late Sh. Gurcharan Singh Bhasin
R/O House no. 14/51, Punjabi Bagh West,
New Delhi110026 .........Plaintiffs
Versus
1. Sh. Ravinder Jeet Singh Bhasin,
S/O Late Sh. Joginder Singh Bhasin,
2. Sh.Pawanjit Singh Bhasin,
S/O Late Sh. Joginder Singh Bhasin
All R/O House no.14/51, Ist floor,
Punjabi Bagh West, New Delhi110026
3. Smt. Maneeta Anand
W/O Sh. Rajinder Singh Anand
CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 1 of 29
: 2 :
D/O Sh. Joginder Singh Bhasin
R/O 28, Amir Nagar, Lucknow, (U.P) .....Defendants
* Originally suit was filed against four defendants wherein Smt.
Narender Kaur W/O Late Sh. Joginder Singh Bhasin was arrayed as
defendant no. 1. However, she expired during trial.
Date of filing the suit : 17.08.2006
Date when reserved for order : 26.11.2019
Date of Order : 27.11.2019
JUDGMENT
1. This judgment shall decide the suit for partition and permanent injunction filed under Sections 37 and 38 of The Specific Relief Act, 1963.
Pleadings
2. The facts as averred in the plaint are that Late Sh. Avtar Singh was the owner of the property bearing no. 14/51, Punjabi Bagh(West), New Delhi110026 (herein after referred to as 'the suit property'). Parties are the descendants of Late Sh. Avtar Singh who had five sons and one daughter namely Sh. Balbir Singh Bhasin, Sh. Joginder Singh Bhasin, Sh. Jagjit Singh Bhasin, Sh. Jaswant Singh, Sh. Gurcharan Singh Bhasin and Smt. Gurbu Kaur Kohli. Wife of Late Sh. Avtar Singh pre CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 2 of 29 : 3 : deceased him on 07.01.1992. Plaintiffs are the descendants of one of the sons of Late Sh Avtar Singh i.e. Sh. Gurcharan Singh and the defendants are descendants of another son of Late Sh. Avtar Singh i.e. Sh. Joginder Singh Bhasin. It is averred in the plaint that Sh. Gurcharan Singh Bhasin expired on 01.09.1981 during the lifetime of Late Sh. Avtar Singh and was survived by plaintiff no. 1 to 3. It is averred that Late Sh. Avtar Singh and his other sons were concerned for the plaintiffs due to untimely death of Sh. Gurcharan Singh. Hence, all of them decided to transfer the suit property in favour of plaintiffs. Accordingly on 04.01.1982, Late Sh. Avtar Singh gave the suit property to plaintiffs. Other sons and daughter of Late Sh. Avtar Singh also confirmed the exclusive ownership of the plaintiffs in the suit property. A declaration dated 04.01.1982 was also executed thereby declaring that plaintiffs are the owners and in possession of the suit property.
3. Plaintiffs were in exclusive possession of the entire ground floor and terrace floor. Late Sh. Avtar Singh expired on 30.04.1983. It is further averred that after death of Late Sh. Avtar Singh , the intention of Sh. Joginder Singh Bhasin became dishonest. He shifted from Mumbai and requested the plaintiff no.1 to allow him and his family to temporarily reside at the first floor of the suit property. Plaintiff no.1 accepted the said request. In the year 1992, Sh. Joginder Singh alongwith defendant CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 3 of 29 : 4 : no.1 started residing at the first floor of the suit property. It is further averred that considering the said conduct of Sh. Joginder Singh Bhasin, remaining three sons and one daughter of Late Sh. Avtar Singh got concerned for the plaintiffs. In order to reaffirm plaintiff's ownership in the suit property, they executed two relinquishment deeds dated 07.04.1996 and 08.04.1996. It is averred that by virtue of said relinquishment deed, plaintiff became owners of 5/6th share in the suit property.
4. It is further averred that plaintiffs have put their locks on the terrace and their goods are lying there. Further on 15.05.1996 Sh. Joginder Singh Bhasin and defendant no. 2 and 3 tresspassed on the terrace after breaking open the locks . FIR was immediately registered. Subsequently Sh. Joginder Singh realized his mistake on 01.10.1997 and executed a notarized relinquishment deed in favour of plaintiffs. It is further averred that defendant no. 2 was one of the witness in the said relinquishment deed . Sh. Joginder Singh Bhasin died on 20.10.2000 survived by defendants in the present suit. It is averred that after the death of Sh. Joginder Singh, defendant no.1 has refused to vacate the first floor of the suit property. Defendants asserted that they have equal share in the suit property. Plaintiffs have averred that even if defendants no. 1 to 4 have any share in the suit property then same is CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 4 of 29 : 5 : 1/6th share only and plaintiffs are entitled for remaining 5/6 th share in the suit property. Hence, present suit has been filed seeking partition by metes and bounds and injunction thereby restraining the defendants from carrying out construction on the suit property, from creating third party interest or from transferring the possession in any manner in the suit property.
5. Separate written statement was filed by defendant no.1 i.e. Smt. Narender Kaur, defendant no.4 i.e. Smt. Maneeta Anand, defendant no. 3 i.e. Sh. Pawanjeet Singh Bhasin. Defendant no. 2 Sh. Ravinderjeet Singh Bhasin did not file any written statement. It is pertinent to mentiond that after the death of defendant no.1, the memo of parties was amended as all the legal heirs of defendant no. 1 were already arrayed as defendant no. 2, defendant no. 3 and 4. After amendment, Sh. Ravinderjeet Singh Bhasin became defendant no.1, Sh. Pawanjeet Singh Bhasin has become defendant no. 2 and Smt. Maneeta Anand has become defendant no. 3.
6. Defendant no.2 Sh. Pawanjeet Singh Bhasin has stated in the written statement that the suit has been filed without any cause of action and is not maintainable due to nonjoinder and misjoinder of necessary parties. It is further averred in the preliminary objections that the suit is not CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 5 of 29 : 6 : properly valued for the purpose of court fees and plaintiff has not filed the appropriate court fees. It is further averred that suit property was already partitioned vide family settlement dated 31.03.1987 and parties are residing in their respective portions which have fallen to the share of the parties as per the said family settlement. It is further averred that in fact after the said family settlement, plaintiffs have made various changes in the ground floor and has also carried out illegal and unauthorized construction at the ground floor. It is averred that the plaintiffs have also encroached in the common portion i.e. front lawn , back court yard, drive way and Annexe which as per the family settlement was agreed to be used by plaintiffs and defendants jointly. It is also stated that site plan filed by plaintiffs is incorrect. It is averred that relinquishment deeds relied upon by the plaintiffs have no legal consequence as its executant had no title or interest in the suit property. By virtue of family settlement dated 31.03.1987, it was agreed that the suit property will be divided among plaintiffs and defendants only. Hence, relinquishment deeds executed by other legal heirs of Late Sh. Avtar Singh with respect to the suit property is of no consequence. All other contents of the plaint are specifically denied.
7. Both defendant no.1 i.e. Smt. Narender Kaur and defendant no. 4 i.e. Smt. Maneeta Anand have admitted in their written statement that CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 6 of 29 : 7 : remaining legal heirs have executed relinquishment deeds in favour of the plaintiffs. They have not denied that the plaintiffs are entitled for 5/6th share in the suit property in view of the relinquishment deeds. It is only stated that if partition takes place, then they are entitled for 1/6th share in the 1/6th share of the defendants. Besides this, they have not raised any objection to the claim of the plaintiffs.
8. Plaintiffs have filed three separate replications to the written statement of the defendants. In the replication to the written statement of defendant no. 2 Sh. Pawanjeet Singh Bhasin it is averred that the family settlement was never acted upon by the parties. It is also stated that the family settlement was not registered and therefore could not be considered by the court.
Issues
9. After completion of the pleadings, the Hon'ble High Court has framed following issues on 07.02.2013.
Issue no. 1. Whether there was any family settlement between the heirs of Mr Avtar Singh in which the suit property had fallen to the share of the plaintiffs and predecessor of the defendants only? OPD2& 3 Issue no. 2: Whether the suit property already stands partitioned CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 7 of 29 : 8 : between the plaintiffs and the predecessor of the defendants and the parties are in possession of their respective shares?
OPD2 & 3 Issue no. 3: Relief
10. It is pertinent to mention that after framing of issues in order dated 07.02.2013 it has been observed that there is no dispute that on the basis of registered relinquishment deeds, the plaintiffs have 5/6 th share and defendants have 1/6th share in the suit property. It is further held that if defendants failed to prove their defence then suit property shall be partitioned as per abovementioned shares.
11. In the present case, as onus was upon the defendants to prove their defence , therefore, the evidence of the defendant was recorded first. The evidence has been lead only by defendant no. 2 Sh. Pawanjeet Singh Bhasin. The evidence was recorded by the Local Commissioner. Defendant no. 2 has examined only two witnesses who are numbered as DW2 and DW6. Defendant no. 2 examined himself as DW2 and Sh. Giriraj Sharma, the then LDC from the passport office, Bhikaji Cama Palace as DW6.
12. DW2 filed his affidavit in examination in chief as Ex DW2/A CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 8 of 29 : 9 : wherein he has relied upon following documents on oath:
(a) Copy of letter as Ex. D3W1/1
(b) Original certificate issued by GHPS dated 20.06.1972 as ExD3W1/2,
(c) Family settlement/agreement dated 31.03.1987 as Ex. D3W1/3 bearing signatures of Sh.Balbir Singh at point A, Sh. Joginder Singh at point B, Jaswant Singh at point C, Sh Jagjit Singh at point D and Sh Sarabdeep Singh (plaintiff no. 2) at point E,
(d) Formal legal agreement dated 29.07.1987 as Ex.D3W1/4,
(e) Agreement dated 23.06.1988 as Ex. D3W1/5 bearing signatures of Sh.
Joginder Singh at point A, Jaswant Singh at point B, Jagjit Singh at point C, Ravinderjit Singh at point D and Sh. Sarabdeep Singh at point E and Sh. Amarjot Singh at point F,
(f) Kalandra as ExD3W1/6,
(g) Original passports as Ex. D3W1/7 and Ex. D3W1/8,
(h) Covernote/policy as Ex. D3W1/9 and Ex. D3W1/10,
(i) Copy of complaint dated 09.09.1996 as Ex. D3W1/11,
(j) Copies of the bills as Ex. D3W1/12 to Ex. D3W1/14,
(k) Copies of complaint as Ex. D3W1/15 to Ex. D3W1/20,
(l) Application as Ex. D3W1/21,
(m) Application to DCP for extension for the period of desealing as Ex.D3W1/22.
CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 9 of 29 : 10 :13. DW2 was crossexamined on behalf of plaintiffs before the Local Commissioner.
14. DW6 who was employee in the passport office has deposed in examination in chief that the record pertaining to the passport of Sh. Pawanjeet Singh Bhasin i.e. defendant no. 2 has been weeded out. He placed on record the relevant letters pertaining to same and identified these as Ex. DW6/1, Ex. DW6/2 and Ex. DW6/3. DW6 also identified the copy of passport issued in lieu of the original passport. Copy of new passport was exhibited as Ex. D3W1/8 and the old passport as Ex. D3W1/7. DW6 was crossexamined on behalf of plaintiff and then discharged. No other witness was examined on behalf of defendant no. 2. No evidence was led on behalf of remaining defendants. Thereafter DE was closed.
Plaintiff's Evidence
15. In order to prove their case , plaintiffs have examined plaintiff no. 2 as PW1. He filed his examination in chief which is Ex.PW1/A. He has relied upon following documents:
(a) Conveyance deed dated 10.04.1961 as Ex. PW1/1,
(b) Site plan as Ex. PW1/2,
(c) Declaration dated 04.01.1982 as Ex. PW1/3, CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 10 of 29 : 11 :
(d) Certified copy of relinquishment deed executed by Sh. Balbir Singh as Ex.CW1/4,
(e) Certified copy of relinquishment deed executed by Smt. Gurbux Kaur as Ex. CW1/5,
(f) Certified copy of relinquishment deed executed bySh. Jaswant Singh as Ex. CW1/6,
(g) Certified copy of relinquishment deed executed by Sh. Jagjit Singh as Ex. CW1/7,
(h) Copy of FIR no. 447/96 , PS Punjabi Bagh as Ex. PW1/7,
(i) Copy of relinquishment deed dated 01.10.1997 executed by Sh. Joginder Singh as Ex. CW1/8,
(j) Affidavit executed by Sh. Ravinder jeet Singh as Ex. CW1/9 and
(k) Copy of complaint dated 14.08.2006 as Ex. PW1/10.
PW1 was crossexamined on behalf of defendant no. 2 before the Local Commissioner.
16. Beside this, plaintiffs have examined Sh. Ashok Kumar, the then UDC from Registrar of Firms as PW2. He has deposed that as per records the partnership firm namely Standard Staple was duly registered. He also produced the original form A and B and original partnership deed dated 14.11.2009. PW2 was crossexamined on behalf CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 11 of 29 : 12 : of defendant no. 2 and then discharged.
17. Sh. Virender Sahni, son of Sh. R.K Sahni was examined by plaintiffs as PW3. He was draftsman. He identified the site plan Ex. P1 (D1 and D4). He deposed that he has prepared the said site plan after inspecting the site and has also identified his signatures on same at point A and B. PW3 was crossexamined on behalf of defendant no. 2 and then discharged.
18. Sh. C.P Arora, the then ADE from MTNL Rajouri Garden was examined as PW4 who identified Ex. PW1/4 (colly) as pertaining to telephone bearing old no. 25429117 and new no. 25229117. He further deposed that said connection was in the name of Smt. Gurmeet Kaur Bhasin and was installed at property bearing no. 30 B/78, Punjabi Bagh, New Delhi with effect from 10.07.1993 upto 25.11.1996 and was disconnected in JulyAugust 2004. PW4 was crossexamined on behalf of defendant no. 2 and then discharged. No other witness was examined on behalf of plaintiff. Thereafter, PE was closed.
19. I have heard the arguments raised on behalf of both the parties. Counsel for plaintiff as well as counsel for defendant no. 2 have filed written synopsis also. I have gone through the same.
CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 12 of 29 : 13 :20. Ld. Counsel for the plaintiffs has argued that this court has already observed in order dated 11.01.2019 that family settlements are not proved. It is further argued that in view of the fact that family settlements are not proved, the suit is liable to be decreed in terms of order dated 07.02.2013 as the same was not challenged by the defendants and has attained finality. In the written submissions, it is averred that the defendant no. 2 has pleaded only one family settlement, therefore, reference to remaining two family settlements in the application seeking liberty to lead secondary evidence is beyond pleadings. Order dated 11.01.2019 is not challenged and has attained finality. It is further stated in the written submissions that DW2 has admitted that his father has executed an unregistered relinquishment deed dated 15.10.1988 in favour of plaintiff no.1 which was signed as witness by defendant no.1 also. DW2 has also admitted that he served a legal notice Ex DW2/P1 upon his father where there is no mention of family settlement dated 31.03.1987. It is argued that in view of above facts the suit may be decreed in favour of plaintiffs.
21. Ld. counsel for defendant no. 2 has stated in the written submissions that in the replication, plaintiff has not denied the fact regarding the execution of the settlement deed dated 31.03.1987. It is only stated that said family settlement was never acted upon . It is averred that CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 13 of 29 : 14 : execution of the family settlement is admitted by plaintiff, therefore the judicial notice of same shall be taken as per Section 56 of Indian Evidence Act. It is further averred that once family settlement is admitted then there is no requirement to prove the same. Further it is reiterated in written submissions that plaintiff has encroached upon the portion meant for common use and has also carried out unauthorized construction in his portion. Ld. Counsel for defendant no. 2 has reproduced various paragraphs of written statement thereby submitting that the averments of the plaint are specifically denied in the written statement. It is further argued that in the agreement dated 23.06.1988, the earlier agreement dated 31.03.1987 is also referred to and the true copy is also annexed with the written statement. It is further argued that though no separate issues were framed but in view of the directions of the Hon'ble High Court , this court must adjudicate upon additional issues raised by defendants at the time of final arguments i.e. suit is without cause of action and suit is bad for mis joinder and non joinder of parties.
22. It is further averred that defendant no. 2 was not able to lead secondary evidence with respect to the family settlement and the application to that effect was rejected by this court. Counsel for defendant no. 2 has referred to the judgment passed by the Hon'ble High CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 14 of 29 : 15 : Court of Rajasthan in case titled as Raj Mal vs Prem Narain & ors;
AIR 2005 Raj 129 wherein it has been held that mere technicalities of procedure should not be allowed to an extent so as to erode even the substantive rights of possession to property. It is averred that in the present case also the court must consider all the aspects and circumstances in which interim application and application under Section 65 of Indian Evidence Act seeking permission to lead secondary evidence was filed.
23. It is further stated in the written submissions of the defendant no. 2 that the present suit is not maintainable in the present form as the property in question was joint property thrown in the common hotchpotch. It is further averred that because of said reasons the family settlement arrived at between the members of the joint family has to be considered by the court. Further the plaintiff has to clearly mentioned the date when the suit property was thrown in common hotchpotch and other details regarding the share in such HUF property. Counsel for defendant has referred to the judgment passed by The Hon'ble High Court in the case of Surender Kumar vs Dhani Ram & ors ; 227(2016) DLT 217.
24. Ld. counsel for defendant no. 2 has also referred to the judgment CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 15 of 29 : 16 : passed by The Hon'ble Supreme Court in the case of Prakash & ors vs Phulavati & ors; AIR 2016 SC 769 stating that defendant no. 3 Smt. Maneeta Anand who is daughter of Sh. Joginder Singh Bhasin has no right in the suit property as Sh. Joginder Singh Bhasin died before amendment of Hindu Succession Act. It is averred that impleading her as a defendant is misjoinder of parties. It is argued on behalf of defendant no. 2 that relinquishment deeds even if registered are of no consequence. Their executant had no right in the suit property and therefore, were not competent to relinquish the same in favour of any person. It is further averred that in view of the judgment passed by The Hon'ble Supreme Court in the case of Satyapal Anand vs State of M.P; 2015(155) A.I.C S.C 130 wherein it was observed that court of law has a jurisdiction to declare a registered document as void and even cancel the same, this court is not bound to consider the relinquishment deeds only because the same are registered.
25. It is further averred that plaintiffs have taken conflicting pleas and failed to prove relinquishment deeds. It is further averred that notice of the family settlement placed on record can be considered by the court in view of the findings in the case of Mahinder Singh vs Jaswant Kaur, Civil Appeal No 6706 of 2013 decided on 11.09.2019. It is argued that in view of said submissions the suit of the plaintiffs may be CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 16 of 29 : 17 : dismissed.
Findings
26. Vide order dated 07.02.2013, the Hon'ble High Court has framed three issues. The onus of proving these issues was placed upon the defendant no. 2 and 3 i.e. Sh. Pawanjeet Singh and Sh. Ravinderjeet Singh Bhain who are now defendant no. 1 and defendant no. 2. In the same order, the Hon'ble High Court has observed that there is no dispute regarding the registered relinquishment deed executed in faovur of plaintiffs. It is observed that in case defendants failed to prove their defence then all the plaintiffs jointly shall be entitled for 5/6 th share and all the defendants jointly for 1/6th share in the suit property in view of the relinquishment deeds. In view of said observation by the Hon'ble High Court, the registered relinquishment deeds have to be considered by the court as it is. The only fact to be adjudicated by this court is that whether defendant no. 1 and 2 (initially defendant no. 2 and 3) have been able to prove their defence as taken by defendant no. 2 in the written statement.
27. I have considered the rival contentions and have perueed the record. My issuewise findings are as follows: Issue no. 1. Whether there was any family settlement between CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 17 of 29 : 18 : the heirs of Mr Avtar Singh in which the suit property had fallen to the share of the plaintiffs and predecessor of the defendants only? OPD2& 3 Issue no. 2: Whether the suit property already stands partitioned between the plaintiffs and the predecessor of the defendants and the parties are in possession of their respective shares?
OPD2 & 3
28. The onus of proving both these issues was upon defendant no. 1 and 2. Findings on both the issues are overlapping, therefore, they are decided together. This is an admitted fact that suit property was owned by Late Sh Avtar Singh who was predecessor in interest of all the parties to the present suit. Late Sh. Avtar Singh died intestate leaving behind five sons and one daughter. As per the case of the plaintiffs, the suit property was self acquired property of Late Sh. Avtar Singh . It is averred in the plaint that Late Sh. Avtar Singh died intestate and therefore, after his death all his children were entitled for equal shares in the suit property. It is averred that except the father of defendant no. 2 and 3 i.e. Sh. Joginder Singh Bhasin, the remaining three sons and one daughter of Late Sh. Avtar Singh relinquished their respective shares in the suit property in favour of plaintiffs by virtue of registered relinquishment deeds executed by each of them.
CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 18 of 29 : 19 :29. Defendant no. 2 has controverted the said submissions in his written statement and has stated that the suit property is ancestral property which was purchased by Late Sh. Avtar Singh from the funds received by him as compensation. It is further averred that the suit property has already been partitioned by virtue of family settlement dated 31.03.1987. By virtue of said settlement, plaintiffs and defendants have become owner of 50% share each in the suit property and are in possession of their respective portions. Defendant no. 2 has averred in the written statement that remaining legal heirs of Late Sh. Avtar Singh were left with no right , title or interest in the suit property by virtue of family settlement and therefore, they were not competent to execute any relinquishment deed. It is averred that when the executant of relinquishment deed had no share in the suit property then there is no question of relinquishing the same in favour of plaintiffs. It is argued that the Hon'ble Apex Court in the case of Satyapal Anand vs State of M.P (supra) has held that the court can cancel a registered document also. However, in the present case, in view of the observations made by the Hon'ble High Court in order dated 07.02.2013, this court does not have to adjudicate upon the authenticity of the relinquishment deeds. Same are held to be admitted. Defendants have not challenged the order dated 07.02.2013 and the same has attained finality. Hence, the question whether this court can cancel the registered document or not is CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 19 of 29 : 20 : immaterial.
30. Onus was upon defendant no. 1 and 2 to prove the factum of family settlement and partition. At the outset, it is imperative to mention that as per the case of defendant no. 1 and 2 themselves the partition took place by a written family settlement dated 31.03.1987. It is averred in the written statement filed by defendant no. 2 that the rights of the legal heirs of Late Sh. Avtar Singh were determined in the said written family settlement only. It is not the case of the defendant no. 2 that the said written family settlement is merely a memorandum of the terms which were already settled orally between the parties. It is also admitted fact that said settlement is an unregistered document. It is a settled law that if a family settlement is reduced in writing and is not merely a memorandum of already settled terms then it is compulsorily registrable under Section 17 of the Registration Act. Reference in this regard be made to the judgment passed by the Hon'ble Apex Court in the case titled as Tek Bahadur Bhujil vs Debi Singh Bhujil And Ors.; AIR 1966 SC 292 wherein it was 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 CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 20 of 29 : 21 : 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...."
31. The said position of law was reiterated by the Hon'ble Apex Court recently in the case titled as Subraya M.N. v. Vittala M.N.(2016) 8 SCC 705, wherein it was held that if a binding family arrangement is reduced to the form of writing with a purpose that the terms should be evidenced by it then the same requires registration and it is inadmissible without registration. Hence, a written family settlement determining the rights of the members of a joint family in the immovable property which is unregistered cannot be considered by the court.
32. Even if this court proceeds to consider the family settlement dated 31.03.1987 then it has to be seen whether the same has been proved by defendant no. 1 and 2 as per provisions of The Indian Evidence Act or not. DW2 Sh. Pawanjeet Singh Bhasin has admitted in his cross CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 21 of 29 : 22 : examination that said family settlement was neither notarized nor registered. Perusal of the record shows that written statement in which the factum of family settlement has been pleaded is filed by defendant no. 2. This shows that there is neither any pleading nor any evidence on record on behalf of defendant no.1 Sh. Ravinder Jeet Singh Bhasin with respect to the family settlement. Hence, it was incumbent upon defendant no. 2 to prove the factum of family settlement as pleaded by him in his written statement. Copy of family settlement is placed on record. However, the said copy is merely a photocopy. The application for leading secondary evidence has been declined by this court vide detailed order dated 11.01.2019 which was not challenged by defendant no. 2 or any other defendant and has attained finality.
33. As per the averments of defendant no.2 and perusal of copy of family settlement placed on record shows that beside plaintiffs and the defendants, the other legal heirs of Late Sh. Avtar Singh Bhasin were also present at the time of execution of family settlement. Even if the original of the family settlement can not be produced, then defendant no.2 could have made an effort to examine any of the other legal heirs to prove the execution of the family settlement but no steps were taken by defendant no.2 to examine any witness to prove the execution of a binding family settlement with respect to the suit property. All other CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 22 of 29 : 23 : defendants chose not to appear in the court and were proceeded ex parte.
34. Even in the family settlement, it is only mentioned that the same is being executed with respect to one of the residential properties in Delhi. It does not mention the address of said residential property so as to ascertain that the same was pertaining to the suit property or not. Defendant Sh. Pawanjeet Singh Bhasin examined himself as DW2. In his affidavit in examination in chief, he has deposed that said family settlement was written by plaintiff no. 2 in his own hand writing in presence of his uncles and all his uncles put their signatures on the same . He also deposed that family members of all five sons i.e. including defendant no.2 have been provided handwritten copies. However, despite the said fact no handwritten copy has been produced in the court. In fact contrary statement was made by the defendant no. 2 Sh. Pawanjeet Singh Bhasin. He stated that he does not have any true copy of the said family settlement and also moved an application seeking liberty to lead secondary evidence to prove the said family settlement. In the written submissions, Ld. Counsel for defendant no. 2 has referred to the judgment in the case of Raj Mal vs Prem Narain & ors (Supra) stating that the technicalities of procedure shall not erode the substantive rights. It was argued that the court shall consider all the CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 23 of 29 : 24 : aspects and circumstances in which the application seeking permission to lead secondary evidence was moved. After considering all the circumstances, it is established that defendant no. 2 has taken contrary pleas. The conduct of the defendant no. 2 was already discussed in detail by this court in order dated 11.01.2019. It is correct that procedural technicalities shall not hamper the cause of justice. However, at the same time defendant cannot seek a relief by making contradictory submissions before the court. As already discussed above, in the written statement defendant no. 2 has submitted that he was provided with the true copy of settlement. But during the entire trial, there is no explanation as to why the said true copy was not placed on record. In fact, defendant no. 2 moved an application seeking permission to lead secondary evidence stating that he is in possession of the photocopy only thus, making a contradictory statement to his pleadings. Not producing the true copy on record is not merely a technical irregularity but by this defendant no. 2 has not been able to prove his defence.
35. Perusal of the record shows that in the rejoinder and in the testimony, it is stated on behalf of plaintiffs that the family settlement was never executed and was never acted upon. It has been argued on behalf of defendant no. 2 i.e. Sh. Pawanjeet Singh Bhasin that the factum of execution of family settlement is duly admitted by plaintiffs CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 24 of 29 : 25 : in their rejoinder as well as in the crossexamination of PW1. Perusal of the replication and crossexamination of PW1 shows that plaintiffs have not denied that a family settlement was executed but it is specifically stated that it was never acted upon. Further, it is also not admitted that the suit property was the subject matter of the said family settlement. Onus was upon the defendant no. 2 to prove that partition has taken place by virtue of the family settlement. In absence of clear and unambigous admissions on part of the plaintiffs, it was incumbent upon the defendant no. 2 to adduce cogent evidence to prove the family settlement by which partition of the suit property is alleged to have taken place. Defendant no. 2 cannot take advantage of the fact that there is no clear denial by the plaintiffs as the same will not amount to admission. Onus was upon defendant no. 2 i.e. Sh. Pawanjeet Singh Bhasin to prove the contents of said settlement by his testimony in his evidence. Defendant no.2 has miserably failed to prove the execution of any binding family settlement and to prove the fact that the suit property has been partitioned and the parties are residing in their respective portions.
36. One of the contention raised on behalf of defendant no. 2 i.e. Sh Pawanjeet Singh Bhasin is that the suit property is ancestral property as Late Sh. Avtar Singh got the same as compensation. Though there is CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 25 of 29 : 26 : no evidence on record to prove the said fact but even if same is considered then admittedly daughter of Late Sh. Avtar Singh was alive at the time of his death. As Late Sh. Avtar Singh was survived by class I female legal heir, therefore, the provisio of Section 6 of The Hindu Succession Act will be applicable in the present case. As per said provisio, the suit property will devolve by way of succession as per section 8 of The Hindu Succession Act. Hence, it is immaterial whether the suit property is ancestral property or self acquired property of Late Sh. Avtar Singh. Therefore, the judgment titled as Surender Kumar vs Dhani Ram & ors (supra) as referred by Ld. Counsel for defendant no. 2 is not applicable to the facts of the present case.
37. Ld. Counsel for defendant no. 2 has argued that the suit is bad for mis joinder and non joinder of necessary parties. It is stated that defendant no. 3 Smt. Maneeta Anand has no right in the suit property in view of the judgment titled as Prakash & ors vs Phulavati & ors (Supra) as her father died after the amendment of The Hindu Succession Act. It is averred that arraying her as defendant is mis joinder of parties. As per Order 1 Rule 9 of Code of Civil Procedure, no suit can be dismissed for misjoinder of parties. Hence, even if arraying Smt. Maneeta as defendant no. 3 is misjoinder then also same will not have any bearing on the merits of the suit. Defendant no. 2 has not CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 26 of 29 : 27 : explained as to which necessary party is not arrayed in the present suit so as to say that the suit is bad for nonjoinder of necessary parties. Only a vague plea has been taken. Therefore, both these contentions will not have any bearing on the case of the plaintiffs.
38. Ld. counsel for defendant no. 2 has raised an argument that the suit is without any cause of action. The said argument has been raised on the ground that the suit property is already partitioned in view of family settlement. However, it is already discussed above that the family settlements are not proved on record as per law. Therefore, in view of the above discussion, it cannot be said that the suit is without any cause of action.
39. Defendant no. 2 has raised an objection that plaintiffs are carrying out unauthorized construction in their portion as well as in the portion meant for common use. However, the family settlement is not proved on record, therefore, it cannot be ascertained as to which portion of the suit property belongs to which party. The contentions regarding unauthorized constructions are beyond the ambit of the present suit. Defendant no. 2 has not filed any counter claim nor any issue has been framed with this regard. If plaintiffs are carrying out any unauthorized construction then the same gives rise to a separate cause of action CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 27 of 29 : 28 : which cannot be adjudicated in the present suit.
40. In view of above findings, both the issues at hand are decided in faovur of plaintiffs and against defendants.
Issue no. 3: Relief
41. In view of findings on above issues, a preliminary decree of partition of property bearing no. 14/51, Punjabi Bagh(West), New Delhi110026 is passed. All the plaintiffs jointly are held entitled for 5/6 th share in the suit property and all the defendants jointly are held entitled for 1/6th share in the suit property.
42. Plaintiffs have also prayed for decree of permanent injunction thereby restraining the defendants or any other person acting on their behalf from creating third party interest in any manner, from parting with possession in any manner or from carrying out any construction addition or alteration in the first floor of the suit property. However, in view of above findings all the parties are held to be coowners. Defendants being the coowner cannot be restrained from enjoying their rights in the suit property to the extent of their share. Further, till the partition is not done by metes and bounds each and every coowner has a right on each and every part of the property. Hence, no injunction can CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 28 of 29 : 29 : be passed to restrain either of the coowner to carry out construction in a particular portion of the property till the partition is not done by metes and bounds. Hence, all the parties to the present suit are held entitled to alienate, to part with possession or to carry out construction as per rules only to the extent of their share in the suit property. Prayer of permanent injunction is decided accordingly. Decree sheet be prepared accordingly.
Sugandha Aggarwal ADJ/West/Delhi 27.11.2019 This judgment contains 29 pages and all pages are duly signed by me.
Sugandha Aggarwal ADJ/West/Delhi 27.11.2019 Announced in the open court on 27th November, 2019 CS No. 610269/16 Baljeet Kaur Bhasin & ors vs Narender Kaur & ors Page 29 of 29