Delhi High Court
Shri Ashok Alagh vs Mrs. Neelam Alagh & Ors. on 30 September, 2015
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.1289/2006
% 30th September, 2015
SHRI ASHOK ALAGH ..... Plaintiff
Through: Mr. S.S. Panwar, Advocate with Ms.
Shantha Raman, Advocate and Ms.
Nivedita Panwar, Advocate.
Versus
MRS. NEELAM ALAGH & ORS. ..... Defendants
Through: Mr. M. Tarique Siddiqui, Advocate
with Ms. Rakshan Ahmed, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This is a suit for partition, rendition of accounts and permanent injunction. The suit is filed by the plaintiff Sh. Ashok Alagh. Defendants in the suit are the widow and children of late Sh. Subhash Alagh who was the brother of the plaintiff. Plaintiff claims 50% ownership rights and hence partition of his ½ share in the suit property no.N-215, ground floor flat, G.K.-I, New Delhi. The suit property is an old construction of 1967 and is situated on a plot of land admeasuring 313 sq yds. Originally the plaintiff CS(OS) No. 1289/2006 Page 1 of 35 and Sh. Subhash Alagh, the late husband of the defendant no.1 were the two owners of the suit property inasmuch as the father Sh. Gulzari Lal Alagh; the father of the plaintiff and Sh. Subhash Alagh; was the owner of the property and which property had devolved upon the father Sh. Gulzari Lal Alagh from his wife Smt. Soma Rani Alagh. Smt. Soma Rani Alagh had bequeathed the suit property to her husband Sh. Gulzari Lal Alagh by the Will dated 19.3.1984. Smt. Soma Rani Alagh pre-deceased Sh. Gulzari Lal Alagh on 8.11.1985. Sh. Gulzari Lal Alagh bequeathed the suit property half and half to the plaintiff and Sh. Subhash Alagh by his Will dated 15.7.1986. Sh. Gulzari Lal Alagh died on 25.6.1991. Plaintiff is residing in U.K. for 29 years before filing of the suit in the year 2006. As per the plaintiff his brother Sh. Subhash Alagh had agreed to pay him the value of his half share in the suit property however Sh. Subhash Alagh has backed out. Plaintiff therefore claims partition and rendition of accounts with respect to his half share in the suit property.
2. Defendants filed their written statement and contested the claim of the plaintiff and denied that the plaintiff any longer has half ownership rights in the suit property. The defendants in the written statement have pleaded that between the brothers late Sh. Subhash Alagh and the plaintiff, a CS(OS) No. 1289/2006 Page 2 of 35 Family Settlement was signed on 18.2.1999 as a result of which it was agreed that plaintiff would be paid his half share by taking the market value of the property as on the date of Family Settlement being 18.2.1999 vide para 4 of the family settlement. The payment to the plaintiff was to be made within six months to one year as per para 5 of the family settlement. It is stated that late Sh. Subhash Alagh during his lifetime, paid different amounts from the year 1999 to 2005, either directly to the plaintiff or to Ms. Kanchan Tuli who is the sister of the parties and who was the attorney of the plaintiff. It be noted that even the present suit has been filed by the sister Ms. Kanchan Tuli as the attorney of the plaintiff. In the written statement, the defendants have pleaded that the plaintiff has deliberately concealed not only the factum of a Family Settlement dated 18.2.1999 entered into between him and late Sh. Subhash Alagh but also that payments pursuant to the settlement were made by Sh. Subhash Alagh to the plaintiff and his attorney Ms. Kanchan Tuli on various dates during the years 1999 to 2005. Defendants have also pleaded that besides the plaintiff has resorted to filing a false suit and which has been filed deliberately after the death of Sh. Subhash Alagh so as to prejudice the defendants who may not have had the documents and other factual details which would have been much more CS(OS) No. 1289/2006 Page 3 of 35 easily available to Sh. Subhash Alagh for defending the false suit of the plaintiff.
3. Plaintiff in the replication filed admitted to the existence of and the execution of the documents being the Family Settlement dated 18.2.1999, however, it is pleaded by the plaintiff that a further and a final settlement agreement was envisaged in terms of the Family Settlement dated 18.2.1999 to be thereafter entered into but that final agreement was never entered into because market price of the property at the time of MOU was not settled. It is also pleaded in the replication that no consideration in terms of the MOU/ Family Settlement dated 18.2.1999 was received by the plaintiff. It is also pleaded in the replication by the plaintiff that payments stated to have been made by late Sh. Subhash Alagh to the plaintiff during 1999 to 2005 are absolutely manipulated, baseless, false, frivolous, bogus, misconceived and mala fide. Plaintiff has also denied that value of the suit property was Rs.20 lacs in February, 1999 as was the case of the defendants as per the written statement. Plaintiff however conceded in the replication that the plaintiff received a sum of Rs.70,000/- and Rs.1,58,960/- from late Sh. Subhash Alagh through bank payments. It is claimed that late Sh. Subhash Alagh failed to make the payment in time and in lumpsum basis CS(OS) No. 1289/2006 Page 4 of 35 and therefore the payments made of Rs.70,000/- and Rs.1,58,960/- stood forfeited.
4. The following issues were framed in the suit on 9.1.2009:-
"1. Whether the present suit filed by the plaintiff through his attorney Smt. Kanchan Tuli is legally maintainable? OPP
2. Whether the family settlement dated 18.02.1999 entered into between the plaintiff and his late brother Mr. Subhash Alagh is binding on them and was it ever acted upon and if so, to what effect? OPD
3. Whether the plaintiff's late brother Mr. Subhash Alagh had paid the price of half share of the plaintiff in the suit property after entering into the family settlement dated 18.02.1999 and if so, to what effect? OPD
4. Whether the plaintiff is entitled for partition of the suit property i.e. ground floor of property bearing No.N-215, GK-I, New Delhi and if so, to what share he is entitled in the said property? OPP
5. Whether the plaintiff is entitled to any amount from the defendant on account of their use and occupation of the suit property since 1999 and if so, to what amount? OPP
6. Relief."
5. The following witnesses have been examined by both the parties:-
Plaintiff
(i) PW1- Plaintiff himself.
CS(OS) No. 1289/2006 Page 5 of 35
(ii) PW2- Ms. Kanchan Tuli, the sister of the plaintiff and late Sh.
Subhash Alagh, and the attorney of the plaintiff.
(iii) PW3- Mr. Anupam Kumar Kulshreshta, who was the Senior Accountant of the company M/s. Watch Dog Security & Detective Agency Pvt. Ltd. This company is owned by Ms. Kanchan Tuli and her family members.
Defendants (i) DW-1 Smt. Neelam Alagh, defendnant no.1. (ii) DW-2 Sh. Amit Sharma, valuer with respect to valuation of the suit
property. It is however noted that cross-examination of this witness was not completed as this witness left to settle abroad, but, plaintiff's counsel has agreed that the evidence of DW-2 and the valuer's report filed by the witness be looked into by this Court.
(iii) DW-3 Sh. Devender Kumar of Syndicate Bank wherein late Sh. Subhash Alagh maintained one bank account.
(iv) DW-4 Sh. Gunjan Kumar from LIC on the aspect of working of defendant no.1 with LIC only for a limited period.
(v) DW-5 Sh. N.P. Kaushik from MCD house tax department CS(OS) No. 1289/2006 Page 6 of 35
(vi) DW-6 Sh. Tarun Kumar Dutt of Standard Chartered Bank with respect to another account maintained in this bank by late Sh. Subhash Alagh, and which is the main account from which payments in cash were withdrawn and paid by Mr. Subhash Alagh to Ms. Kanchan Tuli and her family members for the plaintiff.
(vii) DW-7 Sh. Manoj Prasad from United Bank of India to show clearing of cheques of Rs.2.50 lacs in favour of Ms. Pooja Tuli, daughter of Ms. Kanchan Tuli.
Issue No.1
6. So far as issue no.1 is concerned, counsel for the defendants does not press the issue, and therefore this issue is decided in favour of the plaintiff holding that Ms. Kanchan Tuli is the attorney of the plaintiff Sh. Ashok Alagh and she has validly filed the present suit on behalf of the plaintiff/Sh. Ashok Alagh.
Issue Nos.2 and 3
7. Let me now take up issue nos.2 and 3 together for discussion inasmuch as discussion on these issues would be inter-related. These two issues are the main issues which will decide the fate of the suit. Under these CS(OS) No. 1289/2006 Page 7 of 35 issues it will have to be discussed as to whether the plaintiff and his brother late Sh. Subhash Alagh had entered into the Family Settlement dated 18.2.1999 and if so whether the same was acted upon. It will also have to be seen as to whether pursuant to the family settlement, Sh. Subhash Alagh during his life time paid half share of the suit property to the plaintiff pursuant to the Family Settlement /MOU dated 18.2.1999.
8. With respect to these issues, the following arguments have been urged on behalf of the plaintiff:-
(i) The Family Settlement dated 18.2.1999 was not a final document inasmuch as the document itself talks of a settlement to be arrived at i.e a proper document had to be executed specifying the value of the property and how the amount is to be paid to the plaintiff and therefore the defendants can derive no benefit from this MOU/ Family Settlement dated 18.2.1999.
(ii) That in fact no price i.e value of the share of the plaintiff was agreed upon at Rs.10 lacs as claimed by the defendants and in fact the defendants have failed to prove by leading credible evidence that the value of the half share of the plaintiff was a total sum of Rs.20 lacs in February, 1999 whereby the share of the plaintiff would be Rs.10 lacs as claimed by the defendants.CS(OS) No. 1289/2006 Page 8 of 35
(iii) That except two sums of Rs.70,000/- and Rs.1.50 lacs received by the plaintiff on 2.1.2000 and 18.4.2002, no other payments were ever received by the plaintiff from late Sh. Subhash Alagh. This aspect is to be taken with the fact that payments which are said to have been made by Sh. Subhash Alagh to Ms. Kanchan Tuli and her family members being Sh. Satish Tuli, her husband and Ms. Puja Tuli, her daughter are pleaded by the plaintiff that these cash payments made to Ms. Kanchan Tuli and her family members cannot be said to have been made to the plaintiff more so because on such payments having been made there were no confirmations sent by late Sh.
Subhash Alagh to the plaintiff that such amounts are towards the value payable to the plaintiff of his half share in the suit property. All the payments therefore alleged to have been made by Sh. Subhash Alagh to the plaintiff through Ms. Kanchan Tuli and her family member are alleged to be a manipulated and mala fide stand of payments to the plaintiff by Sh. Subhash Alagh which cannot be taken as satisfaction of the dues of the plaintiff.
(iv) This Court should not accept the defence of the defendants with respect to value of half share of the property at Rs.10 lacs and the Family Settlement dated 18.2.1999 being final because after all admittedly payments CS(OS) No. 1289/2006 Page 9 of 35 are alleged to be made in not one lumpsum but by means of different amounts on the different dates during the years 1999 to 2005 whereas payment ought to have been in one lumpsum as per the MOU/ Family Settlement dated 18.2.1999.
(v) The defendants are guilty of stating false facts before this Court inasmuch as the valuation report filed and exhibited through the valuer of the defendants witness DW-2 Sh. Amit Sharma shows that in this report dated 15.5.1999 the defendant no.1 Smt. Neelam Alagh is shown to be the wife of late Sh. Subhash Alagh and which cannot be because late Sh. Subhash Alagh admittedly died later on 7.10.2005 and therefore Smt. Neelam Alagh could not have been the widow on 15.5.1999 which is the date of the report.
9. In response to the arguments urged on behalf of the plaintiff, the defendants have argued as under:-
(i) The Family Settlement/MOU dated 18.2.1999 did not envisage any further document to be entered into as is falsely being alleged by the plaintiff inasmuch as when the language of this document talks of a 'settlement' it means thereby that the settlement is of payments to be made and not that the CS(OS) No. 1289/2006 Page 10 of 35 settlement which is referred to in the Family Settlement dated 18.2.1999 is that the document of settlement was to be entered into.
(ii) The Family Settlement dated 18.2.1999 specifically crystallizes the market value to be the market value of the property to be the half share of the plaintiff as on the date of MOU and this is so specifically stated in the last line of para 4 of the family settlement.
(iii) Defendants have proved various payments which have been made to the plaintiff directly as also through Ms. Kanchan Tuli and who was and is the power of attorney holder of the plaintiff, and that payments in cash made to Ms. Kanchan Tuli and her family members (being her husband Sh. Satish Tuli and her daughter Ms. Puja Tuli) were made by late Sh. Subhash Alagh for and on behalf of the plaintiff by endorsing each cash withdrawal and thus payment, in the counterfoils of the cheque books as being referable to Ms. Kanchan Tuli and her family members and that there were no commercial relations between Mr. Subhash Alagh and Ms. Kanchan Tuli and her family members for the cash payments to have been made by Mr. Subhash Alagh to them i.e there was no reason for such payments by Mr. Subhash Alagh to Ms. Kanchan Tuli and her family members except that these payments were CS(OS) No. 1289/2006 Page 11 of 35 as per directions of plaintiff/Kanchan Tuli towards the MOU/family settlement.
(iv) Plaintiff is wholly unjustified in arguing that the value of the property was never determined at Rs.20 lacs and the share of the plaintiff at Rs.10 lacs, inasmuch as, after all unless the value of the share of the plaintiff was decided why would plaintiff otherwise have received various payments which have been proved by the defendants to have been made either directly to the plaintiff or to the plaintiff through Ms. Kanchan Tuli and her family members. It is argued that the stand of the plaintiff is self-contradictory that the value of the property falling to the share of the plaintiff is undecided inasmuch as the very fact that payments were received by the plaintiff directly or through the family members of Ms. Kanchan Tuli, such a situation does envisage that the value has been fixed and only thereafter would have arisen the factum of payments having been made to the plaintiff.
(v) The fact that late Sh. Subhash Alagh made payments in different amounts over the years 1999 to 2005 shows that clearly there was no issue of plaintiff being paid in lumpsum as is being argued on behalf of the plaintiff. It is also argued on behalf of the defendants that the fact that payments of different amounts were made by late Sh. Subhash Alagh from CS(OS) No. 1289/2006 Page 12 of 35 the year 1999 to 2005, the same is clearly an indication of the fact not only that payment was not to be made in lumpsum but also that Clause 5 of the Family Settlement dated 18.2.1999 of payment by settlement to be completed within six months to one year was given a go bye by the parties.
(vi) The plaintiff through this suit is guilty of not only concealing of facts but he has also adopted a totally dishonest approach and has repeatedly told lies before this Court and which is clear from various facts such as plaintiff having been concealed the existence of the Family Settlement dated 18.2.1999 by not even mentioning the same in the plaint, plaintiff denying the receipt of any payment except the bank payments of Rs.70,000/- and Rs.1.50 lacs and thereafter of defendants exposing the lies of plaintiff by filing clinching proof of such payments, and finally, of the plaintiff in spite of executing the Power of Attorney dated 18.2.1999 in favour of Ms. Kanchan Tuli falsely denied that Ms. Kanchan Tuli was not entitled to receive money under the Family Settlement dated 18.2.1999 but the same is shown to be a complete lie in view of para 3 of the Power of Attorney dated 18.2.1999 executed by plaintiff in favour of Ms. Kanchan Tuli which shows that Ms. Kanchan Tuli was authorized to receive amounts on account of the CS(OS) No. 1289/2006 Page 13 of 35 Will of the father Sh. Gulzari Lal Alagh and it is through the Will of the father that plaintiff has got half share in the suit property.
10. Before referring to the respective arguments of the parties and deciding the existence, validity and applicability of the Family Settlement dated 18.2.1999, let me at this stage reproduce the Family Settlement dated 18.2.1999, Ex.PW1/DX, and which reads as under:-
"AGREEMENT OF FAMILY SETTLEMENT We Subhash Alagh S/o Late Shri Gulzari Lal Alagh R/o N-215, Greater Kailash-I, New Delhi and Ashok Alagh S/o Late Shri Gulzari Lal Alagh R/o 153, Fleet Side, West Molesey, Surrey, England, KT8 2NH hereby declare and confirm our Mutual Agreement as below.
1. That we have acquired Ground floor Flat of N-215, Greater Kailash-I as per Will of our father Late Shri Gulzari Lal Alagh.
2. Mr. Subhash Alagh is at present living at Ground floor of N-215, Greater Kailash-I which is a joint property of Mr. Subhash Alagh and Mr. Ashok Alagh.
3. Mr. Subhash Alagh hereby agrees that Mr. Ashok Alagh shares same property equally as per our father's will.
4. Since Mr. Ashok Alagh is living abroad, Mr. Subhash alagh agrees that his share of Ground Floor will be reimbursed to him either by selling the complete flat or half flat which is Mr. Ashok Alagh's share. And also his share of property can be reimbursed by paying him the market price of his flat at the time of settlement.
5. We understand that this settlement should be done between a period of 6 months to one year.
6. We both have agreed to do every effort to do the settlement at earliest possible time.
7. We also agree that there should not be any alteration or addition to the property without the mutual consent.
CS(OS) No. 1289/2006 Page 14 of 35
8. In case of any eventuality the same agreement will be valid by legal heirs of Mr. Subhash Alagh and legal heirs of Mr. Ashok Alagh.
Signed by: Witnesses
1. Mr. Subhash Alagh 1. Mrs. Indu Alagh
2. Mr. Ashok Alagh 2. Mrs. Kanchan Tuli."
(underlining added)
11. Since discussion on the terms of this family settlement will necessarily envisage reference to payments if made by late Sh. Subhash Alagh to the plaintiff or the family members of Ms. Kanchan Tuli, let me reproduce the chart Ex.DW1/2 of the defendants which as per the defendants show payments made by late Sh. Subhash Alagh to the plaintiff, and to Ms. Kanchan Tuli and her family members for the plaintiff, in terms of the Family Settlement dated 18.2.1999, and which chart reads as under:-
"DETAILS OF AMOUNT PAID TO PLAINTIFF S.No. Date Bank Name Cheque To Amt No. 1 04/11/99 United Bank of 895041 Kanchan Tuli 10,000/-
India 2 25/10/99 Anz Bank 643868 Kanchan Tuli 70,000/- 3 17/07/00 ANZ Bank 590505 Kanchan Tuli 12,000/- 4 03/08/00 ANZ Bank 590514 Kanchan Tuli 15,000/- 5 22/11/00 ANZ Bank 952330 Satish Tuli 20,000/- 6 19/12/00 ANZ Bank 952336 Kanchan Tuli 18,266/-CS(OS) No. 1289/2006 Page 15 of 35
7 13/03/01 Standard Chartered 943378 Watch Dog 18,132/-
Co.
8 24/05/01 ANZ Bank 952343 Kanchan Tuli 20,000/- 9 18/01/02 Standard Chartered 934562 Satish Tuli 20,270/- 10 11/02/02 Standard Chartered 934574 Satish Tuli 20,000/- 11 11/02/02 Standard Chartered 934575 Satish Tuli 20,000/- 12 22/22/02 Standard Chartered 934551 Ashok Alagh 22,000/- 13 18/03/02 Standard Chartered 934559 Satish Tuli 21,000/- 14 15/05/02 Standard Chartered 934573 Satish Tuli 20,500/- 15 02/07/02 Standard Chartered 773326 Watch Dog 24,380/- 16 02/08/02 Standard Chartered 773339 Satish Tuli 24270/- 17 18/09/02 Standard Chartered 183927 Satish Tuli 22270/- 18 20/12/02 Standard Chartered 002726 Satish Tuli 19000/- 19 25/01/03 Standard Chartered 014480 Satish Tuli 22270/- 20 27/02/03 Standard Chartered 014495 Satish Tuli 22270/- 21 25/07/03 Standard Chartered 051302 Satish Tuli 24270/- 22 03/10/03 Standard Chartered 565070 Watch Dog 41,880/- 23 16/01/04 Standard Chartered 051317 Kanchan Tuli 30,000/- 24 02/01/00 Cash in Pounds Through 70,000/-
sister in UK 25 18/04/02 HSBC Bank 301823 To Ashok 1,50,000/-
Alagh 26 12/09/05 Standard Chartered 307235 Kanchan Tuli 2,50,000/- 27 05/10/05 United Bank of 5712 Puja Tuli 2,50,000/-
India
Total 12,57,778/-
CS(OS) No. 1289/2006 Page 16 of 35
12. Finally before proceeding to decide issue nos.2 and 3, it would be necessary to refer to the Power of Attorney dated 18.2.1999 executed by plaintiff in favour of Ms. Kanchan Tuli and for this judgment one needs to refer only to para 3 of this power of attorney and therefore the relevant portion of the power of attorney reads as under:-
"Know all men by these presents that Mr. Ashok Alagh S/o Late Sheri Gulzari Lal Alagh R/o N-215, Greater Kailash, New Delhi-110048, India I hereby appoint Mrs. Kanchan Tuli W/o Capt. Satish Kumar Tuli R/o C-116/B Kalkaji, New Delhi (India) as my lawful and general power of attorney and in my name and on my behalf and as my act and deed or otherwise to do all or any of the following things namely:-
1. The attorney is authorised to institute and file any papers or any application in any court of law in India in respect of succession certificate or probate relating to my father late Sh. Gulzari Lal Alagh who expired on 25th of June, 1991.
2. To appoint and engage any advocate on my behalf in any court in India.
3. To receive any amount on my behalf from the Will of my late father Sh. Gulzari Lal Alagh and give the discharge receipt in lieu of.
xxxx xxxx xxxx IN WITNESS WHEREOF I have put my signature hereunder on 18th day of Feb. 1999 in the presence of witnesses. Signature of Attorney Signed as a deed and delivered by the said in the presence of: Witnesses
1. Mr. Subhash Alagh 2. Mrs. Indu Alagh CS(OS) No. 1289/2006 Page 17 of 35 N-215, Greater Kailash-I N-215, Greater Kailash-I New Delhi-110048 New Delhi-110048"
(underlining added) 13(i). I may note that though the Power of Attorney dated 18.2.1999 executed by the plaintiff in favour of Ms. Kanchan Tuli is mentioned as Mark A, however, this document is an admitted document inasmuch as in the cross-examination of plaintiff as PW-1 on 11.11.2009, plaintiff at page 2 of the cross-examination of the said date has clearly admitted that he had executed this GPA in favour of Ms. Kanchan Tuli which is Mark A. Also, Ms. Kanchan Tuli deposing as PW-2 in her cross-examination dated 16.11.2009 has also in the first few lines of the cross-examination itself admitted that plaintiff had executed this GPA in her favour on 18.2.1999 which is Mark A. Thus there is no dispute that Mark A is a proved document and for the sake of completion of exhibit numbers, I am exhibiting this power of attorney as Ex.PWDW/X.
(ii) Para 3 of this GPA dated 18.2.1999 leaves no manner of doubt that Ms. Kanchan Tuli was authorized by the plaintiff to receive amounts on behalf of the plaintiff on account of the Will of the father Sh. Gulzari Lal Alagh. Admittedly, the suit property devolved upon the plaintiff and late Sh. CS(OS) No. 1289/2006 Page 18 of 35 Subhash Alagh as per the Will dated 15.7.1986 of Sh. Gulzari Lal Alagh and therefore whatever payments which Ms. Kanchan Tuli received with respect to the share of the plaintiff was as per the share of the plaintiff as per the Will as regards the suit property and therefore payments received by Ms. Kanchan Tuli would very much be authorized payments by late Sh. Subhash Alagh to the plaintiff through Ms. Kanchan Tuli and her family members.
(iii) I therefore reject the argument urged on behalf of the plaintiff that payments which have been made by late Sh. Subhash Alagh to Ms. Kanchan Tuli and her family members cannot be taken to be payments to the plaintiff.
(iv) This aspect and finding is buttressed by the fact that there is no reason given in the pleadings of the plaintiff or in the depositions of the plaintiff and Ms. Kanchan Tuli that after all why would late Sh. Subhash Alagh make payments to Ms. Kanchan Tuli and her family members and which payments could only have been if for example Ms. Kanchan Tuli had given loans to late Sh. Subhash Alagh and which was being returned by late Sh. Subhash Alagh by different payments over different years from 1999 to 2005 or there were some business relations between late Sh. Subhash Alagh and Ms. Kanchan Tuli and her family members for payments to be made by CS(OS) No. 1289/2006 Page 19 of 35 Mr. Subhash Alagh to Ms. Kanchan Tuli and her family members or if late Sh. Subhash Alagh was acting as an agent or attorney of Ms. Kanchan Tuli and her family members for certain dealings and therefore pursuant to these relations payments were made by late Sh. Subhash Alagh to Ms. Kanchan Tuli and her family members, and this is not the position in the facts of the present case.
(v) I therefore hold that payments which have been made by late Sh. Subhash Alagh to Ms. Kanchan Tuli and her family members in view of categorical para 3 of the GPA Ex.PWDW/X have to be taken as payments made by Mr. Subhash Alagh to the plaintiff.
14(i). Now we have to examine whether the 27 payments which have been given in the chart Ex. DW1/2 are payments which have been proved to have been made by late Sh. Subhash Alagh to Ms. Kanchan Tuli and her family members. I may note that with respect to two payments of Rs.70,000/- and Rs.1,50,000/, serial nos.24 and 25 no discussion is required because plaintiff admits that such payments have been received by him from late Sh. Subhash Alagh.
(ii) In my opinion, defendants have clearly proved 24 out of the remaining 25 payments inasmuch as no doubt 22 payments (last two of 24 CS(OS) No. 1289/2006 Page 20 of 35 are by account payee cheques) are not made by cheques in favour of Ms. Kanchan Tuli and her family members, but as the saying goes that men will lie but circumstances do not. The best proof that cash was withdrawn by late Sh.Subhash Alagh from his bank account and payments made by means of cash to Ms.Kanchan Tuli and her family members is seen because the defendants have filed as Ex. DW1/3 to Ex. DW1/3K the counter-foils of the cheque books containing entries in the hand of late Sh.Subhash Alagh that withdrawals being made by the particular cheques which are stated in the counter-foils Ex.DW1/3 to Ex. DW1/3K are in the hand of late Sh. Subhash Alagh simultaneous to the withdrawals being made by the particular cheques which are stated in Ex.DW1/3 to Ex.DW1/3K that the withdrawal cheques were for either Ms. Kanchan Tuli/KT or Mr. Satish Tuli/ST or for Watchdog i.e Watchdog Security and Detective Agency Private Limited, which is admittedly a company owned by Ms. Kanchan Tuli and her family members. As already stated above there were no business relations or any other commercial relations or any other relationship of late Sh. Subhash Alagh acting as the agent of Ms. Kanchan Tuli and her family members, and therefore payments made by Sh. Subhash Alagh to Ms. Kanchan Tuli and her family members and their company Watchdog would only and only be for and on behalf of the plaintiff, more so, in view of para 3 of the General CS(OS) No. 1289/2006 Page 21 of 35 Power of Attorney (GPA) Ex.PWDW/X. Not only the defendants have supported the proof of payments contained in the chart Ex.DW1/2 by filing the counter-foils of the cheque books, but the defendants have also summoned the witness from Standard Chartered Bank as DW-6 and this witness has filed and proved on record the cheques as also the statement of account maintained by late Sh. Subhash Alagh with the said bank. These documents have been collectively exhibited as Ex.DW1/7A and Ex.DW1/7B. The statement of account has been filed and exhibited as Ex.DW6/2 and 12 out of the 17 cheques have been filed and exhibited as Ex.DW6/1 (colly).
At this stage it is required to be noted that with respect to the last two payments by cheques (not cash) of Rs.2.5 lacs each totaling to Rs.5 lacs shown at serial nos.26 and 27 of Ex.DW1/2, the same are supported by the documents being statement of account of Standard Chartered Bank filed and exhibited as Ex.DW1/7 and the pass-book entry in the pass book of United Bank of India filed and exhibited as Ex.DW1/8. It may be noted that out of the two cheques one cheque in the name of Ms. Pooja Tuli was brought by the witness from Standard Chartered Bank and this cheque of Rs.2.5 lacs dated 29.09.2005 has been exhibited as Ex.DW-7/A. CS(OS) No. 1289/2006 Page 22 of 35
15. In my opinion therefore the payments which are stated in the chart Ex.DW1/2 are clearly proved by means of the aforesaid documents being the counter-foils of the cheque books i.e endorsements in the counter- foils of the cheque books in the hand of deceased Sh. Subhash Alagh relating to these payments as being made to Ms. Kanchan Tuli and her family members, the statement of account of Standard Chartered Bank along with 12 out of the 17 cheques and the passbook of the account of Sh. Subhash Alagh with United Bank of India.
16. Defendants have thus proved payment of a total amount of Rs.12,57,778/- by late Sh.Subhash Alagh to the plaintiff, and which amount is more than the amount of Rs.10 lacs which had to be paid as the 50% share of the plaintiff in the suit property. I may note that there is a ring of truth in the stand taken by the defendants in their written statement that after great difficulty Mr. Subhash Alagh in around the time of his death, i.e a month or so before his death, had managed to arrange a total sum of Rs.5 lacs and which were paid to Ms. Kanchan Tuli and Ms. Pooja Tuli on 12.9.2005 and 5.10.2005 towards final payments for the amount of Rs.10 lacs to the plaintiff and the additional payment of Rs.2,57,778/- obviously would be on account of interest/extra payment for the delay in making of payments by CS(OS) No. 1289/2006 Page 23 of 35 Mr. Subhash Alagh to the plaintiff. Also, where the transactions of payments are to be taken with the closeness of the relations between the parties, it need not be as if payment has to be taken to the last exact specific rupee calculation. Out of the amount of Rs. 12,57,778/-, the sum of Rs. 7,20,000/- is proved as paid by bank to bank transfers and the balance amount by cash duly supported by bank entries with endorsements in counter-foils of the cheque books. In my opinion in view of the above facts the defendants have discharged the onus of proof on them that payment of Rs.12,57,778/- as stated in Ex.DW1/2 was the payment made by Mr. Subhash Alagh to the plaintiff for the share of plaintiff in the suit property.
17. The aforesaid conclusion of this Court that payment of Rs.12,57,778/- is the payment towards plaintiff's share in the suit property, has to be first however based on a finding that in February, 1999 value of the suit property was Rs.20 lacs as is the case of the defendants. The question is, is there evidence on record that the value of the suit property was Rs.20 lacs in February, 1999. I would therefore now discuss the evidence led by the parties on this issue as also the pleadings on this issue in terms of the arguments urged by the respective parties on this aspect. CS(OS) No. 1289/2006 Page 24 of 35 18(i). So far as the best evidence led on behalf of the defendants with respect to the valuation of the suit property being Rs.20 lacs in February, 1999 is concerned, the same is the report of the valuer Mr. Amit Sharma and which has been filed and proved as Ex.DW1/1. In my opinion however this report does not contain any basis for arriving at the valuation. This valuation report dated 15.5.1999 that the value of the suit property would be Rs.20 lacs in February, 1999 is not supported by documentary evidence. An expert's report cannot be treated as weighty evidence merely on the self- serving statement in the report i.e unless the expert has filed along with his report other sale deeds of the property situated in the same area to show and substantiate the value of the property or would have referred to the Government circle rates so as to determine valuation of the suit property, the valuer's report is not of much weight.
(ii) This report Ex.DW1/1 however has some significance and weight as there is no cross-examination of this witness by the plaintiff that the value of the suit flat was not Rs.20 lacs in February, 1999 and more importantly that if the value was not Rs.20 lacs then what was the market value of the suit flat in February, 1999.
CS(OS) No. 1289/2006 Page 25 of 35 19(i). The question then is that is there any further evidence on record with respect to value of the suit property being Rs.20 lacs in February, 1999. In this regard one does not need to go too far off as one can simply refer to the pleadings of the plaintiff itself. Para 13 of the plaint categorically states that in April, 2004 the suit property was valued atleast at around Rs.30 lacs and thereafter the property values further rose. This para 13 of the plaint reads as under:-
"13. That seeing no alternative, the plaintiff repeatedly requested Shri Subhash Alagh to partition the suit property by metes and bounds after he failed to pay the plaintiff, the prevalent market value of his share in the suit property till April, 2004, which was in no case less than Rs.30,00,000/-(Rupees Thirty Lacs only) in April, 2004, but the value of property has rapidly increased thereafter, which in no case is less than Rs.50,00,000/- (Rupees Fifty Lacs only) at present. Thereafter, the plaintiff again requested Shri Subhash Alagh to partition the suit property in first week of May, 2005, which also proved futile." (emphasis is mine)
(ii). Once the plaintiff admits that the value of the suit property, five years after the MOU/Family Settlement of February, 1999, i.e in April, 2004, was Rs.30 lacs, then surely this Court can take the value of the suit property five years earlier in February, 1999 at Rs.20 lacs i.e 50% less. An increase from Rs.20 lacs to Rs.30 lacs is an increase of 50% over five years i.e 10% per annum, and I take judicial notice in exercise of my powers under CS(OS) No. 1289/2006 Page 26 of 35 Sections 57 and 114 of the Indian Evidence Act, 1872 of the rise in the values of the properties in urban areas and more so in the capital Delhi during the period from 1999 to 2004. Therefore in the opinion of this Court definitely there does exist the admissions of the plaintiff qua value of the suit property that the valuation of the suit property was Rs.20 lacs as in February, 1999 and which is the case of the defendants.
20. Thus when these aspects are taken together of (i) some weight to report Ex.DW1/1 on account of lack of cross-examination, (ii) no suggestion to DW2 that the value of the suit property if not Rs.20 lacs than was a higher amount, and (iii) of the admission of the plaintiff in his plaint, it can thus be held that the value of the suit property was around Rs.20 lacs as in February, 1999. The fact that the construction is an old construction of 1967 also leads one to the conclusion of the value being Rs.20 lacs in February, 1999 with the fact that the valuation was inter se brothers and thus there would have been a compromise figure of valuation.
21. The argument urged on behalf of the plaintiff that the Memorandum of Understanding/Family Settlement dated 18.2.1999 envisaged entering into a further agreement, is an argument which has no legs to stand upon for three main reasons. Firstly, no doubt the language of CS(OS) No. 1289/2006 Page 27 of 35 the Family Settlement dated 18.2.1999 does use the expression settlement to be done between a period of six months to one year but this settlement is really a settlement by means of payments of the market price payable with respect to the plaintiff's share in the suit property. The second reason is that if another agreement was to be arrived at, the same either was as a matter of formality or was to determine the price of the suit property being the price of the suit property as stated in the last line of para 4 of the family settlement as the market price of the suit property at the time of settlement in February, 1999, and that the market price as already discussed above would be taken at Rs.20 lacs as on February, 1999. The third reason is that surely if another agreement had to be entered into as a sine qua non for implementing the agreement, then there was no reason why payments were made for as long as a period of five years from 1999 to 2005 and making of payments clearly suggest an existing agreement as to what has been taken as the market value of the property in February, 1999. Admittedly, in fact, two out of the 27 payments referred to as Ex.DW1/2 were directly received by the plaintiff from Sh. Subhash Alagh of the amounts of Rs.70,000/- and Rs.1.5 lacs. Such payments therefore being received are a clear pointer to the fact that no further written agreement was envisaged between the parties and parties in fact by an overall understanding had agreed to the value of the share of the CS(OS) No. 1289/2006 Page 28 of 35 plaintiff at Rs.10 lacs in February, 1999 and which value was being paid by means of various payments from time to time by late Sh. Subhash Alagh to the plaintiff directly or through Ms. Kanchan Tuli and her family members from the years 1999 to 2005.
22. I therefore reject the argument of the plaintiff that the Family Settlement dated 18.2.1999 Ex.PW1/DX was not a final document between the parties and was not acted upon.
23. In my opinion it is in fact the plaintiff who is guilty of gross concealment of facts and stating one lie after another for harassing the widow/defendant no.1 and children/defendant nos.2 to 4 of his late brother. Firstly, it is to be noted that plaintiff did not take any steps to file a suit till the death of his brother Sh. Subhash Alagh in October, 2005. Obviously, the present suit seeks to steal a march with respect to a case being proved in Court inasmuch as plaintiff very much knows that the legal heirs of late Sh. Subhash Alagh would definitely have more difficulty than late Sh. Subhash Alagh himself to prove the aspect of payments and other related aspects as mentioned in the Family Settlement dated 18.2.1999. Not only the suit has been unfairly filed after the death of Sh. Subhash Alagh, the plaintiff concealed the factum of the Family Settlement dated 18.2.1999 at the time of CS(OS) No. 1289/2006 Page 29 of 35 filing of his plaint. Plaintiff was forced to concede to the existence of the family settlement only after the defendants took up this stand in the written statement. The plaintiff was not satisfied with his lies and concealment of facts with respect to the family settlement already having been arrived at on 18.2.1999 but the plaintiff further chose to illegally and blatantly deny receipt of any payment whatsoever made by Sh. Subhash Alagh to him or to Ms. Kanchan Tuli and her family members. The defendants have during trial with great grit and with fate on their side, have been able to locate and file counter-foils of cheque books as also the cheques summoned from the bank and the statement of account summoned from the bank, all of which documents have shown payments in terms of the chart Ex.DW1/2. It may be noted that one sister Ms. Shashi Trikha had written a letter dated 8.12.2003 to Sh. Subhash Alagh and the defendant no.1 that she had made a payment of Great Britain Pounds 1000 approximating to Rs.70,000 to the plaintiff and once this document was filed by the defendants along with the written statement, the plaintiff in the replication was forced to admit receipt of this amount of Rs.70,000/-. All in all the plaintiff has left no stone unturned to first tell a lie and thereafter being forced to admit the contents of his lie once the plaintiff was confronted with clinching documentary evidence by the defendants. Plaintiff therefore can claim no equity in his favour much less on CS(OS) No. 1289/2006 Page 30 of 35 the ground that the valuation report Ex.DW1/1 of Mr. Amit Sharma refers as on 15.05.1999 to Ms. Neelam Alagh as the widow of Sh. Subhash Alagh inasmuch as this aspect has also been clarified by the witness in terms of the Order dated 28.04.2012 wherein the Joint Registrar who was recording the evidence records that the witness Mr. Amit Sharma has submitted that the name of Ms. Neelam Alagh in Ex.DW1/1 has been incorporated on the basis of the letter provided by Ms. Neelam Alagh in the year 2006 i.e the valuation report incorporated the name of defendant no.1 as she had requested for the copy of this report which had been prepared earlier at the request of Sh. Subhash Alagh. In any case, even assuming the defendants have filed a valuation report of 1999 when for the sake of arguments that it was not of the year 1999, nothing turns on the same because I have already discarded the valuation report Ex.DW1/1 and have not referred to the same for arriving at the valuation of the suit property.
24. I may finally dispose of a very minor argument urged on behalf of the plaintiff that originally a chart was filed as Annexure R-3(colly) to the written statement of the defendants and which entries of which in some manner differ from the entries in Ex.DW1/2, however in my opinion nothing prevents defendants to correct mistakes of two/three amounts and names in a CS(OS) No. 1289/2006 Page 31 of 35 chart originally given once defendants are able to find out more and better details and which more and better details have been duly proved by leading clinching evidence in the form of counter-foils of cheque books and passbooks, statement of accounts from the bank and substantial number of cheques of the transactions of withdrawals themselves. This argument urged on behalf of the plaintiff is therefore rejected.
25. In view of the above, it is held that there was a Family Settlement dated 18.2.1999, the family settlement specifically fixed the price payable to the plaintiff as 50% of the market value as on 18.2.1999, no further written family settlement was to be entered into and even if there had to be a further agreement, conduct of the parties show that there was an agreement with respect to valuation of the suit property at Rs.20 lacs with the share of the plaintiff being Rs.10 lacs and the plaintiff was acting upon the family settlement in receiving payments which the defendants have shown to have been made by Sh. Subhash Alagh to the plaintiff or Ms. Kanchan Tuli and her family members as detailed in the chart Ex.DW1/2. Therefore, it is held that plaintiff is bound by the family settlement and plaintiff has already received his due share being half share in the suit CS(OS) No. 1289/2006 Page 32 of 35 property, and therefore plaintiff is not entitled to partition of the suit property or rendition of accounts of the suit property from the defendants.
26. Issue nos.2 and 3 are therefore decided in favour of the defendants and against the plaintiff.
Issue nos.4 and 5
27. As issue nos.2 and 3 have been decided in favour of the defendants and against the plaintiff, issue nos.4 and 5 also automatically get decided in favour of the defendants and against the plaintiff that plaintiff is not entitled to partition of the suit property or for rendition of accounts from the defendants.
General observations:-
28. I have already on quite a few occasions earlier referred to the aspect of lack of honesty and lack of fairness on the part of the plaintiff. Plaintiff has been really caught on a considerable number of times with respect to his mala fide actions of concealment of facts at the time of filing of the suit, concealment of facts of accepting payments from Sh. Subhash Alagh although denied at one point of time, of taking unfair and CS(OS) No. 1289/2006 Page 33 of 35 legal/technical objections to get over the bindingness of the Family Settlement dated 18.2.1999, and finally of payments made under that family settlement by Sh. Subhash Alagh to the plaintiff directly and through Ms. Kanchan Tuli and her family members. Plaintiff has also taken up a grossly unfair stand that Ms. Kanchan Tuli was not authorized to receive monies on his behalf although para 3 of the GPA dated 18.2.1999 clearly authorizes Ms. Kanchan Tuli to receive monies in terms of the share of the plaintiff as per the Will of the father Sh. Gulzari Lal Alagh. Finally, as stated above, there is no deposition given or evidence led by the plaintiff as to why Sh. Subhash Alagh would have been making payments to Ms. Kanchan Tuli and her family members or the company of Ms. Kanchan Tuli M/s Watchdog when there are no commercial or other relations. I may also note that Mr. Subhash Alagh and his widow being the defendant no.1, at one point of time for some period were the employees of M/s Watchdog, however, it is not understood as to how employees can make payments to an employer, and therefore clearly payments made by Sh. Subhash Alagh to M/s Watchdog would have been as per the requirements of Ms. Kanchan Tuli or the plaintiff or at the instance of plaintiff or Ms. Kanchan Tuli. This Court therefore deprecates the actions of the plaintiff in filing this false and frivolous suit against a widow and children of his late brother and especially CS(OS) No. 1289/2006 Page 34 of 35 because such suit was not filed during the lifetime of Sh. Subhash Alagh and was filed just after around eight months after the death of Sh. Subhash Alagh. It may also be noted that the plaintiff is very pretty staying in U.K. and harassing the defendants by proxy through his sister Ms. Kanchan Tuli who has been made by the plaintiff as his attorney for the purposes of the present suit. Suit will therefore be dismissed with costs of Rs.2.5 lacs and which amount can in one way be seen as the interest/extra payment received by the plaintiff over the sum of Rs.10 lacs which he had to receive as his share of the suit property.
Relief
29. In view of the decision of all the issues in favour of the defendants and against the plaintiff the suit is dismissed. Considering the lack of honesty on the part of the plaintiff, the suit is dismissed with costs of Rs.2.5 lacs. Decree sheet be prepared.
SEPTEMBER 30, 2015 VALMIKI J. MEHTA, J.
Ne/nn
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