.* HIGH COURT OF DELHI : NEW DELHI. + I.A. No /2008 in CS (OS) No. 2320/2008. Versus

Transcription

1 .* HIGH COURT OF DELHI : NEW DELHI + I.A. No /2008 in CS (OS) No. 2320/2008 Mr. B.S. Oberoi Through... Plaintiff : Mr. Sandeep Sethi, Sr. Adv. with Mr. Raman Kapur, Mr. Manish Kumar, Mr. Amit Kumar and Mr. Nitin Bhatia, Advs. Versus Mr. P.S. Oberoi & Ors. Through... Defendants : Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Jasmeet Singh and Mr. Saurabh Tiwari, Advs. for D-1 Mr. H.S. Phoolka, Sr. Adv. with Mr. Sharat Kapoor and Mr. Kanwar Faisal, Advs. for D-3 Mr. Rajiv Nayar, Sr. Adv. with Mr. Tejas Karia, Adv. for D-9 to 12 None for other defendants Reserved on : December 18, 2009 Decided on : April 16, 2010 Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MANMOHAN SINGH, J. 1. The present suit pertains to the estate of late Mr. Bakshi Shiv Charan Singh, Advocate who died on He left a Will dated which was witnessed by Justice Prakash Narain, a sitting Judge of the Delhi High Court at the relevant time and Justice M.S. CS (OS) No. 2320/2008 Page 1 of 31

2 Joshi, who, at that time was the Registrar General of Delhi High Court and became a Judge thereafter. 2. The probate proceedings of the Will were instituted in 1996 by which time Justice Prakash Narain had passed away, however, the other witness Justice M.S. Joshi was examined as a witness in the probate proceedings. Justice Joshi, in his examination, testified that the Will was witnessed by him and Justice Prakash Narain and the testator, Mr. Bakshi Shiv Charan Singh had signed on the Will in the presence of both of them. 3. In the said Will dated , Mr. Bakshi Shiv Charan Singh bequeathed his property Nos.22 and 23, Friends Colony (West) and property No.7A Ring Road in favour of his elder son, Colonel Ravi Inder Singh. 4. In the Will dated the testator bequeathed a sum of Rs.10,000/- to his daughter, Mrs. Iqbal Oberoi, mother of the plaintiff. The copy of the said Will is available on record in the present suit. 5. Later on, Mr. Bakshi Shiv Charan Singh executed another Will on which was almost on same lines as the earlier Will dated In the second Will, properties No.22 and 23, Friends Colony (West) which are mentioned as item Nos.(ii) and (iii) in paragraph 4 of the plaint were bequeathed to Col. Ravi Inder Singh. The said Will dated was deposited by the testator with the Registrar in a sealed cover, as was the earlier one also. After his death all the legal heirs applied to the Registrar to open the envelopes and as CS (OS) No. 2320/2008 Page 2 of 31

3 such on the Registrar opened the envelopes and found both registered Wills i.e. Will dated and Will dated By Will dated Mr. Bakshi Shiv Charan Singh bequeathed an amount of Rs.2 lac each to his three daughters, including Mrs. Iqbal Oberoi. Col. Ravi Inder Singh being the executor of both the Wills filed a probate petition being No.397/1996. The legal heirs of the deceased filed their objections to the probate. However, during the pendency of the proceedings Col. Ravi Inder Singh died on and after his death his son Mr. Avininder Singh Puri filed an amended probate petition being No.54/ In the year 1987, the Memorandum of Family Settlement was executed between the plaintiff on the one side and his father, mother and brother on the other side which mentions that henceforth, the plaintiff will not have any right or interest in any of the properties or estate of his father or mother. Paragraphs 4 and 20 of the said Memorandum of Family Settlement read as under : 4. That on both Group A and Group B complying with the requirements of this settlement, neither group shall have any claim, right or interest, unless specifically stated to the contrary elsewhere in this deed, on the assets, property and business of the other and for purposes of this clause, Group A is deemed to include the children of P. Oberoi of Group A and similarly, Group B is deemed to include the children of Group B. 20. In view of the fact that on this settlement being made each party hereto shall become the exclusive owner of the properties and assets under dispute as allocated to them in terms of this deed, Mr. P. Oberoi, Mr. R.S. Oberoi and Mrs. I. Oberoi of Group A desire that Group B should not have any claim thereon other than and to the extent on such assets including B406 NFC on which CS (OS) No. 2320/2008 Page 3 of 31

4 Group B has acquired any interest whatsoever in terms of this agreement and in order not to enter into any further litigation at a later date, in accordance with the desire of Mr. K.S. Oberoi, Mr. P. Oberoi and Mrs. Oberoi, Group B agrees (and for purpose of this clause, Group B is deemed to include his spouse and children) not to claim any of the assets so vesting with Mr. K.S. Oberoi, Mr. P. Oberoi and Mrs. I Oberoi except to the extent and on such assets (including B4066 NFC ) on which Group B has acquired any interest whatsoever in terms of this deed, either during their lifetime or out of their estate. Correspondingly, Group B desires that Mr. K.S. Oberoi, Mr. P. Oberoi and Mrs. I Oberoi and the spouse and children of Mr. P. Oberoi should not be entitled to claim from the estate of Group B andy amount other than what is required to be paid in terms of this agreement and, Mr. K.S. Oberoi, Mr. P. Oberoi and Mrs. I. Oberoi and the spouse and children of Mr. P. Oberoi agree not to claim any of the estate of Group B except to the extent required for the compliance of this deed. 8. In view of the above-said terms, the plaintiff and his mother and father settled the matter in suit no. 115/1987 titled Packmaster Pvt. Ltd. Vs. B.S. Oberoi. 9. Later on, Mrs. Iqbal Oberoi and the family of her late brother, Col. Ravi Inder Singh executed two Memorandums of Settlement along with other family members. An oral understanding was entered in Under the said settlement, Col. Ravi Inder Singh gave a plot of 400 sq. yds. to Mrs. Iqbal Oberoi out of property No.22, Friends Colony (West), which was bequeathed to him absolutely by his father in both the Wills and a similar sized plot to his other two sisters. The right accrued to Mrs. Iqbal Oberoi to get the plot of 400 sq. yds. from the estate of her father by virtue of these two Memorandums of Settlement. 10. In the said probate petition, admittedly, Mrs. Iqbal Oberoi filed a reply supported by an affidavit and accepted the Will and prayed CS (OS) No. 2320/2008 Page 4 of 31

5 for grant of the probate filed by her brother, Col. Ravi Inder Singh. The relevant extract of the reply is reproduced below :.Late Bakshi Shiv Charan Singh had told the answering relative when she visited him a few months before his death that he had ensured that the major properties owned by him especially the Friends Colony house had been bequeathed to the petitioner herein and he had not succumbed to the enormous pressure that had been put on him to change his Will... The answering relative No.4 admits, confirms and accepts the Will dated as being the last Will and testament of the deceased lake Bakshi Charan Singh. 11. As per defendants, the properties of late Mr. Bakshi Shiv Charan Singh were distributed as per Memorandums of Family Settlement dated 2 nd August, 2005 and 2 nd June, 2006 which were registered documents. According to the defendants, the family settlement executed on 2 nd June, 2006 was in continuation and supersession of the Memorandum of Family Settlement dated 2 nd August, An application under Order XXIII Rule 3 CPC was filed in the Court of Smt. Bimla Makin, ADJ, Delhi on along with Memorandum of Family Settlement as part of the application. The judgment and decree was passed by Smt. Bimla Makin, ADJ, Delhi in terms of the Memorandums of Settlement on 3 rd July, The plaintiff in the present suit challenged the above referred Memorandums of settlement as well as decree passed in terms thereof seeking a declaration that the same are void ab initio and be declared so by this Court as per following prayers : (A) pass a decree of cancellation of Court s decree dated CS (OS) No. 2320/2008 Page 5 of 31

6 , passed in Suit no.171 of 2006 passed by learned ADJ (by converting the probate proceedings into a Civil Suit) and declare it as null and void ab initio and not being binding against the plaintiff, and/or (B) pass a decree for partition of the suit properties mentioned in para 4 and/or i) firstly pass a preliminary decree of partition of the suit property appointing shares of the co sharers; granting the plaintiff 1/12 th share of the entire estate of Late Bakshi Shiv Charan Singh through Late Smt. Iqbal Oberoi. ii) appoint a local commissioner to visit the suit property and suggest ways and means to partitioning the said property. iii) consider the report of the local commissioner and pass a final decree in terms thereof, or in modification thereof, as this Court may consider fit and appropriate; iv) in the event it is found that the said suit property is not partitionable by metes and bounds, this Court may direct other modes of partition including sale of the suit premises and apportioning the sale proceeds as per share of the co sharers. C) pass a preliminary decree for declaration holding and declaring that the defendants are liable to render accounts directing the defendants jointly and severally to render complete and honest account of the manner in which the properties and other movable assets forming part of the estate of Late Bakshi Shiv Charan Singh and Late Smt. Iqbal Oberoi have been dealt with since their death including all benefits derived therefrom and pursuant thereto appoint local commissioner before whom the defendants be directed to render full accounts. further, upon rendition of the accounts, this court may be pleased to pass a final decree for such sum in favour of the plaintiff and against the defendants as may be found due and payable. Pass a decree commanding the defendants jointly and severally to deliver or caused to be delivered and filed in this court all documents of title instruments of title allotment and/or all relevant documentation pertaining to all and any movable assets in the nature of investments or shares, FDRs, NSCs, Units, Bonds etc. standing in the name and/or accruing to Late Bakshi Shiv Charan Singh and Late Smt. Iqbal Oberoi individually or jointly. D) pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged family settlement/s are null and void ab initio and are not binding against the plaintiff, and E) pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged agreement to sell CS (OS) No. 2320/2008 Page 6 of 31

7 dated is null and void ab initio and is not binding against the plaintiff, and F) pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged memorandum of settlement dated is null and void ab initio and is not binding against the plaintiff, and G) pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged power of attorney dated is null and void ab initio and is not binding against the plaintiff, and H) a decree of permanent injunction thereby restraining the defendants from transferring, alienating, assigning, selling or otherwise parting with possession, carrying out additions and alternations or disposing of the suit properties or creating any charge/lien in respect of the suit property in favour of any other person. 14. Along with the suit, the plaintiff filed an interim application which I shall dispose of by this order being I.A. No /2008 under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 wherein the plaintiff prayed for an interim order, inter alia, (a) for maintenance of status quo with regard to the immovable and movable properties listed hereinafter (referred to as the suit properties ) and (b) a direction to the defendants to not create any third party interest in the suit properties during the pendency of the proceedings. The properties constituting the suit properties are listed hereinbelow : (i) Ground floor at Messay Hall, YMCA, Jai Singh Road, New Delhi (1000 sq. ft.); (ii) House no. 22, Friends Colony (West), Mathura Road, New Delhi (4267 sq. yds.); (iii) House no. 23, Friends Colony (West), Mathura Road, New Delhi; CS (OS) No. 2320/2008 Page 7 of 31

8 (iv) House no. 7A, Ring Road, Lajpat Nagar- IV, New Delhi; (v) Furniture and fittings lying and installed at house no. 22, Friends Colony (West), Mathura Road, New Delhi; and, (vi) Shares/contents of bank accounts/ lockers of late Mr. Bakshi Shiv Charan Singh 15. As per the plaint, the facts are that the plaintiff is the maternal grandson of late Mr. Bakshi Shiv Charan Singh, who was the owner of the suit properties in his lifetime. The deceased had two wives, the first of which pre-deceased the deceased and had three daughters and one son (including Mrs. Iqbal Oberoi, the mother of the plaintiff) and the second who had one son and one daughter who are defendants herein. 16. It is the plaintiff s case that during the pendency of the probate proceedings, in order to play fraud upon the plaintiff s mother who was bed ridden and not in complete possession of her faculties, defendant no. 1 (brother of the plaintiff, grandson of late Mr. Bakshi Shiv Charan Singh) along with the other defendants purportedly entered into an oral family agreement which was to the exclusion of the second wife (and her children) of late Mr. Bakshi Shiv Charan Singh. 17. After the said agreement, the authenticity of which is doubted and denied by the plaintiff, an agreement to sell was entered into between defendant nos. 5 and 6 and the second wife of the deceased on one hand and defendant no. 2 on the other hand. By virtue of the said CS (OS) No. 2320/2008 Page 8 of 31

9 agreement, it was agreed upon by the parties that 1400 sq. yds. of the property at Friends Colony (West), Mathura Road, New Delhi would be sold by the first three parties. The said Mrs. Iqbal Oberoi was not party to the said settlement. 18. The Memorandum of Family Settlement (hereinafter referred to as MOU ) was recorded between all the family members on and defendant no. 1 was acting on behalf of Mrs. Iqbal Oberoi as her General Power of Attorney holder whereby defendant no. 1 agreed to take 400 sq. yds. land from the suit properties instead of 1/6 th share of the entire estate, which was the actual share of Mrs. Iqbal Oberoi. Further, even these 400 sq. yds have been sold by defendant no. 1 to defendant no. 11 by way of sale deed dated , completely depriving the plaintiff of any right whatsoever in the same. 19. The plaintiff has sought to bring to notice that the power of attorney document was executed on i.e. 21 days before the death of Mrs. Iqbal Oberoi, which occurred on It is the plaintiff s submission that late Mrs. Iqbal Oberoi was unwell and was suffering from forgetfulness and dementia, and her signatures were obtained by defendant no. 1 by fraud as he took advantage of her ill health. 20. The defendants appeared before the court of Ms. Bimla Makin, ADJ on for recording their statements with regard to the family settlement/ compromise in the probate case no. 397/1996. The said statements were recorded by the learned ADJ and the matter was CS (OS) No. 2320/2008 Page 9 of 31

10 reserved. 21. Subsequently, Mrs. Iqbal Oberoi died on which fact was not brought to the learned ADJ s notice, despite all the parties being aware of the same. On the basis of the settlement arrived at between the parties, an order was passed on and a decree was drawn up on whereby the probate case was converted into a civil suit and numbered as suit no. 171/ The grievances of the plaintiff, due to which he filed the present suit, are enumerated hereinbelow : (a) The plaintiff is not being recognized as the son and therefore, the rightful heir of late Mrs. Iqbal Oberoi s portion of the estate of late Mr. Bakshi Shiv Charan Singh as he was never on cordial terms with defendant no. 1 and had separated from the family as long back as in 1987; (b) The order was reserved by the learned ADJ on but the same was pronounced after the death of Mrs. Iqbal Oberoi, i.e. after the death of one of the parties to the proceedings, which act is patently illegal and subsequently, the plaintiff who is one of the legal heirs of late Mrs. Iqbal Oberoi was not impleaded as a party to the proceedings and in fact the probate abates on the death of the sole executor; (c) The probate court did not have the jurisdiction to convert the on-going probate proceedings into a civil suit and CS (OS) No. 2320/2008 Page 10 of 31

11 consequently, the decree dated is a nullity and the probate court was not empowered to pass such a decree and was not the competent court to decide the dispute of title. 23. In this application, the plaintiff has submitted that on the demise of late Mrs. Iqbal Oberoi, defendant no. 1 immediately took charge of her property-asset related documents. The plaintiff apprehends that defendant no. 1 may have fraudulently obtained the signatures of late Mrs. Iqbal Oberoi on papers in order to procure her assets. Despite repeated requests on the plaintiff s part as regards the partition of the suit properties, the defendants have refused to accept the plaintiff as the son and heir of late Mrs. Iqbal Oberoi. 24. The plaintiff has further submitted that the defendants have already created third party interest with respect to certain properties and are seeking to create third party interest in some other properties also. The defendants have been enjoying the benefits accruing from the estate of late Mr. Bakshi Shiv Charan Singh as well as late Mrs. Iqbal Oberoi. It is wrong on the defendants behalf to attempt to dispose off the properties forming part of the suit properties. 25. The plaintiff has contended that he shall suffer grave and irreparable loss and damage in case the defendants are not restrained from transferring, alienating or creating any third party interest in the properties of late Mr. Bakshi Shiv Charan Singh as well as in the assets of late Mrs. Iqbal Oberoi. 26. Defendants have replied to the plaintiff s applications with CS (OS) No. 2320/2008 Page 11 of 31

12 several objections as regards the maintainability of the suit filed by the plaintiff. The grounds of non-maintainability of the present suit, as submitted by defendants have been enumerated hereinbelow : (i) The plaintiff is seeking a declaration to the effect that the MOU dated is null and void ab initio and is not binding on the plaintiff. However, the agreement to sell in the said MOU has culminated into a sale deed dated and the same is within the knowledge of the plaintiff and has even been averred by him in the plaint as well as in the application filed by him before Smt. Bimla Maken, ADJ in probate no. 171/2006 wherein the plaintiff has referred to defendant nos. 9 to 12 as the purchasers of the same. Further, this court by order dated has specifically held that the relief sought by the plaintiff in paragraph (e) of the prayer clause has become infructuous in view of the fact that the plaintiff challenged the agreement to sell and not the sale deeds. The said order has been upheld by a Division Bench of this court vide order dated (ii) In probate no. 171/2006, late Mrs. Iqbal Oberoi had filed an affidavit supporting late Mr. Bakshi Shiv Charan Singh s two Wills being Will dated as well as Will dated An MOU was executed on and registered on the same date at the office of the Sub- Registrar, Chandigarh. Late Mrs. Iqbal Oberoi had executed a CS (OS) No. 2320/2008 Page 12 of 31

13 power of attorney in favour of her son (defendant no. 1) in 2003 as well as in 2006, allowing him to execute all the necessary documents in furtherance of the MOU signed by her on in pursuance to which the MOU dated was registered in the office of the Sub-Registrar VII, New Delhi on As per the Agreement to Sell dated the 400 sq. yds. in the suit properties belonging to late Mrs. Iqbal Oberoi were sold for an amount of Rs Crores and late Mrs. Iqbal Oberoi received earnest money amounting to Rs. 25 lac in lieu of the same during her lifetime. The sale deed in lieu of the said property was executed by late Mrs. Iqbal Oberoi s husband and other son, for which they received the total consideration agreed upon. (iii) The plaintiff is challenging the same document, i.e. the MOU dated which accorded his mother late Mrs. Iqbal Oberoi a share in the suit properties, i.e. 400 sq.yds. as under the Will admitted by late Mrs. Iqbal Oberoi, she was given only Rs. 2 lac. In the face of nullity of the said MOU the Will would operate, which would mean that the plaintiff s mother (her legal heirs in this case, including him) would receive their respective portions of the Rs. 2 lac allowed to her. (iv) The plaintiff has not valued the suit correctly for purposes of court fee and suit valuation as the portion of the CS (OS) No. 2320/2008 Page 13 of 31

14 suit properties in Friends Colony alone amount to around Rs Crores. The other properties are also under valued by the plaintiff. (v) It is not open to the plaintiff to seek partition of the entire estate of late Mr. Bakshi Shiv Charan Singh as in accordance with the provisions of the Hindu Succession Act, the plaintiff can claim partition of only that portion of the suit properties which fell into the share of the person through whom he is claiming his right in the suit properties, therefore, he can claim partition or re-partition, if at all, only of late Mrs. Iqbal Oberoi s portion which is 400 sq. yds. of the Friends Colony properties. It is submitted that all the properties were self acquired properties of Bakshi Shiv Sharan Singh and he was entitled to the same as per his own choice. (vi) In Suit No. 115/1987 titled Parkmaster Pvt. Ltd. Vs. B.S. Oberoi, a family settlement was executed which stated, inter alia, that the plaintiff would have no claim, right, title or interest, unless specifically stated elsewhere to the contrary, on the assets, properties and business of the other group (including late Mrs. Iqbal Oberoi). The said family settlement has been duly signed by the plaintiff, hence, the plaintiff has no locus standi to file the present suit. (vii) The plaintiff s suit is also barred by the law of res CS (OS) No. 2320/2008 Page 14 of 31

15 judicata as the plaintiff sought the same relief in probate case no. 171/2006 by filing applications under Order 1 Rule 10 and under Section 151 of the Code of Civil Procedure, The said applications were dismissed by the learned ADJ Smt. Bimla Maken vide order dated No appeal has been filed by the plaintiff against the said order. (viii) The mother of the plaintiff through whom he is claiming his right in the suit properties i.e. late Mrs. Iqbal Oberoi executed a Will dated which specifically disinherited the plaintiff from receiving any part of her estate including anything that she might obtain from the suit properties. The reason for this specific disinheritance was that the plaintiff never met his mother during her lifetime after 1987 and never enquired as to her health or her general wellbeing till her death. In view of this specific disinheritance, it is submitted that the plaintiff has no locus standi to file the present suit. (ix) The plaintiff converted to Islam in 1987 and hence cannot seek to inherit or partition any property under the Hindu Succession Act as the same does not apply to him. (x) The plaintiff has failed to produce any document supporting his statement that late Mrs. Iqbal Oberoi was mentally unstable and not in control of her faculties at the time of the MOU dated The only document CS (OS) No. 2320/2008 Page 15 of 31

16 shown by the plaintiff is a medical discharge slip which shows that late Mrs. Iqbal Oberoi was suffering from minor depression and that she had fully recovered. Further, the said document is of the year 2002, though both the family agreements were arrived at in Defendant no. 3 has submitted that in fact, late Mrs. Iqbal Oberoi was present before the Sub-Registrar on for registration of the MOU dated the same as well as on at the time of execution of the Power of Attorney. (xi) The plaintiff s suit is also submitted to be barred by the provisions of Order XXIII Rule 3A of the CPC as he has challenged the decree of the learned ADJ in the same court. The said application of objection/ challenge was dismissed by Smt. Bimla Maken, learned ADJ vide order dated (xii) The plaintiff had knowledge about the execution of the sale deed as he had filed an application under Order I Rule 10 in the Court of Ms. Bimla Maken on wherein he filed all the relevant documents and details about the purchase of the property but he has not challenged, therefore, reliefs claimed are not maintainable. 27. The counsel for defendant no. 3 has submitted that if the injunction granted by this court is confirmed or continued, the defendants shall face irreparable loss and injury as huge investments CS (OS) No. 2320/2008 Page 16 of 31

17 have been made on their behalf in the suit properties. Various members of the family have sold their respective portions of the suit properties and as such, various third party interests have been created. It is claimed that in such circumstances, the balance of convenience lies heavily in favour of the defendants and against the plaintiff. 28. Defendant nos. 9 to 12 have argued that they are bona fide purchasers of the property constituting the suit properties being house no. 22, Friends Colony (West), Mathura Road, New Delhi admeasuring sq. yds. The defendant nos. 9 to 12 purchased the said property for valuable consideration of Rs Crores by execution of a duly registered sale deed dated It is contended that the plaintiff has no rights as alleged by him in the property no. 22, Friends Colony (West), Mathura Road, New Delhi. Without prejudice to their rights and interest in the said property, as per the said defendants, any dispute or grievance of the plaintiff qua the property at no. 22, Friends Colony (West), Mathura Road, New Delhi would lie only against the other family members i.e. against defendant nos. 1 to 8 and defendant no As per defendant Nos. 9 to 12, they had searched for the title of the property in question at the time of the execution of the sale deed, however, at that time there was no evidence of any purported claim of the plaintiff with regard to the said property. The said disputes seem to have arisen much after the execution of the sale deed dated It has further been submitted by defendant nos. 9 to 12 that at the time of CS (OS) No. 2320/2008 Page 17 of 31

18 purchasing the property at no. 22, Friends Colony (West), Mathura Road, New Delhi, the said defendants with due diligence satisfied themselves as to the good title of defendant nos. 1 to 8 and 13 with regard to the said property. 31. The title of the said defendants is claimed to have been established in the Memorandum of Family Settlement dated which is a duly registered document registered as Document No in Book No. 4, Volume No at pages 1 to 4 with the Sub-Registrar, New Delhi. 32. With regard to the position of a bona fide purchaser, Mr. Rajiv Nayar, Senior counsel appearing on behalf of defendant Nos. 9 to 12 has submitted the judgment in Desh Bandhu Gupta Vs. N.L. Anand, (1994) 1 SCC 131 wherein it was held that the rights of a bona fide purchaser who purchased the property in ignorance of the pending litigation in its regard ought to be protected. However, the purchaser must be a bona fide purchaser who bought the property for adequate price. 33. Defendant nos. 9 to 12 have also referred Section 55 of the Transfer of Property Act, 1882 as well as the case of Ram Avadh & Ors. Vs. Ram Das & Ors., (2008) 8 SCC 58 in this regard. 34. Further, defendant nos. 9 to 12 have submitted that the plaintiff s contention that the death of Mrs. Iqbal Oberoi after hearing of the matter but before pronouncement thereof renders the judgment and decree a nullity is baseless and frivolous in view of the provision CS (OS) No. 2320/2008 Page 18 of 31

19 contained in Order XXII Rule 6 of CPC, which expressly provides that there shall be no abatement of suit by reason of death of either party between the conclusion of the hearing and the pronouncing of the judgment and the judgment in such a case may be pronounced notwithstanding the death. 35. Mr. Rajiv Nayar, Senior counsel has argued that in view of the express stipulation contained in the Code of Civil Procedure Code, it is stated by defendant nos. 9 to 12 that the interim relief of injunction was obtained by the plaintiff by suppression of material facts and if the same is continued, the bona fide purchasers would suffer irreparable injury and loss. 36. Before discussing the submission of the parties, there appear to be some other admitted facts between the parties, the details of which are given as under : (a) Admittedly, during the life time of Mrs. Iqbal Oberoi, the plaintiff had no right and Mrs. Iqbal Oberoi was fully competent to deal with her share of the properties received from the estate of her late father. (b) Mrs. Iqbal Oberoi confirmed and accepted the Will of her father, late Mr. Bakshi Shiv Charan Singh in her reply in the probate proceedings and has never raised any objection nor had she, at any stage, challenged the Will of her father till her death. (c) There is no averment in the plaint that in the year 1997, Mrs. Iqbal Oberoi was not mentally sound as the plaintiff has produced CS (OS) No. 2320/2008 Page 19 of 31

20 just one document of the year 2002 i.e. a discharge slip of the hospital, on the basis of which, it is claimed that in the year 2002 his mother was not of sound mind, though the said slip indicates that when she was discharged from the hospital, she was in a satisfactory condition. (d) The father of the plaintiff has filed an affidavit stating that the plaintiff s mother, Mrs. Iqbal Oberoi, was in perfect mental state and she was not of unsound mind. Mrs. Iqabal Oberoi died four years after the date of the said discharge slip i.e. in June, In his affidavit in the Court of Ms. Bimla Maken, ADJ, Delhi he stated that in the year 1987, the plaintiff had filed a complaint with the police against him and his own mother and the plaintiff even got his mother and his father arrested by the police. (e) The plaintiff s brother has filed affidavits stating that Mrs. Iqbal Oberoi was of perfectly sound mind. (f) Three weeks prior to her death, Mrs. Iqbal Oberoi appeared before the Sub-Registrar, Chandigarh and registered a GPA. (g) The mother of the plaintiff executed Will dated wherein she specifically disinherited and ousted the plaintiff from her estate. The said Will is on the record. Paragraphs 6 and 7 of the said Will read as under : 6. My younger son Balwinder Singh separated from the family after creating a dispute. A settlement was reached and Hon ble Mr. Justice G.C. Jain of Delhi High Court granted a decree on the 6 th of May, 1987 in the Suit No.115 of 1987 then pending in the High Court of Delhi. In this settlement Balwinder Singh was given a full share CS (OS) No. 2320/2008 Page 20 of 31

21 of the property and business. He is as such not entitled to claim any share from the estate of his parents. He gave up all claims of any sort that he may have in their estates and their businesses and all or any of the properties that they may own or come to own. 7. That keeping in mind the fact that my son Balwinder Singh had separated from the family I specifically exclude him from receiving any part of my estate including any money or property that I may be entitled to receive from the estate of my late father. (h) The judgment and decree passed by Ms. Bimla Maken dated attained finality. (i) Admittedly, the plaintiff filed the objections before the probate court and his application has been rejected by the Court and it has not been alleged that any appeal against the said order dated is pending. 37. From the above referred facts, it is doubtful if the plaintiff is not entitled to inherit any part of the estate of his mother. This fact is also established from the Memorandum of Family Settlement and the decree passed on in suit no. 115/1987 wherein it has been reiterated by the mother of the plaintiff in her Will dated The plaintiff at no point of time has challenged the said Will of his mother. 38. It is also doubtful as to whether the plaintiff has locus standi to file the present suit or whether he is even entitled to allege that any fraud has been played on his mother or that she was not given her due share of the properties and is entitled to raise the pleas as mentioned in the present case. 39. One of the claims of the plaintiff is that the Will cannot acted CS (OS) No. 2320/2008 Page 21 of 31

22 upon because the family settlement has been executed which is void ab initio as his mother was entitled to get 1/7 th share from the estate of her father under the law of inheritance. The plea of the plaintiff appears to be without any merit as even if the plaintiff succeeds in obtaining a declaration that the Memorandum of Settlement is void ab initio, the effect of the same would be that the said document would be deemed to never have existed. Under those circumstances, the Will would operate and the estate would be distributed in accordance with the Will, which has already been accepted and confirmed by the mother of the plaintiff in the judicial proceedings. 40. Admittedly, two family settlements were executed by the family. Under both these settlements, Mrs. Iqbal Oberoi was to get a plot of 400 sq. yds. The first Memorandum of Family Settlement is dated and is signed by Mrs. Iqbal Oberoi and registered with the Sub Registrar, Chandigarh on the same day. The second family settlement is dated and is executed by Mrs. Iqbal Oberoi, through attorney holder, her son, defendant No.1 and is registered on Mrs. Iqbal Oberoi, the plaintiff s mother received her plot of 400 sq. yds. acting upon the said family settlement and entered into Agreement to Sell for sale of the said plot on and received earnest money of Rs. 25,00,000/- at the time of execution of the sale deed. The sale deed of the said plot was executed by the plaintiff s brother and his father, after the death of Mrs. Iqbal Oberoi by receiving the full sale consideration. After the plaintiff s brother and father CS (OS) No. 2320/2008 Page 22 of 31

23 received the full consideration of Rs.3.12 crores, it appears that the plaintiff raised a dispute claiming a share from the whole estate of his grandfather as if the latter had died intestate. In any case if the plaintiff has a claim, he can claim his share out of the money received by his brother and father. It is submitted by the defendants that as a part of the process of finalizing the family settlement, defendants No. 5 and 6 had insisted on selling their share of 1400 sq. yds. and insisted on making Mrs. Tejinder Puri, defendant No.2 herein the intermediary, who would secure their payment for them. The whole family comprising defendants No.2 to 8 as well as Mrs. Iqbal Oberoi and mrs. Gurcharan Kaur had decided to sell their share in plot no.22, Friends Colony (West), New Delhi in favour of defendants No.9 to 12 herein. A method was evolved whereby defendants No.5, 6, 7 and 8 alongwith Mrs. Iqbal Oberoi and Mrs. Gurcharan Kaur entered into agreements to sell their share to defendant No.2 herein and defendant No.2 was empowered to assign those agreements in favour of any third party. In terms of the Memorandum of Family Settlement, strict penalties were put in to ensure completion of the transaction on or before It is further submitted that defendants no.5, 6, 7 and 8 alongwith Mrs. Gurcharan Kaur and Mrs. Iqbal Oberoi received earnest money payment from Mrs. Tejinder Puri, defendant No.2 herein, at the time of signing of the said agreements to sell, which were done back to back with the execution of the Memorandum of Family Settlement dated CS (OS) No. 2320/2008 Page 23 of 31

24 As rightly alleged by the defendants, the plaintiff had the knowledge about the execution of the sale deeds as the plaintiff himself filed an application under Order 1 Rule 10 CPC in the Court of Ms. Bimla Maken on Paragraphs 19 and 20 of the said application read as under : 19. That it has further been learnt that soon after fraudulently obtaining the decree, the properties which were subject matter of the settlement and probate has been sold to the following persons by the parties. The details of the purchaser are furnished below : 1. Mr. Rajiv kumar S/o Late Shri Satya Pal R/o E-1A, Maharani Bagh, New Delhi 2. Mrs. Sunita Devi W/o Sh. Rajiv Kumar R/o E-1A, Maharani Bagh, New Delhi Mrs. Rita Kumari W/o Sh. Ravinder Kumar R/o E-1A, Maharani Bagh, New Delhi Mr. Ravinder Kumar S/o Late Sh. Satyapal R/o E-1A, Maharani Bagh, New Delhi 20. That the sale deed concerning properties 22-23, Friends Colony, New Delhi are registered in the name of above persons. There are two sale deeds in the name of Sunita Devi. 42. From the above mentioned fact, it is clear that the plaintiff knew about the execution of the sale deeds. In the plaint the plaintiff has merely challenged the validity of the Agreement to Sell dated and not the sale deeds, as a result of which the relief claimed CS (OS) No. 2320/2008 Page 24 of 31

25 by the plaintiff in prayer (e) of the plaint is not available in the present case. Further, in order dated , this court has observed that the said relief sought by the plaintiff in prayer (e) has become infructuous. The said finding of the Court has been upheld by the Division Bench in the appeal filed by the plaintiff, vide its order dated No application for amendment of plaint as of today has been filed by the plaintiff. 43. The other objection raised by the defendants is that the plaintiff has not valued the suit property and the requisite court fee has not been paid on the value of the properties sought to be partitioned. The counsel for the plaintiff after completion of arguments has mentioned that the plaintiff has deposited the court fee as per order passed by the Division Bench in FAO (OS) No.103/2009 although the plaintiff s Special Leave Petition before the Supreme Court against the order of Division Bench is pending. In view of this statement, I think that this objection about the court fee raised by defendants can be considered at the later stage of the proceedings. 44. The next objection of the defendants is that the suit filed by plaintiff is not maintainable and is barred by Order XXIII Rule 3A of the CPC. Of course the plaintiff had filed the objections before the court of Smt. Bimla Maken, ADJ. The said objections were dismissed by order dated This Court in the case of Master Pulkit Vs. Smt. Kamlesh and Ors., reported as 2003 (105) DLT 313 has held that the settlement CS (OS) No. 2320/2008 Page 25 of 31

26 recorded in the Probate Court has to be challenged by the plaintiff in the same court. The court also observed that the plaintiff in that case had exercised his option to challenge the decree in the same court before filing the suit. The court held the suit to be barred by Order XXIII Rule 3A. A similar view was taken by this Court in another case of Joginder Singh Bedi Vs. Bawa Darbara Singh & Ors., 39 (1989) DLT The learned counsel for the plaintiff has referred a few decisions in support of his submission in this regard. On a similar point, this Court has considered some decisions referred by the plaintiff which have been distinguished in the case of Rajwanti & Anr. vs. Kishan Chand Shehrawat & Ors., 2009 (160) DLT 185, in paragraph 17. The same reads as under: 17. The senior counsel for the plaintiff to meet the bar of Order 23 Rule 3A of the CPC referred to:- (A) Dadu Dayal Mahasabha Vs. Sukhdev Arya, (1990) 1 SCC 189. In this case the suit had been dismissed as withdrawn on the application of the plaintiff. Subsequently an application was filed for recalling of the said order. It was contended that the person who had represented to be the secretary of the plaintiff/appellant in that case and withdrawn the suit was in fact not the secretary and was thus not competent to withdraw the suit. In that context, the Apex Court drew a distinction between the fraud practised on a party and the fraud practised on the court and in the facts of that case having found a fraud to have been practised on the court, held that such fraudulent act can be recalled by the court at any time. It was held that if a consent decree is challenged on the ground that the party did not give the consent, then the court has duty to set aside the decree if finds that the court was induced into passing the decree on a fraudulent representation; however if the case of the party challenging the consent decree is that he was in fact a party to the compromise but his consent had been procured by fraud, the court passing the consent decree has no inherent power to investigate the matter and the only remedy is to institute a suit. The provision of Order 23 Rule 3 or Rule 3A introduced by the 1976 amendment of CPC were not for discussion in that judgment and in fact the CS (OS) No. 2320/2008 Page 26 of 31

27 withdrawal of suit and application for restoration were both of prior to the coming into force of 1976 amendment. (B) URI Civil Contractor AB Vs. Mrs. Pampa Mukherjee, 56 (1994) DLT 608. In this case the Court passing the compromise decree had on an application for setting aside the same, framed issues. Revision was preferred to this court against that order. This Court found that on averments in the application, no case of fraud practised on Court was made out and thus the Court passing the compromise decree had no power to entertain an application for setting aside the compromise decree. The senior counsel for the plaintiff has contended that where a fraud has been practised on the court, the bar of Section 3A will not come in the way and a independent suit would be maintainable to set aside a compromise decree on the said ground. However, I am unable to find the said proposition flowing from this judgment. On the contrary, this judgment expressly notices Rule 3A of Order 23 and reiterates that the only remedy for seeking setting aside of the compromise judgment is by applying to the court which had passed the judgment. In fact, this judgment purports to narrow down the scope of inquiry in the said application also only to the cases where a case of fraud practised on the court is made out and the application to the same court also being not maintainable where the case is of a fraud practised on the other party. (C) Ram Kishan Vs. Smt. Sardari Devi, MANU/PH/0544/2002 where a single judge of the Punjab High Court following a Division Bench of that court held an independent suit to be maintainable. It must however be noticed that the single judge while holding so expressed reservations about the correctness of the law laid down by the Division Bench of Punjab High Court, in view of Order 23 Rule 3A CPC. With respect, I am unable to follow the dicta in view of express provision of law (D) Pushpa Devi Bhagat Vs. Rajinder Singh, (2006) 5 SCC 566 only for the purposes of reference thereto being made in the next judgment cited below. This judgment otherwise is concerned with nature of consent decree and appealability thereof and not with Order 23 Rule 3A. (E) Gopal Mohan Vadhera Vs. Jagdish Rai Vadhera, 2008 (100) DRJ 371. In this case an application was filed for setting aside of a consent decree passed by this Court. A Single Judge of this Court noticed the observations of the Apex Court in Dadu Dayal Mahasabha (supra) that where there was no fraud on the court, the remedy of party challenging the consent decree was to institute a suit; and also the observations of Apex Court in Pushpa Devi Bhagat (supra) that only remedy of challenge to the consent decree was by filing an application to the court passing the compromise decree, under the proviso to Order 23; it was CS (OS) No. 2320/2008 Page 27 of 31

28 observed by the Court that there was an apparent conflict between the two decisions of the Apex Court. I may however, with respect, observe that there is no conflict. As held by me above, Dadu Dayal Mahasabha was not a case of consent decree, further that related to a case of prior to induction of Rule 3A in Order 23 by the 1976 amendment. Then, an independent suit was of course possible. However, after the said amendment it is barred, as held in Pushpa Devi Bhagat. 47. In the present case, the plaintiff after passing the judgment and decree had filed the objections which were dismissed on 24 th April, 2008 and no appeal is stated to has been filed by the plaintiff. Thus, there is force in the submission of the defendants. As this Court at this stage is only dealing with the interim application of the plaintiff, it is therefore appropriate that the plea about the maintainability of the suit raised by the defendants may be considered by the Court at the stage of framing of issues. 48. It is argued by the plaintiff that the Judgment and Decree passed by the learned ADJ accepting the memorandum of family settlement is a nullity as the defendants have concealed the material fact of Mrs. Iqbal Oberoi s death from the said Court. As discussed earlier as regards the plea raised by the plaintiff, it is necessary to refer the provision of Order XXII Rule 6 of Code of Civil Procedure, 1908 which reads as under : No Abatement by reason of death after hearing : Notwithstanding anything contained in the forgoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same effect as if it has been pronounced before the death took place. CS (OS) No. 2320/2008 Page 28 of 31

29 The probate proceedings before the Additional District Court, Delhi were concluded on and the matter was fixed for pronouncement of the order on Mrs. Iqbal Oberoi expired on 14 th June, 2006 during the interregnum. As per the provisions of Order XXII Rule 6 of CPC as referred above, the matter does not abate upon the death of Mrs. Iqbal Oberoi. Thus, the plea of the plaintiff is without any merit and cannot be accepted. 49. The next submission of the plaintiff is that the decree was without jurisdiction as the probate court is not empowered to convert the probate proceedings into a regular suit. The probate court cannot decide the question of title. The counsel has also referred decisions in support of his submission. Further, the plaintiff was not a party to the proceedings. Admittedly, no rights under the memorandum of settlements flow from the compromise decree in favour of the plaintiff, thus the plea of the plaintiff to challenge the invalidity of the judgment and decree prima facie is not tenable. 50. Prima facie, it appears that the procedure adopted by the probate court was not against the law as the decree has been passed after converting the probate case into a civil suit. Firstly, it is a matter of fact that the Probate Court did not decide the title of the suit property. The title of the suit property was already determined by the parties themselves by way of Memorandum of Settlements which was filed along with the application under Oder 23 Rule 3 CPC. 51. Secondly, the plaintiff himself has filed the objections after CS (OS) No. 2320/2008 Page 29 of 31

30 passing of the decree raising the same objections, and the said pleas were rejected by the probate court by dismissing the plaintiff s application. Thirdly, the question of his locus standi is in dispute as the plaintiff has not challenged the Will of his mother dated nor it is the case of the plaintiff that his mother Mrs. Iqbal Oberoi died intestate. Whatever share his mother got out of the properties of her father who had self acquired properties. His mother was entitled to deal with the said properties as per her own will. The plaintiff s mother in fact has confirmed and accepted both the Wills of her father and has also accepted the family settlement and execution thereof and as per these documents, no portion of it fell to the share of the plaintiff, thus, it is prima facie not possible at this stage to come to the conclusion that it is opened to the plaintiff to challenge the same. Therefore, none of the decisions referred by the plaintiff has any bearing in the facts of the present matter. 52. This court is of the view that the plaintiff has no prima facie case in his favour vis-à-vis the title of the suit property, all the objections as regards fraud, concealment of facts and procedural lapse as alleged become totally irrelevant as the plaintiff has not been able to make a case for grant of injunction. 53. The balance of convenience, in view of the aforesaid reason is in favour of the defendants and against the plaintiff. Admittedly, third party interests have been created. Prima facie it appears that the defendant Nos. 9 to 12 are bona fide purchasers of the suit property on CS (OS) No. 2320/2008 Page 30 of 31