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Judgment
Tushar Rao Gedela, J.
I.A. 29468/2026 (U/o XXXIX Rules 1 & 2 r/w Section 151 of CPC, filed on behalf of the plaintiff
This is the second application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of the Civil Procedure, 1908 (hereinafter referred to as “CPC”) seeking the following prayers:
“In the light of the facts and circumstances stated hereinabove, it is most respectfully prayed that this Hon’ble Court may be pleased to:
(a)Issue an ex parte ad interim injunction restraining the Defendants as well as propsed impleader i.e., Sh. Rakesh Kumar, their agents, representatives, attorneys, successors-in-interest, and all persons claiming through or under them, from alienating, transferring, encumbering, parting with possession, or creating any third-party rights in respect of the Suit Property bearing No. D-38, Defence Colony, New Delhi, more particularly to the extent of the ½ (half) share therein purchased by the Plaintiff through Smt. Kamal Kaur, pending the final adjudication of the present suit;
(b)Direct the Defendants to maintain status quo with respect to the Suit Property and to refrain from creating any further third-party rights or encumbrances thereon;
(c)Direct the Sub-Registrar concerned not to register any document of transfer, sale, gift, mortgage, or any other instrument creating any right, title, or interest in the Suit Property in favour of any third party;
(d)Pass such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.”
The present suit has been filed, inter alia, seeking a decree of specific performance of the Advance Payment Receipt dated 30.06.2017 (hereinafter referred to as “APR”) executed by late Ms. Kamal Kumar alias Kamal Kaur, presently through her legal heir i.e. defendant no.1 claimed to be in respect of ½ share in the property bearing No. D-38, Defence Colony, New Delhi – 1100024, admeasuring 333.33 square yards (hereinafter referred to as the “suit property”), a decree of declaration declaring that the Memorandum of Family Settlement dated 10.07.2023 (hereinafter referred to as “MoFS”) executed by the defendants to be illegal, unlawful, null and void ab initio amongst other reliefs of permanent and mandatory injunction, and grant of status quo.
It is noted that the present suit was rejected under the provisions of Order VII Rule 11, CPC by this Court vide order dated 07.07.2025. Aggrieved by the rejection, the plaintiff appealed the said order before the learned Division Bench of this Court. The learned Division Bench vide the order dated 15.12.2025 in R.F.A(OS) 69/2025 restored the present suit while setting aside the order dated 07.07.2025 passed by the learned predecessor Bench of this Court.
It is further noted that no interim orders have been passed by this Court in the present suit. It may be relevant to this application to note the order dated 11.09.2024 passed by the learned predecessor Bench whereby, it was observed that the plaintiff has no locus to claim any right, title or interest in the share of defendant nos.2 and 3. Further that, the said defendants were at liberty to proceed with the completion of sale with the third party without being hindered by the pendency of the present suit. It was further clarified that the rigours of the Section 52 of the Transfer of Property Act, 1882 would not apply to the transfer effected by the said defendants. The said application is still pending adjudication.
On the allegation, that defendant no.1 has entered into a sale transaction with a third party, i.e., Loxy Infrastructure Private Limited, whose sale deed has been presented before the concerned Sub-Registrar for registration, the present application seeking the aforenoted prayers has been filed. One of the prayers sought is to restrain the Sub-Registrar from further registering the sale deed.
CONTENTIONS OF THE PLAINTIFF:-
Mr. Raman Kapoor, learned senior counsel appearing for the plaintiff would contend that the instant application has been preferred on gaining the knowledge that the defendant no.1 has entered into some transaction with a third party to dispose of the suit property by executing a sale deed, which is to be registered by the Sub-Registrar, Jangpura, Lajpat Nagar, Delhi. He would submit that the said information was communicated by the Sub-Registrar vide the letter dated 19.10.2026. He would submit that it is on account of this communication that the plaintiff has preferred the present application seeking interim stay.
Learned senior counsel would submit that so far as the first stay application bearing I.A. No.17930/2024 is concerned, vide order dated 19.01.2024, it is noted that the plaintiff did not press for the interim orders. He stated that this Court had noted that defendant nos.2 and 3 have entered into an Agreement to Sell (hereinafter referred to as “ATS”) with two third-party vendees on the basis of a consent decree dated 11.07.2023 passed in CS(OS) 281/2017 (hereinafter referred to as “the previous suit”).
He would submit that so far as defendant no.1 is concerned, the situation may be different. In that, though in the previous suit a preliminary decree and a final consent decree of partition was passed, however, the same was based on an alleged MoFS dated 10.07.2023 executed between defendant nos.1, 2 and 3 collusively. He would submit that one of the prayers sought by the plaintiff in the present suit seeks declaration that the MoFS dated 10.07.2023 is illegal, unlawful, null and void ab initio. He would submit that the said prayer is premised on the fact that the predecessor-in-interest of defendant no.1 namely late Smt. Kamal Kaur, had executed an APR on 30.06.2017 in respect of the suit property, and thus, any MoFS executed subsequently, cannot render the APR nugatory.
His contention in the aforesaid context was that in case this Court finally passes a decree of declaration qua the MoFS as null and void, the rights of the plaintiff to seek specific performance of the APR would be rendered unexecutable and otiose inasmuch as third-party rights in the subject matter property would have been created. He would submit that the third-party purchaser has already commenced demolition of the property, and thus, if not restrained, and the subject property is demolished, the suit of the plaintiff for specific performance may be rendered infructuous.
In order to set up his case, learned senior counsel drew attention to the plaint and the factual narration in respect of as to how late Kamal Kaur acquired the ownership of the suit property and that she was competent to execute the APR. His contention was that late Smt. Harbans Kaur, who was the owner of the subject property by virtue of a registered Will dated 22.07.1987, bequeathed the suit property to her only surviving son Sh. Jagmohan Singh exclusively. He submitted that Sh. Jagmohan Singh was single and on his death on 25.01.2017, the estate devolved upon his Class-II legal heirs. He would submit that since only two sisters survived, i.e., late Smt. Mohinder Kaur and late Kamal Kumar, and all the other legal heirs having predeceased Sh. Jagmohan Singh, the property devolved equally upon the surviving sisters.
While referring to the previous suit filed by defendant no.2 herein/Sh. Maninder Singh, he would contend that upon the death of late Kamal Kumar, who was the defendant no.1 therein, the present defendant no.1 got himself impleaded as the sole legal heir, and surreptitiously executed the MoFS with Sh. Maninder Singh (defendant no.2) and Sh. Harinder Singh (defendant no.3 herein), LRs of late Smt. Joginder Bedi and late Sh. Mohinder Kaur respectively. According to him, since late Joginder Bedi predeceased late Jagmohan Singh, the right of devolution of the suit property after the death of late Jagmohan Singh would fall only upon late Kamal Kumar and late Mohinder Kaur. Thus, he would contend that Sh. Maninder Singh, son of late Joginder Bedi had no right whatsoever. As a consequence, he would submit that the MoFS, prima facie, is an illegal and unlawful document having been signed and executed by incompetent persons.
In the above context, learned senior counsel would contend that the APR having been executed much prior to the MoFS, the rights of the plaintiff must be preserved and protected during the pendency of the suit. Learned senior counsel also read the paragraphs of the present plaint to submit that there is a doubt as to whether the defendant no.1/Mr. Varendhishakt Prdhiesubhaag alias Baba Sahib is really a legal heir of late Kamal Kumar, who was defendant no.1 in the previous suit. Learned senior counsel emphasised that the execution of the MoFS; the impleadment of Baba Sahib as legal heir of late Kamal Kumar; and the manner in which the MoFS was executed; coupled with the passing of the consent decree on the same day i.e. 11.07.2023, indicates clear collusiveness between the parties and the clear attempt to deprive the plaintiff from enforcement of the APR.
Referring to the APR, learned senior counsel would submit that the intention to transfer her share and interest in the suit property by late Kamal Kumar to the plaintiff is apparent. Referring to the reply filed on behalf of late Kamal Kumar to the contempt petition bearing CCP(O) No.70/2018 in the previous suit, he would contend that the contents of the said reply demonstrates clear admission of late Kamal Kumar having executed the APR as also having received a consideration of Rs.21 lakh from the plaintiff. He would contend that even if the preliminary decree and the final consent decree is taken into account, late Kamal Kumar had a clear one-third right in the suit property. If that be so, he would submit that this Court has to give precedence to the intention of late Kamal Kumar of transferring her share in the suit property vide the APR dated 30.06.2017, which was prior to both the preliminary decree and the MoFS.
In order to explain the devolution of share or interest in the suit property upon late Kamal Kumar, learned senior counsel would draw attention to the Will dated 22.07.1987 purportedly executed by late Harbans Kaur. According to him, clearly, once the Will bequeaths the property exclusively to late Jagmohan Singh, and Sh. Jagmohan Singh had expired without leaving any legal heirs, the share and rights in the property would devolve upon the surviving Class-II family members, in which case, late Kamal Kumar was entitled to 50% of the suit property.
Thus, looked at it any which way, learned senior counsel would submit that the interest of the plaintiff, whether it be one-third or one-half, must necessarily be protected during the pendency of the present suit. According to him, once the third-party rights are created and permitted to be registered, the suit of the plaintiff may be rendered infructuous.
By referring to Unified Building Bye-Laws for Delhi, 2016, learned senior counsel would submit that in any case no property can be demolished without first obtaining a sanctioned plan. Since, no such sanctioned plan is available or applied for, the third-party purchaser cannot be permitted to carry out demolition of the built-up portion of the subject suit property. In other words, learned senior counsel would contend that the third-party purchaser cannot be permitted to carry out demolition in view of the prohibition in the said Bye-Laws.
Learned senior counsel had also referred to and extensively relied on the judgement of the learned Division Bench dated 15.12.2025 allowing the appeal of the plaintiff against the order of this Court dated 07.07.2025 rejecting the plaint under Order VII Rule 11, CPC. Relying on the various paragraphs, he would contend that the learned Division Bench had noted that the issues forming the subject matter of the present suit regarding the validity of the Will as also the MoFS, etc., are matters that require evidence and cannot be decided summarily. On that basis, learned senior counsel would submit that having regard to the appreciation of all the relevant issues by the learned Division Bench in the aforesaid judgement, it would be in the interests of justice to preserve the property, which is the subject matter of the present suit.
CONTENTIONS OF THE PURCHASER - LOXY INFRASTRUCTURE PRIVATE LIMITED:-
Mr. Sandeep Sethi, learned senior counsel appearing for the purchaser, M/s Loxy Infrastructure Private Limited, would submit that the suit of the plaintiff is predicated upon the APR which is not an enforceable document. At the outset, he drew the attention of this Court to paragraph 6 of the plaintiff's impleadment application, bearing I.A. No. 219/2021, filed in the previous suit, and submitted that the plaintiff had himself stated therein that the “ATS was yet to be prepared”. Meaning thereby, that the APR itself is not in the nature of an ATS, and thus, is unenforceable.
He would further vociferously contend that even otherwise, the APR does not constitute an ATS to fall within the scope and ambit of documents which are enforceable under the Specific Relief Act, 1963. He would contend that it is trite that for specific enforcement of any document claimed to be in the nature of an ATS, it must necessarily contain four (4) essential ingredients, sans which, the document would not qualify as an ATS, and thus, not enforceable. For the said proposition, learned senior counsel would rely upon the judgement in Aggarwal Hotels (P) Ltd. v. Focus Properties (P) Ltd., 1996 SCC OnLine Del 354, relevant para is extracted hereunder:
“5.The four ingredients necessary to make an agreement to sell are: (i) particulars of consideration; (ii) certainty as to party i.e. the vendor and the vendee; (iii) certainty as to the property to be sold; and (iv) certainty as to other terms relating to probable cost of conveyance to be borne by the parties, time, etc. If these ingredients are lacking in the agreement, the obligations contemplated under Section 16 for specific performance for immoveable property would not arise. It is in this background that the receipt dated June 17, 1995 has to be examined.”
The said proposition was also reiterated by the learned Coordinate Bench of this Court in Amarjeet Singh v. Sharda Obhrai, 2006 SCC OnLine Del 1143.
Moreover, learned senior counsel would further rely on Amarjeet Singh (supra) to submit that it is a settled position in law that, for a document to be construed as an ATS, at least 10% of the sale consideration is required to be paid as earnest money. He would therefore contend that the plaintiff had failed to fulfil any of the requisite conditions for construing the APR as an ATS. Relevant paras of the said judgement are extracted hereunder:
“5.I do not find any merit in the contention of the Plaintiff. The sum of Rs 60 lakhs is approximately five percent of the total sale consideration if the Plaintiff's case is to be accepted. As I have expressed in High Way Farms (supra) normally at least 10% is paid as earnest money, thereby manifesting that a sale contract has emerged from negotiations. The Receipt in question can at best be seen as indicating that negotiations or talks in respect of the sale of the Suit property were underway. The Plaintiffs pleading that an agreement to Sell was to be executed, in fact, destroys his case. Apart from the Receipt not fulfilling all the ingredients which are required for advancing to the conclusion that an agreement had taken place between the parties, the pleadings or understanding that an agreement to Sell was to be executed can lead only to the conclusion other than that a concluded contract had not come into existence. If the parties were consensus ad idem on all necessary points, an agreement to Sell would inevitably have been executed.
6.I have no hesitation in concluding that a prima facie case has not been disclosed by the Plaintiff. Since no agreement to Sell had emerged the usual and normal presumption that a contract for the conveyance of immoveable property would not normally be compensated in terms of money, does not come into operation. The balance of convenience is not in favour of the Plaintiff who has, prima facie, merely thrown in a small fraction of the price being negotiated between the parties with a view to, at the highest, give some semblance of formality or seriousness to his offer. The Plaintiff would therefore not suffer any irreparable loss or injury. The interest of justice would be adequately met if the defendant is directed to deposit the said sum of Rs 60 lakhs with the Registrar General of this Court within four weeks from today. I order accordingly. If the Plaintiff is desirous of withdrawing his Suit, the said sum would be made over to him.”
(Also see: Highway Farms vs. Chinta Ram, 2000 SCC OnLine Del 244)
In the aforesaid context, learned senior counsel contended that the APR in the present case does not possess the essential ingredients as postulated in the said judgements, thus is not an enforceable document. Since the APR is unenforceable, according to him, there is any amount of doubt as to whether the plaintiff would at all succeed in its case of specific performance.
Learned senior counsel would invite attention of this Court to the first stay application bearing IA No.17930/2023, particularly to paras 6 and 7, to submit that inspite of the allegations in the said paragraphs, this Court did not grant any stay till date. In fact, drawing attention to the order dated 19.01.2024, learned senior counsel would submit that the plaintiff did not even press the same at the appropriate stage. In such circumstances, learned senior counsel would contend that once the defendant no.1 has already signed and executed the sale deed in favour of the purchaser, the plaintiff cannot create any impediment to the mere registration of such sale deed.
Learned senior counsel also contended that the plaintiff was represented by a counsel when this Court passed the preliminary decree on 23.01.2020 as is reflected from the order sheet itself. Despite this knowledge, the plaintiff never questioned or challenged the same. He would contend that the purported Will on the basis whereof the plaintiff claims that late Kamal Kumar had been bequeathed the suit property had not seen the light of the day as recorded in the order dated 23.01.2020. If that be so, the rights of the plaintiff as claimed over the whole property as alleged in the APR itself gets diluted and unenforceable. There cannot be specific performance of part of a property when the APR claims the transaction was for the whole of the suit property.
Accordingly, it is submitted that no interim stay is warranted at this stage.
ANALYSIS AND CONCLUSION:-
This Court has heard learned senior counsel for the plaintiff as well as the senior counsel for the purchaser of the part portion of the suit property from defendant no.1 and also examined the documents on record.
It may be of some significance to examine the factual contours of this case and the orders that have been passed in the present case as also those in the previous suit since the same is intrinsically intertwined with the case at hand.
It is a matter of record that defendant no.2 herein had instituted the previous suit for partition seeking his 1/3rd share in the suit property, arraying late Kamal Kumar (predecessor-in-interest of defendant no.1 herein) as defendant no.1 and late Mohinder Kaur as defendant no.2. By the order dated 05.06.2017, the learned Coordinate Bench of this Court passed an interim order directing the parties to maintain status quo with regard to the title and possession of the suit property. The said order is extracted hereunder:
ORDER 05.06.2017
I.A. No.7122/2017 (exemption)
Exemption allowed, subject to all just exceptions. Application stands disposed of.
CS(OS) No.281/2017 & I.A. No.7121/2017 (for stay)
Plaintiff has filed the present suit for partition. It is pointed out that the property bearing No.D-38, Defence Colony, New Delhi, was purchased by late Smt.Harbans Kaur who died on 02.01.1992, leaving behind five children being two sons and three daughters. It is further pointed out that the two sons died is useless leaving behind three legal heirs of late Smt.Harbans Kaur, being Mrs.Joginder Bedi, Mrs.Mohinder Kaur and Mrs.Kamaljit Kaur. It is further pointed out that Mrs.Joginder Bedi died in the year 2014 leaving behind one son, i.e. the plaintiff herein. Mrs.Mohinder Kaur has been arrayed as defendant No.2 who is stated to be 93 years old and Mrs.Kamaljit Kaur (defendant No.1) is stated to be 82 years of age.
Learned counsel for the plaintiff submits that having regard to the old age of defendant No.1, the property brokers of the area are misleading her and the plaintiff fears that on account of her old age she may be forced to enter into a sale transaction by the brokers of the area who are aware of her age. It is also pointed out by that the title deeds of the suit property are also in possession of defendant No.1. Ms.Bindra points out that a legal notice was issued to defendant No.1 for seeking partition but no response has been received.
Issue summons in the suit and notice in the injunction application, to the defendants, returnable on 24.07.2017.
Counsel prays for grant of an ad-interim ex parte injunction. Having heard the learned counsel for the plaintiff and on perusal of the plaint, application as well as the documents placed on record, I am satisfied that it is a fit case for grant of an ex parte ad-interim injunction. Hence, till the next date of hearing, all the parties are directed to maintain status-quo with regard to the title and possession qua the suit property bearing No.D-38, Defence Colony, New Delhi.
Compliance of Order XXXIX Rule 3 CPC be made within 7 days. Dasti, under the signatures of the Court Master/Private Secretary.
The aforesaid observations manifest, that the interim orders directing status quo to be maintained as regards title and possession, was passed having regard to the fear and apprehension that the defendants therein may be lured, forced, coerced or misled into executing documents transferring or alienating the suit property by certain property brokers in the vicinity at that point in time. It appears the apprehension was predicated on the information that defendant no.1 therein was in possession of the title deeds and both the defendants were aged 82 and 93 years respectively.
The present suit for specific performance is premised on the APR dated 30.06.2017 alleged to have been executed by late Kamal Kumar in favour of the plaintiff. It is clear that the said APR was signed and executed after the interim order dated 05.06.2017 was passed and in force on that day. The said APR is extracted hereunder:
It is relevant to note that Sh.Harinder Singh, defendant no.3 herein and the LR of late Mohinder Kaur in the previous suit, upon gaining the knowledge that the plaintiff in the present suit has advertised for sale of the subject property, initiated contempt proceedings bearing CCP(O) 70/2018 directed against the representatives of the present plaintiff and late Kamal Kumar citing wilful violation of interim order dated 05.06.2017.
Vide the order dated 27.09.2019, the Court called upon the present plaintiff to file an affidavit explaining how the suit property had been listed as one of the properties available for sale. Pursuant to the aforesaid order, the then Authorised Representative of the plaintiff, Sh. Shubhash Arora, had filed an affidavit stating that the aforesaid listing had occurred due to a miscommunication and that the suit property was neither intended to be listed for publication nor had it been published at any point in the past. The relevant extract from the affidavit filed by the Authorised Representative of the plaintiff is reproduced hereinbelow:
AFFIDAVIT
I, Sh. Subhash Arora, S/o Sh. Late J.R. Arora R/o C-28, Ground Floor, Panchsheel Enclave, New Delhi – 110017, aged about 67 years, do hereby solemnly affirm and declare as under:-
1.That I am the Contemnor / Respondent no.2 in the above mentioned contempt petition filed by Defendant no.2 in the above mentioned suit and I am well conversant with the facts and circumstances of the present case and competent to depose this affidavit.
2.That I am partner of M/s Jairaj Developers LLP and is in the business of developing plots and building residential and commercial floors / flats in south Delhi area.
It is also pertinent to note the stand taken by the late Kamal Kumar in her reply to the contempt proceedings initiated against her. The relevant paragraphs of her reply to the contempt proceedings are also extracted hereunder:-
2.That the sum of Rs. 21 Lakhs was received by the Answering Respondent as a token sum as an initiation of a deal in furtherance of an apparently negotiated settlement amongst the Answering Respondent, the Petitioner, and the other legal heir.
3.That the Answering Respondent was specifically told that the Petitioner and the other legal heir shall also be receiving the same token amount of Rs. 21 Lakhs shortly.
4.That the Answering Respondent at the time of signing the receipt was not aware of the injunction order passed by the Hon'ble Court.
5.That the Answering Respondent was reluctant and sceptical about the said negotiated settlement; nevertheless, by force of circumstances and in good faith signed the alleged receipt in the hope that a settlement would reach and the deal pending with the Petitioner and the other legal heir would take place without recourse to litigation for partition of the suit property.
6.That just a few days later to the signing the receipt it came to the knowledge of the Answering Respondent that the Petitioner had filed a suit for Partition in the Hon'ble High Court of Delhi and had obtained an injunction on the said property, which the Answering Respondent never knew of at the time of receiving the token amount of Rs. 21 Lakhs by way of a cheque.
7.That the said cheque No. 000067 dated 30.06.2017 made in favour of Mrs Kamal Kumar drawn on Kotak Mahindra Bank as an alleged advance payment in respect of the sale of the property bearing No. D-38, Defence Colony, New Delhi was never deposited by the Answering Respondent herein. The aforementioned cheque became invalid with the effluxion of time.
8.That the Answering Respondent never deposited the said cheque to her Bank Account, something which she had been forced to do from day one.
9.That on 16.8.2017, a suspicious cheque no. 316233 for a sum of Rs 21 lacs drawn on IndusInd Bank was intimated by the bank of the Answering Respondent, i.e. HDFC Chittaranjan Park Branch, as having been deposited to the account of the Answering Respondent, which was clearly a case of fraud. The said cheque was proceeded from Jai Raj Developers LLP, different from the earlier cheque drawn on Kotak Mahindra Bank expressly mentioned in the alleged receipt.
10.That the Answering Respondent realised that this was part of a pre- meditated attempt to make it appear as though the Answering Respondent had accepted the token sum via Transaction Banking. Since the original cheque drawn on Kotak Mahindra Bank was itself never deposited to a bank account, there arose no need or occasion for any other cheque or sum of money to be deposited to the Answering Respondent's bank account. It is plainly evident that someone got hold of very confidential information about the Answering Respondent like her Bank Account Number, and with a malafide intention purposely deposited the cheque to her bank account on the sly.
11.That the Answering Respondent immediately wrote a letter to her bank requesting that the unrecognized and unidentified sum of Rs 21 Lakhs be reverted to source. The said amount was lien-marked and put on hold was by the bank, but, however, upon communication with the drawee bank, i.e. IndusInd Bank, the bank of the Answering Respondent was ostensibly informed that the said amount / Cheque was deposited to the account of the Answering Respondent with regard to some property deal. The true typed copy of the letter written by the Answering Respondent to her bank is Annexed herewith as Annexure-A1. This statement by the Bank of the Answering Respondent that this unknown sum of Rupees 21 Lacs made over to the Bank Account of the Answering Respondent by cheque on August 16 2017 constituted a property deal payment is vehemently refuted since the only way the Answering Respondent could have been provided with an advance payment on a property deal was through the sole receipt the Answering Respondent had been ensnared into signing on June 30, 2017 and by extension, by means of the cheque no. 000067 dated 30th June 2017 on Kotak Mahindra Bank expressly mentioned in the alleged receipt signed by the Answering Respondent; but on the contrary, that very cheque mentioned in the alleged receipt was never encashed or deposited to the Bank Account by the Answering Respondent on suspicion of chicanery behind the exhortation to sign the receipt. There was also no subsequent verbal or written demand by the Answering Respondent for any other cheque bearing the same amount as in the receipt other than the cheque presented through the receipt. Therefore, this unexplained sum of Rupees 21 Lacs in the way of an unknown and unrecognised cheque on IndusInd Bank dated 47 days from the date of the alleged receipt is sheer, infernal and monkey business designed to create trouble for the Answering Respondent. The Bank's information on this unidentified sum of Rs 21 Lacs is thus erroneous and provided by design to misguide the Bank of the Answering Respondent and this Hon'ble Court by the originators of the said receipt and others involved who have Machiavellian designs on a below-market-price acquisition of the property in question.
12.That simply on a mere receipt, that too an unstamped receipt, a property worth more than 24 crores cannot be sold. The Answering Respondent submits that she never executed any Agreement to Sell or any Sale Deed in favour of anyone with regard to the property in question.
13.That the Answering Respondent has herein not executed any Agreement to Sell or illegally entered a sale transaction pertaining to the property in question hitherto either with the Respondent No.2
Pertinently, the stand of late Kamal Kumar as regards the APR is that she did not have the knowledge of the interim order dated 05.06.2017; that though she had signed the APR, yet the cheque of Rs.21 lakh of Kotak Mahindra Bank mentioned therein was never deposited by her in her account; that the subsequent deposit was neither with her consent nor to her knowledge; that the said deposit was fraudulent; that she does not intend to sell the property and that she has not created any third party interest in the said property.
It is interesting to note that vide order dated 23.01.2020, while considering the contempt petition and submissions seeking passing of preliminary decree in the partition suit, the Court restrained the present plaintiff from advertising the sale of the suit property in any manner and also imposed costs of Rs. 20,000/- on account of the plaintiff's failure to file the proper affidavit with clear facts as how the property on which an order of injunction was passed from being sold, featured for sale in their brochure.
It is further a matter of record that late Kamal Kumar, in her written statement filed in the previous suit, claimed the existence of a Will left by late Harbans Kaur to assert that defendant no. 2 herein did not have any share in the suit property. However, it appears that no such Will was ever produced before the Court, nor did she possess the original Will. This aspect was recorded by the learned Coordinate Bench in the order dated 23.01.2020, and after considering the submissions, passed a preliminary decree in the previous suit declaring the rights to the extent of 1/3rd share each to the Sh. Maninder Singh (plaintiff therein), late Kamal Kumar (defendant no.1 therein), and Mohinder Kaur (defendant no.2 therein) in the suit property. The order dated 23.01.2020 passed by this Court in the previous suit is extracted hereunder:
% ORDER 23.01.2020
1.Despite notice of contempt having been issued Ankur Arora is not present in Court.
2.Affidavit of Ankur Arora has been returned under objection. Thus the two contemnors, i.e. Subhash Arora and Ankur Arora are not coming forward with clear facts as how the property on which an order of injunction was passed from being sold features for sale in their brochure.
3.Subhash Arora and Ankur Arora will deposit a cost of ₹20,000/- with the Delhi High Court Legal Services Committee within two weeks.
4.Subhash Arora and Ankur Arora are also restrained from in any manner advertising the sale of the suit property i.e. D-38, Defence Colony, New Delhi in future.
5.Awaiting the compliance of this order list before Court on 23rd March, 2020.
I.A. 7481/2019 (under Order XII Rule 6 CPC).
1.Present suit has been filed by the plaintiff Maninder Singh, son of late Smt. Joginder Bedi claiming 1/3rd share in the suit property, that is, D-38, Defence Colony, New Delhi.
2.Case of the plaintiff is that Smt.Harbans Kaur was his maternal grandmother who was married to Sardar Jagat Singh and out of the said wedlock five children were born namely Surjit Singh, Jagmohan Singh, Mrs.Joginder Bedi, Mrs.Mohinder Kaur and Mrs.Kamaljit Kaur. Surjit Singh son of Harbans Kaur did not marry and died issueless. Jagmohan Singh, the other son of Smt.Harbans Kaur married one Mrs.Daljit Kaur however, they separated long back and the whereabouts of Mrs.Daljit Kaur are not known for the last 25 years. In order to issue notice and find out the whereabouts of Mrs.Daljit Kaur, publication was also issued pursuant to the order of this Court dated 23rd August, 2019 however, there is no appearance on behalf of Mrs.Daljit Kaur.
3.Plaintiff's mother Mrs.Joginder Bedi and defendant Nos.1 and 2, that is, Kamaljit Kaur and Mohinder Kaur were the three daughters of Smt.Harbans Kaur and the plaintiff's mother having passed away, he being the sole legal heir, the plaintiff and the two defendants are thus the legal heirs of the estate of late Mrs.Harbans Kaur.
4.During the pendency of the present suit, defendant No.2 Mohinder Kaur also passed away who is survived by her son Harinder Singh, who has been impleaded as a legal heir of defendant No.2 vide order dated 4th January, 2018.
5.Thus at present plaintiff Maninder Singh, being the grandson, defendant No.1, Kamaljit Kaur being the daughter and Harinder Singh being the grandson of late Mrs.Harbans Kaur are the legal heirs who inherit the suit property. Though defendant No.1 in the written statement claimed that late Smt.Harbans Kaur had left a Will however, no such Will has been produced in Court till date and in the reply filed to I.A. No.5659/2018 of defendant No.2, the case of defendant No.1 is that she does not have any Will of the deceased.
6.Consequently, preliminary decree is passed in favour of the plaintiff declaring him to be the owner of 1/3rd undivided share in the suit property, that is, D-38, Defence Colony, New Delhi. Besides the plaintiff even defendant No.1 Kamaljit Kaur @ Mrs. Suresh Kumar and Harinder Singh son of Mohinder Kaur would also be entitled to 1/3rd share each of the undivided suit property.
7.Application is disposed of.
CS(OS) 281/2017
1.Preliminary decree declaring that the plaintiff and the two defendants are the 1/3rd shareholders of the undivided suit property having been passed, learned counsel for the plaintiff and defendant Nos.1 and 2 seek some time to chalk out the modalities for division of the property.
2.At request, list on 23rd March, 2020.
I.A. 7121/2017 (under Order XXXIX Rule 1 and 2 CPC)
List on 23rd March, 2020.
The Court in the previous suit while passing the aforesaid preliminary decree has found as a fact that late Kamal Kaur had not produced the Will of late Harbans Kaur and in fact observed in para 5 that she admitted to not being in possession of any such Will. Thus, by the aforesaid order, the Court had clearly granted a preliminary decree in favour of (i) the plaintiff therein, i.e., Sh. Maninder Singh (defendant no.2 herein); (ii) defendant no.1 therein i.e., late Kamal Kumar (defendant no.1 herein); and (iii) defendant no.2 therein, i.e. Sh. Harinder Singh (defendant no.3 herein).
It is also a matter of record that the said order dated 23.01.2020 was challenged by late Kamal Kumar before the learned Division Bench in an appeal bearing R.F.A.(OS) No.8/2021, which was dismissed on merits on 15.02.2021. It may be of some significance to reproduce the relevant paras of the judgement dated 15.02.2021 as under:
“1.Present appeal has been filed challenging the order dated 23rd January 2020 whereby a preliminary decree of partition of the property had been passed by the Ld. Single Judge.
2.Learned counsel for the appellant states that the learned Single Judge had erred in exercising her power under Order XII Rule 6, CPC. He submits that the impugned order was passed on the assumption that Sardarni Harbans Kaur had died intestate. He emphasises that the Single Judge ought to have taken into consideration that the division of the property was to take place as the property left behind by late Sardar Jagmohan Singh, who is the brother of the Appellant and not as the property of late Sardarni Harbans Kaur and in such an event, no legal right arises in favour of the respondent/plaintiff.
3.He submits that the learned Single Judge erred in treating the non-production of the original will as an admission by the appellant of the non-existence of the registered will. He points out that the photocopy of the will was duly placed on record which was ignored by the learned Single Judge.
4.Per contra, learned counsel for respondent/plaintiff states that the impugned order dated 23rd January, 2020 was a consensual order. She states that subsequently on 15th July, 2020 and 11th December, 2020 the appellant had reiterated her consent and had even stated that she will coordinate with the Local Commissioner in execution of the sale deed and other necessary documents. She has, today in Court, handed over a copy of the order dated 11th December, 2020.
5.In rejoinder, learned counsel for the appellant states that the earlier counsel had misguided the appellant and suppressed material facts from her.
6.A perusal of the order dated 11th December, 2020 reveals that on the said date, the appellant’s counsel in the presence of the appellant had stated, in virtual hearing, that the appellant would cooperate with the Local Commissioner for execution of the sale deed and other necessary formalities. Consequently, the appellant is today estopped from contending to the contrary.
7.In any event, on a perusal of the order dated 15th July, 2020 and 11th December, 2020, this Court is of the view that the impugned order was a consensual order.
8.We are also not able to comprehend as to why the said order of dated 11th December, 2020 had not been placed on record by learned counsel for the appellant, especially considering the fact that present matter is a Regular First Appeal and the entire trial court record should have been filed.
9.Further, as the appellant has not filed an application for review of the order dated 23rd January, 2020, this Court is of the view that the impugned order calls for no interference. Accordingly, the present appeal and application are dismissed.”
It is not disputed that late Kamal Kumar did not further challenge the judgement dated 15.02.2021 which became final and binding. It appears that late Kamal Kumar thereafter sought review of the order dated 23.01.2020 whereby the preliminary decree for partition was passed, vide the Review Petition No.60/2021. It is a matter of record that the said review petition was dismissed vide judgement dated 16.12.2022 based on the doctrine of merger of the consent decree with the judgement dated 15.02.2021 passed by the learned Division Bench and that no review petition would be maintainable. None of these orders appear to have been assailed any further.
Thereafter, vide the order dated 10.01.2023, this Court recorded that late Kamal Kumar had left for her heavenly abode. Subsequently, defendant no.1, claiming to be the sole legal heir of late Kamal Kumar, along with defendant nos. 2 and 3, entered into and reduced into writing a MoFS dated 10.07.2023. It is further a matter of record that, subsequent to the execution of the said MoFS, the Court vide order dated 11.07.2023, impleaded defendant no.1 as a legal heir of late Kamal Kumar on the same date, took the said MoFS on record, and on the basis thereof, passed a consent final decree. The order dated 11.07.2023 disposing of the suit and passing the consent final decree is extracted hereunder:
defendant No.1 i.e. Mrs.Kamaljit Kaur @ Mrs.Suresh Kumar.
3.Learned counsel for the defendants submit that they have no objection to the prayer made in the application.
4.Learned Senior Counsel appearing for newly impleaded defendant No.1 i.e. Mr.Varenydhishakt Prdhiesubhaag, submits that an affidavit in terms of the directions contained in the last order has been filed however, the same is not on record. An original signed copy of the affidavit has been handed over in Court, which is taken on record. Learned Senior Counsel also submits that Mr.Varenydhishakt Prdhiesubhaag is the only legal heir of late Smt. Kamaljit Kaur @ Mrs.Suresh Kumar.
5.Keeping in view the submissions made and the no-objection, the captioned application is allowed and Mr.Varenydhishakt Prdhiesubhaag is impleaded as defendant No.1 (legal heir of late Smt. Kamaljit Kaur @ Mrs.Suresh Kumar).
6.The amended memo of parties is taken on record.
7.The application is disposed of.
IA No. ______ /2023 (to be numbered)
1.Learned counsel for the parties submit the captioned joint application has been filed under Order XXIII Rule 3 read with Section 151 CPC through E-Filing Portal bearing No.E-1146022/2023 dated 10.07.2023 however, the same has not been placed on record. An original signed and attested copy of the application alongwith an Original Memorandum of Family Settlement dated 10.07.2023 have been handed over in Court, which is taken on record. The Registry shall number the same.
2.Learned counsel for the parties submit that the parties have been able to reach at an amicable settlement of their disputes vide the aforesaid
Having regard to the above, the following aspects clearly emerge: (i) the APR was executed at a time when an order of status quo with regard to the title and possession of the suit property was already in force vide order dated 05.06.2017; (ii) the alleged executant of the APR categorically recused herself from proceeding further with the intention to sell the suit property; and (iii) Kamal Kumar also categorically admitted in her reply to the contempt petition that she had not presented the cheque for Rs.21 lakh under the APR, and that the amount subsequently credited to her bank account had been deposited without her knowledge.
Prima facie, it is apparent that late Kamal Kaur was declared to be the shareholder to the extent of 1/3rd in the suit property on the basis of general law of succession and not testamentary disposition. That part of the findings was not only recorded by this Court in the order dated 23.01.2020, but also upheld by the learned Division Bench in a regular appeal filed by late Kamal Kumar herself. If that be so, the claim of the plaintiff to 50% of the suit property cannot be sustained.
It must be recalled that the plaintiff was represented by a counsel on the day when the preliminary decree of partition was passed in the previous suit. Yet, from 23.01.2020 till the final decree of partition was passed on 11.07.2023, the plaintiff did not initiate any legal action to assert or safeguard its rights under the said APR. Nothing prevented or precluded the plaintiff from asserting its rights, assuming it had any rights over 1/3rd share in the suit property after the preliminary decree was passed, against late Kamal Kaur who was alive at that time and had expired only in January, 2023. Undeniably, the plaintiff instituted the present suit only after the final decree was passed. It is of some relevance that the plaintiff did not even challenge the final consent decree.
It is clear that the preliminary decree crystallised the rights of late Kamal Kaur to the extent of 1/3rd share in the suit property. Subsequently, by the execution of the MoFS, defendant no.1 herein, asserted his rights over that 1/3rd share, which fell to late Kamal Kaur. Not only was the present defendant no.1 impleaded but the MoFS was accepted and the final consent decree was passed.
Apart from the above, a cumulative reading of all the past transactions and events, including the preliminary decree as well as the final consent decree propels this Court to form a prima facie view that the APR, whether or not it falls within the purview of an “ATS”, possibly may not be an enforceable document, having regard to the fact that it was executed at a time when an order of status quo with regard to the title and possession of the suit property was already in force.
It is also a settled position in law that, in a partition suit, it is the preliminary decree which is required to be challenged. This is for the reason that the rights of the parties with respect to their respective shares, as well as the apportionment thereof, are conclusively determined and adjudicated at the stage of passing of the preliminary decree. The final decree merely gives formal expression to the modalities by which the shares and apportionment, already determined under the preliminary decree, are to be worked out. Thus, the purported challenge to the MoFS, which culminated in the passing of the final decree in the previous suit, appears to be a mere bogey and may not enure to the benefit of the plaintiff.
That in terms of Section 97 of the CPC, parties are required to challenge a preliminary decree, failing which the findings or correctness recorded or reached by the Court in such preliminary decree cannot be challenged in an appeal against the final decree, if any. (See: Mool Chand v. Director, Consolidation, (1995) 5 SCC 631; Venkata Reddy v. Pethi Reddy, 1962 SCC OnLine SC 320)). The aforesaid law has been quoted by this Court only to reiterate that once the finding of fact regarding late Kamal Kumar not being in possession of the original Will of late Harbans Kaur has been recorded in the order granting the preliminary decree, and further upheld by the appellate court, the said Will cannot now be made basis of the claim in the present plaint. This observation is made in addition to and not in repugnancy of the earlier observation that no legal action was initiated by the plaintiff on the basis that late Kamal Kaur was declared as 1/3rd share holder in the suit property.
Having regard to the aforesaid, this Court is of considered opinion that the plaintiff has failed to make out a prima facie in his favour. The balance of convenience also does not lie in favour of the plaintiff. No irreparable loss or injury which cannot be compensated in terms of money would be caused to the plaintiff.
In that view of the matter, this Court is not inclined to pass any interim orders in favour of the plaintiff and against the defendant no.1 or the purchaser. Accordingly, the application is dismissed.
Needless to observe that nothing in this order shall tantamount to expression on merits.
List on the date already fixed, i.e., 25.11.2026.