AI Structured Summary
Not yet generated for this judgment
Judgment
Property,Property,Plaintiffâ€s share
1.,"House No.C-43, Defence Colony, New Delhi",4/9
2.,"Farm/plot No.CR-14A measuring 1 acre at Araval
Retreat, Gurgaon",i1/3 (1/4 + 1/3 of fatherâ€s ¼ share)
3.,"Farm/plot No.CR-14B measuring 1.25 acre a
Aravali Retreat, Gurgaon",t1/3 (1/4 + 1/3 of fatherâ€s ¼ share)
4,"Unit No. 1219 measuring 1000 sq. ft. in Vatika
Trade Centre",1/6 (1/3 of fatherâ€s ½ Share)
evident from a reading of the plaint. He also relies upon a finding of this Court in order dated 16th October 2017, passed in an application under Order",,
VII Rule 14 being I.A. 13780/2016. In the said order, the Court has recorded that the signature on the MOFS is admitted by the Plaintiff and hence",,
she is deemed to have always had knowledge of the MOFS. It is further argued that the amendment application is belated inasmuch as the stage for,,
filing the same is long over as trial has commenced. The affidavit of Defendant No.2 â€" mother had been filed by the time the application for,,
amendment was preferred. Reliance is placed on the judgment of the Supreme Court in Rajkumar Gurawara (Dead) Through LRs vs. S.K. Sarwagi,,
and Company Private Limited and Another, (2008) 14 SCC 364.",,
The Court has heard the ld. counsel for the parties. A perusal of the plaint shows that there are several paras which are replete with challenges to,,
the oral family settlement. The said paras are extracted herein below:,,
“2. The plaintiff has also prayed for declaring the purported oral family settlement dated 03.06.1977 (when the plaintiff was just 11 years of age,",,
having been born on 05.04.1966) and the alleged memorandum dated 21.10.2006 purporting to be memorandum of the said family settlement dated,,
03.06.1977 as illegal, null, void and not binding on the plaintiff.",,
…,,
It is submitted that at the time of the so-called oral family settlement dated 03.06.1977, the plaintiff was a minor being just 11 years of age, having",,
been born on 05.04.1966. Fact of the matter is that no such oral family settlement dated 03.06.1977 ever took place. The plaintiff never relinquished,,
nor was she legally capable being a minor (on 03.06.1977) of relinquishing her rights/share in the said property or any other property. Even if any such,,
oral family settlement dated 03.06.1977 is proved, the same has no legal sanctity and is not binding on the plaintiff (it follows that the so-called oral",,
family settlement dated 03.06.1977 and the writing dated 21.10.2006 purporting to be memorandum of the said oral family settlement dated 03.06.1977,,
are illegal, null, void and not binding on the plaintiff. The same have absolutely no effect on the entitlement/rights of the plaintiff in the suit properties.",,
….,,
It is submitted that while having deprived plaintiff of part of the Gulmohar property, the defendants, at the same time, have tried to deprive the",,
plaintiff of her rightful legal share in the property C-43 Defence Colony which is an HUF property over which she had/has an equal right as her,,
brother (defendant no 1). It is submitted that basically, the alleged memorandum was made in 2006 after the 2005 amendment of the Hindu",,
Succession Act to deprive the plaintiff of her rights in C-43, Defence colony. It was not based on the any family settlement of 1977. In fact, no family",,
settlement was made or could be made with the plaintiff in 1977, when she was just 11 years of age and lacked the capacity to enter into the so-called",,
family settlement, leave alone accept it.â€",,
The prayer in the suit, however, prays for a declaration that the writing dated 21st October, 2006 purported to be a memorandum of so-called family",,
settlement dated 3rd June, 1977 is illegal, null and void and does not bind the Plaintiff. When the Defendant filed the written statement, the Defendant",,
took an objection that the Plaintiff has not challenged the oral family settlement dated 3rd June, 1977 and this was also refuted in the replication. The",,
relevant paragraph of the replication reads:,,
“11. That the very factum and validity of the so-called family settlement dated 03.06.1977 are specifically and emphatically denied. When there,,
was no family settlement dated 03.06.1977, there was/is simply no question the plaintiff being its major beneficiary. From the date of plaintiffâ€s",,
knowledge (29.10.2013) of the so-called family settlement dated 03.06.1977 and the memorandum of family settlement dated 21.10.2006, the suit has",,
been filed within prescribed period of limitation.â€,,
It is thus clear that the oral family settlement has never been admitted and has in fact been challenged and disputed consistently by the Plaintiff. The,,
question therefore in the present case is whether the amendment ought to be allowed at this stage when the evidence of Defendant No.2 has already,,
commenced and allowing of the amendment could result in further delays.,,
The issue raised in the present case is more substantive than procedural. The MOFS, of which a declaration is being sought as being illegal, is a",,
document in writing which records the earlier oral family settlement. The Plaintiff has repeatedly, in various paragraphs in the plaint, raised a challenge",,
that the said settlement was either not entered into or that she was a minor at the time when the said oral family settlement was purportedly executed.,,
The main question that is to be adjudicated in this litigation is as to whether there was an oral family settlement in 1977 and whether the said,,
settlement was reduced into writing in 2006. This being the main issue that is to be adjudicated, procedural technicalities cannot come in the way of",,
the substantive relief being granted or denied after evidence is led. Considering the fact that evidence has already commenced in the matter, this Court",,
is of the opinion that instead of amending the prayer in the plaint, if one of the issues is re-casted, that would itself suffice the purpose. The order",,
dated 4th November, 2016 had not finally decided this aspect as it was left to be considered at a later stage once the amendment application is",,
decided. The relevant portion of the said order reads â€",,
“3. Consequently, the question of permitting the above additional issue to be included at this stage does not arise. It will depend on the outcome of",,
the application to amend the plaint.â€,,
Since then, the evidence having commenced and the amendment, in the view of this court being completely avoidable at this stage, recasting of the",,
issue would be sufficient to ensure that the Plaintiff’s challenge to the oral settlement is adequately addressed. Mere unhappy wording of the,,
prayer ought not to disentitle the Plaintiff to urge that the oral family settlement is invalid, void and illegal.",,
Issue no. (iv) in respect of the family settlement presently reads as under:,,
iv. Whether the Plaintiff can challenge the memorandum of family settlement dated 21st October, 2006 without challenging the oral family settlement",,
dated 3rd June, 1977, whereby the family properties were divided? OPP",,
The averments in the plaint make it very clear that the Plaintiff does not admit the oral family settlement dated 3rd June, 1977 and has expressly",,
challenged the same. The relief which is being sought i.e. the declaration of the MOFS as illegal, null and void and not binding on the Plaintiff, would",,
have inherent in it the question as to whether the oral family settlement is valid or not. Issue no. (iv) is therefore recast as under:,,
iv. Whether the MOFS dated 21st October, 2006 including the oral family settlement dated 3rd June, 1977 are illegal, null and void and not binding on",,
the Plaintiff? OPP,,
In view of the issue being recasted, in the light of the pleadings of the parties, the amendment is no longer required. The application for amendment",,
is disposed of. No further orders are called for. The issue as to whether the suit has been filed within limitation, has not been decided by this Court and",,
would be adjudicated at the final stage.,,
I.A. 12936/2017 (inspection) in CS(OS) 787/2015,,
This is an application seeking permission to inspect the original Wills and take photographs of the said Wills in the presence of handwriting experts.,,
The Deputy Registrar (Original Side) is directed to give inspection of the original Wills to both the parties in order to enable them to take photographs,,
and for inspection by their respective handwriting experts to enable them to lead evidence in the matter. I.A. is disposed of.,,
I.A. 12885/2017 in TEST.CAS. 97/2015,,
In view of the order passed in I.A. 12936/2017 in the suit, the present application is disposed of as infructuous as the inspection of the Wills has",,
been directed today.,,
I.A. 16857/2018 in CS(OS) 787/2015,,
The present application has already been disposed of. The present application need not be listed further.,,
I.A. 13626/2018 (u/O XII Rule 6), 13627/2018 (u/O VII Rule 10) in CS(OS) 787/2015",,
List before Court on 4th November, 2019",,
TEST.CAS. 97/2015,,
List before the Joint Registrar for recording of the Petitioner’s evidence in Test. Case on 11th September, 2019.",,
The affidavits in evidence are stated to have already been filed.,,