Whether court can consider an unregistered family settlement at the time of deciding temporary injunction?

HIGH COURT OF DELHI

IAS No. 7532/88, 8290/88, 211/89 3160/90 and 8916/92 in S.NO. 159/86

K.G. Mal Vs Sham Behari Mal

Sat Pal, J

Decided on : 5th July, 1994

Citation: 1994 SCC OnLine Del 388 : (1994) 30 DRJ 242 : (1994) 55 DLT 137 : PLR (1994) 108 Del 3

Satpal, J.— This order will dispose of the applications bearing No. 7532/88, 8290/88, 211/89, 3160/90 and 8916/92.

2. IA 7532/88 has been filed on behalf of the plaintiff under Section 94 read with Order 39 Rules 1 2 and Section 151 of Code of Civil Procedure (hereinafter referred to as the Code) and in this application it has been prayed that the defendants 1 and 3 be restrained from disposing of, transferring, selling or alienating the property No. 26, Narayna Mudali Street, Madras and House No. B-172, East of Kailash, New Delhi till the final disposal of the suit and it has also been prayed that a receiver be appointed for the aforesaid properties.

3. IA 8290/88 also has been filed on behalf of the plaintiff under Section 94, Order 39 Rules 1 2 read with Order 38 rules 1 5 and Section 151 of the Code and in this application it has been prayed that the defendants 1 and 3 be restrained from transferring, parting with possession, alienating, disposing of or in any other way creating charge, mortgage or lien on the property bearing No. B-172, East of Kailash, New Delhi till final disposal of the suit and it has also been prayed that the defendants 1 and 3 be directed to deposit in this Court the entire consideration of the amount of the property No. 26, Narayna, Mudali Street, Madras sold to Smt. Sushila Devi and the said defendants be also directed to furnish security for production of the property in suit or place the same at the disposal of this Court. On 17.11.88 this application came up for hearing and notice of the same was issued to defendants 1 and 3 on that date. The said defendants were also restrained from transferring, alienating or parting with possession of property No. B-172, East of Kailash, New Delhi till further orders.

4. IA 3160/90 has been filed on behalf of defendant No. 1 under Order 39 rule 4 read with Section 151 of the Code and in this application it has been prayed that the interim order passed on 17.11.88 be set aside and IA 8290/88 filed on behalf of the plaintiff be dismissed.

5. IA 8916/92 also has been filed on behalf of defendant No. 1 under Order 39 Rule 1 2 and Order 26 Rule 9 read with Section 151 of the Code and in this application it has been prayed that the plaintiff and defendants 2, 4 and 5 and their agents be restrained from carrying on any demolition, alteration and construction on the ground floor of H.No. B-172, East of Kailash, New Delhi and the plaintiff and the said defendants be also restrained from selling, alienating, transferring or parting with in any manner whatsoever of any portion of the ground floor inclusive of the portion unauthorisedly being constructed. It was further prayed in this application that the plaintiff and the aforesaid defendants be directed to restore the premises to its original condition and a local commissioner be also appointed to visit the site to take the photographs of unauthorised construction, demolition or alteration being carried out by the plaintiff and the said defendants on the ground floor of the above mentioned premises. This application came up for hearing on 19th June, 1992 and a notice was issued to the non-applicants and a local commissioner was also appointed to take the photographs of the construction/alteration which allegedly had been carried out. The plaintiff and defendants 2, 4 and 5 were also restrained from making any construction/alteration in the above mentioned building.

6. IA 211/89 has been filed on behalf of the defendant No. 2 under Order 39 Rules 1 2 read with Order 38 Rule 1 5 and Section 151 of the Code and in this application it has been prayed that defendant No. 1 be restrained from selling, dispossing of, alienating, parting with possession or in any way creating lien or charge or mortgage over the property bearing No. B-172, East of Kailsh, New Delhi till final disposal of the suit. It has also been prayed in this application that the defendant No. 3 be restrained from withdrawing a sum of Rs. 6.00 lacs from her Saving Bank Account standing in the Indian Oversease Bank, Sowcarpet

Branch, Madras. This application came up for hearing on 9th January, 1989 and notice of this application was issued to defendants 1 and 3 on that date. It may be pointed out here pleadings in all the five applications are complete.

7. Briefly stated the facts of the case are that the plaintiff and defendants 1 and 2 are real brothers. Defendant No. 3 Smt. Krishna Mal is the wife of defendant No. 1, defendant No. 4 Smt. Raj Mal is the wife of defendant No. 3 and defendant No. 5 Smt. Krishna Mal is the wife of the plaintiff. It has been alleged in the plaint that prior to partition the plaintiff and defendants No. 1 and 2 were residing in Bahawalpur (now in West Pakistan) and their parents expired in Bahawalpur when they were minors. After the death of their parents, their Aunti (Bhua) Smt. Jambhri Devi and her late husband Shri T.D. Wadhwa brought them up and helped them in their business. It has further been stated in the plaint that after migration from Bahawalpur to Delhi, the financial position of all the three brothers was shattered. However, before migrating to Delhi they had deposited their gold ornaments etc. in the Imperial Bank, Bahawalpur in the name of one Shri M.L. Mukhi, who was their cousin brother. It has then been stated in the plaint that the plaintiff who is the eldest brother joined private service in 1949 and in 1951 the defendant No. 1 got a job in railways and defendant No. 2 settled in Amritsar.

8. It has also been stated in the plaint that in 1956 the plaintiff left the job and got agency of sewing machines in Madras and in the year 1958-1959 both the defendants 1 and 2 and also living with the plaintiff and rendering help in his business. It has then been stated that in 1962 Shri M.L. Mukhi received back the jewellery from the Bank and handed over the same to the plaintiff. The case of the plaintiff is that after defendants 1 and 2 started rendering help in business of the plaintiff, all the three brothers were having family partnership business and the whole business was supervised by the plaintiff. It has been alleged by the plaintiff that the concern known as Indian Trade Emporium was converted into partnership consisting of defendant No. 1, defendant No. 5 who is the wife of the plaintiff and defendant No. 4 who is the wife of the defendant No. 2 and Shri Tulsi Dass Wadhwa w.e.f. 1st April, 1965.

9. It is then alleged in the plaint that the joint family of the three brothers purchased plot bearing No. B-172, East of Kailash, New Delhi in the name of defendant No. 1 in open auction for total consideration of Rs. 26.200/- and a sum of Rs. 65507- was deposited with D.D.A. as earnest money at the time of the auction of the plot. It is further alleged that the balance amount of consideration was paid by the family from the sale proceeds of the jewellery, business of the aforesaid firm and by taking loan from one Shri Rameshwar Nath Mehta. It is further alleged that the ground floor on the said plot was built in 1971-1972 and first and second floors on the said plot were contructed in 1979. It is further alleged that the plaintiff and defendant No. 2 alongwith the members of their families have been residing on the ground floor of the said plot since the ground floor was constructed.

10. The plaintiff has also alleged that from the earnings of the joint family partnership business styled as M/s. Indian Trade Emporium, the property bearing No. 78, Narayana Mudali Street, Madras was purchased in the name of defendant No. 3 in 1970-1971 and in the year 1975, property bearing No. B-12, Arti Chamber, was purchased again in the name of defendant No. 3, but all these properties in fact were jointly owned by the plaintiff and the defendants 2 and 3.

11. It is then alleged in the plaint that in 1979, the plaintiff started the construction of first and second storeys of H.No. B-172, East of Kailash, New Delhi to convert into-three storeys building to enable all the three brothers to live together comfortably in the said building, and on 24.5.1979 an oral decision was taken by the plaintiff and the defendants 1 and 2 that the said proposed building would be used and occupied in the following manner:—

(i) entire ground floor will go to Shri K.G. Mai, (plaintiff).

(ii) entire first floor will go to Shri S.B. Mal, (defendant No. 1).

(iii) entire second floor will go to Shri C.P. Mal, (defendant No. 2).

12. It is then alleged in the plaint that on 25.5.79 on the advice of Shri Notan Das Mal and Shri Nathu Ram, the plaintiff and defendants 1 2 decided to partition mutually the whole property whether in Delhi or at Madras, which was made out of the earnings of the joint family partnership business styled as M/s. Indian Trade Emporium and accordingly a family settlement was reduced in writing and signed by the three brothers on 25.5.1979 in the presence of three witnesses, namely, Shri Narotam Dass Mal, Shri M.L. Mukhi and Shri Nathu Ram. The said family settlement is Ex.P-1. In terms of the said settlement, the ground floor of the premises 26, Narayan Mudali Street, Madras came to the share of the plaintiff, the middle potion of this building came to the share of the defendant No. 1 and the top floor of the said building came to the share of defendant No. 2. Similarly, the ground floor of H.No. B-172, East of Kailash, New Delhi came to the share of the plaintiff, first floor to the defendant No. 1 and second, floor to the defendant No. 2. It was also stated therein that the first floor and the second floor were under construction. Business at Bidanpura, Gali No. 11, Kami Bagh, Delhi was given to defendant No. 2, the business of Indian Trade Emporium, Madras was given to the plaintiff and the premises bearing No. B-12, Arti Chamber, Mount Road, Madras were given to defendant No. 1. It has been stated in Ex.P-1 that the aforesaid partition has been accepted by all the three brothers voluntarily and they will act on the documdent in future. It is also stated therein that the terms of partition have been reduced in writing so that this document may be used at the time of need.

13. Mr. Makhija, the learned senior counsel appearing on behalf of the plaintiff drew my attention to copies of various letters which are at pages 18 to 21, 23, 33, 36 to 38 and 40 to 42 of the documents filed by the plaintiff on 13th March, 1992 and submitted that from these documents it was evident that the firm M/s. Indian Trade Emporium was the joint family partnership business of the plaintiff

and defendants 1 and 2. He further submitted that out of the earnings of the aforesaid partnership business, all the immovable properties mentioned in the family settlement (Ex.P-1) were purchased. He further submitted that all Hindu families are joint unless contrary is proved. In this connection, he referred to Articles 212 and 233 of Mulla’s Principles of Hindu Law. He also submitted that in the present case the plaintiff and the defendants who were members of the joint Hindu family, carried on business and acquired property by the joint labour and as such the properties so acquired by them were joint Hindu family properties. In support of this submission, the learned counsel placed reliance on a judgment of the Orissa High Court in the case of Narasingha Charan Sahu Another v. Lokanatha Sahu Others 1977, All India Hindu Law Reporter 560 and a jugement of Andhra Pradesh High Court in the case of Bheemidi Goverdluin Reddy v. Bobbli Subhadramma Another, 1980 All India Hindu Law Reporter, 536.

14. Learned counsel for the plaintiff further submitted that since the properties mentioned in the family settlement were joint Hindu family properties, the same were partitioned voluntarily by mutual consent of the plaintiff and the defendants 1 and 2 and since in terms of the family settlement, the ground floor of the property bearing No. B-172, East of Kailash, New Delhi came to the share of the plaintiff, the interim stay granted on 17th November, 1988 be confirmed till the final decision in the suit. The learned counsel also submitted that for the purpose of interim injunction the family settlement which is Ex.P-1 must be taken to be genuine document. He contended that refusal on interim injunction at this stage would render the suit infructuous. In support of this contention, he placed reliance on a judgement of this Court in the case of Jagdish Chand v. Anand Pradhan Ors., 1971 Rajdhani Law Report (Note) 28.

15. Mr. Budhiraja, learned counsel appearing on behalf of defendant No. 2 reiterated the submissions made by Mr. Makhija, learned senior counsel of the plaintiff. He also drew my attention to the family settlement (Ex.P-1) and submitted that in terms of this settlement, the second floor of the house bearing No. B-172, East of Kailsh, New Delhi had come to the share of the defendant No. 2. He, therefore, submitted that interim stay granted on 17.11.88 be confirmed till the decision in the suit. Learned counsel also submitted that since Ex.P-1 was a family arrangement, it did not require registration under Section 17 of the Registration Act. In support of his submission, learned counsel placed reliance on the two judgments of the Supreme Court in the cases of Tek Bahadur Bhujil v. Debi Singh Bhuji and Ors. AIR 1966 SC 292 and Kale Ors. Deputy Director of Consolidation and Ors., AIR 1976 SC 807. He also submitted that till the decision in the main suit, the defendant No. 2 be permitted to occupy the second floor of the above mentioned house. It may, however, be pointed out that in IA 211/89, the defendant No. 2 has not made any prayer regarding occupation of the second floor of the said house.

16. Mr. D.D. Singh, learned counsel appearing on behalf of defendant No. 1 submitted that the firm Indian Trade Emporium was not a joint family concern of the plaintiff and defendants No. 1 and 2. In this connection, he drew my attention to

the copy of the partnership deed dated 1st April, 1965 which is at page 35 of the documents filed on behalf of plaintiff on 7th February, 1986 and submitted that this document clearly showed that the said firm was owned by four partners i.e. defendant No. 1, defendant No. 4 who is the wife of the defendant No. 2, defendant No. 5 who is the wife of the plaintiff and Shri Thulsidas Wadhwa who was an outsider. He also referred to page 36 of this document wherein it has been stated that prior to 1st April, 1965, Indian Trade Emporium was the proprietorship concern of the first defendant. He further submitted that as per para 7 of the terms and conditions of the said partnership deed, the capital of the partnership was Rs. 40,000/- contributed in equal shares by all the parties. He, therefore, contended that from this document it was evident that the Indian Trade Emporium was not a joint family concern of the plaintiff and defendants 1 2.

17. Learned counsel for the defendant No. 1 further submitted that thde plot pertaining to the house bearing No. B-172, East of Kailash, New Delhi was purchased by the defendant No. 1 from D.D.A. for a total consideration of Rs. 26,200/- and a sum of Rs. 6550/- was paid as earnest money in November, 1965 itself. He submitted that in para 11 of the plaint it had been stated that earnest money of the said plot of Rs. 6550/- was paid from the sale proceeds of the gold ornaments, but in his statement recorded on 15.11.84 in S.No. 75/93 (old No. 99/84) pending in the Court of Shri G.S. Jugti, Additional Distt. Judge, Delhi the plaintiff had stated that “earnest money of Rs. 6550/- was paid from the Indian Trade Emporium of which I was the sole proprietor uptil 1964.” He, therefore, contended that from this it was defer that the plot with regard to property No. B-172, East of Kailash, New Delhi was not purchased from the earnings out of the alleged joint family partnership concern M/s. Indian Trade Emporium as in fact the Indian Trade Emporium was owned by the defendant No. 1 before 1.4.65 and thereafter it was a partnership concern of four partners, one of whom was an outsider.

18. Learned counsel for the defendant No. 1 further drew my attention to para 11 of the plaint wherein it has been stated that “in fact it was a Benami transaction and the said plot of land was purchased (taken on lease) in the name of defendant No. 1” and submitted that even assuming that this was a Benami transaction, the same was hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988 and as such the suit itself was liable to be dismissed. In support of this submission he placed reliance on a judgement of Patna High Court in the case of Rameshwar Mistry Anr. v. Bebula Mistry, AIR 1991 Patna 53 and the decision dated 21.4.94 rendered by a Division Bench of this Court in FAO(OS)No. 280/93 titled as Sushila Mehra v. Nand Kishore Mehra.

19. Learned counsel for defendant No. 1 also drew my attention to the order passed by the Registrar on 13th February, 1987 and submitted that the alleged family settlement was admitted only by the defendant No. 2 and as such was marked as Ex.P-1 against defendant No. 2 only. He submitted that this documdent was a fabricated one. In this connection, he referred to the original written statement filed by the plaintiff (who was the defendant No. 1 in that case) in S.No. 99/84 (new No. 75/93) pending in the Court of Shri G.S. Jugti, Addl. Distt.

Judge, New Delhi and submitted that there was no mention of this document in that written statement. He further submitted that in this document which was dated 25.5.79 it had been stated that the first and second floor of the house bearing No. B-172, East of Kailsh, New Delhi were under construction, but the sanction letter dated 11.12.79 (copy of which is at page 57 of the documents filed on behalf of the defendant No. 1 and 3 on 1.2.86) showed that the application for sanction of plan for first and second floors was submitted on 31.10.79 and the plan was sanctioned on 7.12.79 and as such the question of constructing of first and second floors prior to 11.12.79 did not arise.

20. Learned counsel further submitted that even assuming for the sake of arguments that the document Ex.P-1 was a genuine document, it could not be relied upon as the said document which was a partition deed had not been registered as required under Section 17 of the Registration Act. In support of this submission, learned counsel placed reliance on a judgement of the Supreme Court in the case of Tek Bahadur (supra) and a Division Bench judgement of this Court in the case of Jaidev Singh v. Sujan Singh Anr, 1993, Rajdhani Law Reporter 462.

21. Finally, the learned counsel drew my attention to the house tax receipts copies of which are at pages 168 to 175 of the documents filed on behalf of the defendant No. 1 and submitted that in terms of these receipts, the defendant No. 1 had already paid a sum of Rs. 55,296/- as house tax with regard to the entire property bearing No. B-172, East of Kailash, New Delhi and there was another demand of Rs. 23,023/- as was evident from the document, copy of which was filed as Annexure D alongwith rejoinder in IA 3160/90. He submitted that admittedly the defendant No. 1 had let out the second floor of the said property to a tenant Mrs. Roshma Thomas who had vacated this portion on 6th November, 1988 and had handed over the vacant possession to the defendant No. 1. He submitted that the defendant No. 1 had been paying the amount of the house tax and other taxes with regard to the entire property bearing No. B-172, East of Kailsh, New Delhi, but in view of the interim orders passed on 17.11.88 he could not let out the second floor to any other tenant. He, therefore, submitted that the interim injunction granted on 17.11.88 be vacated and the defendant No. 1 be permitted to let out the second floor of the said property to a new tenant.

22. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. The question as to whether M/s. Indian Trade Emporium was a joint family partnership business and whether the properties in question were made out of the earnings of the said business can be decided only after the parties concerned have led their evidence. Similarly, it is yet to be established whether the alleged family settlement Ex.P-1 is a genuine document or not. It may, however, be noted that in this document there is no mention of oral family settlement alleged to have been arrived at on 24.5.1979. From this document it is also clear that the alleged family arrangement was with regard to the partition of the immoveable properties and was reduced in writing so that it could be used in future at the time of need. Such a document is required to be registered compulsorily under Section 17(1) (b) of the Registration
Act, 1908. In this connection reference may be made to the judgement of the Supreme Court in the case of Tek Bahadur (supra). In this case the Supreme Court held that “it is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration, as it is then that it would be a document of title declaring for future what rights and in what properties the parties possess.” In view of the law laid down by the Supreme Court, I am prima facie of the view that the document Ex.P-1 required registration under Section 17 of the Registration Act as the said document was with regard to the partition of the immoveable properties and was reduced to writing with the purpose of using the same as proof of what the parties had decided in respect of those properties. Since the said document was not registered under Section 17 of the Registration Act, the plaintiff and defendant No. 2 cannot be permitted to rely on this document at this stage. The view I have taken also finds support from a Division Bench judgement of this Court in the case of Jaidev Singh (supra).

23. It is, however, an admitted fact that the plaintiff and defendant No. 2 alongwith members of their families have been residing on the ground floor of the property bearing No. B-172, East of Kailash, New Delhi since the ground floor was constructed. It is also admitted that the defendant No. 1 has already filed a suit in the District Court against the plaintiff and defendant No. 2 for recovery of possession of the ground floor of the property in question and the said suit is pending in the Court of Shri G.S. Jugti, Addl. Distt. Judge, Delhi. Further the interim stay granted against the defendants 1 and 3 has been continuing since 17th November, 1988. In view of these facts it is not a fit case for vacating the interim stay granted on 17.11.88 completely.

24. Another fact to be taken into consideration is that the defendant No. 1 had let out the second floor of the property bearing No. B-172, East of Kailash, New Delhi in the year 1982 and after the tenant had vacated the said premises on 6th November, 1988, he could not let it out to another tenant on account of the interim injunction granted against the defendants No. 1 and 3 on 17.11.88, though the defendant No. 1 had been paying throughout the amount of house tax and other municipal taxes for the entire building. In view of these facts, I find that the interim injunction granted on 17.11.88 against defendants 1 and 3, requires modification to do justice to the parties. Accordingly, I modify the interim order passed on 17.11.88 in IA 8290/88 to the extent that the defendant No. 1 is permitted to let out the second floor of the house bearing No. B-172, East of Kailash, New Delhi to enable him to pay the amount of house tax and other taxes till the decision in the suit. The defendant No. 1 is, however, directed to maintain the account of the rent received by him. The order passed on 19.6.1992 in IA 8916/92 restraining the plaintiff and defendants 2, 4 and 5 from making any construction/alteration on the ground floor of the said building is confirmed.

25. The observation made hereinabove will, however, have not any bearing on the final decision in the suit. With this order, all the five applications bearing IAs No. 7532/88; 8290/88; 211/89; 3160/90 and 8916/92 stand disposed of.

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