Rajive Bhatia vs Sanjay Bhatia & Ors

Mukta Gupta, J

The present suit has been filed by the plaintiff impleading his brother-Sanjay Bhatia, mother-Shanta Bhatia and sister-Anita Bhatia as defendant

Nos. 1, 2 and 3 respectively, inter alia, seeking a decree of partition and injunction in respect to property bearing 92, Raja Garden as also a preliminary

decree based on the respective shares of the parties.

Case of the plaintiff is that property bearing municipal No. 92, Raja Garden, New Delhi- 110015 admeasuring 200 sq. yds. (in short the suit

property) was purchased by the late father of the plaintiff and defendant No.1 & 3 and the husband of defendant No.2 Shri Ved Prakash Bhatia from

his own funds and resources vide the sale deed dated 21st July, 1965 executed in his favour by Shri Jagdish Rai Sood. Shri Ved Prakash Bhatia died

intestate at New Delhi on 28th January, 2007 leaving behind the plaintiff and defendants as the four legal heirs, each entitled to 25% shares in his

estate and assets including the suit property. Shri Ved Prakash Bhatia was also the owner of ground floor except one shop of a built up property

bearing No. FA/F-297, Mansarover Garden (in short the Mansarover Garden Property). After the death of Shri Ved Prakash Bhatia, plaintiff and

defendant No.1 & 3 executed a relinquishment deed dated 16th February, 2009 in favour of defendant No.2 i.e. the mother in respect of the

Mansarover Garden property. The said relinquishment deed dated 16th February, 2009 categorically noted that Ved Prakash Bhatia passed away on

28th January, 2007 leaving behind the parties to the relinquishment deed each having 1/4th share under the Hindu Succession Act.

Further, vide the relinquishment deed dated 11th December, 2013 Smt. Shanta Bhatia irrevocably and absolutely bequeathed and conveyed her

1/4th share in the suit property in favour of the plaintiff. Thereafter the plaintiff approached the defendant No.1 in the year 2015 â€" 2017 number of

times to partition the suit property but the defendant No.1 declined. The defendant No.2 &3 have always stated that the plaintiff was owner of 50%

share of the suit property. Thus, based on the relinquishment deed dated 11th December, 2013 executed by Smt. Shanta Bhatia in favour of the

plaintiff, plaintiff claim partition of the suit property and his 50% share therein.

Written statement to the suit was filed by defendant No.1 stating that Shri Ved Prakash Bhatia was in the real estate business since 1960 and thus

held various movable and immovable properties and besides the suit property and the Mansarover Garden property, he also owned first and second

floor of property bearing No. D-36, Gali No.1, Govind Puri opposite Kalkaji Bus Depot (in short the Govind Puri Property). As per the written

statement Ved Prakash Bhatia had good income from his real estate business which he used to keep in his account as well as in the account of his

wife and thus the money lying in the account of his wife i.e. defendant No.2 was from the earnings of late Ved Prakash Bhatia. He further claims that

Ved Prakash Bhatia had various bank accounts, LIC, FDRs, control whereof was with the plaintiff and defendant No.2 & 3. That all the parties

executed a relinquishment deed in favour of Mrs. Shanta Bhatia in respect of Mansarover Garden property which she thereafter sold. The sale

proceeds from the Mansarover Garden property and other movable assets were transferred into the account of Smt. Shanta Bhatia and Anita Bhatia.

It is claimed that it was further decided that defendant No.2 and 3 shall relinquish their respective shares of the suit property in favour of the plaintiff

and defendant No.1, and thus the plaintiff and defendant No.1 acquired 50% share each in the suit property and thus each one of them was entitled to

possession of their respective portion, though no formal partition had taken place. The defendant No.1 is in possession of the entire ground floor and

half portion of the second floor with roof rights, whereas the plaintiff is in possession of the first floor and half portion of the second floor. Thus, the

second floor of the suit property is in joint possession of plaintiff and defendant No.1. Therefore, when the plaintiff made addition/alteration on the first

floor and second floor of the suit property without the consent of defendant No.1, to protect his rights and share and to identify his share defendant

No.1 filed the suit for mandatory and permanent injunction bearing No. CS(OS) 2159/2015 against the plaintiff. After filing of the suit it was mutually

decided between the plaintiff and defendant No.1 that they will remain in possession of their respective shares as shown in the second floor plan as

annexed by the plaintiff and thus the defendant No.1 withdrew the said suit. It is further stated that defendant No.2 who is residing with defendant

No.1, as she is the mother has no right or share in the estate of Shri Ved Prakash Bhatia as she has taken her entire share in the estate of Shri Ved

Prakash Bhatia and therefore has no right, title or interest in the suit property. The plaintiff and defendant No.1 are in possession of 50% share each

and defendant No.2 and 3 have no right in the suit property. It is claimed that the relinquishment deed dated 11th December, 2013 in favour of the

plaintiff by defendant No.2 is not valid and the plaintiff cannot claim his 50% share in the suit property. It is further claimed that plaintiff, defendant

No.2 and 3 in collusion with each other want to oust the defendant No.1 and take away his rights.

Written statement to the plaint has also been filed by defendant No.2 Smt. Shanta Bhatia who claims that she has relinquished her 1/4th share in the

suit property vide the relinquishment deed dated 11th December, 2013 in favour of the plaintiff and after the relinquishment, she is neither a necessary

party to the suit nor does she have any right, title or interest in the suit property. It is further stated that most of the movable assets left after the

demise of Ved Prakash Bhatia were utilized for terminating/settling the criminal proceedings pending against the defendant No.1 being FIR No.

635/2008 at Police Station Rajouri Garden under Section 420/468/471/406/120-B/34 IPC wherein he was arrested on 15th December, 2008 and

remained in judicial custody. Due to his custody, there was immense pressure on defendant No.2 and other legal heirs to settle the claims of

complainants in the aforesaid FIR and thus the defendant No.2 was left with no option but to sell her property bearing No. 56, Raja Garden measuring

217 sq.yds. on 21st May, 2009 and the entire sale proceeds of about ₹39 lakhs were paid to the complainants of the FIR with a view to settle the

criminal case against the defendant No.1. The said property of Raja Garden was inherited by defendant No.2 from her father Shri Ramji Das. In

order to further meet the liabilities of defendant No.1, on his request, plaintiff, defendant No.2 and defendant No.3 disposed of their shares in the

Mansarover Garden Property for which a relinquishment deed dated 16th February, 2009 was executed and the property was sold on 16th February,

2009 for a total sale consideration of ₹12,75,000/- and the said sale proceeds were also utilized for settling the claims of complainants in the FIR

against the defendant No.1. Though defendant No.1 assured the plaintiff and defendant No.2 and 3 that once he was released from jail, he would

repay the entire amount, however till date he has not paid the said amount. Further, to satisfy the claims of the complainants, the defendant No.2 had

to encash all her FDRs prematurely amounting to ₹8 lakhs. The defendant No.2, has given a chart of money paid to the complainants/ investors of the

FIR to settle their claims pursuant whereto the FIR in question was quashed by this Court vide order dated 18th December, 2009. It is claimed that in

these circumstances there is no cash, FD or other deposits left behind by late Shri Ved Prakash Bhatia which can be partitioned amongst the plaintiff

and the defendants. The defendant No.2 further claims that despite having settled their claims, the defendant No.1 and his wife are indulging in

domestic violence to the defendant No.2 for which she was constrained to file a petition in which an interim order was passed in her favour.

Written statement to the suit has also been filed by defendant No.3, the sister of the plaintiff and defendant No.1, who has not disputed the contents

of the plaint and has stated that defendant No.3 was one of the attesting witnesses to the relinquishment deed dated 11th December, 2013. She has

supported the stand taken by the mother that the money in the bank accounts, FDRs, etc., were utilized to settle the criminal case filed against the

defendant No.1. Defendant No.3 reiterates that plaintiff has 50% share in the suit property, whereas defendant No.1 and defendant No.3 have 25%

share therein and that she has no objection if the suit property is partitioned by meets and bounds as the parties cannot reconcile their differences and

cannot live together.

Thus, the stand of the plaintiff, defendant No.2 and defendant No.3 is common that the plaintiff has 50% share in the suit property, as 25% share

has been relinquished by the defendant No.2 in favour of the plaintiff and defendant No.1 and defendant No.3 have 25% share therein; whereas

defendant No.1 claims an oral settlement claiming that all the other properties were disposed of and it was settled that both the brothers i.e. plaintiff

and defendant No.1 would have 50% share in the suit property. However, no document has been placed on record to assert this stand by defendant

No.1.

Contention on behalf of defendant No.1 to oppose the preliminary decree is that though the suit relates to the partition of the suit property, however

in order to do complete justice to the rival claims of the parties, the Court is required to look into that the suit involves not only the partition of the suit

property but the entire estate left behind by late Ved Prakash Bhatia, which included not only the suit property but other immovable properties which

have been disposed of by the plaintiff and defendant No.2 and 3 and the movable assets including cash, jewellery and securities belonging to the

deceased.

Learned counsel for the defendant No.1 also presses the preliminary objections taken in Paras 1 to 10 of the written statement claiming that the suit

has not been valued properly for the purposes of Court fees and jurisdiction and that it is bad for misjoinder of parties as defendant No.2 and 3 are not

necessary parties to the suit. It is claimed that one legal heir cannot relinquish her share in the property inherited from her husband in favour of one of

her legal heirs excluding others under the Hindu law. Reliance is placed on the decisions reported as 6 B.L.R. 925 Vasantrao Vs. Anandrao; (1936)

38 BOMLR 1238 Alluri Venkatapathi Raju Vs. Dantuluri Venkatanarsimah Raju and Civil Appeal No. 324/2015 decided by the Hon’ble Supreme

Court on 13th January, 2015 titled as Shashidhar & Ors. Vs. Smt. Ashwani Uma Mathad & Anr.

Undisputed facts in the present suit are that the suit property belonged to late Ved Prakash Bhatia, who died intestate on 28th January, 2007 and

that the plaintiff and three defendants are the only class-1 legal heirs of late Ved Prakash Bhatia. The plaintiff being the dominus litus, he has

preferred the present suit seeking partition and injunction qua the suit property as noted above. Claim of the defendant No.1 is that the partition of the

entire estate left by late Ved Prakash Bhatia is required to be done, however no counter claim has been filed, nor any document has been filed to

show that the other properties are still in the name of late Ved Prakash Bhatia contrary to the claim of the plaintiff and defendant No.2 and 3 that they

had been sold the same in order to settle the criminal case against the defendant No.1. Claim of defendant No.2 is that in order to settle the claims of

complainants against the defendant No.1, she had not only sold the properties inherited from late Ved Prakash Bhatia but also properties inherited by

her from her late father.

In the replication filed by the defendant No.1 to the written statement filed by defendant No.2 who has given the details of the money received

from sale of other properties as also from her FDRs which were utilized for settling the claims of the complainants in the FIR lodged against

defendant No.1, the said facts have not been denied and all that is stated is that the facts have been introduced to mislead and prejudice the Court and

that the same are not concerned with the present suit. It is claimed that a false FIR was registered against the defendant No.1. It is stated that the

money paid to the complainants to arrive at the settlement was raised by the defendant No.1 himself and his wife from their own sources without any

help or contribution from defendant No.2. According to the defendant No.1, he was into the business of construction under the name and style of

Sarthak Buildwell Pvt. Ltd. The said company purchased property at Shimla, Himachal Pradesh with a view to construct apartments and offer the

same to public, however due to circumstances beyond his control, the project could not be completed in time and the FIR was registered wherein he

was wrongly arrested. Defendant No.1 to show his bonafide, returned the advance taken by him, cancelled the agreement to sell in respect to the land

purchased by him and a registered memorandum of settlement was executed pursuant whereto Anil Dogra returned an amount of ₹56,05,000/- in the

form of cheques, which with the permission of Court defendant No.1 had encashed and settled the claims of the complainants.

The issue in the present suit is not whether the sale of the other properties left behind by late Ved Prakash Bhatia were utilized to settle the claims

of complainants against the defendant No.1 or that the said claims were satisfied by defendant No.1 from his own resources but whether based on the

pleadings in the suit, written statement and replication a preliminary decree of partition can be passed in respect of the suit property. Admittedly, late

Ved Prakash Bhatia died intestate and the suit property devolved on the four parties to the present suit being the four legal heirs in equal shares i.e.

25% each. A relinquishment deed of 1/4th share in the suit property have been executed by defendant No.2 in favour of the plaintiff. According to the

defendant No.1 the said relinquishment deed is illegal.

In Shashidhar (supra) relied upon by learned counsel for the defendant No.1 Supreme Court noted the well settled principles of law that in a suit

filed by co-sharerer, co-parcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is

necessary for the Court to examine, in the first instance, the nature and character of the property in suit such as who was the original owner of the

suit property, how and by which source he/she acquired such property, whether it was his/her self-acquired property or ancestral property or joint

property or coparcenery property in his/her hand, and if so, who are/were the co-parceners or joint owners with him/her as the case may be.

Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family i.e.

whether it was an intestate or testamentary succession and in what proportion. Thirdly, whether the property in the suit are capable of being

partitioned effectively, and if so, in what manner. Lastly, whether all properties are included in the suit and all co-sharerers, co-parceners, co-owners

or joint owners are made parties to the suit.

Admittedly, in the present suit as per all the parties, the suit property was self-acquired property of late Ved Prakash Bhatia who died intestate and

thus it devolved on the four legal heirs in 1/4th share each, as their self-acquired property. Since the property was a self-acquired property and

devolved on the four legal heirs by intestate succession, they were free to deal with their share in the property as they desired. It is in view of this

status, that the defendant No.2 has relinquished her share in favour of the plaintiff. Though it is claimed by the defendant No.1 that the relinquishment

deed is illegal, however there is no averment as to how the relinquishment deed dated 11th December, 2013 is illegal. Further, as regards the claim in

respect of all the other properties is concerned, admittedly as per both sides the other properties do not subsist and have already been sold and

whether the same were sold to satisfy the claims of the complainant against the defendant No.1 or not is not an issue which has to be gone into by this

Court. Since the defendant No.2 inherited 1/4th share in the suit property under the Hindu Succession Act, she is free to convey the title therein to any

other party to the suit or even a third person. Claim of defendant No.1 that a settlement took place between the plaintiff and defendant No.1 that both

would be 50% shareholders each of the suit property, is not supported by any document nor is supported by the claims of defendant No.2 and 3 in the

written statement nor do the plaintiff and defendant No.1 have right to settle the shares in the suit property without the consent in writing of defendant

Nos. 3 who has 25% share in the suit property, hence this Court finds no merit in the claims of defendant No.1. Further, the defendant No. 3 being a

shareholders in the suit property, even if any settlement is arrived at between the plaintiff and defendant No.1 in respect of the shares in the suit

property without the defendant No.3 relinquishing her share, the same is illegal.

Though the defendant No.1 claims the settlement in terms of CS(OS) 2159/2015, however no document in this regard has been placed on record.

A perusal of the order dated 15th October, 2015 whereby CS(OS) 2159/2015 was withdrawn by defendant No.1 does not note settlement of any kind

whatsoever, even though the parties were referred to Delhi High Court Mediation and Conciliation Centre vide the order dated 6th August, 2015.

Consequently, a preliminary decree is passed in the suit determining that the plaintiff is the owner of 50% share in the suit property whereas the

defendant No.1 and defendant No.3 are owners of 25% shares in the suit property respectively.

List the suit before the Roster Bench on 6th August, 2021 for further proceedings in respect of partition of the suit property in terms of the shares

determined.