Sushil Kumar Gupta vs Anil Kumar Gupta through LR''s and Others

Mukul Mudgal, J.—This appeal arises out of the judgment and decree dated 16th August 2007 passed by the learned Single Judge in Civil Suit (OS) 3468/1991, whereby he held that the suit was not maintainable and thus liable to be dismissed.

The brief facts of the case are stated as follows:

a) Late Shri Lala Hanuman Pershad Gupta (hereinafter referred to as "Lalaji") was Karta of a HUF styled as M/s Deoki Nandan & Sons (hereinafter referred to as "DNS") and one of the assets acquired by the said HUF was the property in suit, i.e., 1, Tughlak Lane, New Delhi (hereinafter referred to as the "suit property") in pursuance of a perpetual lease deed dated 13th October, 1937. On the said plot a construction was raised and the family members occupied the property.

b) The HUF is stated to have disrupted in the year 1957 which had a consequent impact on the suit property. Lalaji passed away on 8th December, 1972 leaving behind a Will by which his estate was bequeathed to his four sons in equal shares. The suit property in pursuance to a memorandum of mutation dated 31st March 1975 was consequently mutated.

c) With the passing away of Late Lalaji and the family members being large, disputes arose between the members as is often the case. The suit property was envisaged to be developed as a group housing complex.

d) A resolution dated 15th March 1982 was passed by the firm whereby the share in the property was divided between the four groups of co-owners. However,. the group housing was never developed. There was further passing away of the family members and ultimately the disputes were referred to arbitration and consequently were resolved.

e) The Arbitrator made and published an award dated 8th June 1988 which was duly registered. In terms of the findings arrived at by the Arbitrator, the property in suit was held not capable of division and was ordered to be put up for sale.

f) By its order dated 17th September, 1990 in Suit No. 1754-A of 1988 this Court made the aforesaid Award dated 8th June 1988 Rule of Court with minor modifications mainly concerning the amount found payable to respondents 2(i) to 2(iii) and 3. The directions with respect to the sale of the suit property were, however, maintained. This order and the award therefore became final.

i) The appellant, subsequently came to know that Late Shri Anil Kumar Gupta was intending to alter the state of affairs by entering into a transaction of sale in respect of his undivided share in the suit property and induct strangers in the family dwelling house.

j) In the circumstances the appellant filed a Suit No. 3466/91 seeking injunction against Shri Anil Kumar Gupta from, interalia, alienating, assigning, parting possession and/or otherwise creating any third party interest in any part of the suit property on the ground that the intended sale would not only be against the said award dated 8th June 1988 as made rule of court by order dated 17th September, 1990 but would also be in violation of the lease deed of the suit property.

k) Subsequently, it also came to light that respondents 2(i) to 2(iii) and 3 had also entered into an alleged agreement to sell dated 8th November, 1991 with respondent No. 8, M/s Titan Estates Pvt. Ltd. in respect of their undivided 1/4th share in the suit property.

l) The appellant filed I.As No. 13694 and 13695 of 1992 in Suit No. 3466/1991 for amendment of suit and impleading M/s Apeejay Ltd. and M/s Titan Estates Pvt. Ltd. and also sought consequential relief. By order dated 28th July 1998 this Court allowed the aforesaid I.As No. 13694 and 13695 of 1992. In accordance with the said order an amended plaint was filed and Apeejay Ltd. and Titan Estates Pvt. Ltd. were impleaded as parties.

m) The respondents 2(i) to 2(iii) and 3 filed an execution petition No. 62 of 1993 claiming the amount payable to them under award dated 8th June 1988 as made Rule of Court by order dated 17th September 1990 and inter alia sought an auction of the suit property.

n) Suit No. 3466/91 which was a precursor to the execution proceedings as originally filed was dismissed by the impugned judgment of the learned single judge dated 16th August 2007 on the ground that the suit is not maintainable.

The appellant and respondent nos.1 to 6 are related. The Appellant, Late Shri Atul Kumar who died on 14th September, 1983, (predecessor of Respondent No. 2(i) to 2(iii) and 3), and Late Shri Anil Kumar Gupta who died 13th March 2002, (predecessor of respondent nos.1(i) to 1(iv) were brothers. The Respondent No. 4 Smt. Sudha Gupta, is the widow of Late Shri Krishan Kumar Gupta who was the eldest brother of the appellant. The Respondent No. 5, Smt. Ritu Garg and the Respondent No. 6, Smt. Sindhu Seth, are the daughters of Respondent No. 4.

The learned Counsel for the appellant contended that the learned Single Judge ought to have appreciated that the award dated 8th June 1988, subsequently made Rule of the Court by order dated 17th September, 1990 of this Court, had specifically directed disposal of the property by public auction in the course of which all the parties should be free to offer their bids. The disposal of their individual share by the two sets of co-sharers viz. Late Shri Anil Kumar Gupta and Mrs. Prem Gupta and other legal heirs of late Shri Atul Kumar Gupta by entering into agreements to sell directly violated the directions of the Arbitrator which were subsequently made a Rule of the court by this Court. However, the learned Single Judge in paragraph 22 of the impugned judgment observed as under:

In the end, I must note with some regret the unwillingness of the plaintiff to even join in the public auction of the suit property which was proposed as a method to end the dispute since that was the direction in the award which had to be executed. The plaintiff insists that defendants No. 7 and 8 must move out of the property first before the public auction while he will not move out. Thus, the plaintiff wants the public auction minus defendants No. 7 and 8 in the property and on his remaining in the property on the ground that he is the original owner. This is despite the willingness expressed by learned Counsel for defendants No. 7 and 8 to give an undertaking to the court to vacate the premises or that he and all the other parties may move out and the property be put to public auction. The result is that the dispute in its finality still remain to be re-solved.

Since the surviving partners of M/s DNS were the beneficiaries of Lalaji, his share in the DNS was divided amongst the surviving partners to the extent of 1/4 th share each and in accordance with the Will of Lalaji, mutation was also effected with respect to the suit property. Dispute arose between the members of the family in pursuance of the award dated 8th June 1988 made by the Arbitrator. In terms of the award, the suit property was held not capable of division and was put on sale by way of public auction. However, in our view, there is no sanctity of the dwelling house left any more in the present case as it was the agreement between the co-owners and the direction of the award that the property has to be sold by auction. It is the appellant who himself does not want to see the end of the implementation of the award. It has in our view been rightly observed by the learned Single Judge that the appellant is unwilling to join the public auction of the suit property which was proposed as a method to dispose of the dispute, despite the willingness expressed by the respondents 7 and 8 to undertake to vacate the premises if the property is put to public auction. Thus, the contention of the appellant that the transactions entered with respondents 7 and 8 were wholly illegal does not hold any ground as it is appellant himself who has been opposing the public auction for ulterior reasons and the lingering dispute in its entirety still remains to be resolved.

The learned Counsel for the appellant contended that the provisions of Section 44 of the Transfer of Property Act shall have application on the property so long as it is not divided by metes and bounds and the occupation of the different portions of the property by the co-sharers by itself made no difference to this legal position. The brief case of the appellant was that the respondents 7 and 8 could not step into the joint house or the family property and must be treated as trespassers. Section 44 of the Transfer of Properties Act reads as follows:

Transfer by one co-owner - Where one of two or more co-owners of Immovable property legally competent in that behalf transfers in his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor''s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

Section 4 of the Partition Act reads as follows:

Partition suit by transferee of share in dwelling house - (1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in Sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section.

The learned Senior Counsel for the appellant Shri D. K. Aggarwal relied on the judgment of the Hon''ble Supreme Court in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, . The relevant portion of the said judgment reads as follows:

Both these provisions are complimentary to each other and the term ''undivided family'' and ''dwelling house'' have the same meaning in both the sections. In case of a dwelling house belonging to an undivided family where the property is not divided by metes and bounds, the transfer by the widow and sons of a second paragraph of Section 44 of the T.P. Act. Interim mandatory injunction against the vendors and vendees regarding possession was held as liable to be issued.

The learned Senior Counsel for the respondents Shri H. C. Tiku, however, relied on the judgment of the Hon''ble Supreme Court in the case of Gangabai Gopaldas Mohata Vs. Fulchand and others, , the relevant part of the judgment reads as follows:

It was the duty of the executing Court to consider the decree holder disputing the same. The resolution of this dispute has to be by the executing Court.

The learned Counsel also relied upon the judgment of the Division Bench of this Court in Harinder Pal Singh Chawla Vs. Nirmal Daniere and Others, . The relevant portion of the said judgment reads as follows:

The Will had been executed giving the exclusive and independent portions of the property to respective legatees. It was also held that though the land was common, the construction actually stood divided and the nature of construction of the building as one unit and the land underneath undivided, cannot lead to the conclusion that it is an undivided family dwelling house. An important aspect considered was that the property developed on the two legatees in pursuance of a Will giving exclusive and independent respective portions of the properties to the legatees.

In our view, the learned Single Judge had rightly dealt with this issue in paragraph 18 of his judgment which reads as follows:

On consideration of the aforesaid legal provisions and judgments and haring the learned Counsels for the parties, I am of the considered view that the joint character of a dwelling house no more remained intact so as to invite the provisions of Section 44 of the T.P. Act read with Section 4 of the Partition Act. It cannot be lost sight of that the object of these provisions is to protect a house from being invaded by outsiders. In the present case, though there was no division by meets and bounds, the parties were in possession of respective portions of the house and were enjoying the same. In view of the above, the factual aspect is similar to the judgment in Harinder Pal Singh Chawla v. Nirmal Daniere and Ors. (supra).

We, therefore, are of view that the learned Single Judge was right in observing that in light of the facts and circumstances of the present case the joint character of the suit property no more remains intact so as to invite the protection of Section 44 of the Transfer of Property Act read with Section 4 of the Partition Act. We have no doubt that even though there was no division of the suit property by metes and bounds, the parties who sold their shares to the respondents 6 and 7 were in possession of the respective portion of the suit property and were enjoying the same and the denial of the applicability of Section 44 of the Transfer of Property Act by the learned Single Judge was fully justified.

The counsel for the appellant contended that the cause of action for filing the suit was to prevent Shri Anil Kumar Gupta from altering the state of affairs by entering into a transaction for sale individually and induct strangers into the family dwelling house and thereby violate its sanctity and not as such the apprehended action of Defendant No. 1 to sell his share in the suit property. The prayers made in the suit directly flew from the cause of action pleaded by the appellant. The suit was not a precursor to the execution proceedings as wrongly observed by the learned Single Judge. The learned Single Judge in paragraph 19 and 20 of the impugned judgment observed as under:

An important aspect which arises in the present case is that the intent of the parties was also to sell the property in a public auction. The object was not to preserve the dwelling house. The learned Arbitrator found that it was not possible to divide the house by metes and bounds. A direction was, thus, made for sale of the property by auction. This award was made rule of the court and sustained by the Division Bench in so far as this direction is concerned. Since the parties have not been able to put the property to sell by public auction, that aspect will have to be considered in the execution proceedings.

20...The Supreme Court has already observed in Gangabai Gopaldas Mohata v. Fulchand and Ors. (supra) that in so far as these are concerned, the powers of the executing court are wide enough to deal with these aspect. The execution petition is pending in which objections have been filed by the plaintiff herein. It is in those proceedings that the execution of the award which in turn would require the sale of the suit property in a public auction, naturally with a charge of the amounts liable to be paid by the plaintiff from his share, would be examined. There can be, thus, no question of deciding or for the plaintiff to claim any of the reliefs of injunction as prayed for in this suit in respect of the suit property.

We endorse and reiterate the view expressed by the learned Single Judge that since the parties have not been able to sell the property by public auction, the aspect of respondent No. 7 and 8 to step into the shoes of respondent No. 2 and 3 need to be examined in execution proceedings only. The award in the present case was rendered on 8th June 1988. The direction in the award for the auction sale of the property has become final. However, even up to date the dispute has been simmering and the auction sale mandated by the award has not taken place. In our view, the pleas of the appellant that the auction sale cannot take place in view of the alienation by respondents No. 2 and 3 if accepted defeats the award dated 8th June 1988 by delaying/avoiding the auction sale. The pleas as to Section 44 in respect of the sanctity of the joint family property at this stage are meaningless as the property has already been by the award directed to be auctioned. Furthermore, the property is in divided occupation of the 4 co-sharers. Thus, the acceptance of the appellant''s pleas would tantamount to reopening the award as even if it is accepted that alienations have been made, they do not affect the rights of either the appellant or the other co-sharers. The agreement to sell the suit property by respondent No. 2 and 3 in respect of their 1/4 share in the property to respondent No. 7 and 8 and whether the entitlement of the amount claimed is maintained or not, is a question to be answered in the execution petition.

Lalaji died on 8th December, 1972 and the suit property owned by M/s DNS in accordance with his Will was divided and mutated vide Memorandum dated 31st March 1975 amongst the surviving partners who became partners to the extent of 1/4 share each in the following names:

(i) Shri Atul Kumar Gupta HUF

(ii) Shri Anil Kumar Gupta HUF

(iii) Shri Sushil Kumar Gupta HUF

(iv) Smt. Sudha Gupta (w/o Shri Krishan Kumar Gupta)

It is also to be noted that there has been a constant dispute which arose after the death of a few partners regarding division of the suit property. Till the institution of the present suit the dispute in question still remains to be resolved. At such a stage of proceedings, we do not deem it necessary to interfere with the findings of the learned Single Judge. The learned Single Judge had rightly held that "there can be thus no question of deciding or for the plaintiff to claim any of the reliefs of injunction as prayed for in this suit in respect of the suit property. I am thus of the considered view that the suit is not maintainable and thus liable to be dismissed." In view of the observations made by the learned Single Judge and in light of the above mentioned discussion, we do not think it necessary that the suit ought to be restored and directed to be proceeded with. Accordingly, the appeal is dismissed and the impugned judgment dated 16th August 2007 passed by the learned Single Judge is affirmed.