Smt. Manjeet Kaur & Ors v. Miss Savitri Srichawla & Anr

ORDER

05.12.2013 . This is a batch of seven suits filed by Smt. ManjeetKaur, ]|laintiffNo. 1, Smt. Surinder Kaur, Plaintiff No. 2, Shri Amomthep Srichawla, Ms. Orasa Srichawla, and Ms. Qrapin Srichawla-Plaintiffs 3, 4 and 5, all children of late Shri Ongkar Singh seeking .declaration and mandatory injunction for enforcing 1he Plaintiffs' preferential rights to acquire the shares in the property at 28, I'usa Road (Ajmal Khan Road), New Delhi ['the suit property'] under Section 22 of the Hindu Succession Act, 1956('HSA').

¶2The facts of the first suit CS (OS) No.1229 against Shri Daya Singh @ iuphwas Srichawla, Defendant No. 1 and Y.T.C. Housing Private Limited, 'Defendant No. 2 may be set out illustratively since the issues that arise in all ;he suits are more or less the same.

¶3The case of the Plaintiffs is that the suit property was owned by Shri Narain Singh Chawla who died on 2"^ March 1974 leaving behind Smt. Harjinder Page 3 of10 .aur, (wife), his children, Shri Onkar Singh @ Seth OnglcarSingh, Shri Jagtar ingh, Shri Pritpal Singh, Shri Narankar Singh, Shri Narinder Singh, Sliri I^aya Singh (DefendantNo. 1), Shri Gurdip Singh, Shri ParshotamSingh and is daughters Smt. Manjeet Kaur (Plaintiff No. 1), Smt. Kuljeet Kaur and Smt. uldibir Kaur. It is stated that Shri Ongkar Singh died on 20'^^ May 2002 leaving behind Smt. Surinder Kaur Srichawla (Plaintiff No. 2), Shri ^momthep Srichawla, Ms. Orasa Srichawla and Ms. Orpin Srichawla (Plaintiff Nos. 3 to 5). Shri Narankar Singh died on 20"' January-2002leaving behind his wife, thi-eesons and one daughter.Jlis two sons Shri Suldidev Singh and Shri Manjit Singh along with their mother, Smt. Vinder Kaur, filed?CS (OS) No. 1196 of .988 seeking partition, declaration"and permanent injunction in respect of the ])ropertiesincludingthe suit property. A preliminarydecree o| partitionwas )assedon 8'^ May 2007 in the saidsuitwith the consentofthe ptoiesand their •espective shares were determined in tenns ofthe chart submitted to the Court. !^rior to the preliminary decree, Shrf Manjit Singh and Shn Sukhdev Singh executed a relinquishment deed dated 3 May 2005 relinquishing their shares n all the properties including the suit property in favour of Shri Purshotam ahas Shii Prachotam Srichawla, the Defendant in CS (OS) No. 1233 of 2008. Thereafter,on 6*"^ August 2005, Shri Manjit Singh and Shri Sukhdev Singh filed lA No. 6402 of 2005 seeking to withdraw CS (OS) No. 1196 of 1988. PlaintiffNos. 2 to 5 were parties to the suit as legal representatives('LRs') of Defendant No. 3 in the said suit. The LRs of Defendant No. 3 made a statementon 1^^ September2005 that they should be transposedas Plaintiffs. On 25^^^ April2008, an orderwas passedin lANo. 6402 of2005 pemiittingthe Plaintiffs to withdraw the suit and dismissing the suit as withdrawn. In the said Page 4 of10 order, the Court recorded the submission of learned counsel for Shri Manjit Singh and Shri. Sukhdev Singh that they had executed deeds of relinquisliment in favour of Shri Purshotam Chawla. It may be noted that the suits filed by the Haintiffschallengingthe relinquislimentdeeds dated 31^^ May 2005 in favour of Shri Purshotam Chawla were dismissed by this Court by a judgment dated November 2013 in CS (OS) Nos. 1228 of 2008, 1230 of 2008, 1420 of 2008, 1421 of 2008, 1433 of 2008 and 1434 of 2008. ). As far as the present case is concerned,the prayer is for the declaration of he Plaintiffs' pre-emptive right to> purchase the suit propeity from Defendant Nfo. 1, who, according to thbm, failed to inform them of his proposal to transfer his share in the suit property to Defendant No{2. Certain undisputed 'acts concerning the suit property need to be noticed. Suit Nq 294 of 1972 was filed during the life time of late Shri,Seth'<NarainSingh Chawli in relation to the suit property. The said suit was|d:ecreedon 19^"^ May 1^78. Pursuant thereto, sale deeds were executed by the 'Registrar-of this Court in respect of the 1/12"' shares of cach of the twelv.e LRs of late Shri Seih Narain Singh Chawla. This included Plaintiff No. 1, Shri Ongkar Singh (husband of Plaintiff No. 2 and father of Plaintiffs 3 to 5). As a result Smt. Harjinder Kaur (the widow of late Shri Seth Narain Singh Chawla) and each of the 11 children got their 1/12^'"shareinthe suitpropeityabsolutely.

¶6During the pendency of the suits. Plaintiff No. 1 Smt. Manjit Kaur expired on 18^^ April2010. Evenpriorto her death,she soldher 1/12"'sharein the suit propertyto DefendantNo. 2, YTC HousingPrivate Limited, by a registered sale deed dated 29* July 2009. Clause5 ofthe sale deed statedthatthe vendor admitted that neither she nor her legal heirs and successors would have any ight, title and interest in the said share in the suit property and would not laim any right in future and have been left with no right, title and interest of my nature whatsoever in the said share in the suit property and that the vendee, i.e., YTC Housing Private Limited has become the absolute owner of ;he 1/12^^ share in the suit property.Apart from an indemnitybond executed on the same date, Plaintiff No. 1 has also sworn an affidavit of the same date agreeing to withdraw the cases filed by her in this Court. This was in the context of Plaintiff No. 1 having filed as many as 21 cases in this Court in relation to the suit property and cert^in^-atheiVP^ The above facts have been brought on record by^'Defendant?;]^2'dri,onerof the suits which was dismissedon 8^'' Noveihberl2013.The:;s4dfacts h£iyenot:been denied by the Plaintiffs. ' ^ .

¶7One consequence of the above deVe:lQpfhfehtwas that PlaintiffiNo. 1 entirely gave up her right,in the suit propert^WiH^^herlife time. Consequently,there was no rightfor her LRs to inhedttllfiefeJ^ filedTANo. 9896 of 2010 under Order II Rule 3 GPi^^reveif'whileDe no. 2 did not objectto theirbeingbroughton record it raisMan objectionthat as a resultof PlaintiffNo. 1 selling her 1/12" shaie m&;$uit^^p^^ to them, nothing survivedin this suit. In its order dated 16'^ May 2013 allowingthe application of the LRs of Plaintiff No.l, the Court kept open the above objection of Defendant No. 2.

¶8Ms. Richa Kapoor, learned counsel appearing for the Plaintiffs, submitted that notwithstandingall of the above developments,the pre-emptiveright of the LRs of Plaintiff No. 1 and the LRs of late Shii Ongkar Singh Chawla (Plaintiffs2 to 5) to purchasethe undividedshare of DefendantNo. 1 which Page 6 of10 A^as sold to DefendantNo. 2by a registeredsale deed dated 7"^ May 2008 still sui-vives. According to her, what was sold by Defendant No. 1 is the 'undivided share' in the suit property which implied that the partition of the suit property was yet to take place. Building on this argument, she submitted that the LRs of Plaintiff No. 1 and Plaintiff Nos. 2 to 5, who were the LRs of Shri Ongkar Singh, had inherited the pre-emptive right of their respective predecessorsunderSection22 oftheHSA. She furthersubmittedthatalthough the decision of this Court in Kusiim Kumria v. S.P. Kumria 2006 (88) DRJ 233 does not supporther submission,itiails to take into accountthe decisions of the Supreme Court in Kdnia JRanvv^ Rama Rani AIR 1988 SC 726^ Girja NandiniDevi v. BijendraJSarain ChoudlniiyAIRiJ[90'-SC1124, Hazari v. NekiAIR 1968SC 1205. She.^sb rel ed;i4||nj^^hedecisionsin Audh Behari Singh V. Gajadhar Jaipuria AIR 1954 S^J 417, Bhagiraihi Chhatoi v. Adikanda Chhatoi AIR 1988 driS^d-"285 and Valliyu Sreedev Amma v. SubbadraDeviAIR1976Kerala1^9: '

¶9Mr. GauravSariri-learnedTG6unsei.fer.::Defendaiit^i^^ outthat the decision in Kiisum Kurririd v. S.P. Kumria uicarly holds'that the right under Section22 PISA was confitted'tp'G^^ 2 to 5 were not Class I heirs of late Shri Seth Narain Srichawla. Shii Ongkar Singh was not a pre-deceasedson, but a deceasedson of late Shri Seth Narain Srichawla.The son of a deceased son was not a Class I heir. Pie further submitted that as far as Plaintiff No. 1 is concerned, she sold all her rights in the suit property to DefendantNo. 2 during the pendency of the suit. Thirdly, Mi". Saiin pointed out that Plaintiff No.1 had earlier filed CS (OS) No. 405 of 2009 seeking identicalreliefsas in thesesuits.Mi\ Sarinproducedacopy ofordersdated 8'^ April 2009 and 13^'' May 2009 passed in the said suit which showedthat the CS(OS) No. 1229of2008batch Page 7of10 Plaintiff had abandoned her claim both for permanent and mandatory injunctionwhen it was realisedthat she had not paid the requisitecourtfee as the suit had been grossly undervalued.Lastly, it is submittedthat the present suits were an, abuse of the process of law. The suit themselvescould not have been filed by PlaintiffNos. 2 to 5 by themselves,as it was.PlaintiffNo.1 who was the Class 1 heir. She sold away her right to Defendant No.2 during the pendencyofthe suit. As regardsPlaintiffNos. 2 to 5 are concerned,they were partiesto the earlierpartitionsuit CS (OS) 1196 of 1988 in which the order dated 25^'^ April 2008 was passedin.,theirpresencerecordingthe fact that the sharesof thosePlaintiffswere'spld-tqiSM

¶10The above submissions have beeii considered. First-and foremost it requires to be noted' that the twelve heirs of late Shri:;SethiNarain Singh Chawla became'absoluteowners of their^respective 1/12^'^ share each in the ^ . . i! ^ suit propertywhen sale deeds were ekecutedin their favour in respectthereof consequentupon.jthe order-dated 19^'^ May 1978,-in Suit No: 294 of 1972. Sonsequently,just as Smt. Maryit£is:auiSJbecariiC^ owner of her 1/12'^share in the suit proputy,,so-did,eachof the-otherHeirs, includingShri Daya Singh, as regards thQil:;-respectiveshares. The said shares were 'undivided' only in the sense that they perhapswere not demarcatedas such. However, after the execution of the said sale deeds, nothing remained of the suit property for being partitioned. These eight suits proceed on the misconceptionthatthe suitpropeityis yet to be partitioned.Consequently,the prayer for declaring any pre-emptiveright of the LRs of PlaintiffNo.l or PlaintiffNos. 2 to 5 to purchase the share of DefendantNo.l in the suit propertyis misconceived. CS (OS) No. 1229of2008batch P"ge8of10

¶11The facts in Kanta Rani v. Rama Rani and the other decisions cited by Ms. Kapoor are entirely different. They were in the context of rights in ancestralpropertiesremainingto be partitioned.None of the said decisions involve a situation where registered sale deeds have been executed in respect of 1/12^ shares of each of the heirs of late Shri Seth Narain Singh. Once that event occurred, there was no property left to be partitioned. The word 'undivided'only connotedthe need for the 1/12^^ share in the suit propertyto be demarcated.

¶12As far as PlaintiffNo is, cpnceri^djthei;eis in the feet that duringher life time ahd'after.filingtteip^^^ suits, she'soldher 1/12'''share in the suit property)to'BefendantNo 2 by a r0gistered;<;sale.deed. After that, she did not have &yisui-vivingrightin the suit property.Al^far'asthe Plaintiff No.l is concern,ed,nothing sui"vivecl in the suits thereafter.Further after the sale deeds transfeningtheirrespective1/12*share in the suitpippertyin their favour were executed, each heii of late Shri Seth Narain Sjrtgh could have validlytransferredsuch;share,-evenifdfowasnot.^yet.demarcated,to any third party. This is what bothjplfeiffNo.;l:-and did. The question of that share being offereS'aglin^Gihe Plaintiffs-Ortheir LRs for purchase does not arise.

¶13As far as Plaintiff Nos. 2 to 5 are concerned, they were parties to the earlierpartitionsuit CS (OS) 1196 of1988 in whichthe orderdated25* April 2008 recordingthe fact of transfer of the shares of Shri Sukhdev Singh and Shri ManjeetSinghto Shii ParshotamChawlaby therelinquisbiientdeed was recordedin their presence.That order has become fmal. PlaintiffNos. 2 to 5 cannot be permittedto reopen the issue concerningtheir share in the suit CS(OS) No. 1229of2008batch Page 9of10 property. Further, the decision in Kusum Kumria v. S.P. Kiimria precludes them from claiming any pre-emptive right under Section 22 HSA since they are not Class I heirs of late Shri Seth Narain Singh.

¶14The above reasons are sufficient for the court to conclude that the suits do not disclose any cause of action and that none of the prayers made in the suits can be granted in law. However, there are other factors as well that preclude the Court from permitting the suits to proceed. Although there were five Plaintiffs at the time of filing of these-...suits,the plaint and the affidavit in support of the plaint in eaGH'suitf>yi^as?:signed'f^^^^^ Orasa Srichawla, Plaintiff No. 4 for 'self and attorney'. Plaintiff No. 1 did not sign the plaint or the affidavitin support^Kereoff'atany time tilf.herdeath oh-18^'^ April 2010. Secondly, it is collect that these' suits. Which pray tor peimanent and mandatoiy injunctions have been undervalued for the purposes of court fee. There is no aveiT^nentin the plaints that the Plaintiffs were in constructive or physical possession of any..,of the suit properties.,,The question of paying a fixed court fee doe? not, therefore^?:;aris£:iAltfipu|b;^^Court could have insisted on the Plaintiffs fiist .raMcing,;goodthe deficit 'court fee, it is not inclinedto do so since in anyceyent,,!^^ stated,the reliefs prayed for in the suits cannot be granted in law.

¶15The suits and pending applications are dismissed. DECEMBER 05, 2013 Rk S. MURALIDHAR, J.

IN THE HIGH COURT OF DELHI AT NEW DELHI CS (OS) No. 1229 of 2008 & lA Nos. 7556 of 2008, 9896 of 2010 MANJEETICAUR & ORS Plaintiffs Through: Ms. Richa Kapoor with Ms. Kamna Chatwal, Advocates. versus DAYA SINGH ALIAS SUPHWAS SRICHAWLA, & ANR Defendants Through: Mr Samrat Nigam, Advocate forD-2. With CS (OS) No. 1231 of 2008 & lA Nos. 7559 of2008, 9892 of 2010 MANJEETKAUR&ORS ^ "Plaintiffs Through: Ms. Richa Kapoor with Ms. Karuna ChatwaJ, Advocates ^ versus / . DANIEL SRICI-IAWLA & ANR Defendants : Through: Mr. Samrat Nigam, Advocate for D-2. With \ CS (OS) No. 1232 of 2008 & lA Nos. 7561 of 2008, 666 of 2009, 4597 of2009, 9898 of 2010 MANJEET KAUR & ORS Plaintiffs Through: Ms. Richa Kapoor with Ms. Karuna Chatwal, Advocates. versus SAVITRI SRICHAWLA & ANR Defendants Tlu-ough:Mr. Sanu'at Nigam, Advocate for D-2. > With (OS) No. 1233 of 2008 & lA Nos. 7562 of 2008, 9910 of 2010 CS(OS) No.1229of 2008batch Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. MANJEET KAUR & ORS Plaintiffs Through: Ms. Richa Kapoor with Ms. Karuna Chatwal, Advocates. versus PURSHOTAM SINGH CHAWLA AIJAS PRACHOTAM SINGH CHAWLA & ANR Defendant Through: Mr. Gaurav Sarin with Ms. Chaml Sarin, Advocates. With CS (OS) No. 1428 of 2008 & lA Nos. 8739 of 2008, 9899 of 2010, 7396 of 2012, 7397 of 2012 MANJEET KAUR & ORS - Plaintiffs Through: Ms. Richa Kapoor with-Ms^iKaruna Chatwal, Advocates. I versus i'i 1 ill.), rf NARINsilCHAWLAALIAS ^ | NARINDeI.SINGHCHAWLA&ANR Defendants Through: Mr. Gaurav Sarin with Ms. Charul Sarin, Advocates for D-2. With . . CS (OS) No. 1498 of2008 i& lAs. 10447of2009,9955 of2010 MANJEET KAUR & ORS Plaintiffs Through: Ms. Richa Kapoor with Ms. Karuna Chatwal, Advocates. versus SUE SEUNG SYANG SRICIL^WLA AND ANR Defendants Through:Mr. GauravSarin with Ms. Charul Sarin, Advocates for D-2. CS (OS) No. 1229of2008batch Page2 of10 And CS (OS) No. 1500 of 2009 & lAs. 10460 of 2009, 9944 of 2010, 20035 of 2012 MANJEETKAUR&ORS Plaintiffs Tlii-ough:Ms. Riclia Kapoor with Ms. Karuna Chatwal, Advocates. versus SUKPIBIR KAUR & ANR Defendants Through: Mr. Gaurav Sarin with Ms. Charul Sarin, Advocates for D.-2. . CORAM: JUSTICE S.MURALIDI1AR