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2001 DIGILAW 198 (DEL)

SUKHBIR SINGH v. SUKHBIR SINGH

2001-02-15

SHARDA AGGARWAL

body2001
SHARDA AGGARWAL ( 1 ) THIS order shall dispose of two applications moved by the plaintiff i. e. IA. No. 9137/98 (under Order 39 Rules 1 and 2 Criminal Procedure Code) and IA. No. 2747/2000 (under section 151 Criminal Procedure Code ). ( 2 ) A brief resume of the facts is necessary. The plaintiff and the defendant are real brothers. The plaintiff has filed the present suit for declaration, possession, rendition of accounts and perpetual injunction against his real brother with regard to property bearing municipal NO. WZ-1228a and 1230 to 1233. Nangal Rai, New Delhi, which was owned by their father Shri Bhagwan Singh. Shri Bhagwan Singh died on 1/06/1981. The plaintiff has set up a will dated 8/11/1977 of his father shri Bhagwan Singh bequeathing his moveable and immoveable properties to his two sons i. e. the plaintiff and the defendant. Further reliance has been placed on a family settlement dated 5/10/1986 by which the plaintiff and defendant divided the property in question by metes, and bounds. The share of the plaintiff comprised of four shops, four rooms, open courtyard and a tin shed shown RED in the site plan Annexure a to the plaint. Rest of the portion shown GREEN in the plan fell to the share of the defendant. According to the family settlement, the defendant had agreed to provide 5 ft. passage as shown from point a to c and b to d in the site plan from his share so as to provide access to the plaintiff s portion of the property. The plaintiffs further case is that the family settlement was acted upon and given effect to. The defendant paid a sum of Rs. 19,000. 00 on 14/09/1987 as agreed in the settlement after the sale of agricultural land situated in Village Ram nagar, Tehsil Baghpat, District Meerut (U. P. ). The defendant wrote various letters for mutation of the property in the joint name of the plaintiff and the defendant as, earlier, it was in their father s name. Electricity connection was also sought to be changed to plaintiff s name. Plaintiff started collecting rent from the tenants occupying portion of the his share after the family settlement. He could not visit the premises in dispute after the end of 1989 on account of his illness. Electricity connection was also sought to be changed to plaintiff s name. Plaintiff started collecting rent from the tenants occupying portion of the his share after the family settlement. He could not visit the premises in dispute after the end of 1989 on account of his illness. He visited the premises in the beginning of the year 1995 and found that the defendant raised construction in the vacant portion of his share of the property and had been collecting rent from his tenants. Despite the agreement/settlement defendant did not leave 5 ft. passage in his share to provide access to plaintiffs portion. ( 3 ) THE defendant has denied the execution of the will dated 8/11/1977. He has set up another will of his father dated 2/05/1981 and a subsequent family settlement dated 10/12/1986. As regards the family settlement dated 5/10/1986 set up by the plaintiff, the execution of the same is not denied. His case is that the family settlement dated 5/10/1986 related to partial partition of the property and as such it was not acted upon and another settlement dated 10/12/1986 was arrived at. According to the defendant as per the will dated 2/05/1981 allegedly executed by his father, the property situated at Khatauli fell to the share of the plaintiff and the property in Nangal Rai subject matter of the suit, fell to the share of the defendant and the property situated in Village Ram Nagar, Tehsil Baghpat, District Meerut (U. P.) had been divided in equal shares between the plaintiff and the defendant. As regards the rent of the shops and rooms in the suit property, according to the settlement dated 10/05/1986, plaintiff Shri Sukhbir Singh was to collect the rent from 1/12/1986 to 31/12/1989 and this concession was given to him as he had to marry his daughter. ( 4 ) THE plaintiff has placed on record a copy of the will dated 8/11/1977 as set up by him which is a registered will . The testator Shri Bhagwan Singh has appended his thumb impression on the will . This will was executed at Delhi. Copy of the will dated 2/05/1981 set up by the defendant is not registered and purports to have been drafted by a Deed Writer. This will was executed about a month prior to the death of Shri Bhagwan Singh. The testator Shri Bhagwan Singh has appended his thumb impression on the will . This will was executed at Delhi. Copy of the will dated 2/05/1981 set up by the defendant is not registered and purports to have been drafted by a Deed Writer. This will was executed about a month prior to the death of Shri Bhagwan Singh. Copy of this will shows that Shri bhagwan Singh had signed the same in urdu. The defendant also filed a suit for declaration in Meerut Court on the basis of this will praying for a declaration that by virtue of the will dated 2/05/1981 and the family settlement dated 10/12/1986, the suit property situated in Nangal Rai is his exclusive property. ( 5 ) ACCORDING to the defendant, the will and the family settlement, set up by the plaintiff, are forged documents whereas according to the plaintiff the will dated 2/05/1981 and the family settlement dated 10/12/1986 are forged documents. ( 6 ) IN the application under Order 39 Rules 1 and 2 Criminal Procedure Code (IA. No. 9137/98) the plaintiff s contention is that a portion of the property at Nangal Rai which had fallen his share had been encroached upon and taken possession of by the defendant who had started collecting rent from plaintiff s tenants, Defendant also did not leave 5 ft. open passage as agreed upon to provide access to plaintiff s portion. The plaintiff has prayed that in order to preserve the property during the pendency of the suit, defendant should be restrained by a temporary injunction from disposing of the same. ( 7 ) THE defendant has opposed the application on the basis of the subsequent will dated 2/05/1981 allegedly left by Shri Bhagwan Singh and family settlement dated 10/12/1986 as by virtue of these documents the entire Nangal Rai property fell to his share. ( 8 ) THE pleadings and the rival contentions of the parties show that the defendant does not dispute that the suit property initially belonged to their father. He also does not dispute the execution of the family settlement dated 5/10/1986 set up by the plaintiff, according to which the Nangal Rai property was divided by metes and bounds between the plaintiff and the defendant. He also does not dispute the execution of the family settlement dated 5/10/1986 set up by the plaintiff, according to which the Nangal Rai property was divided by metes and bounds between the plaintiff and the defendant. His defence is that since the said family settlement related only to one property and it being a document of partial partition, it was not acted upon and another settlement dated 10/12/1986 was executed by which all the properties of their father were partitioned and the property at Nangal Rai fell to the exclusive share of the defendant. ( 9 ) IN order to show that the family settlement dated 5/10/1986 was acted upon. plaintiff has placed on record certain documents which prima facie indicate that the property was partitioned between the two brothers by virtue of settlement. After this settlement, parties executed a joint affidavit on 1/01/1987 which gives details of partition of the property and mentions the fact that the plaintiff and the defendant had taken possession of their respective shares. A letter dated 10th september, 1987, copy of which has been placed on record, shows that both the brothers after the family settlement had written to the Municipal Corporation of Delhi for mutating the property in their joint names as it earlier stood in the name of their father. The house tax bill for the year 1998-99 is in the joint name of the parties which indicates that the names of the plaintiff and the defendant were mutated in the record of Municipal Corporation of Delhi. By another letter dated 10/09/1987 defendant also wrote toDESU for transferring the electricity connection installed in the premises in question in the name of the plaintiff. This letter even refers to the family settlement dated 5/10/1986. By way of a follow-up action, reminder letter dated 3/08/1998 was again issued by the defendant to DESU. Two other documents show that the defendant had paid a sum of Rs. 19,000. 00 on 1 4/09/1987 to the plaintiff in pursuance to the terms of the family settlement. These documents prima facie establish that the settlement dated 5/11/1986 was acted upon the parties. ( 10 ) ANOTHER term of the settlement dated 5/10/1986 was that after September, 1986 rent would be recovered by the plaintiff of the shops and rooms of his portion of the property. These documents prima facie establish that the settlement dated 5/11/1986 was acted upon the parties. ( 10 ) ANOTHER term of the settlement dated 5/10/1986 was that after September, 1986 rent would be recovered by the plaintiff of the shops and rooms of his portion of the property. Plaintiff s case is that he received rent Upto the end of 1989 but thereafter he could not collect the rent as he did not visit the suit property as he had fallen ill at Khatauli where he was residing. In this respect the defendant admits that rent for the period 1/12/1986 to 3 1/12/1989 was received plaintiff. But his contention is that it was received under the family settlement dated 10/12/1986 according to which entire property at Nangal Rai had come to defendant s share, but he allowed the plaintiff to collect rent for this period as the plaintiff needed money for his daughter s marriage. It is not disputed by the defendant that since January, 1990 he has been collecting rent. He has also not denied the construction raised on the property in question but claims that he did so in his own rights as the entire property belonged to him. The defendant has also not disputed that the suit property initially belonged to their father. The fact that the property is in his possession and he has raised construction and has been collecting rent since january, 1990 is not disputed. ( 11 ) THUS in view of the rival contentions of the parties and my above discussion, the property in question is required to be preserved during the pendency of this suit. There is prima facie case in favour of the plaintiff and the balance of convenience also lies in his favour and against the defendant. The application (la. No. 9137/98) is accordingly allowed and the defendant is restrained from selling, alienating, encumbering or creating third party interest in any manner in the suit property till the disposal of the suit. ( 12 ) AS regards the plaintiffs application (IA. The application (la. No. 9137/98) is accordingly allowed and the defendant is restrained from selling, alienating, encumbering or creating third party interest in any manner in the suit property till the disposal of the suit. ( 12 ) AS regards the plaintiffs application (IA. No. 2747/2000), the contention is that half of the property in question had fallen to his share by virtue of the family settlement dated 5/10/1986 and he collected rent from the tenants from October, 1986 till the end of 1989 and since January, 1990 defendant has been collecting rent from his tenants under coercion and threats and as such the defendant be directed to deposit the entire rent collected by him with respect to the property No. WZ-1228a and 1230 to 1233, Nangal Rai, New Delhi and continue to deposit the same in the court as and when received by him from the tenants. In fact one of the prayers in the suit filed by the plaintiff is for decree for rendition of accounts in favour of the plaintiff and against the defendant for the rent received by the defendant with respect to all the shops and rooms which fell to the share of the plaintiff as per family settlement dated 5/10/1986. In view of the claim of rendition of accounts in the suit, the prayer of the plaintiff in this application for deposit of entire rent collected by the defendant till date would be considered at the time of disposal of the suit. ( 13 ) THE defendant is, however, directed to file in Court quarterly statements of account of the rent w. e. f. 1/01/2001 being collected by him of the premises alleged to have fallen to the share of the plaintiff till the disposal of the suit. The application is accordingly disposed of.