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2014 Supreme(Del) 1161
High Court of Delhi
MANMOHAN SINGH
Kallu Babu Rohatgi
Versus
Raj Kumar Rohatgi & Others
I.A. No. 6287 of 2011 in CS(OS) No. 944 of 2011
Decided On : 22-04-2014
For the Plaintiff:N.S. Negi, Advocate.
For the Defendants:S.D. Kushwaha, K.K. Rohatgi, Advocates.
The main legal point established in the judgment is the enforceability of a family settlement over a Will, and the appointment of a Local Commissioner for the physical partition of the property.
Headnote:
Partition - Property Dispute - Registration Act - Contingent Contract - Family Settlement - Will - Irrevocable Agreement - Preliminary Decree of Partition - Local Commissioner Appointment
Fact of the Case:
The plaintiff filed a suit for partition of a property against six defendants. The plaintiff claimed equal rights in the property based on a family settlement and a Will executed by the deceased owner. The defendants contested the claim, arguing that the family settlement was unenforceable and the Will was valid, leading to a dispute over ownership and partition of the property.
Finding of the Court:
The court found that the family settlement was valid and enforceable, and the Will executed by the deceased owner was null and void as per the terms of the family settlement. The court passed a preliminary decree of partition, appointing a Local Commissioner to suggest the mode of partition of the property.
Issues: The main issues revolved around the validity of the family settlement, the enforceability of the Will, and the rights of the parties in the disputed property.
Ratio Decidendi: The court held that the family settlement was irrevocable and enforceable, overriding the Will executed by the deceased owner. The court also appointed a Local Commissioner to facilitate the physical partition of the property.
Final Decision: The court passed a preliminary decree of partition, granting each party a 1/7th share in the property and appointing a Local Commissioner to suggest the mode of partition.
Manmohan Singh, J.
1. The plaintiff, Sh.Kallu Babu Rohatgi, filed the suit for partition in respect of the property bearing No.A-164, Hari Nagar, Ghanta Ghar, Delhi (hereinafter referred to as the “Suit Property”) against the six defendants, namely, Raj Kumar Rohatgi, Vinod Kumar Rohatgi, Parmod Kumar Rohatgi, Subhash Chand Rohatgi, Manju Rani Rohatgi and Rekha Rohatgi.
2. By order dated 25th April, 2011, injunction order was passed restraining all parties to the suit from creating any third party right, title, possession and construction in respect of the suit property. The matter was also referred to the Delhi High Court Mediation and Conciliation Centre for settlement by negotiation. However, it appeared that the settlement could not be arrived at between the parties and the parties were directed to file the written statement.
3. The case of the plaintiff is that late Sh.Phool Chand Rohatgi, father of the plaintiff and the defendants purchased the suit property from one Sh.Chakar Pani @ Nathu Ram S/o Sh. Manohar Lal, by virtue of the registered sale deed dated 9th January, 1961 for a total consideration of Rs.1400/-. Initially, it was a plot of land measuring 220 Sq. Yards which was got constructed up to one and a half storey building by the late father of the parties who died in Delhi on 29th January, 1983 leaving behind his widow Smt.Anupwati Rohatgi, five sons i.e. plaintiff and defendants No.1 to 4, and two daughters i.e. defendants No.5 & 6.
4. It is also stated that Smt.Anupwati Rohatgi also died in Delhi on 27th January, 2000 and as of today, there are five sons and two daughters of late Sh.Phool Chand Rohatgi. During her lifetime, Smt.Anupwati Rohatgi along with the plaintiff and the defendants entered into an agreement/family settlement dated 26th June, 1992. It is alleged by the plaintiff that late Sh.Phool Chand Rohatgi stated to have executed a Will dated 20th September, 1981 in respect of the suit property bequeathing the property in his wife Smt.Anupwati Rohatgi. By virtue of the same, Smt.Anupwati Rohatgi became absolute owner/successor of the suit property. In view thereof, she and all other legal heirs of Sh.Phool Chand Rohatgi had executed a family settlement and agreed that all the five sons and two daughters and the widow would have equal rights in the suit property and it was agreed that the property would be sold and proceeds thereof would be divided among all eight co-sharers of the suit property and the expenses which were to be incurred at the time of disposing of the suit property would be deducted from the sale proceeds before distribution amongst the co-sharers.
5. Till the time of execution of the family settlement, the plaintiff was not in possession of any part of the suit property. However, it was mutually agreed that the possession of half barsati with one room be given to the plaintiff and accordingly, the plaintiff was put into possession. It was also agreed that the respective parties, who are in possession of respective portions of the suit property, would vacate the same on receipt of their respective shares of the consideration.
6. The said agreement referred to the Will dated 20th September, 2011 in para 4 of the agreement. After the death of late Smt.Anupwati Rohtagi on 27th January, 2000, shares of all sons and daughters became 1/7th each as per the case of the plaintiff and defendants except defendants No.2 & 3.
7. It is alleged in the plaint that defendants No.4 & 5 are in possession of different parts of the suit property. The rest of the defendants are settled and residing at the places mentioned in the memo of parties. Since most of the defendants are well-settled and residing separate, parties have not been able to get together and to dispose of the suit property so that the proceeds can be distributed amongst the co-owners. The suit property is 220 Sq. Yards and there are seven co-owners (the mother already expired). The suit property cannot be divided by metes a
