Important Point – Family Settlement must show market value of property.

YOGESH KHANNA, J.

1. The appellant was the plaintiff. Suit seeking partition of ground floor of property bearing No.N-215, Greater Kailash –I, New Delhi as also rendition of accounts filed against the wife and children of appellant’s brother Subhash Alagh, who expired on October 07, 2005, has been dismissed vide a impugned judgment and decree dated September 30, 2015. The suit was instituted in the year 2006 i.e. soon after the death of appellant’s brother.

2. Case pleaded in the plaint by the appellant was that the ground floor, partition whereof prayed was inherited by him and his deceased brother under a Will executed by the father and since the appellant was residing in the United Kingdom he allowed his brother to continue to occupy the suit property and manage the same with an option to purchase appellant’s half share. With some persuasions Subhash agreed to purchase appellant’s half share in the property for which he had to raise a loan from the bank by mortgaging the property and for which purpose he sent the draft of a special power of attorney in favour of his wife. The matter could not taken forward. Subhash expired and hence the suit was filed.

3. In the written statement filed the respondents admitted inheritance as pleaded by the appellant. They alleged concealment of material facts in the plaint. As per the appellant’s at a settlement reduced into writing on February 18, 1999, it was agreed that the appellant shall sell his half share to his brother in the suit property at a price to be determined by the parties and for purposes of receipt of money he executed a Power of Attorney on same date in favour of Kanchan Tuli, the sister of the parties. The brothers later on agreed that the value of the suit property Rs.20,00,000/- and that Subhash paid Rs.12,57,778/- to the appellant towards his half share in the property.

4. In the replication filed the appellant admitted the settlement dated February 18, 1999. He denied having executed any Power of Attorney in favour of Kanchan Tuli to receive money from his brother. He admitted having received two payments in sum of Rs.70,000/- and Rs.1,50,000/- from his brother but claimed to have forfeited the same on account of his brother not paying him his share in the suit property.

5. On the pleadings of the parties, vide a order dated 30.09.2015 undernoted issues were settled.

“1. Whether the present suit filed by the plaintiff through his attorney Smt.Kanchan Tuli is legally maintainable? OPP

2. Whether the family settlement dated 18.02.1999 entered into between the plaintiff and his late brother Mr.Subhash Alagh is binding on them and was it ever acted upon and if so, to what effect? OPD

3. Whether the plaintiff’s late brother Mr.Subhash Alagh had paid the price of half share of the plaintiff in the suit property after entering into the family settlement dated 18.02.1999 and if so, to what effect? OPD

4. Whether the plaintiff is entitled for partition of the suit property i.e. ground floor of property bearing No.N-215, GK-I, New Delhi and if so, to what share he is entitled in the said property? OPP

5. Whether the plaintiff is entitled to any amount from the defendant on account of their use and occupation of the suit property since 1999 and if so, to what amount? OPP

6. Relief.”

6. Needless to state decision on issues Nos.2 and 3 would decide the fate of the parties.

7. To support his case, the appellant had examined three witnesses, including himself as PW-1. In his affidavit Ex.PW-1/A he had deposed about the Will dated July 15, 1986 Ex.PW-1/6 (also Ex.D2) of his father; executing of an Affidavit Ex.PW-1/7 and an Indemnity Bond Ex.PW-1/8 on his behalf by his sister Kanchan Tuli for effecting mutation of the suit property. He denied having ever agreed to the market price of the suit property or he ever authorized his sister Kanchan Tuli or her family members to receive