A Family Settlement does not require registration if it does not create or extinguish rights, and the doctrine of estoppel applies if acted upon by family members.

JUDGMENT :

ANIL KSHETARPAL, J.

1. The present Appeal has been filed by the Appellants under Section 96 read with Order XLI Rule 1 read with Section 151 of the Code of Civil Procedure, 1908, [CPC] read with Section 10 of the DELHI HIGH COURT ACT , 1966 assailing a judgment dated 04.10.2024 [hereinafter referred to as ‘Impugned Order’] passed by the learned Single Judge in CS(OS) 71/2015 captioned Deepika Prashar & Anr. vs. Suman Singh Virk & Anr

2. By the said Judgment, the learned Single Judge decreed partition of property being L-1/8, South Extension Part-II, New Delhi [hereinafter referred to as ‘suit property’] and directed the Appellants (Defendants before the learned Single Judge) to handover possession of one-half (1/2) of the fourth floor of the suit property to the Respondents (Plaintiffs before the learned Single Judge). By the Impugned Order, the Appellants/Defendants were further directed to pay mesne profits of Rs.48,000/- per month from 07.01.2015, i.e. the date of institution of the suit till delivery of vacant and physical possession, along with interest at the rate of 6% p.a. Additionally, the learned Single Judge directed the Registrar General to file a complaint under Section 379 of the Bharatiya Nagarik Suraksha Sanhita, 2023[ BNSS ] (erstwhile Section 340 of the Code of Criminal Procedure, 1973, [Cr.P.C.]) for the offences committed by the Appellants/Defendants.

3. The brief facts of the case are that Late Shri Jamna Dass s/o Pt. Ram Jas purchased the suit property by a registered Sale Deed. Last Will and Testament of Shri Jamna Dass, duly registered, left the property to Late Mrs. Santosh Prashar (mother of Appellants), and Late Mr. Nidhish Prashar (husband of Respondent No. 1). Each of the two was given one-half (1/2) undivided share each.

4. Subsequent to the unfortunate demise of Mrs. Santosh Prashar, the following was admittedly the undivided shareholding in the suit property:

i. Late Mr. Nidhish Prashar – 50%

ii. Appellant No. 1 – 25%

iii. Appellant No. 2 – 25%

5. A Family Settlement dated 27.11.2012, [Family Settlement] was entered into between the Appellants (as First Party) and Late Mr. Nidhish Prashar, by which it was allegedly agreed that the suit property would be demolished and constructed by a builder. Subsequently, a Builders’/Developers’ Agreement dated 04.12.2012, [Builders’ Agreement] was executed between the Appellants and Late Mr. Nidhish Prashar (collectively as the First Party) and the Builders (as the Second Party).

6. There was a difference in the way the freshly constructed floors of the suit property were referred to in the Family Settlement and the Builders’ Agreement. While the Family Settlement finds mention of the ground floor, first floor, second floor, third floor and fourth floor with roof/terrace, the Builders’ Agreement records the corresponding floors as stilt, ground floor, first floor, second floor and third floor with terrace.

7. Before the demise of Late Mr. Nidhish Prashar, the Builders had handed over the possession of the first floor (as per Builders’ Agreement) of the suit property to him, pending the completion of the other floors. Later, the Builders handed over the third floor (as per Builders’ Agreement) jointly to the Appellants and Respondent No.1.

8. Respondents/Plaintiffs therein filed the Suit before the learned Single Bench seeking partition of the suit property in accordance with the terms of the Family Settlement.

9. It is Appellants’/Defendants’ case that the Builders’ Agreement is the only agreement executed between the parties for the undivided half share of Late Mr. Nidhish Prashar and for the remaining undivided half share held jointly by the two Appellants in the suit property, and as per the terms of the same, fourth floor in the suit property does not even exist.

10. It is Respondents’/Plaintiffs’ claim that despite