The Single Bench of the Delhi High Court in the case of Attar Singh & Ors. vs Mahinder Singh & Anr. consisting of Justice C. Hari Shankar held that the setting aside of the preliminary decree would ipso facto result in setting aside of the final decree, even without an order of the Court to that effect.
Facts:
Ami Chand and his wife Barpai Devi had four sons-Mahinder Singh, Hukam Singh, Attar Singh, and Chattar Singh. Barpai Devi passed away after Ami Chand on April 30, 1988, however her passing wasn't noted in the records. After that, the sons were the only remaining legal heirs. Hukam Singh had three boys and one daughter-Dev Raj, Hem Raj, Yogesh, and Aarti. As per the impugned judgment, Hukam Singh reportedly disappeared sometime around 1996. Mahinder Singh filed CS 06/2012 against Hukam Singh, Attar Singh, Chattar Singh, and Dev Raj, alleging partition of Delhi properties Nos. 169 and 185 ("the suit properties"), which is true were initially Ami Chand's property.
The case was first brought before this court, and then it was again brought before the learned Additional District Judge ("the learned ADJ"). The learned ADJ in 2019 held that the plaintiff was entitled to a decree of partition of the suit properties and that he was given a 1/4 share in that decree. Aggrieved, Attar Singh, the suit's second defendant, filed this appeal with the court under Section 96 of the Code of Civil Procedure (1908) (“CPC”).
Contentions Made:
Appellant: It was argued that the impugned order is incorrect because it fails to account for the division of the suit properties by the family settlement dated July 10, 1997, the purchase of the Palam property by the plaintiff, Defendant 2 Attar Singh (Appellant 1 before the Court), and Defendant 3 Chattar Singh, as well as the subsequent relinquishment by the plaintiff of his share in Property No. 185 in 2006, or the relinquishment by Defendant 3 Chattar Singh of his share in Property No. 169 in favour of the sons of Defendant 1 Hukam Singh on 13th February 2005. It was asserted that the learned ADJ failed to notice that the family settlement and the Iqrarnama were duly acted upon by the parties.
Respondent: It was argued that the family settlement was not binding because it was not implemented by his client, who is not in possession of the properties that were supposed to pass to him as per the aforementioned family settlement. Moreover, the family partition dated 10th July 1997 was neither unregistered nor was the said partition ever acted upon, contrary to what the appellants contend.
Observations of the Court:
The Bench noted that the assumption of the impugned judgment was that since the partition was not registered and took place on July 10, 1997, it had no legal repercussions. Therefore, the learned ADJ had not examined the opposing arguments about the plaintiff's relinquishment of his share of Property No. 185 or regarding the Iqrarnama dated February 13, 2005.
The following points, therefore, arose for determination, without prejudice to one another:
- Had the present appeal become infructuous as a consequence of the passing of the final decree dated 29thNovember 2019 which had not been challenged?
- Was the family settlement dated 10th July 1997 of no legal consequence, for want of registration? If not, what was the consequence thereof?
- Was the plaintiff entitled to the relief sought in this appeal? If not, what order was required to be passed?
Regarding the first point, it relied on Sital Parshad v. Kishori Lal, it held that it would not be possible for the plaintiff, in whose favor the preliminary decree was passed, to seek execution of the final decree merely on the grounds that no formal order, setting aside the final decree, had been issued by any Court. If the preliminary decree were to be set aside, that action would ipso facto result in the final decree being set aside as well, even in the absence of an order of the Court to that effect. In order for the executing Court to refuse to carry out the final decree, which succeeded the preliminary decree by operation of law, it would just need to be informed that the preliminary decree had been set aside. So, this appeal had not become infructuous merely because of the passing of the final decree dated 29th November 2019.
Regarding the second point, it relied on Thulasidhara v. Narayanappa to hold that even if it is not registered, a document that divides immovable property would have the effect of estoppel against the signatories. As a signatory to the family settlement of July 10, 1997, which split the suit properties among the plaintiff and Defendants 1 to 3, the plaintiff was restrained from contesting the agreement or casting doubt on its validity. Therefore, the plaintiff would only have a right to one-half of Property No. 185 and would have no claim to Property No. 169. Therefore, the plaintiff-Respondent's claim in the lawsuit for dividing the suit's assets between the plaintiff and Defendants 1 to 3 could not sustain. Moreover, as per Kale v. Director of Consolidation a party who derived benefits from the family settlement is estopped from questioning it, or seeking reliefs which would undo the family settlement. It was an admitted position that the plaintiff-Respondent 1 was receiving rent from the tenants who were in occupation of the plaintiff share in Property No 185. So, the plaintiff, having received the rent for a certain period cannot, now, seek to question the enforceability of the family settlement, or seek partition of the properties which already stood partitioned as per the said family settlement.
Due to certain suppression of facts and misstatement, the plaintiff was, therefore, disentitled to the reliefs sought in the suit both on merits as well as in equity, as the plaintiff had approached the Court with unclean hands.
Judgment:
The Bench held that the suit instituted by the plaintiff was liable to be dismissed. The impugned order dated 27th February 2019 passed by the learned ADJ was, therefore quashed and set aside. CS 578024/2016 filed by the plaintiff (Respondent 1) stood dismissed.
Case: Attar Singh & Ors. vs Mahinder Singh & Anr.
Citation: RFA 742/2019
Bench: Justice C. Hari Shankar
Advocate for Appellant: Mr. Himanshu Thakur.
Advocates for Respondent: Mr. Surinder Jain.
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