ANAND KAMAL GOEL vs STATE & ORS
$~5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th February, 2024
+ CS(OS) 98/1998 & I.A. 25344/2023
MR. G.L. TANDON & ORS. ….. Plaintiffs
Through: Mr. Udit Chauhan, Mr. Aditya P. Arora & Mr. Kashish Khurana, Advocates for LRs of plaintiffs.
versus
SMT. VIJAY MALA GOEL & ANR. ….. Defendants
Through: Mr. Akshay Makhija, Sr. Advocate with Ms. Seerat Deep Singh, Advocate for Meenakshi Malhotra, LR of D-4.
Ms. Asmita Duggal, Advocate for applicant.
6
+ TEST.CAS. 17/2005 & I.As. 6519/2018, 18406/2022, 6028/2023, 21668/2023
ANAND KAMAL GOEL ….. Petitioner
Through: Mr. Parvesh Tyagi & Mr. Shiv Prakash Upadhyaya, Advocates.
versus
STATE & ORS. ….. Respondents
Through: Mr. Udit Chauhan, Mr. Aditya P. Arora & Mr. Kashish Khurana, Advocates for R-3(ii) & (iii).
Mr. Akshay Makhija, Sr. Advocate with Ms. Seerat Deep Singh, Advocate for Meenakshi Malhotra, LR of R-4.
Ms. Asmita Duggal, Advocate for applicant.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 24024/2023 (u/O I Rule 10 r/w Section 151 of CPC, 1908 by applicant/Meenakshi Malhotra) in CS(OS) 98/1998
1. The application under Order I Rule 10 read with Section 151 CPC, 1908, has been filed on behalf of the applicant, Meenakshi Malhotra w/o Late Sh. Shoukat Rai Malhotra, to be impleaded as a party to the present suit.
2. It is submitted in the application that the suit has been filed by the plaintiffs seeking Partition, Rendition of Accounts and Permanent Injunction in respect of the property bearing No. B-7/111A, Extension Safdarjung Enclave, New Delhi (hereinafter referred to as the suit property) wherein the plaintiffs have propounded a Will dated 28.10.1988 of Late Smt. Sushila Ranbir. It is submitted in the application that in the connected Test Cas No. 17/2005, filed in respect of the Will of Late Smt. Sushila Ranbir Singh dated 10.06.1989, Late Sh. Shoukat Rai Malhotra ( deceased husband of applicant) had already been impleaded as a party vide Order dated 08.03.2006.
3. This Civil Suit is consolidated with the Test Case. Moreover Sh. Anand Kamal Goel, defendant No 2 and Smt. Vijay Mala Goel, defendant No. 1, represented themselves to be the owners of Basement, Ground Floor, Second Floor and the Terrace above the Second Floor of the suit property and they entered into two Agreements to Sell dated 08.07.1997 and 21.07.1997 respectively, with her husband Late. Shoukat Rai Malhotra.
4. Sh. Shoukat Rai Malhotra filed a suit bearing CS(OS) No. 125/2005 for Specific Performance b in respect of the Agreement to Sell dated 08.07.1997, in which an application bearing I.A. No. 12264/2006 under Order XXIII Rule 3 CPC, 1908, was jointly filed in the said Suit and the respective statements were made by both the parties and the suit was accordingly decreed in favour of Sh. Shoukat Rai Malhotra, by virtue of which, he became the absolute and sole owner of the Basement, Second Floor and Terrace of the suit property.
5. Similar Civil Suit was filed for Specific Performance of Agreement to Sell dated 21.07.1997 in respect first floor of the suit property , which was dismissed vide Judgment dated 12.12.2017 against which RFA No. 302/2018 was preferred by Sh. Shoukat Rai Malhotra, which is pending.
6. It is submitted that Sh. Shoukat Rai Malhotra has expired on 04.09.2021, leaving behind his wife Smt. Meenakshi Malhotra and two sons, namely, Mr. Sanjay Malhotra and Mr. Rohit Malhotra. He left a Will dated 15.03.2018, whereby he bequeathed his share in favour of his wife/applicant Smt. Meenakshi Malhotra. A copy of the Will is annexed along with the application.
7. The elder son, Mr. Sanjay Malhotra, who is presently in Dubai, has executed a Power of Attorney dated 20.01.2022, in favour of his mother and brother wherein he has admitted the genuineness of the Will of his father and has through Power of Attorney empowered the attorney holder/mother to give full effect to the bequest made under the Will dated 15.03.2018.
8. Likewise, younger son, namely, Mr. Rohit Malhotra has also accepted the genuineness of the Will dated 15.03.2018, as the last and final Will of their father and the affidavit to this effect has also been annexed with the application.
9. It is submitted that Sh. Shoukat Rai Malhotra being a subsequent purchaser of the suit property, is entitled to be impleaded through his wife, in the present suit. Hence, a prayer is made for impleadment of Smt. Meenakshi Malhotra, as a party to the present suit.
10. The plaintiff No. 2 in his reply, has asserted that the applicant has no locus standi to move the present application. The plaintiff is the dominus litis of the present suit and is opposing the impleadment of the applicant.
11. It is further submitted that the impleadment is highly belated and is sought to be made after 25 years of Agreement to Sell and alleged Power of Attorney. The application is nothing but dilatory tactics adopted by the applicant, to create an unnecessary litigation. Further, the applicant is neither a necessary nor a proper party to the issues involved in the present suit. She is not a family member and cannot be considered as a necessary or proper party to the present suit. Moreover, the reliance on the Agreement to Sell/ documents does not create any share or interest in favour of the applicant, in respect of the suit property. In fact, the consent decree was a result of collusion and is void in the eyes of law. The Regular First Appeal in respect of the second Agreement to Sell, is still pending.
12. It was further submitted that Sh. Shoukat Rai Malhotra had been impleaded in the connected Probate Case on 10.02.2005 and any intervention, at this stage, is highly belated and would prejudice the trial of the present case. It is further submitted that Section 54 of the T.P. Act makes it clear that mere execution of Agreement to Sell does not create any interest or ownership in the property, which is the subject matter of the Agreement. On the basis of alleged Agreement to Sell, executed by the defendant, the applicant cannot claim to have become an owner and thereby a necessary or a proper party to the present suit. Moreover, the claims now being raised by the applicant, are barred by limitation.
13. On merits, all the averments are denied and it is submitted that this application is without merit and is liable to be dismissed.
14. Submissions heard.
15. The applicant Smt. Meenakshi Malhotra is seeking her rights to be impleaded as a party in the present suit for partition, on the assertion that her husband Sh. Shoukat Rai Malhotra during his lifetime had acquired ownership in the suit property by virtue of two Agreement to Sell in respect of which, separate litigation had been undertaken by Sh. Shoukat Rai Malhotra, against Sh. Anand Kamal Goel. In one Suit bearing CS(OS) No. 125/2005, the consent decree has been passed while in the second Case, RFA No. 302/2018, is still pending.
16. In the present Case, it has been rightly contended on behalf of the plaintiffs that Sh. Shoukat Rai Malhotra was aware of the pendency of the present Suit since prior to the year 2005, when he was impleaded as a party on March 08, 2006, in the connected Test Case No. 17/2005.
17. However, no application ever got filed by him in this Civil Suit for impleadment. Further, according to the assertions made in the application, Sh. Shoukat Rai Malhotra, whose legal heir is the applicant, has been claiming right, title and interest in the suit property through Smt. Mala Goel and Sh. Anand Kamal Goel, who are already a party to the present Suit. They would be bound by the doctrine of lis pendens and cannot claim a title more than the persons from whom they are asserting a share/title, in the suit property.
18. Hence, it would not be in the interest of justice at this stage, after twenty five years of pendency of suit to implead the applicant as a party especially when Sh. Shoukat Rai Malhotra through whom she is asserting a right and never sought impleadment in the present suit, which was instituted way back in the year 1998. In any case, Sh. Shoukat Rai Malhotra was a party to the Test. Case which is connected to the present suit.
19. The present application is, therefore, dismissed for the aforesaid reasons.
I.A. 3882/2024 (u/O I Rule 10 (2) r/w Section 151 of CPC, 1908 by applicant/Sh. Rakesh Kumar Mittal) in CS (OS) 98/1998 &
I.A. 3875/2024 (u/O I Rule 10 (2) r/w Section 151 of CPC, 1908 by applicant/Sh. Rakesh Kumar Mittal) in TEST.CAS. 17/2005
20. The above applications under Order I Rule 10 read with Section 151 CPC, 1908, have been filed on behalf of the applicant, Sh. Rakesh Kumar Mittal, to be impleaded as a necessary and a proper party in the Civil Suit as well as in the Probate Case.
21. It is submitted that Sh. Anand Kamal Goel has filed the petition TEST.CAS. 17/2005 for grant of Probate in respect of the Will dated 10.06.1989 executed by Late Smt. Sushila Ranbir, against Smt. Vijay Mala Goel, through legal heirs, Sh. Bala Tandon and Sh. Shoukat Rai Malhotra.
22. It is submitted in the application that in the year 2001, Sh. Anand Kamal Goel was in dire need of money. He, therefore, approached the applicant, for purchase of the suit property from him. He presented a Will dated 10.06.1989, by virtue of which he represented himself to be the sole owner of the suit property i.e. the Basement and Second Floor of property bearing No. B-7/111A, Extension Safdarjung Enclave, New Delhi. He further requested the applicant that he may be permitted to retain the possession during his lifetime for which reason, he lowered the sale consideration. Because of the cordial and friendly relations between the plaintiff and the applicant for last many years and also by virtue of the Will dated 10.06.1989, the applicant did not doubt the intention of Sh. Anand Kamal Goel and decided to purchase the suit property for a consideration of Rs.66,00,000/- which was duly paid.
23. Sh. Anand Kumar Goel executed the General Power of Attorney (GPA), Deed of Will, Receipt, Special Power of Attorney, Agreement to Sell and Indemnity Bond, all dated 12.04.2001, in favour of the applicant.
24. Further, Smt. Vijay Mala Goel executed two affidavits-cum-No Objection Certificates stating that Sh. Anand Kamal Goel, her son, was the owner of the suit property and that he had sold the same to Sh. Rakesh Kumar Mittal, the applicant, for which he had no objection.
25. It is submitted that in view of the aforesaid facts, the applicant has become a bonafide purchaser of the suit property.
26. Sh. Anand Kamal Goel has died on 12.10.2023, on which date during the funeral ceremony, the applicant came to know that there were multiple litigations in respect of the suit property and that currently, it is in illegal possession of Mrs. Meenakshi Malhotra, Sh. Rohit Malhotra and Sh. Sanjay Malhotra.
27. He then engaged the legal counsel and has sought impleadment being the necessary and the proper party to the suit and the probate proceedings. The reliance has been placed on Razia Begum vs. Anwar Begum, AIR 1958 SC 886 and Kasturi vs. Iyyamperumal & Ors. in Appeal (Civil) 2831/2005, decided by the Honble Supreme Court of India on 25.04.2005.
28. No formal reply has been filed to the application seeking impleadment in the suit.
29. Submissions heard.
30. Test Case No. 17/2005 had been filed by Sh. Anand Kamal Goel seeking probate of the Will dated 10.06.1989, executed by Late Smt. Sushila Ranbir. The applicant in the present application, has not challenged the Will which is the subject matter of the present petition but as per his assertions, Sh. Anand Kamal Goel had presented this Will to establish his ownership in the suit property. The applicant is not challenging the authenticity of the Will, which is the subject matter of the Test Case.
31. Furthermore, he is claiming a title in the suit property, on the basis of Agreement to Sell etc. dated 12.04.2001, executed in his favour by Sh. Anand Kamal Goel. In the probate proceedings, it is not the title of the parties to the suit property, which is determined but it is confined to the validity and genuineness of the Will.
32. Therefore, from the submissions made in the application, the applicant is at liberty to seek his remedy in regard of the alleged Agreement to Sell dated 12.04.2001 and other documents, in appropriate proceedings.
33. He is neither a necessary nor a proper party to the present Probate proceedings.
34. The applicant on the same grounds has sought his impeadment in the Civil Suit initially filed by Sh. G.L. Tandon, for partition claiming to have purchased the property from Sh. Anand Kamal Goel, who is defendant No. 4, in the Civil Suit. However, merely because the applicant had an alleged Agreement to Sell in his favour executed by Sh. Anand Kamal Goel, does not make him the owner of the suit property, in the light of settled principles of law. In case he has any right, title, on the basis of these documents, against Sh. Anand Kamal Goel or his legal heirs, he is at liberty to seek appropriate remedy. Furthermore, Sh. Anand Kamal Goel is a party to the suit for Partition, through whom a title has been sought by the applicant. The applicant can always claim his rights, which are determined in favour of Sh. Anand Kamal Goel on the principle of lis pendens..
35. There is no merit in the application of the applicant, to be impleaded as a party in this suit, which is pending since 1998.
36. The applications are hereby dismissed.
I.A. 18405/2022 (u/O I Rule 10 r/w Order XXII Rule 4 & Section 151 of CPC, 1908 by applicant/Meenakshi Malhotra) in TEST.CAS. 17/2005
1.
I.A. 24069/2023 (u/O I Rule 10 r/w Order XXII Rule 3 & Section 151 of CPC, 1908 by applicant/Meenakshi Malhotra) in TEST.CAS. 17/2005
2.
3.
I.A. 6027/2023 (u/O XXII Rule 9 r/w Section 151 of CPC, 1908 by applicant/petitioner) in TEST.CAS. 17/2005
37. In the present probate proceedings, the Respondent No. 4/Sh. Shoukat Rai Malhotra had died on 04.09.2020 and thereafter, despite being informed, the petitioner did not take any steps to implead the LRs of Lt. Sh. Shoukat Rai Malhotra. Thus, vide Order dated 08.08.2022, the learned Joint Registrar observed that since the application under Order 22 Rule 4 CPC, has not been filed on behalf of the petitioner, the proceedings against the respondent No. 4, Sh. Shoukat Rai Malhotra, stands abated.
38. Subsequently, I.A. No. 6027/2023 under Order 22 Rule 9 read with Section 151 CPC, had been filed on behalf of Sh. Anand Kamal Goel/Petitioner, for setting-aside the abatement Order dated 08.08.2022.
39. In the interim, I.A. No. 18405/2022 has been filed by Smt. Meenakshi Malhotra, the wife/legal heir of Sh. Shoukat Rai Malhotra, seeking her impleadment in place of Respondent No. 4, on account of his demise, after setting-aside the abatement Order dated 08.08.2022.
40. Smt. Meenakahi Malhotra also filed I.A. No. 24069/2023 under I Rule 10 read with Section 151 CPC, for transposition on account of no interest being taken by the original petitioner, Sh. Anand Kumar Goel.
41. While these applications were pending, Sh. Anand Kumar Goel has died on 12.10.2023. On 29.11.2023, it was observed by this Court that the application under Order 22 Rule 3 CPC to implead the legal heirs of Sh. Anand Kamal Goel had been filed but the was not on record and it was directed that the same be pursued before the registry and the application be brought on record.
42. In the present case, the petitioner himself has died and unless there is an impleadment of legal heirs of the petitioner, the other applications filed on behalf of Smt. Meenakshi Malhotra, the legal heir of respondent No. 4, cannot be decided.
43. Hence, these applications of Smt. Meenakshi Malhotra and Sh. Anand Kamal Goel are kept pending, to be taken up along with the application of the legal heirs of the petitioner, for substitution under Order 22 Rule 3 CPC.
CS(OS) 98/1998
44. List on 24.05.2024 for consideration of pending applications.
TEST.CAS. 17/2005
45. List for consideration of the application (to be numbered/ pending before the Registry), under Order 22 Rule 3 CPC for substitution of the legal heirs of the petitioner, along with I.A. 18405/2022 (u/O I Rule 10 r/w Order XXII Rule 4 & Section 151 of CPC, 1908 by applicant/Meenakshi Malhotra); I.A. 24069/2023 (u/O I Rule 10 r/w Order XXII Rule 3 & Section 151 of CPC, 1908 by applicant/Meenakshi Malhotra) and I.A. 6027/2023 (u/O XXII Rule 9 r/w Section 151 of CPC, 1908 by applicant/petitioner) on 24.05.2024.
(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 29, 2024
RS
CS(OS) 98/1998 & TEST.CAS. 17/2005 Page 1 of 11