BALVINDER KAUR BRAR vs BALDEV SINGH GILL & ORS

2024-02-07 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th February, 2024
+ CS(OS) 1213/2012, I.A. 8052/2014, I.A. 23581/2014, I.A. 7344/2015,
I.A. 9327/2015, I.A. 9380/2015, I.A. 22814/2015, I.A. 8967/2019, I.A. 1652/2020, I.A. 1654/2020, I.A. 1655/2020, I.A. 6507/2022, I.A. 6550/2022, I.A. 6551/2022, I.A. 7628/2022, I.A. 7629/2022, I.A. 10002/2022, I.A. 12904/2022

BALVINDER KAUR BRAR ….. Plaintiff
Through: Mr. Rajat Aneja and Ms. Chandrika Gupta, Advocates.
Versus

BALDEV SINGH GILL & ORS ….. Defendants
Through: Mr. Saurabh Seth and Ms. Neelam Deol, Advocates for D-5.
Mr. Dhiraj Sachdeva, Advocates for LR of D-8.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 12929/2022 (under Section 151 CPC, 1908 filed on behalf of the plaintiff seeking release of 50% of the money deposited with the Registry of this Court)

1. The application under Section 151 of the Code of Civil Procedure, 1908, has been filed on behalf of the plaintiff, for release of 50% of the money lying deposited with the Registry of this Court, as on 15.05.2019 along with the interest that has accrued on the said amount, in terms of the Judgment dated 04.08.2022 of the Division Bench in FAO(OS) No. 9/2020.
2. It is submitted in the application that the plaintiff, who is the sister of defendant No. 1, had filed a suit for Partition, Declaration, Permanent Injunction/Perpetual Injunction and invalidation of Transfer/Sale Deeds executed by the defendants, in favour of the third party. Admittedly, the plaintiff and the defendant No. 1 are the legal heirs of Late Sh. Harpal Singh Gill and Mrs. Dalip Kaur Gill. The plaintiff has asserted that she has 50% share in the entire suit properties, though some have been fraudulently sold/transferred/alienated, by the defendant No. 1 and defendant No. 6 ( son of defendant No. 1). However, some properties have yet not been sold and formed part of coparcenary. It was also claimed by the plaintiff that since the defendant No. 1 has already taken more than 50% of his share in the coparcenary property, he is not entitled to any share in the properties that remain. Rather, she is entitled to be compensated for the excess share taken by the defendant No. 1.
3. During the proceedings, I.A. No. 8070/2012 under Order XL Rule 1 CPC, was filed by the plaintiff for appointment of Receiver as defendant No. 6 had illegally entered upon and harvested crop from the agricultural land and pocketed Rs.10 Lakh.
4. The Collector/Deputy Commissioner of District Sri Muktsar Sahib, Punjab, was appointed as the Receiver vide Order dated 05.05.2015, by this Court in regard to agricultural lands in the revenue estate of Muktsar and Kanniyawali, Sri Muktsar Sahib, Punjab to take charge of the land on which the crop was growing and where the crop was not harvested, invite tenders for the sale of the said crop to obtain the best price. The Deputy Commissioner was authorized to invite tender/bids from the interested persons, to sow the crops and thereafter, harvest them for the purpose of sale through transparent mode i.e. open tender method and to deposit the Sale Deeds in the Court.
5. On 16.04.2019, while considering the application filed on behalf of the defendants for release of money in their favour, the Registry was directed to furnish the report indicating the amount received till date.
6. During the course of hearing on 17.05.2019, the plaintiff on one time basis and on compassionate grounds, considering the medical condition of defendant No. 1, was agreeable to release of the amount deposited with the Registry, in the ratio of 50%, in favour of defendant No. 1, through his son defendant No. 6. The plaintiff has asserted that Order of disbursal of 50% amount was on the concession given by the plaintiff and not in recognition of the right of defendant No. 1 of having a share in the coparcenary properties or the income arising therefrom. However, erroneously in the Order dated 17.05.2019, it was recorded in Paragraph 8 that it is the admitted case of the plaintiff that the defendant No. 1 has 50% share in the said amount and 50% of the amount was directed to be released to defendant No 1, with the direction that release of remaining amount to the plaintiff, shall be considered on the next date of hearing.
7. The plaintiff aggrieved by the said erroneous recording of the submissions in Paragraph 8 of the Order dated 17.05.2019 as well as non-release of balance 50% money to the plaintiff, sought the review of the Order vide Review Petition No. 265/2019, which was dismissed vide Order dated 15.11.2019.
8. The plaintiff then preferred an Appeal being FAO (OS) No. 09/2020, before the Division Bench of this Court. The learned Division Bench vide Judgement dated 04.08.2022, allowed the appeal and set-aside the observations made in Paragraph 8 of the Order dated 17.05.2019, to the extent where it was recorded that it is the admitted case of the plaintiff that the defendant No. 1 is entitled to 50% share in the said amount. The plaintiff was, however, granted liberty to seek an early hearing and also to move an application for release of 50% of the amount, lying deposited in the Registry.
9. The plaintiff has stated that the release of 50% of the amount was only a one time concession on the sole premise of the medical condition of her brother/defendant No. 1, who had suffered from paralytic stroke. The plaintiff had in fact agreed for equal distribution simultaneously.
10. The plaintiff has stated in her application that she believes that the money released to the defendant No. 1 has been squandered by the defendant No. 6, for his own benefit and has not been utilized towards the treatment of defendant No. 1. It is asserted that the defendant No. 1 and plaintiff are the only two surviving coparceners of the entire suit properties. The defendant No. 1 is under the pervasive control of his son/defendant No. 6 and the plaintiff has no update on the actual medical condition of the defendant No. 1.
11. The plaintiff has submitted that she is a senior citizen and has to take care of her financial and medical needs and has no regular income of her own. She has, therefore, sought release of 50% amount lying with the Registry as on 15.05.2019, which is Rs.38,42,204/- along with the accrued interest in her favour.
12. The defendant Nos. 1 and 6 have seriously opposed the application and have stated that the Division Bench in its Order dated 17.05.2019 had given the liberty to the plaintiff to file an application for release of 50% of the deposited amount. The observations made by the Division bench on 04.08.2022 has to be taken in the right perspective and the present application should be decided on merits.
13. In the present application, the plaintiff has failed to plead any right and the basis on which the amount can be released to her. Prima facie she has no right to claim the money that has accrued from the agricultural lands as they stand in the individual names of the father and mother of the plaintiff and the defendant No. 1 and the wife of defendant No. 1. The oral plea of the plaintiff that these suit lands were purchased out of the alleged ancestral and HUF cannot hold could in view of Section 91 and 92 of the Indian Evidence Act, 1872.
14. There is no averment whatsoever of creation of alleged HUF of the father. All the allegations made that the properties are coparcenary properties would arise only if the plaintiff is able to prima facie that there was any HUF ever in existence. It is asserted that the plaintiff is malafidely trying to mislead this Court and somehow usurp all the land and properties of the defendant Nos. 1 and 6, including land and properties which presently stand in their individual names. It is submitted that the present application is without merits and is liable to be dismissed.
15. Submissions heard.
16. Essentially, the claim of the plaintiff for release of the amount which is lying deposited with the Registrar, is premised on the observations made by the Division Bench in its Order dated 04.08.2022, the relevant part of which reads as under:-
11. We are, thus faced with a situation where money has already been released.
11.1. We also conscious of the fact that the Learned Single Judge, for good reasons, released 50% of the amount deposited with this Court in favour of respondent no. 1/defendant no. 1, having regard to his medical condition.
11.2. Thus, we find it difficult, at this stage, to direct disgorgement of the money which has already been released for the medical needs of respondent no. 1/defendant no. 1.
11.3. However, if no direction is issued for the release of money in favour of the appellant/plaintiff, in our view, it would be unfair.

17. The plaintiff has filed a suit for partition claiming the suit property is to be coparcenary property but there is no pleading or fact of there being any HUF that ever existed between the plaintiff and defendant No. 1 with their father. In the absence of their being any pleading of existence of HUF, it would be premature to so assert without the evidence being led and thus, prima facie plea of the plaintiff that the suit property is HUF, cannot be accepted.
18. The defendant No. 1 has further asserted that all the properties of his father have been bequeathed to him by virtue of a Will dated 20.05.2009 and has claimed that the plaintiff is not entitled to any share in the property. It is significant to observe that vide Order dated 17.05.2019, when the money was directed to be released to the defendant, it was not on merits but only on the concession given by the plaintiff, considering the medical condition of the defendant No. 1. Also, there was no prayer made by the plaintiff for disbursement of the balance of 50% in her favour. There are disputed facts about the plaintiff having any right title in the coparcenary property.
19. This also finds mention in the Order dated 04.08.2022 of the Division Bench, wherein it has been observed that the order was only based on the concession and not on the merits of the case. It was also observed that the rights of the parties need to be preserved, till the trial is completed. Though, it was observed that a situation has arisen where 50% of the deposited amount has been released to the defendant. But the merits of the case qua the rights in respect of the agriculture land, which is the source of the funds deposited with the Registry of the Court, would require a finding to be returned. It was also observed that it was difficult to direct disgorgement of the money already released for the medical needs of defendant No. 1. No doubt the Division Bench observed that not releasing the money in favour of the plaintiff in the scenario where 50% amount had been released to the defendant no.1, it would be unfair. However, these observations are circumscribed by the observations of the Division Bench that the merits of the case would be required to be considered before release of money in favour of the plaintiff.
20. Thus, conscious of the fact that money has been released to the defendant No. 1 on the statement of the plaintiff but it cannot be overlooked that the defendant No. 1 is the brother of the plaintiff, who is claiming a right to the entire properties by virtue of a Will. In case the Will is found to be genuine, the plaintiff would not be entitled to any share in the suit properties.
21. So being the case, it would be pre-mature to direct the release of the money lying with the Registry, at this stage, without adjudicating the rights of the parties on merit. Therefore, the application filed by the plaintiff for release of money in her favour, is pre-mature and cannot be decided, at this stage.
22. The application is accordingly disposed of.

I.A. 16091/2022 (under Section 151 CPC filed on behalf of the plaintiff)
23. The application under Section 151 CPC, has been filed on behalf of the plaintiff for directing the defendant Nos. 1 and 6, to deposit the sum of Rs.21,96,468/-, that has been released to them, pursuant to the Order dated 17.05.2019 of this Court.
24. It is submitted in the application that the suit properties are coparcenary properties, in which the plaintiff has become entitled to a share on the demise of her father Late Sh. Harpal Singh Gill. She has also sought declaration of the Sale Deeds, executed by the defendant No. 1, in favour of his son, as null and void, having been executed fraudulently.
25. The Division Bench in its Order dated 04.08.2022 in FAO (OS) 9/2020 directed the plaintiff to move an application for release of balance amount from the Registry. Accordingly, she has moved a separate I.A. No. 12929/2022. It is submitted that the defendant No. 6 has misused the amount released vide Order dated 17.05.2019, in favour of the defendant No. 1 and has not been used for the care of defendant No. 1. The defendant No. 6 has mis-utilized the money for filing a frivolous Suit bearing No. 459/2019, seeking Damages from the plaintiff on account of defamation, before the learned Civil Judge, Senior Division, Muktsar Punjab.
26. It is claimed that another application being I.A. 1652/2020, has been filed by the plaintiff to direct the defendant No. 6 to produce documentary evidence with respect to utilization of sum of Rs.21,96,468/-, that was released in his favour. It is, therefore, submitted that there is a strong apprehension of money having been not utilized for the benefit of defendant No. 1. Hence a prayer is made to direct defendant Nos. 1 and 6, to deposit back a sum of Rs.21,96,468/-, before this Court and the amount be kept in a FDR.
27. No reply has been filed to the present application.
28. Submissions heard.
29. It may be observed that the plaintiff has claimed a share in the properties on the premise of the properties being HUF for which prima facie there are no specific details in the plaint. The money had been released on account of the medical condition of the defendant no.6. The Division Bench has also observed that Thus, we find it difficult, at this stage, to direct disgorgement of the money which has already been released for the medical needs of respondent no. 1/defendant no. 1. Once the money has been released for medical treatment of defendant no.1 on the concession of the plaintiff who was also conscious of the medical condition of her brother, his litigation cannot be converted into a tool of vindictiveness. The corpus of money which the plaintiff is seeking to be released to her, is preserved and its release has merely been deferred till the adjudication of the case on merits. The application does not have any merit and is hereby dismissed.

I.A. 900/2019 (under Section 151 CPC filed on behalf of the defendant No. 6 for seeking modification of interim status quo orders)

30. The present application under Section 151 CPC, has been filed on behalf of the defendant No. 6 seeking modification of this status quo order dated 28.03.2014, 12.05.2014 and 05.05.2015, to the extent of the properties, which are individual properties of defendant No. 6. The defendant No. 6 has made the following prayers:-

It is therefore, most respectfully prayed that in view of the above facts and circumstances, this Hon’ble Court may be pleased to:-

(a) Modify interim status quo orders dated 28.03.2014 and 12.05.2014 and order dated 05.05.2015, whereby a Receiver was appointed to the extent that the following property/lands, which are the individual and self owned lands/property of defendant no.6 be released from their scope and ambit and defendant no. 6 is allowed to utilize/cultivate/gave on rent the following lands/property, subject to final orders of this Hon’ble Court:-
(i) Land admeasuring 6 Kanal and 10 Maria in village Kanniyawali stands registered and mutated in the exclusive name of defendant no. 6 (transferred by way of a registered gift deed by defendant no. 1 as General Power of Attorney Holder of defendant no. 2) (as described in prayer IX (viii) of the prayer clause in the plaint)

(ii) 5 Acres of land out of the total 10 acres land approx from Khewat 1360 Khatoni 1972 in Distt. Muketsar-III, Punjab. (Land bequeathed to defendant no. 6 by way of Will dated 20.05.2009 of Late Shri Harpal Singh Gill)

(iii) Land admeasuring 9 Kanal 19 Marias or 1.25 Acre comprised in Khewat No. 1484 Khatoni No. 2167 situated in the revenue estate of Muktsar-III, Punjab. (Land bequeathed to defendant no. 6 by way of Will dated 20.05.2009 of Late Shri Harpal Singh Gill)
(iv) 1/3rd share, i.e. 4 ½ acres land out of the total land admeasuring 14 acres or 113 Kanal 18 Marla in Khewat 325/282/325, Khatoni 553, 555 in Village Kannyawali, Distt. Sri Muktsar, Punjab. (Land bequeathed to defendant no. 6 by way of Will dated 20.05.2009 of Late Shri Harpal Singh Gill) (as described in prayer IX (vii) of the prayer clause in the plaint)

(v) 1/2 (half) share in office 221, Kirti Shikhar Building Distt. Centre, Janak Puri, New Delhi. (Property bequeathed to defendant no. 6 by way of Will dated 20.05.2009 of Late Shri Harpal Singh Gill)

(b) Release the total amount received from the cultivation of crop of the said agricultural land, deposited by the Receiver with the Registrar General of Delhi High Court, as per order dated 05.05.2015, to defendant no. 6/applicant.
Any other order/direction which this Hon’ble Court may deem fit and proper to be passed in the given facts and circumstances of the case.

31. The plaintiff by way of her suit has not only challenged the Sale Deeds but also claimed that these are HUF properties, in which she has 50% share. Till such time, the issues raised in the present suit are disposed of, which is essentially for preservation the suit properties which are subject matter of the present suit, at this stage, the status quo orders as granted vide Orders dated 28.03.2014, 12.05.2014 and 05.05.2015, cannot be modified or vacated, at this stage.
32. The application is without merit and is hereby dismissed.

CS(OS) 1213/2012, I.A. 8052/2014, I.A. 23581/2014, I.A. 7344/2015, I.A. 9327/2015, I.A. 9380/2015, I.A. 22814/2015, I.A. 8967/2019, I.A. 1652/2020, I.A. 1654/2020, I.A. 1655/2020, I.A. 6507/2022, I.A. 6550/2022, I.A. 6551/2022, I.A. 7628/2022, I.A. 7629/2022, I.A. 10002/2022, I.A. 12904/2022
33. List on 30.05.2024.
(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 07, 2024
RS/JN

CS(OS) 1213/2012 Page 11 of 11