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DEEPIKA PRASHAR & ANR vs SUMAN SINGH VIRK AND ANR

Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30.07.2024
Pronounced on:04.10.2024

+ CS(OS) 71/2015
DEEPIKA PRASHAR & ANR …..Plaintiffs
Through: Mr.Sanjay Gupta, Mr.Ateev Mathur, Mr.Rajnish Gaur & Mr.Amol Sharma, Advs.

versus

SUMAN SINGH VIRK AND ANR …..Defendants
Through: Mr.Manish Kumar, Mr.Piyush Kaushik, Ms.Aparajita Jha & Mr.Ashwani Tyagi, Advs.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
J U D G M E N T
1. This suit has been filed by the plaintiffs seeking partition of the property bearing no. L-1/8, South Extension Part-II, New Delhi- 110049 (hereinafter referred to as the ‘suit property’) in accordance with the terms of the Family Settlement dated 27.11.2012. The plaintiffs also seek possession of the portion of the fourth floor of the suit property, and also claim damages of Rs.3,00,000/- along with interest @ 24% per annum from the date of filing of the suit till the actual date of payment, and also damages of Rs.10,000/- per day along with interest @ 24% per annum from the date of institution of the suit till the date of actual handing over of the possession of the fourth floor of the suit property, from the defendants.

Case of the Plaintiffs:
2. It is the case of the plaintiffs that originally, the suit property was jointly owned by Mr.Nidhish Prashar, the husband of the plaintiff no.l and father of the minor plaintiff no.2 (now major), along with his mother, namely, Smt.Santosh Prashar. Smt.Santosh Prashar passed away on 28.03.2011, and was survived by her son, Mr.Nidhish Prashar, and her two daughters, who are the defendants in the present Suit.
3. It is also stated by the plaintiffs that Mr.Nidhish Prashar was suffering from a condition called retinitis pigmentosa, which had virtually rendered him blind. Therefore, he was confined to his house and was looked after by his wife, the plaintiff no.1.
4. The plaintiffs claim that upon the death of Smt.Santosh Prashar, her two daughters, the defendant nos. 1 and 2, propounded a Will dated 26.07.2005 of Smt.Santosh Prashar, alleging that as per the said Will, the 50% share of Smt.Santosh Prashar in the suit property was bequeathed by her in favour of both the defendants.
5. The plaintiffs claim that the legality and validity of the said Will was questioned by Mr.Nidhish Prashar, alleging that it was surrounded by suspicious circumstances and was not genuine, and that the defendants had taken advantage of Smt.Santosh Prashar’s neurological problem, and it was always the desire of Smt.Santosh Prashar that her son should inherit her share in the suit property.
6. The plaintiffs claim that, however, Mr.Nidhish Prashar, due to his ailment and limitation, agreed to resolve the matter amicably with the defendants and, therefore, gave due recognition to the aforesaid Will. Accordingly, a Family Settlement dated 27.11.2012 (Ex.P/DW-1/8) was executed between Mr.Nidhish Prashar and the defendants, whereby it was agreed that the suit property will be demolished and constructed afresh through a builder, who was to be jointly appointed by Mr.Nidhish Prashar and the defendants. It was further agreed in the aforesaid Family Settlement that the parties will not interfere in the peaceful enjoyment of the use and occupation of each other’s portions on ownership basis. By the aforesaid Family Settlement, Mr.Nidhish Prashar and the defendants got their shares demarcated/determined in the suit property as under:
Roof above Fourth Floor
Two Servant Rooms for use
and occupation of Second
Party, Nidhish Prashar
Fourth Floor
For use and occupation of
Nidhish Prashar
Third Floor
For use and occupation of
builder or his nominee
Second Floor
For use and occupation of
Nidhish Prashar
First Floor
For use and occupation of Smt.
Suman Singh and Smt. Sushma
Choudhary (jointly)
Ground Floor
* For parking use by all parties
* One Servant Room for First Party (Sisters)
* One Servant Room for builder or his nominee

7. The plaintiffs claim that at the time of the execution of the said Family Settlement, the defendants were not in possession of any portion of the suit property.
8. It is further claimed that in accordance with the aforesaid Family Settlement, Mr.Nidhish Prashar and the defendants appointed Mr.Tavinder Singh and Mr.Inder Mohan Thappar as the builders to carry out the construction work in the suit property. The plaintiffs claim that a copy of the Family Settlement was shared with the builders.
9. The plaintiffs claim that after negotiating with the Builders, a Memorandum of Understanding dated 04.12.2012 (hereinafter referred to as “MOU”) (Ex.P-DW1/1) was executed between Mr.Nidhish Prashar and the defendants on one side, and the builders on the other side, for the fresh construction of the suit property. As per the terms and conditions of the MOU, the existing structure on the suit property was to be demolished completely, and a new building consisting of a stilt (comprising of 4 car parking spaces), ground floor, first floor, second floor and third floor with terrace, was to be constructed. The plaintiffs further claim that since a copy of the Family Settlement was shared with the builders, they were aware of the inter se family arrangement between Mr.Nidhish Prashar and the defendants.
10. It is asserted by the plaintiffs that there was a difference in the way the freshly constructed floors of the suit property were referred to in the Family Settlement dated 27.11.2012 and the MOU dated 04.12.2012. While the Family Settlement finds mention of the ground floor, first floor, second floor, third floor and fourth floor with roof/terrace, the MOU records the corresponding floors as stilt, ground floor, first floor, second floor and third floor with terrace.
11. The plaintiffs state that as per the MOU, and in lieu of developing the suit property, the builders were entitled to the exclusive ownership, usage and possession rights with respect to the second floor (as described in the MOU, which is the third floor as described in the Family Settlement) of the suit property.
12. The plaintiffs submit that Mr.Nidhish Prashar passed away on 13.06.2014. However, before his death, the builders had handed over the second floor (as per the Family Settlement or the First Floor as per the MOU) of the suit property, to Mr.Nidhish Prashar, pending the completion of the other floors.
13. The plaintiffs also claim that sometime in November 2014, the plaintiff no.1 was approached by the builders, who informed her that the plaintiffs would be the owner of 50% of the suit property as she would be the owner of two floors, that are, the second floor and fourth floor of the suit property (as per the Family Settlement). The plaintiff no.1 claims that accordingly, the builders asked her to sign a Declaration of Ownership, which was duly signed by her and registered at the instance of the builders with the Sub Registrar VA, New Delhi on 15.11.2014 (Ex.P-DW1/3).
14. The plaintiffs further claim that after substantial construction of the suit property in terms of the MOU, the plaintiff no.1 and the defendants executed a Registered Sale Deed dated 29.11.2014 in favour of the builders for the third floor (as per the Family Settlement) of the suit property.
15. The plaintiffs also claim that the Builders gave a sum of Rs. 7.50 lakhs to each of the defendants as an interest free refundable security for the due performance of the MOU, which was to be returned by the defendants to the Builders at the time the Builders hand over the possession of the newly constructed property, except the portion which fell in the share of the Builders, to Mr.Nidhish Prashar and the defendants. The plaintiff no.1 asserts that she never received any amount in her name from the builders, either by way of cheque or cash, inasmuch as all accounts pertaining to the suit property between the builders and the husband of the plaintiff no.1 were settled during the lifetime of the husband of the plaintiff no.1.
16. The plaintiffs claim that at the time of the execution of the aforesaid Sale Deed, the plaintiff no.1 requested the builders to hand over the possession of the fourth floor and the roof (as per the Family Settlement) of the suit property to the plaintiffs. However, the same was refused by the builders on the pretext that pursuant to the MOU, they are entitled for a refund of Rs. 15,00,000/-, the interest free refundable security for the performance of the MOU which was given by them to the defendants, and till the refund is made, they will not handover the possession of the remaining floors.
17. The plaintiffs claim that on 02.12.2014, the builders came to the residence of the plaintiff no.1 and informed her that they have received the refund of Rs.15,00,000/- from the defendants. Further, they offered to the plaintiffs the possession of the fourth floor and the terrace (as per the Family Settlement) of the suit property. The builders also informed the plaintiffs that they have already handed over the possession of the first floor (as per the Family Settlement) of the suit property to the defendants. The builders asked the plaintiff no.1 to sign a possession letter dated 01.12.2014 saying she has received the keys of the fourth floor and the terrace, which was signed by the plaintiff no.1 (Ex.P/DW1/5). The plaintiffs claim that the possession letter was also signed by the defendants and recorded that the builders have completed the work in the suit property and nothing remains. The plaintiff no.1 claims that she asked the builders to provide her with a copy of the possession letter.
18. It is further claimed by the plaintiffs that while the construction of the suit property was in progress, the plaintiff no.1 had kept various household items like a sofa set, air conditioner, refrigerator and dining table set in various portions of the fourth floor, and also a cooler, big bed box, trunk, geyser and utensil rack in the servant room on the terrace. It is also claimed that the plaintiff no.1 got the back grills for the shaft of the fourth floor installed at her own cost and expense. Meanwhile, the plaintiffs were themselves residing on the second floor (as per the Family Settlement).
19. The plaintiffs claim that on 02.12.2014, after receiving the keys of the fourth floor and after the builders left, the plaintiff no.1 went to the fourth floor (as per the Family Settlement) only to find that the name plate of the defendant no.2 was on the door. Upon opening the door with the key provided by the builder, the plaintiff no.1 found that there were two unknown persons sitting in the dining area of the fourth floor. Subsequently, the plaintiff no.1 called the police. Upon the arrival of the police, the aforesaid two persons claimed to be the representatives of the defendant no.1, who also arrived on the spot shortly thereafter, and claimed that the defendants are in joint possession of the fourth floor along with the plaintiffs.
20. The plaintiffs claim that soon after, an Investigating Officer from Haus Khas Police Station arrived at the spot. Upon making enquiries with the defendant no.2, he was informed that she is in joint possession of the fourth floor along with plaintiffs, and that two rooms have been locked by her on the fourth floor as they are in her exclusive possession, whereas the room adjoining to the drawing room (front room) is in exclusive possession of the plaintiff no.1. Upon being confronted with the Family Settlement by the Investigating Officer, the defendant no. 1 stated that the same has lost its validity after the death of Mr.Nidhish Prashar.
21. The plaintiffs claim that immediately after this incident of 02.12.2014, the plaintiffs issued a notice dated 04.12.2014 to the defendants as well as the builders (Ex.P-DW1/9). By the said notice, it was communicated to the defendants that if they failed to deliver the vacant and peaceful possession of the unauthorizedly occupied portion of the fourth floor to the plaintiffs, they will become liable to pay an amount of Rs. 10,000/- per day from 02.12.2014 till the actual date of delivery of possession. Instead of complying with the said notice, the defendant no. 1 sent a reply dated 10.12.2014 (Ex.P-DW1/10), alleging therein that the Family Settlement dated 27.11.2012 was never executed.
22. The plaintiffs claim that the said reply proves that the defendants were not prepared to handover the vacant and peaceful possession of the fourth floor and that defendant no.1 is refusing to honour the terms of the Family Settlement. The plaintiffs claim that no reply was sent by the defendant no.2 to the said notice.
23. The plaintiffs claim that the builders, in response to the notice, stated that they do not want to get entangled in the inter se fight between the parties and that the implementation of the Family Settlement is between the plaintiffs and defendants. The builders provided a copy of the Possession Letter dated 01.12.2014 signed by the plaintiff no.1 and defendants. The builders further stated that they have handed over the possession of the fourth floor and that the defendants insisted for the possession of the same by stating that they will not refund Rs. 15,00,000/- security unless the builders handover the possession of the fourth floor to them. They also informed the plaintiffs that the defendants made a written communication by way of an Affidavit dated 25.07.2014 to the builder seeking possession of a portion of Fourth Floor (Ex.P-DW1/2), and provided a copy of the same to the plaintiff no. 1.
24. The plaintiffs claim that despite the Family Settlement clearly demarcating the shares of the plaintiffs and the defendants in the suit property, the defendants have nonetheless trespassed on the fourth floor of the suit property and have illegally and unauthorisedly deprived the plaintiffs of the complete possession of the said floor, thereby causing harassment and nuisance to the plaintiffs. Hence the Suit.

Case of the Defendants:
25. The defendants, in their respective written statements, have alleged that there is no cause of action against the defendants as the alleged Family Settlement dated 27.11.2012, upon which the plaintiffs have based their entire case, is a forged and manipulated document executed at a later point in time by the plaintiffs. It is also stated by the defendants that even otherwise, the alleged Family Settlement is inadmissible in evidence as the same is an unregistered and under stamped document.
26. The defendants claim that their mother, Smt.Santosh Prashar, passed away on 28.03.2011, leaving behind her Will dated 26.07.2005, bequeathing her 50% undivided share in the property bearing No.L-1/8, South Extension Part II, New Delhi-110049 in favour of both the defendants in equal share. The defendants claim that the legality and validity of the said Will was never questioned by their brother, Mr.Nidhish Prashar, and that Mr.Nidhish Prashar had willingly accepted the said Will to be genuine and correct, and that he was not under any pressure from the defendants to do so. The defendants claim that their mother was in a sound state of mind at the time of the execution of the said Will, and that it was her wish and discretion to bequeath her share in favour of her daughters.
27. The defendants further claim that the terms contained in the alleged Family Settlement were never negotiated by Mr.Nidhish Prashar with his sisters and nor was the plaintiff no.1 ever present at the time of execution of the alleged Family Settlement. They state that as Mr.Nidhish Prashar had willingly accepted the Will of Smt.Santosh Prashar, the need to execute a Family Settlement never arose, nor does such a Family Settlement exist.
28. It is their case that shares of the parties in the suit property were never demarcated in terms of the Family Settlement and consequently, the plaintiffs are not entitled to seek possession of or damages with respect to the fourth floor of the suit property.
29. The defendants further claim that a copy of the alleged Family Settlement was not shared with the builders at the time of negotiating the MOU, as such a Family Settlement does not exist. It is their case that the MOU dated 04.12.2012 is the only agreement executed between the parties for the undivided half share of Mr. Nidhish Prashar and for the remaining undivided half share held jointly by the two defendants in the suit property, and as per the terms of the same, a fourth floor in the suit property does not even exist.
30. The defendants claim that the plaintiffs have executed the alleged Family Settlement at a later point in time and the same is evident from the fact that the alleged Family Settlement is nowhere referred to in the MOU.
31. The defendants state that the possession of the first floor (as per the MOU) was handed over by the builders to Mr.Nidhish Prashar and the defendants in April, 2013. Further, the possession of the second floor (as per the MOU) was to remain with the builders. The defendants deny that the plaintiff no.1 had kept any household items in any room of the fourth floor or the terrace while the construction was in progress or that the plaintiff no.1 got the back grill of the fourth floor installed at her expense during the period of construction of the fourth floor.
32. The defendants claim that the alleged Declaration of Ownership signed by the plaintiff no.1 at the behest of the builders in November, 2014, after the death of her husband, Mr.Nidhish Prashar, was not executed with the knowledge of the defendants and has been executed by the plaintiff no.1 with oblique motives, and has no effect on the rights of the defendants.
33. The defendants claim that as per the terms of the MOU, a Sale Deed dated 29.11.2014 was executed in favour of one of the builders, Mr.Tavinder Singh, with respect to the second floor (as per the MOU) of the suit property.
34. It is further claimed by the defendants that the builders handed over the possession of the ground floor and the third floor (as per the MOU) of the suit property to the plaintiff no.1 and defendants jointly, whereafter, it was agreed between the parties that the plaintiff no.1 shall remain in exclusive possession of the first floor, and the exclusive possession of the ground floor was given jointly to the defendants. The defendants claim that as for the third floor, it was agreed that one room along with the dining was to remain in exclusive possession of the plaintiff no.1, and the remaining two rooms were to remain in the exclusive possession of the defendants, while the kitchen was to be used commonly. They claim that, accordingly, a nameplate of the defendants was also affixed on the third floor.
35. They submit that a possession letter was executed between the builders, the plaintiff no.1, and the defendants, which was signed by the defendants on 01.12.2014 and by the plaintiff no.1 on 02.12.2014.
36. The defendants claim that they are in lawful possession of the suit property, being the co-owners of the same, and deny causing any trespass, nuisance, or damage to the plaintiffs.

Proceedings in the Suit:
37. As the defendants had claimed that the Family Settlement dated 27.11.2012 is forged and fabricated, while hearing the submissions on the issues to be framed in the Suit, a predecessor Bench of this Court enquired from the defendants whether the signatures found on the Family Settlement are theirs or not. The learned counsel appearing for the defendants apprised the Court that the defendants are not denying their signatures on the document but are denying the document. The relevant quotation from the Order dated 19.07.2016 of this Court is as under:
“2. The plaintiffs in the suit have inter alia referred to a Family Settlement/Agreement of November, 2012 purported to be signed by both the defendants. Mr. Piyush Kaushik, Advocate (Enrolment No.D/2565/2011) acting on behalf of the defendants has denied the signatures of the defendants on the said document.

3. I have asked the counsel on what basis he has denied the signatures.

4. He states that he has denied the same under instructions from the defendants.

5. On enquiry whether he had shown the signatures thereon to the defendants and whether he is willing to on behalf of the defendants take the consequences of the denial of signatures if the signatures are ultimately found to be the defendants, he states that he is not and rather, that he has not denied the signatures but the document.

6. The same demonstrates the casual attitude with which the important stage in the suit of admission/denial of documents is treated. The counsels, if choose to take the onerous task on themselves, ought to be ready to face the consequences.”

38. On 20.07.2016, the defendants appeared before this Court and admitted their signatures on the Family Settlement. This Court observed that as the defendants, in their written statement, have falsely denied the said document and have not explained in what circumstances their signatures appeared on the said document without their having executed the same, an offence within the meaning of Section 340 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) appears to have been committed by the defendants. A show cause notice was, accordingly, issued to the defendants as to why prosecution should not be launched against them. The relevant quotation from the said order is as under:
“1. In pursuance to yesterday’s order the defendants no.l&2 Smt. Suman Singh Virk and Ms. Sushma Chaudhary are present in Court and their statements have been separately recorded and in which they have admitted their signatures on the document titled ‘Family Settlement / Agreement’ original whereof lying in sealed cover has been called from the Registry. Need to ask them any further question has not arisen since the said defendants in their written statements have falsely denied the said document and have not explained in what circumstance their signature appear on the document without their executing the same.
xxxxxx

3. The aforesaid shows an offence within the meaning of Section 340 of the Cr.P.C. to have been committed by the defendants in relation to the said proceedings.”

39. At this stage, the defendant nos.1 and 2 filed applications under Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short, ‘CPC’), being I.A.9140/2016 and I.A.9139/2016 respectively, now seeking to contend that the said document of Family Settlement is invalid and seems to have been prepared by the plaintiff no.1 and her husband at the time of execution of the MOU dated 04.12.2012. They further sought to contend that it was Mr.Nidhish Prashar who wanted to redevelop the suit property and had identified the builders for the redevelopment of the suit property, and once the defendants agreed to the same, the plaintiff no.1 and Mr.Nidhish Prashar got various documents signed from the defendants on 04.12.2012. They further sought to contend that as the relations between the defendants and the plaintiff no.1’s husband were very cordial, they had no reason, at any point in time, to have doubted the actions of either Mr.Nidhish Prashar or the plaintiff no.1 and therefore, signed the documents placed before them blindly without reading the contents thereof.
40. This Court, by its Order dated 04.08.2016, directed filing of a complaint under Section 340 of the Cr.P.C. against the defendants. The Court in the said order had observed as under:
“14. I have enquired from the counsel for the defendants, whether the defendants in their written statement also have pleaded that though the signatures on the Family Settlement / Agreement are theirs and / or pleaded the circumstances in which their signatures were obtained thereon.

15. The counsel for the defendants fairly states that in the written statement as existing it was not the case of the defendants that the signatures had been obtained in the circumstances as stated in the affidavit aforesaid and it is for this reason only that the applications aforesaid for amendment of the written statement have been filed.

16. The counsel for the defendants on specific query has also stated i) that the denial by the advocate for the defendants of the document was in terms of the express instructions of the defendants; ii) that the defendants admit that the signatures on the Family Settlement / Agreement are of the defendants.

17. It is further the contention of the counsel for the defendants i) that the aforesaid Family Settlement / Agreement was superceded by subsequent documents; ii) that the aforesaid Family Settlement / Agreement was not acted upon.

18. The counsel for the defendants again, on enquiry responds that in the written statement as existing, it is not the case of the defendants that the Family Settlement / Agreement though executed stood superceded or was not acted upon.
xxxxxx

25. The defendants, by practicing falsehood on oath in the written statement and at the stage of admission / denial have sought to push the onus to prove the document on the plaintiffs and attempted to take a chance that in the event of the plaintiffs failing in proving the document which in fact has been signed by them, they will benefit therefrom. The pleas now sought to be taken by the defendants are an afterthought.
xxxxxx

28. In the facts aforesaid, I am also of the view that this Court need not wait till the end of the trial to defer filing of a complaint against the defendants of the offence which appears to have been committed by them. The defendants appear to have made false declaration and statement in the written statement in denying the Family Settlement / Agreement knowing that the signatures thereon were of the defendants. The defendants are also found to have fraudulently and dishonestly and with an intent to injure the plaintiffs made a claim which they knew to be false.”

41. Aggrieved of the above order, the defendants challenged the same by way of an appeal, being FAO (OS) 273/2016.
42. By an Order dated 13.09.2018, the Division Bench of this Court opined that since the trial in the Suit has been prolonged, it would be in the interest of the parties that the agreed issues are framed. As far as the abovementioned amendment applications filed by the defendants are concerned, they were not pressed by the defendants and were withdrawn in light of the issues that were framed by the Division Bench of this Court vide its Order dated 13.09.2018 passed in FAO (OS) 273/2016. The Court further framed the following agreed issues:
“(i) Whether the plaintiffs are entitled for a decree of partition in terms of family settlement dated 27.11.2012 in respect of suit property? (OPP)
(ii) Whether the family settlement dated 27.11.2012 is not binding and not acted upon by the parties? (OPD)
(iii) Whether the plaintiffs are entitled for a decree of possession for the portion of 4th floor in the suit property? (OPP)
(iv)Whether the plaintiffs are entitled for reliefs prayed for in paras (c) and (d) of the plaint? (OPP)
(v) Reliefs. ”

43. The Division Bench, considering the issues that were framed, directed the defendants to lead their evidence first.
44. As far as the proceedings under Section 340 of the Cr.P.C. are concerned, the Division Bench, by its above order, directed that the Impugned Order dated 04.08.2016 shall be kept in abeyance and shall be subject to the final decision in the suit.

Evidence of the Parties:
45. The plaintiff no.1 examined herself as PW1. She filed her evidence by way of affidavit (Ex.PW-1/1), basically reiterating the contents of the plaint and placing reliance on the Family Settlement dated 27.11.2012. She further explained that as the plaintiffs were having no other immovable property, and keeping in view the ailing health of Mr.Nidhish Prashar, it had been decided between Mr.Nidhish Prashar and the defendants that Mr.Nidhish Prashar’s family can stay in one floor of the suit property and can have rental income from the other floor. She stated that the Family Settlement was executed with this intention.
46. In her cross-examination, pertinently, she was asked only the following with respect to the Family Settlement:
“It is correct that Mr. Nidhish Prashar was diagnosed as fully blind in the year 2011. I do not remember whether the defendants met the plaintiff on 27th November, 2012.
Q. Who all were present when the documents dated 27th November, 2012 (Ex.P/DW-1/8) was executed?
A. I, along with my husband, the defendants no.1 and 2 along with the defendant no.2’s son were present.

It is wrong to suggest that there was no family settlement on 27th November, 2012. It is wrong to suggest that my husband, late Sh. Nidish Prashar, was not aware of the terms of the family settlement.
Volunteered: He only dictated the terms of the said settlement.

Q. In para 12 of your affidavit of evidence, you wrongly stated that you had read the contents of the family settlement dated 27th November, 2012 to Mr. Nidhish Prashar.
A. Contents of para 12 are correct. Document speaks for itself.

The builder was identified by me and my husband late Sh. Nidhish Prashar.

A copy of the agreement dated 27th November, 2012 was given to the builder. I do not have any acknowledgement from the builder for the same.
It is correct that the MoU dated 4th December, 2012 does not make a reference for the family settlement dated 27th November, 2012.”

47. The defendant no.1 examined herself as DW1, and filed her evidence by way of affidavit (Ex.DW-1/A). As far as the Family Settlement is concerned, in her evidence by way of affidavit, the defendant no.1 stated as under:
“15. I say that as the deponent and her sister did not succumb to the unreasonable demands of the Plaintiff, the present suit was filed. It is in the present proceedings first time a purported family settlement dated 27.11.2012 had surfaced, which was not in deponent’s knowledge till the filing of the present proceedings. As the deponent and her sister had signed several documents at the time of development of the property, it appears that at that point of time this document may have been obtained by Plaintiff No.1 and deponent’s brother with whom the deponent had very cordial relations and deponent had blindly trusted him. Family Settlement is marked as Mark P/DW1/A. The said document is purportedly executed on a stamp paper allegedly recording the stamp paper purchased by the deponent, whereas no stamp paper was ever purchased by the deponent. The deponent on having enquired about the process regarding purchase of stamp paper from several vendors has been informed that no register is maintained towards sale of stamp paper, and anyone can by visiting the counter of any stamp vendors can get stamp paper purchased in anyone’s name.

16. I say that a copy of this agreement was never shared with the deponent in the past, accordingly, the deponent say that the document in question was never in the knowledge of the deponent and the signatures of the deponent on several document being obtained by Plaintiff No.1 and her husband, this document dated 27.11.2012 got signed by the deponent on the pretext of development agreement, which deponent was never aware of nor had the deponent knowledge of the same. It is on this basis the deponent has taken stand in the suit that the document dated 27.11.2012 is a forged and fabricated document and thus does not bind the deponent.

17. I say that the aforesaid fact is substantiated from the purported family settlement itself, as the said document bears signatures with the date of 04.12.2012. This shows that the said document was never executed on 27.11.2012.

18. I say that the alleged Family Settlement dated 27.11.2012 does not find any mention in any of the documents executed by and/or between the parties after 27.11.2012, namely:

S.No.
PARTICULARS
1.
Developer Agreement/MOU dated 04.12.2012
2.
Affidavit dated 25.07.2014
3.
Declaration of Ownership dated 14.11.2014, duly registered
4.
Declaration of ownership dated 26.11.2014, duly registered
5.
Sale Deed dated 28.11.2014
6.
Possession Letter dated 01.12.2014

19. I say that the alleged Family Settlement dated 27.11.2012 is an unstamped and un-registered document and has not been acted upon and is not binding on the parties.”

48. The defendant no.1, in her cross-examination, admitted that before the property was rebuilt, the complete possession of the suit property was with the husband of the plaintiff no.1 and that the defendants were not in possession thereof. She also admitted that the Family Settlement (Ex.P/DW-1/8) has also been signed by her son-Mr.Jaiveer Virk. She admitted her signatures on the Family Settlement. She also stated as under:
“Q. Can you explain why the builder handed over possession of the first floor of the building to you and not any other floor?
Ans. Because my brother said that you two sisters take the first floor and that he will take top floor. Again said he said that he will decide whether he will take middle floor or the top floor.

It is incorrect to suggest that I and my sister were given first floor by the builder in accordance with the terms contained in family settlement Ex.P/DW-1/8. (Vol. I am not aware of any family settlement).”

49. Interestingly, on the next day of her evidence, she sought to cast a doubt on whether the Family Settlement was signed by her son, by stating as under:
“Q. Yesterday on the photocopy of Ex. P/DW-1/8 you have admitted the signatures of your son Mr. Jaiveer Virk which were marked as X-2. The witness is now confronted with the original of Ex. P/DW-1/8 and is again confronted with the signatures of Mr. Jaiveer Virk and is asked if the signatures are of Mr. Jaiveer Virk?
Ans. I cannot identify the strokes of the signature as I am not an expert on reading signatures.”

50. The defendant no.2 examined herself as DW2, and filed her evidence by way of affidavit (Ex.DW-2/A). However, in the proceedings dated 29.11.2018 conducted by the learned Local Commissioner appointed by the Division Bench vide Order dated 13.09.2018 for recording of the evidence of the parties, she stated that she has signed the affidavit on asking and that the signatures be not shown to her as it is difficult for her to read and recognise. The learned counsels for the parties then sought time from the learned Local Commissioner to examine whether the defendant no.2 should be examined-in-chief before the learned Local Commissioner.
51. In the Order dated 06.12.2018 of this Court, it was recorded that the examination-in-chief of the DW2, that is, the defendant no.2, shall be orally recorded before the learned Local Commissioner. In accordance with the said direction, the learned Local Commissioner proceeded to record the examination-in-chief of the DW2, that is, the defendant no.2. In her examination-in-chief, she merely stated as under:
“My grandfather had property in South Extension, Part-II, L-1/8, he had willed 50% of the said property to my mother Mrs. Santosh Prashar and she had willed her 50% to me and my sister her part of the property. When my brother was alive he had brought a builder/developer to develop the property and willingly agreed to give our 50% share in the property. Then he passed away then the property was almost developed and now we should get our 50% share in the property.

The day the builder agreement happened we were made to sign umpteen papers with the understanding that 50% share is ours. I have nothing else to say.”

52. The defendant no.2, in her cross-examination, further stated as under:
“Q. I put it to you that the keys of First Floor were handed over to you and to your sister and it was agreed amongst you, your sister and brother that you alongwith your sister will be getting possession of First Floor and one servant room on the Ground Floor(stilt area).
Ans. It is incorrect.

Q. I put it you that you signed all the papers as deposed by you in your examination in chief after reading and understanding the contents thereof?
Ans. The papers were kept in front of me and I was asked to sign at various places. I have legibility issue. Because we had complete love and trust for our brother and due to the trust we signed all the papers.

Q. Is it correct that when you signed the documents you could read?
Ans. No.

Q. Will you know that in the present case, a Written Statement has been filed by you?
Ans. Yes I have filed the reply again said I think I must have done that. Vol. My sister would have asked me to sign at a particular place after explaining to me the contents of the document which were signed by me.

Q. I put it to you that you are lying and you could read at the time when the documents were signed and also when you file the Written Statement?
Ans. It is incorrect.”

Submissions of the learned counsel for the plaintiffs:
53. The learned counsel for the plaintiffs submits that the alleged Will dated 26.07.2005 executed by Smt.Santosh Prashar in favour of the defendants has not seen the light of the day. He submits that, therefore, the defendants, in fact, cannot claim 50% share in the suit property and the share of Smt.Santosh Prashar in the suit property will have to be divided 1/3rd each between Mr.Nidhish Prashar and the two defendants.
54. He submits that, however, to buy peace, Mr.Nidhish Prashar and the defendants entered into a Family Settlement dated 27.11.2012, whereby it was agreed that the suit property shall be redeveloped and upon such redevelopment, the first floor of the newly constructed building shall be given to the defendants, while the second floor and the fourth floor will be given to Mr.Nidhish Prashar. Mr.Nidhish Prashar was also to have the roof rights for his use and occupation on ownership basis. It was decided that the third floor of the newly constructed building shall be given to the builders.
55. The learned counsel for the plaintiffs further submits that though the MOU dated 04.12.2012 executed by Mr.Nidhish Prashar, the defendants, and the builders, does not mention the Family Settlement, the distribution of the property is in accordance with the Family Settlement itself. As the new building was to be constructed on stilt, the reference of the ground floor referred therein is to the first floor of the Family Settlement, while the first, second, and third floors, are the second, third, and fourth floors, respectively, of the Family Settlement. The defendants were given the possession of the ground floor, as referred in the MOU, or the first floor, as referred in the Family Settlement, while the plaintiff no.1 was given the possession of the first floor, as referred in the MOU, or the second floor, as referred in the Family Settlement.
56. He submits that in terms of the MOU, the builders had given a security deposit of Rs.15,00,000/- in favour of the two defendants. The same was to be returned back to the builders on the handing over of the possession of the property falling in the share of the plaintiffs and the defendants. The defendants, by misusing the security deposit, blackmailed the builders to hand over to them the possession of the third floor as referred to in the MOU, which is the fourth floor referred to in the Family Settlement.
57. He submits that the defendants first denied the Family Settlement itself and claimed it to be a forged and fabricated document. It is only when they were confronted on whether the Family Settlement bears their signatures, that they finally admitted to the same, but thereafter, concocted a new story that they had not read the said document before signing the same. He submits that the defendant no.2 even went to the extent of stating that she was visually impaired at the time of signing of the said documents, including the MOU. He submits that this plea was false and concocted at a later stage. He states that the Family Settlement is also signed by the son of the defendant no.1, namely, Mr.Jaiveer Virk, whose signatures the defendant no.1 first admitted in her cross-examination, however, on the next day, vaguely denied them. Mr.Jaiveer Virk was never produced as a witness in this suit. He submits that, therefore, in totality of circumstances, the parties are bound by the Family Settlement and the defendants have illegally entered upon the fourth floor of the property (as per the Family Settlement) or the third floor of the property (as per the MOU).
58. He submits that the defendants are liable to not only handover the possession of the fourth floor of the suit property to the plaintiffs, but also pay damages to the plaintiffs for its unlawful retention. As far as the damages are concerned, the learned counsel for the plaintiffs submits that the defendant no.1, in her cross-examination, has admitted that the rent of the said floor would be between Rs.48,000/- to Rs.50,000/- per month. He submits that, therefore, the defendants are liable to pay damages to the plaintiffs at least at the rate of Rs.48,000/- per month accordingly.

Submissions of the learned counsel for the defendants:
59. On the other hand, the learned counsel for the defendants submits that the defendants had claimed that the Family Settlement is fabricated as they had never consented to signing the same. The defendants have explained that their brother, late Mr.Nidhish Prashar, along with the plaintiff no.1, had placed a bunch of documents before them for signing, claiming that their signatures were required for the redevelopment of the property. Trusting their brother, the defendants had signed the bunch of documents, which it now transpires, also included the alleged Family Settlement. He submits that the alleged Family Settlement does not find any mention in the MOU executed with the builders or in the Sale Deed by which the second floor of the suit property (as per the MOU) was transferred to the nominee of the builders by the plaintiffs and the defendants jointly. He submits that clearly, therefore, even if it is presumed that there was a Family Settlement between the parties, the same was never acted upon.
60. He submits that even otherwise the document of the Family Settlement is inadmissible as it is neither registered nor properly stamped. In support, he places reliance on the judgments of the Supreme Court in Kale & Ors. v. Deputy Director of Consolidation & Ors. (1976) 3 SCC 119; Hansa Industries Pvt. Ltd. & Ors. v. Kidarsons Industries Pvt. Ltd. (2006) 8 SCC 531; Sita Ram Bhama v. Ramvatar Bhama (2018) 15 SCC 130; and of this Court in Aruna Chhabra v. Vinay Sud & Ors. Neutral Citation 2009:DHC:4329.

Analysis and Findings:
61. I have considered the submissions made by the learned counsels for the parties.
62. It is admitted by the parties that the suit property was owned by Mr.Nidhish Prashar and his mother, late Smt.Santosh Prashar, in equal shares. The defendants claimed that by way of a registered Will dated 26.07.2015, late Smt. Santosh Prashar bequeathed her share in the suit property in favour of the defendants. Though the learned counsel for the plaintiffs has submitted that the defendants, having failed to produce the said Will, leave alone proving the same in the present suit, are not entitled to make a claim on the basis of the said Will, in my view, the documents that form the foundation of the present suit of the plaintiffs, that is, the Family Settlement, contains an acknowledgement of the plaintiffs to the said Will and, therefore, it is too late in the day for the plaintiffs to now dispute the 50% share of the defendants in the suit property. In fact, keeping in view the nature of the pleadings of the parties, an issue regarding the existence or validity of the Will dated 26.07.2015 or of the defendants not having a 50% share in the suit property, was not even framed by the Division Bench of this Court. This Court, therefore, has to proceed on the basis that the plaintiffs, being the successors of late Mr.Nidhish Prashar, and the defendants in view of the Will dated 26.07.2015 of late Smt. Santosh Prashar, have an equal share in the suit property.
63. The plaintiffs claim that late Mr.Nidhish Prashar and the defendants had entered into a Family Settlement dated 27.11.2012. As noted hereinabove, the defendants, in their written statement, claimed the said document to be forged and fabricated. However, on being confronted, they admitted their signatures on the said document, however, claimed that they signed the said document along with a bunch of papers that late Mr.Nidhish Prashar asked them to sign with the Builders for the purposes of redevelopment of the suit property. This plea of the defendants, however, does not have any legs to stand on.
64. The defendant no.1 in her cross-examination first admitted that the Family Settlement bears the signatures of her son, Mr.Jaiveer Virk, though she later sought to vaguely deny the signatures. Interestingly, however, Mr.Jaiveer Virk was not produced as a witness by the defendants.
65. In terms of the Family Settlement, the parties, that is, late Mr.Nidhish Prashar and the defendants, admitted to the division of the reconstructed property as under:
“2. That the new constructed building should be comprising of 1 Ground Floor (which will be used as a parking space for all the parties) along with two servant Qtrs. Out of which one servant Qtr. Will be for use and occupation of First Party and Second servant Qtr. Will be for use and occupation of the one Flat/Portion, hereinafter given to the builder or the person who will be purchasing the said Flat Builder.
3. That the First Floor constructed on the said property, shall be given to the First Party for there use, occupation on ownership basis.
4. That the second floor and fourth floor shall be given to the second party alongwith roof rights for his use and occupation on ownership basis. That two servant rooms will be constructed on the roof of fourth floor, which will be for use and occupation of the second party.
5. That the third floor will be given to the builder or his nominee for use and occupation on ownership basis.
6. That the diagrammatically shares of the above said property which will be constructed is shown as under:-
Roof above fourth floor
Two servant rooms for use and occupation of second party Nidhish Prashar
Fourth floor – for use and occupation of Nidhish Prashar
Third Floor – for use and occupation of builder or his nominee
Second floor – for use and occupation of Nidhish Prashar
First Floor – for use and occupation of Smt. Suman Singh and Smt. Sushma Choudhry (Jointly)
Ground floor (for parking use by all parties)
One Servant Room for first party
One servant Room for builder or his nominee

66. It is not denied, rather, admitted by the defendants that the second floor of the reconstructed building (the first floor as per the MOU) was handed over by the builders to late Mr.Nidhish Prashar even pending the completion of the other floors, while the first floor of the suit property (ground floor as per the MoU) is in occupation and possession of the defendants. The said Family Settlement was, therefore, acted upon by the parties.
67. The learned counsel for the defendants has also submitted that it is admitted by the plaintiffs that late Mr.Nidhish Prashar was almost completely blind on the day when the alleged Family Settlement was signed. He submits that even the defendant no.2 was visually impaired on the said day. He submits that the alleged Family Settlement does not mention that the terms thereof have been read to these parties. He submits that it is only later that the plaintiff no.1, in her evidence, claims that late Mr.Nidhish Prashar had dictated the Family Settlement. He submits that, therefore, the defendants were not aware of the contents of the Family Settlement and it cannot be acted upon.
68. This plea of the learned counsel also cannot be accepted, rather, on the contrary, it will belie the claim of the defendants that late Mr.Nidhish Prashar clandestinely got this document signed from the defendants. Once it is admitted that Mr.Nidhish Prashar was completely blind on the date of singing of the Family Settlement, the defendants would surely have been more careful while signing the documents with the builders.
69. As far as the claim of visual impairment of the defendant no.2 is concerned, barring her saying so in her evidence, there is no proof thereof filed in the suit. The written statement filed by her also does not state that the contents thereof have been read over to her. Rather, the affidavit appended thereto states that she has read and understood the contents of her written statement. Even otherwise, this plea is not available to the defendant no.1, who has admittedly signed the Family Settlement dated 27.11.2012, or to the son of the defendant no.1, whose signatures on the said Family Settlement are only vaguely denied by the defendant no.1, and who has not been produced as a witness in the suit.
70. The submission of the learned counsel for the defendants that the Family Settlement was not acted upon, also cannot also be accepted. Though the Family Settlement is not referred to in the MOU with the Builders, the reason is not far to seek. The builders were merely interested in treating the parties as one whole for their claim of ownership and for their entitlement in the reconstructed building. They had no concern in the inter se division of the reconstructed building falling in the share of the co-owners between the co-owners and therefore, there would have been no occasion for them to mention the terms of the Family Settlement in the MOU or in the subsequent documents. It is, therefore, neither unnatural nor of much significance for the MOU to not make a reference to the Family Settlement. However, what is important is that even under the MOU, it is the second floor (which is the third floor in the Family Settlement) which falls in the share of the builders, as has also been provided in the Family Settlement. The defendants themselves were put in possession of the first floor of the reconstructed property, that is, the ground floor as per the Family Settlement. There were also various articles of the plaintiffs lying on the fourth floor of the suit property (as per the Family Settlement). This also shows that the Family Settlement was duly acted upon by the parties.
71. As far as the plea of the defendants that the Family Settlement is not admissible as it is not registered or properly stamped, I again find no merit in the same.
72. In Kale & Ors. (supra), the Supreme Court has discussed, in general, the effect and value of family arrangements entered into between the parties with a view to resolve disputes once and for all. It was held that family arrangements are governed by a special equity, peculiar to themselves, and would be enforced if honestly made. The object of the arrangement is to protect the family from long-drawn litigation or perpetual strife, which mars the unity and solidarity of the family and creates hatred and bad blood between the various members of the family. A family arrangement by which the property is being equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few, is a milestone in the administration of justice and, therefore, the courts have leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect, the rule of estoppel is pressed into service and is applied to shut out the plea of the person, who, being a party to family arrangement, seeks to unsettle a settled dispute and claims to revoke the family arrangement. The courts must take a very liberal and broad view of the validity of the family settlement and try to uphold it and maintain it. The central idea in the approach of the courts is that, if by consent of parties a matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds. Even if the family settlement was not registered, it would operate as a complete estoppel against the parties from contending to the contrary. The Court laid down the following propositions for the binding effect and the essentials of a family settlement:
“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

73. In Hansa Industries Pvt. Ltd. & Ors. (supra), the Supreme Court, after referring to the judgment in Kale & Ors. (supra), held as under:
“14. The aforesaid judgment of this Court refers to many other decisions to which we need not advert to in this case but some of those decisions do take the view that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.”

74. The Court further held that a family settlement cannot be reopened at the stage of its implementation on the pretext of practical inconvenience.
75. In the present case, as is noted hereinabove, the Family Settlement recognises that late Mr.Nidhish Prashar, on one hand, and the defendants, on the other hand, had an equal share in the suit property. By the Family Settlement, there is no transfer of immoveable property sought to be made between the parties, and there is no relinquishment of the share of one in favour of the other. There is also no conveyance of the suit property. To put it simply, the Family Settlement merely decides how the property shall be divided by metes and bounds, so that both the parties can have an equitable share in the reconstructed property. Merely because late Mr.Nidhish Prashar gets two floors while the defendants get only one floor in the reconstructed property, this Court cannot hold that the Family Settlement was inequitable and, therefore, should not be given effect to. As has been held by the Supreme Court in Hansa Industries Pvt. Ltd. & Ors. (supra), a family settlement cannot be reopened at the stage of its implementation on the pretext of practical inconvenience. It is not for this Court to rewrite a Family Settlement on basis of what it perceives may have been a more fairer distribution. It would also not mean transfer of a share of the defendants in the suit property to the plaintiffs or late Mr.Nidhish Prashar. The parties, that is, late Mr.Nidhish Prashar and the defendants, amicably decided how they would enjoy their equal shares in the property. As held by the Supreme Court in Kale & Ors. (supra), this Court must give effect to such Family Settlement and should not allow a party to wriggle out of the same on some technical grounds. The Family Settlement, therefore, was neither compulsorily registerable nor can it be said to be improperly stamped.
76. In Sita Ram Bhama (supra), the Supreme Court was confronted with a document whereby there was a relinquishment of the rights. The Court, therefore, held that the said document was compulsorily registerable. In the present case, as noted hereinabove, there is no relinquishment of rights by the defendants in favour of late Mr.Nidhish Prashar, therefore, the judgment in Sita Ram Bhama (supra) shall have no application to the facts of the present case.
77. As far as the damages are concerned, this Court, by its Order dated 12.01.2015, directed the parties to maintain status quo with respect to the portion of the fourth floor of the suit property. Thereafter, by an Order dated 06.12.2018, it was directed that the defendants shall lease out half portion of the fourth floor in their possession only after obtaining the prior permission of this Court. The defendants claim that they did not avail of the said opportunity and did not lease out the property.
78. The plaintiffs have led no evidence on the damages. However, during the course of the cross-examination of the defendant no.1, the defendant no.1 stated that the rent of the fourth floor of the suit property would be between Rs.48,000/- to Rs.50,000/- per month. I may quote from her evidence as under:
“Q. Is it correct that the monthly rent of the fourth floor of the building will be around Rs.55-60 thousand per month?
Ans. No, I think it should be around Rs.48-50 thousand per month.”

79. The learned counsel for the plaintiffs submits that, therefore, the plaintiffs are entitled to damages at the rate of at least Rs.48,000/- per month from the defendants. I find merit in the said submission. In the present case, as held hereinabove, in spite of the Family Settlement having been executed between the husband of plaintiff no.1 and the defendant nos. 1 and 2 amicably, with them deciding on the division of the suit property post its reconstruction, the defendants on a false and baseless pretext have denied the plaintiff no.1, the widow of their late brother and the father of plaintiff no.2, the fruits of the said floor. As has been explained by the plaintiff no.1 (PW-1), her late husband was allowed two floors as against a single floor to the defendants so that he could have a livelihood in the form of rent from the said floor and maintain his family. It has also been admitted that he was virtually blind at that time and, therefore, was incapable of having an earning on his own. The defendants by their mala fide acts have deprived the plaintiffs of such income.
80. As far as the measure of mesne profits/damages are concerned, the defendant no.1, in her statement, has admitted that the rent of the property would be between Rs.48,000/- to Rs.50,000/- per month. A fact, which is admitted by a party, need not be proved any further. In the present case, the defendants were leading the evidence first. In view of the admissions of defendant no.1, therefore, there was no further need for the plaintiffs to prove the measure of damages. In Suman Verma & Ors. v. Sushil Mohin Gupta & Ors., 2013 SCC OnLine Del 5081, a Single Judge of this Court has held that the Court should not lose sight of the principle that justice should not be denied on hyper technicalities. The calculation of mesne profits always involves some amount of guesswork and judicial notice may be taken of the rate of rent that may be prevailing in the locality at the relevant period. The above principles were reiterated in Vinod Kumar & Ors. v. Bohat Ram & Anr., 2018 SCC OnLine Del 7652.
81. In the present case, the suit property is a floor in one of the prime colonies of Delhi, that is, South Extension Part-II. The floor was in a newly constructed building. The rate of rent of Rs.48,000/- per month, therefore, cannot be said to be an unreasonable demand by the plaintiffs as damages. Therefore, the plaintiffs are entitled to mesne profit at the rate of Rs.48,000/- per month from 07.01.2015, the date of institution of the Suit, till the defendants hand over the vacant and physical possession of the suit property to the plaintiffs. The plaintiffs are also held entitled to interest at the rate of 6% per annum on the above amount.

Conclusion:
In view of the above, the issues are decided as under:
Issue no.(i) – Whether the plaintiffs are entitled for a decree of partition in terms of family settlement dated 27.11.2012 in respect of suit property? (OPP)
The plaintiffs are held entitled to a decree of partition in terms of the Family Settlement dated 27.11.2012 in respect of the suit property. The issue is decided in favour of the plaintiffs and against the defendants.
Issue no.(ii) – Whether the family settlement dated 27.11.2012 is not binding and not acted upon by the parties? (OPD)
It is held that the Family Settlement dated 27.11.2012 is a binding agreement. It is further held that the plea of the defendants that the Family Settlement dated 27.11.2012 was not acted upon by the parties, cannot be accepted. The issue is, therefore, decided in favour of the plaintiffs and against the defendants.
Issue no.(iii) Whether the plaintiffs are entitled for a decree of possession for the portion of 4th floor in the suit property? (OPP)
It is held that the plaintiffs are entitled to a decree of possession for the portion of the 4th floor of the suit property, which is in the possession of the defendants. The issue is decided in favour of the plaintiffs and against the defendants.
Issue no.(iv) Whether the plaintiffs are entitled for reliefs prayed for in paras (c) and (d) of the plaint? (OPP)
The plaintiffs are held entitled to a Decree of mesne profit/damages at the rate of Rs.48,000/- per month from the defendants with effect from 07.01.2015, the date of institution of the Suit, till the date of their handing over vacant and physical possession of the fourth floor of the suit property to the plaintiff, along with interest at the rate of 6% per annum.
Issue no.(v) Reliefs.
The plaintiffs are, therefore, held entitled to a decree of partition of the property bearing No. L-1/8, South Extension Part- II, New Delhi- 110049 in terms of the Family Settlement dated 27.11.2012; and a decree of possession of the portion of the fourth floor of the property bearing No. L-1/8, South Extension Part- II, New Delhi- 110049 from the defendants. The plaintiffs are also held entitled to a decree of mesne profit/damages at the rate of Rs.48,000/- per month from the defendants with effect from 07.01.2015, the date of institution of the Suit, till the date of their handing over vacant and physical possession of the fourth floor of the suit property to the plaintiffs, along with interest at the rate of 6% per annum. The plaintiffs are also held entitled to the costs of the present Suit.

Relief:
82. A decree of partition in terms of the Family Settlement dated 27.11.2012 and possession is passed in favour of the plaintiffs and against the defendants, directing the defendants to hand over the vacant physical possession of the fourth floor of the property bearing no. L-1/8, South Extension Part- II, New Delhi- 110049 to the plaintiffs. The plaintiffs are also held entitled to a decree of mesne profit/damages at the rate of Rs.48,000/- per month from the defendants with effe