SUMAN SAPRA vs ROSY DABAS & ORS

$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15th April, 2024
+ EX.P. 121/2015 and EX.APPL.(OS) 395/2016, 334/2024
SUMAN SAPRA ….. Decree Holder
Through: Mr. Jitender Chaudhary, Ms. Shilpa Chohan & Mr. Saatvik Khurana, Advs. (M: 9953026548)
versus

ROSY DABAS & ORS ….. Judgement Debtors
Through: Mr. Gaurav Sarin, Ms. Charul Sarin, Mr. Vijay Kasana, Mr. Harish Kumar and Mr. Chirag Verma, Advs. for JD No.1 with Mr. Ayush Dabas, son of JD No.1 in person. (M: 98105 33717)
CORAM:
JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J.(Oral)

1. This hearing has been done through hybrid mode.
2. This is an execution petition filed by the Petitioner/Decree Holder seeking execution of the final decree dated 3rd March, 2014 with respect to the property bearing no. E-3/3, Vasant Vihar, New Delhi, admeasuring about 400 square yards, (hereinafter referred as the ‘suit property’). The Petitioner inter alia also seeks conversion of the property from leasehold to freehold and 1/4th share of the suit property in terms of the final decree.
3. The Petitioner and the Respondent Nos. 1 to 3/Judgment Debtor Nos. 1 to 3 in the present case are all siblings and daughters of Late Shri Satya Prakash Manocha, who died intestate on 2nd February, 2009. As per the decree passed in CS(OS) 2182/2011 titled Suman Sapra v. Rosy Dabas & Ors., on 17th September, 2012, the Court had declared all the four parties to have 25 % share in the suit property. The shares in the suit property was as under:
* Decree holder – 25% shares,
* Judgment Debtor No.1/Defendant No.1- 50% shares (including 25% shares of Judgment Debtor No.2/ Defendant No.2 which was given vide a settlement dated 24th May, 2011) and
* Judgment Debtor No.3/ Defendant No.3 – 25% shares.
EX.APPL.(OS) 395/2016 & 334/2024
4. These two applications relate to execution of transfer documents by the Decree Holder’s son Mr. Gaurav Sapra in respect of the property bearing No.C-701, Chitrakoot Dham, CGHS Plot No.2, Sector-19, Dwarka, New Delhi. Background of these applications is that there were four sisters between whom a suit for partition had been filed, which came to be decreed by the Division Bench of this Court vide order dated 17th September, 2012 in CS(OS) 2182/2011. The said settlement reads as under:
“It is in the course of hearing of the appeal that the parties have been able to settle the dispute and jointly requested that the suit file be taken up by this court so that the settlement can be recorded today itself.
The parties have agreed as under:
i) That in view of the undisputed position of all the parties having one-fourth share each in the suit property, a preliminary decree be passed declaring the share of each of the parties as one-fourth.
ii) In view of the aforesaid stand of the plaintiff and the bookings of the flats in the societies being undoubtedly in the name of the plaintiff and her son for which the defendant No.1 claims to have made payments and the plaintiffs deny any concern with the flats, the plaintiff and her son would execute necessary documents as may be called upon by defendant No.1 to declare that they have no interest in the said two flats and the so-called interest be transferred in favour of defendant No.1 or her nominee at the risk and cost of defendant No. 1 and without creating any financial or other obligation on the plaintiff and her son. The plaintiff has assured this court that they have not executed any documents qua these flats in favour of any third parties nor will she or her son do so henceforth and will forward any future communication qua the flats to defendant No.1.
iii) The interim arrangement made vide the order dated 03.08.2012 would continue to operate till the final decree is passed.
iv) In view of the stand of the plaintiff and the consent of the plaintiff and her son to execute the documents qua the two flats/memberships aforesaid in clause (ii), the defendant No.1 does not press IA No.725/2012 which is dismissed as not pressed and the defendant No.1 shall not claim any right over one-fourth share of the plaintiff in the suit property. The plaintiff does not press IA No. 17545/2011 under Order 39 Rule 2A of CPC, which is also dismissed as not pressed.
v) The execution of the documents qua the flats aforesaid will be simultaneous with the final decree being passed and executed.
The aforesaid settlement agreed to between the parties is thus taken on record and they shall remain bound by the same. A preliminary decree for partition is passed qua the suit property declaring the shares of the parties as one-fourth each.”

5. As per the above order the Court observed that the Decree Holder and her son would have to execute necessary documents and transfer the interest in the two flats in favour of Judgment Debtor No.1. Expressing their consent in respect of the said settlement, Decree Holder’s son Mr. Gaurav Sapra had appended his signatures on the order sheet itself. Pursuant to the said order, the suit was decreed on 3rd March, 2014 finally with the following order:
“Plaintiff has filed the present suit for partition and perpetual injunction with respect to the property bearing No.E-3/3, Vasant Vihar, New Delhi.
Summons in the suit and notice in the application were issued on 14.9.2011, on which date, parties were also directed to maintain status quo with respect to title and possession of the suit property.
A preliminary decree in this matter was passed as far back as on 17.9.2012 and shares of the parties have been defined as 25% each. A final order was not passed as the parties were trying to work out an arrangement by which the plaintiff and defendant no.3 could be given their share in the suit property, as defendant no.1, who has already purchased the share of defendant no.2 was interested in retaining the property. Pursuant to the observations of the Court, a proposal was brought to the Court by the plaintiff. Another proposal has been brought to Court by the defendants, which has been filed on record.
Leamed counsel for the plaintiff and defendant no.3 submit that the plaintiff and defendant no.3 do not want to retain any portion of the property nor they are interested in the property being jointly developed, but they are only interested in their 50% share, collectively.
Learned senior counsel appearing on behalf of defendants no.1 and 2 submits that before the property is finally put to sale, parties should be given a fair chance to convince each other so that the family property is not put to sale and is retained at least by defendant no.1 and further that plaintiff and defendant no.3 should consider various proposals which have been given.
Accordingly, a final decree is passed defining the shares of all the parties as 25% share, each, in the suit property. Three months’ time is granted to the parties to negotiate with each other and explore the possibility of a suitable arrangement to the satisfaction of all the parties. In case within three months the parties do not arrive at any suitable arrangement, any of the parties would be entitled to file an execution petition for enforcement of the decree.
Counsel for the parties submit that during the pendency of the proceedings in FAO(OS) 443/2012 file of the present suit was called by the Division Bench wherein the following agreement was entered into between the parties:
“i) That in view of the undisputed position of all the parties having one-fourth share each in the suit property, a preliminary decree be passed declaring the share of each of the parties as one-fourth.
ii) In view of the aforesaid stand of the plaintiff and the bookings of the flats in the societies being undoubtedly in the name of the plaintiff and her son for which the defendant no.1 claims to have made payments and the plaintiffs deny any concern with the flats, the plaintiff and her son would execute necessary documents as may be called upon by defendant No.1 to declare that they have no interest in the said two flats and the so-called interest be transferred in favour of defendant No.1 or her her nominee at the risk and cost of defendant No.1 and without creating any financial or other obligation on the plaintiff and her son. The plaintiff has assured this Court that they have not executed any documents qua these flats in favour of any third parties nor will she or her son do so henceforth and will forward any future communication the flats to defendant No.1
iii) The interim arrangement made vide the order dated 03.08.2012 would continue to operate till the final decree is passed.
iv) In view of the stand of the plaintiff and the consent of the plaintiff and her son to execute the documents qua the two flats/memberships aforesaid in clause (ii), the defendant No.1 does not press IA No.725/2012 which is dismissed as not pressed and the defendant No.1 shall not claim any right over one-fourth share of the plaintiff in the suit property. The plaintiff does not press IA No.17545/2011 under Order 39 Rule 2A of CPC, which is also dismissed as not pressed.
v) The execution of the documents qua the flats aforesaid will be simultaneous with the final decree being passed and executed.
As per the terms of the agreement the plaintiff has to execute the documents qua the flats, which were booked in the name of the plaintiff and her son by defendant no.1. It is reiterated by counsel for the plaintiff that the plaintiff has no right, title and interest in the aforesaid flats and the necessary documents will be signed by the plaintiff at the stage of execution of the decree either through court or with the consent of all the parties.”

6. As per the above order and the decree, which was passed, the clear understanding was that requisite documents would be signed by the Decree Holder and her son for execution of the decree, either through the Court or with the consent of the parties.
7. There were two flats in respect of which the documents were to be executed by the Decree Holder. The same are –
* Flat bearing no. B-1/402, Delhi State Newspaper Employees Federation CGHS, Plot No.1, Sector-19, Dwarka – the Decree Holder has already executed necessary documents.
* Flat no. C-701, Chitrakoot Dham, CGHS, Plot No.2, Sector-19, Dwarka – the documents have not been executed.
8. Thereafter various orders have been passed by the Court directing execution of the said documents including orders dated 23rd February, 2016, 27th October, 2016 and 12th July, 2017, which read as under:

Order dated 23.02.2016
“Learned counsel for the judgement debtor No.l states that the decree holder has undertaken to execute documents in favour of the judgement debtor No.1/ her nominee in respect of the property bearing No.C-701, Chitrakoot Dham, CGHS Plot No.2, Sector 19, Dwarka. Learned counsel for the decree holder states that the decree holder shall abide by this undertaking as and when called upon to do so. He submits that the decree holder shall execute the transfer documents straightway as and when required by the judgement debtor No. 1 in favour of the Judgement debtor or her nominee.”

Order dated 27.10.2016
“Counsel for the decree holder further submits that the decree holder is willing to sign the documents in favour of the nominee provided the above paras are inserted in the documents, which will bring out the factual position on the forefront lest the decree holder be accused of passing title without any authority in his favour.”

Order dated 12.07.2017
“Keeping in view the additional work put in by the Court Commissioner, she is directed to be paid an additional fee of Rs.l lakh at this stage by the parties in proportion to their shareholding.
Also, keeping in view the order dated 03rd March, 2014 passed in CS(OS) 2182/2011 and order dated 23rd February, 2016 passed in Execution Petition No. 121/2015, the son of the decree holder is directed to execute the Agreement to Sell, Power of Attorney and Indemnity Bond in the draft form forwarded by the counsel for the judgment debtor No. 1. However, it is directed that the order dated 27th October, 2016 passed by the learned Predecessor of this Court shall be reproduced in its entirety in the agreement to sell.
The judgment debtor No.1 shall also furnish a back to back indemnity bond in favour of the son of the decree holder.
List the matter on 11th September, 2017.”

9. Thereafter, however, due to certain external circumstances the Court suspended the order dated 12th July, 2017, by which the agreement to sell, power of attorney and indemnity bond were directed to be executed by the son of the Decree Holder. The said order dated 11th September, 2017 is also relevant and is extracted below:

“EX.APPL.(OS) 347/2017 in EX.P. 121/2015
Present application has been filed on behalf of judgment debtor No.1 stating that vide order dated 22nd August, 2017, the Debts Recovery Tribunal has attached the share of the judgment debtor No.1 in property No.E-3/3, Vasant Vihar, New Delhi-110058.
Since it is the case of the decree holder that the property No.C-701, Chitrakoot Dham, CGHS Plot No.1, Sector-19, Dwarka, Delhi, is not owned by her, but by judgment No.1, this Court suspends the order dated 12th July, 2017 to the extent it directs the son of the decree holder to execute the Agreement to Sell, Power of Attorney and Indemnity Bond.”

10. This position continued and finally, vide order dated 18th December, 2023, the Court directed that the affidavit would be filed by son of the Decree Holder in the following terms:
“7. The parties have further agreed that after the JD no.1 deposits the entire sum of Rs.l6 crores, the DH’s son namely Mr. Gaurav Sapra, will file an affidavit of undertaking clearly stating that he is neither the owner of property No.C-701, Chitrakoot Dham, CGHS Plot No.1, Sector-19, Dwarka, Delhi nor has any interest/rights in the said property. Once, the said affidavit is filed by the son of the DH, it will be open for the JD no.1 to move an appropriate application seeking appointment of a Local Commissioner to take steps for transfer of the sale deed in her name or in the name of her nominee, which application when moved will be considered on its merits.”

11. Pursuant to the above order, an affidavit dated 16th February, 2024 has been filed by Mr. Gaurav Sapra, which has been notarized in Canada. In the said affidavit, he states as under:
“3. That it is stated by the Deponent that he is not the owner of property No.C-701, Chitrakoot Dham, CGHS Plot No.1, Sector-19, Dwarka, Delhi nor has any right or interest in this property.
4. That it is further submitted that Deponent has never applied for allotment, paid for the flat or signed any documents seeking the allotment of the flat in his name. The deponent has never been the owner of the flat.
5. That Deponent has never been into the possession of the flat.
6. That the Deponent is having no competency to transfer the said flat since the said flat has never been owned or occupied by the Deponent.
7. That the said flat is the Benami property, which has been purchased in the name of the Deponent.”

12. The Court has heard ld. Counsel for the parties. The apprehension expressed by the Decree Holder as also her son is that the Judgment Debtor No.1 is expecting the Decree Holder’s son to transfer the said property in favour of certain nominees and the identity of the said nominees, insofar as the Decree Holder is concerned, is unknown. In addition, it is submitted that the Judgment Debtor No.1 also transferred this flat to various third parties and hence, the Decree Holder does not wish to be involved in any transactions, which could result in difficulties for him or his family. The Counsel for the Judgment Debtor No.1 on the other hand states that the Judgment Debtor No. 1has not created any third-party rights qua the flat.
13. On behalf of the Judgment Debtor No.1, it is submitted by Mr. Gaurav Sarin, ld. Counsel that the orders of this Court have not been given effect to, and if the Decree Holder’s son has a difficulty, a Local Commissioner may be appointed for executing the property documents.
14. The Decree Holder’s son is a resident of Canada admittedly. It has been stated on behalf of the Decree Holder that various notices from several authorities have been received by the Decree Holder as also her son in respect of this property and thus, the Decree Holder does not wish to have any complications due to any transactions, which the Judgment Debtor No.1 may have entered into. It is for this apprehension that the documents are not being executed.
15. The orders of the Court are clear that in terms of the settlement, flats belong to the Judgment Debtor No.1. Reasons why the said flat is in the name of Mr. Gaurav Sapra is not to be gone into at this stage by the Court. The allegations of the Decree Holder’s son or the Judgment Debtor No.1 also need not be gone into. The only question that is before the Court, is to the manner in which the said property can be vested in the Judgment Debtor No.1 so that the Decree Holder or her son do not have any rights in respect of this property anymore. In fact, it is submitted that the Decree Holder and her son’s apprehensions and concerns ought to be assuaged, which the Judgment Debtor No.1 has failed to do.
16. Under these circumstances, it is clear to the Court that the Decree Holder or her son do not claim any right in the property. The said flat has to vest with the Judgment Debtor No.1 and some directions would have to be executed for the said purpose. Clearly, due to whatever reasons the Decree holder and her son do not wish to be involved in any transaction with the Judgement Debtor no.1.
17. In view of the above affidavit, Mr. Gaurav Sapra, acknowledges that he does not have any right in this property. In terms of the Division Bench order dated 17th September, 2012 and the subsequent decree dated 3rd March 2014, it is declared that the Decree Holder Ms. Suman Sapra or her son Mr. Gaurav Sapra do not have any right in property bearing Flat no. C-701, Chitrakoot Dham, CGHS, Plot No.2, Sector-19, Dwarka and that the ownership vests with Judgement Debtor No.1- Ms. Rosy Dabas. Decree Holder and her son Mr. Gaurav Sapra are absolved of any proceedings or liabilities in respect of the suit property.
18. The concerned Sub-Registrar shall reflect in the record of the suit property that Ms. Rosy Dabas is henceforth the owner of the said suit property, in view of the Declaration made by the Court herein. It is made clear that this declaration would not affect any disputes, which may have subsequently arisen, in respect of the suit property after recording of the settlement on 17th September 2012.
19. Copy of this order be communicated to Mr. Anuj Aggarwal, ld. ASC for GNCTD for the concerned Sub-Registrar to give effect to the same.
20. Both the applications are disposed of.
EX.P.121/2015
21. Vide order dated 6th March, 2024 the Court had directed the Registry to release the sum of Rs.6,08,64,000/- in favour of the Judgment Debtor No.3 and Rs.7,92,00,000/- in favour of the Decree Holder with respect to sale of their respective shares in the suit property. The respective amounts i.e., Rs.1,91,36,000/- qua the share of Judgment Debtor No.3 and Rs.8,00,000/- qua the share of Decree Holder was to also be deposited by the Registrar General with the Income Tax authority in compliance of the order dated 16th February, 2024.
22. It is submitted that the amounts, in terms of the previous order dated 6th March,2024 have already been released in favour of the Decree Holder and the Judgment Debtor No.3. Decree Holder undertakes that she would vacate the suit property being, E-3/3 Vasant Vihar, New Delhi on or before 26th April, 2024. Decree Holder and her husband are present in Court. The undertaking is accepted by the Court. The affidavit of undertaking is also accepted by the Court.
23. Petition is also disposed of.

PRATHIBA M. SINGH
JUDGE
APRIL 15, 2024/dk/ks

EX.P. 121/2015 Page 2 of 2