IN THE COURT OF PRAVEEN KUMAR: ADDITIONAL
DISTRICT JUDGE05 :NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI.
Civil Suit No.57731/2016 (Fifteen Years Old Case)
In the matter of:
1. Smt. Anuradha Kapoor
W/o Late Shri Ajay Kapoor
2. Miss. Yoshita Kapoor
D/o Late Shri Ajay Kapoor
3. Miss. Kanika Kapoor
D/o Late Shri Ajay Kapoor
4. Akash
S/o late Shri Ajay Kapoor
All R/o S94, Greater Kailash,
PartI, New Delhi ………………Plaintiffs
Versus
1. Shri Ashok Kapoor
S/o Late Yashpal Kapoor
R/o Flat No.C4, Ansal Apartment
6, Aurangzeb Road, New Delhi
2. Shri Ashwani Kapoor (Deceased)
S/o Late Yashpal Kapoor
Through Legal Representatives
(a) Smt. Alaka Kapoor
W/o Late Shri Ashwani Kapoor
(b) Miss. Kritika Kapoor
D/o Late Shri Ashwani Kapoor
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.1 of 13
(c) Miss.Kavika Kapoor
D/o Late Shri Ashwani Kapoor
Represented through her Natural
Guardian (Mother)
Smt. Alaka Kapoor
(d) Miss. Kuvira Kapoor
D/o Late Shri Ashwani Kapoor
Represented through her Natural
Guardian (Mother)
Smt. Alaka Kapoor
All R/o 245, Est Loraine
St. Apt. 141, Glendale
California (C.A.)
U.S.A.
3. Smt. Anjali Sarin
D/o Late Yashpal Kapoor
R/o C7, Maharani Bagh
New Delhi110065
4. Smt. Ambika Vij
D/o Late Yashpal Kapoor
R/o 22B, Masjid Moth
PhaseII, New Delhi
5. Land Development Officer
Land Development Officer
Government of India
Ministry of Urban Development OA
Nirman Bhawan, New Delhi ………………Defendants
Date of institution of the case : 22.07.2003
Date of arguments : 24.09.2018
Date of judgment : 12.10.2018
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.2 of 13
JUDGMENT:
1. This is a suit for declaration and injunction filed by
the plaintiffs against the defendants.
2. On 31.08.2018 suo moto following preliminary issue
was framed by this court :
“Whether the suit of the plaintiff is maintainable in the
present form?”
3. Since it is purely a legal issue falling under Order
XIV Rule 2 CPC, it was treated as a preliminary issue. This Court
is conscious that for deciding a preliminary issue, the contents of
the plaint and the annexures thereto have to be deemed to be
correct and are only to be considered.
4. Plaintiffs, widow and children of late Sh. Ajay
Kapoor, have filed the present suit for declaration that they be
declared 1/3rd owner or in the alternative 1/5th owner of the
property bearing no.32 Golf Links, New Delhi (in short ‘the suit
property’) besides other reliefs. It is averred that Smt. Kailash
Kapoor, mother of Sh. Ajay Kapoor, owned the suit property. She
died on 31.10.1992 leaving behind a Will dated 14.07.1992
whereunder she bequeathed the suit property in favour of
defendants no. 1 and 2 with a life interest to her husband Sh.
Yashpal Kapoor. Subsequently, an oral family settlement was
entered into between Yashpal Kapoor, Ajay Kapoor and
defendants no. 1 to 4 whereunder it was agreed that Yashpal
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.3 of 13
Kapoor and defendants no.1 and 2 shall be the only joint owners
of the suit property. The said oral family settlement was duly
recorded in the memorandum of family settlement dated
15.11.1992 executed by the abovesaid parties. It is averred that
Sh. Yashpal Kapoor died on 01.03.1993 leaving behind his Will
dated 19.11.1992 whereunder he bequeathed his 1/3rd share in
the suit property in favour of Sh. Ajay Kapoor. It is averred that
by virtue of Will dated 19.11.1992 of Sh. Yashpal Kapoor, late
Sh. Ajay Kapoor and through him the plaintiffs have become the
absolute owner to the extent of 1/3rd of the suit property. It is
averred that defendants no. 1 to 4 sought to resolve their disputes
inter se with respect to the estate left behind by their parents
through arbitration and, consequently, collusive award dated
28.10.2002 and judgment/decree dated 13.12.2002 were passed at
the back of late Sh. Ajay Kapoor/plaintiffs. It is averred that
defendants no. 1 to 4 have filed an application for mutation with
defendant no. 5 seeking mutation of the suit property in their
names in terms of the abovesaid award/judgment and decree. It is
averred that no legal or valid adoption of late Sh. Ajay Kapoor by
Sh. Bishan Dass and Smt. Murti Devi had taken place and,
therefore, late Sh. Ajay Kapoor continued to be the son of Smt.
and Sh. Yashpal Kapoor. It is averred that the adoption deed dated
13.02.1960 is invalid and has no more sanctity in the eyes of law.
In the plaint, the plaintiff has prayed for the following reliefs :
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.4 of 13
“(a) pass a decree in favour of the Plaintiffs and against the
Defendants no. 1 to 4 and decree that Plaintiffs are 1/3rd
owners of the property bearing No.32, Golf Link, New Delhi.
(b) pass a decree for permanent injunction in favour of the
Plaintiffs restraining the Defendants no. 1 to 4, their heirs,
agents, employees or any other person claiming through
them in particular Shri Somnath Vij S/o Sh. Ishwar Das Vij,
R/o D16, Ajay Enclave, New Delhi110018 the Power of
Attorney holder of the Defendants no.1 to 4 from directly or
indirectly transferring, alienating, encumbering or dealing in
any manner or parting with possession of the whole or any
part of the property No.32, Golf Links, New Delhi.
(c) In the alternative, in the event this Hon’ble Court for any
reason is of the opinion/holds that the Plaintiffs are not
entitled to prayer (a), declarer that the Plaintiffs are 1/5th
owners of the suit property.
(d) declare that the Adoption Deed dated 13th February,
1960 is not legal and valid and no actual adoption had taken
place of Late Shri Ajay Kapoor by Smt. Sh. Bishambhar
Das and as such he continued to be the son of Late Shri
Yashpal Kapoor and Smt. Kailash Kapoor.
(e) declare that the judgment and decreed dated 13th
December, 2002 passed in Suit No. 2187/93 has been
obtained by the Defendants no.1 to 4 fraudulently and in
collusion with each other and is not binding on the Plaintiffs
and does not in any manner affect their rights in the suit
property.
(f) restrain Defendant No.5 from mutating the suit property
in any name(s) on the basis of award dated 28th December,
2002/judgment and decree dated 13th December, 2002
passed in Suit No.2187/93 and especially ignoring the share
of the Plaintiffs as explained in the present suit.
(g) award costs of the present suit to the plaintiffs and
against the defendants.
(h) pass such other order of orders as this Hon’ble Court
may deem fit and proper in the facts and circumstances of
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.5 of 13
the case”.
5. I have heard Sh. Sanjeev Anand, Ld. Counsel for the
plaintiffs; Ms. Preeti Gupta, Ld. Counsel of defendant no. 3; Sh.
Jalaj Aggarwal, Ld. Counsel for defendant no.5 and Sh. Irfan, Ld.
Counsel for defendant no. 6. Ld. Counsel for the plaintiff has
contended that the present suit is maintainable as presumption
under Section 16 of the Hindu Adoptions and Maintenance Act,
1956 as to registered documents relating to adoption is rebuttable
on the basis of evidence. According to him, the suit is not barred
by limitation. In support of his contentions, he has relied upon
judgments Lal Man Vs. Dy. Director of Consolidation, (1998) 8
SCC 693 and Bhawar Lal Vs. State of M.P., (2002) 10 SCC 143.
On the other hand, Ld. Counsel for defendant no. 6 has contended
that at least since July 1993 the plaintiffs and late Sh. Ajay
Kapoor were aware of the alleged adoption but the suit was filed
in 2003 challenging the said adoption and, as such, the suit is
barred by limitation. He has drawn attention of this Court to para
no. 10 of the plaint.
6. I have gone through the file as well as the judgments
cited before me.
7. From the wedlock of Sh. Yashpal Kapoor and Smt.
Kailash Kapoor born :
Son Daughter Son Son Daughter
Ajay Kapoor Anjali Sarin Ashwani Kapoor Ashok Kapoor Ambika Vij
(since deceased) Defendant no.3 Defendant no.2 Defendant no.1 Defendant no.4
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.6 of 13
8. Vide Deed of Adoption duly registered with the Sub
Registrar, New Delhi on 13.02.1960, Sh. Yashpal Kapoor and
Smt. Kailash Kapoor gave in adoption their son late Sh. Ajay
Kapoor and Smt. Anjali Sarin (defendant no.3) to Sh. Bishan Das
and Smt. Murti Devi and this fact is duly mentioned in the
memorandum of family settlement dated 15.11.1992 filed by the
plaintiffs themselves.
9. The plaintiffs are claiming for a decree of declaration that
they be declared 1/3rd owners of the suit property on the basis of the
Will dated 19.11.1992 of Sh. Yashpal Kapoor. The relevant para of
the plaint is reproduced hereinbelow :
“7. Shri Yashpal Kapoor died on 1st March, 1993 leaving
behind a Will dated 19th November, 1992 whereunder he
bequeathed his 1/3rd share in the suit property in favour of
Sh. Ajay Kapoor. The Plaintiffs have in the hand the
affidavits dated 15.01.2002 and 24.01.2002 of the two
attesting witnesses to the Will, Mr. S.C. Kapoor S/o Late Sh.
J.S. Kapoor, R/o 14CD, Adarsh Nagar, Lucknow (U.P.)
and Sh. G.P. Sinha S/o Late Sh. S.P. Sinha, R/o R/H,
Refinery Township, Begusarai,. The said attesting witnesses
have stated in their affidavits that Late Sh. Yashpal Kapoor
had made a Will dated 18th November, 1992 to which they
were attesting witnesses and that it was the intention and will
of Late Shri Yashpal Kapoor that the property bearing No.
32, Gold Links, New Delhi be shared by his three sons
namely Sh. Ajay Kapoor, Shri Ashwani Kapoor and Shri
Ashok Kapoor in equal proportions. The Plaintiff No.1 had
also seen the copy of the Will dated 18th November, 1992
which she is presently not able to locate/trace out…”
(Emphasis Mine)
10. Assuming for the sake of arguments that Sh. Yashpal
Kapoor had executed the alleged Will dated 19.11.1992 (or
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.7 of 13
18.11.1992), even then the plaintiffs are not entitled to 1/3rd share in
the suit property for the reason that the suit property was purchased by
the mother of late Sh. Ajay Kapoor who died leaving behind a Will
dated 14.07.1992 whereunder she bequeathed the suit property in
favour of defendant no.1 and 2 herein with a life interest to her
husband Sh. Yashpal Kapoor. Thus, the defendant no. 1 and 2 became
the owners of the suit property in the proportion of 50 per cent each
on the death of Smt. Kailash Kapoor on 31.10.1992. Sh. Yashpal
Kapoor could not have bequeathed the ownership of property in
favour of late Sh. Ajay Kapoor of which he himself was not the owner
as he only had right of residence in the suit property during his life
time. The Will of Smt. Kailash Kapoor was never challenged by late
Sh. Ajay Kapoor during his life time. Thus, the plaintiffs cannot claim
to be declared 1/3rd owner of the suit property on the basis of the
alleged Will of Sh. Yashpal Kapoor.
11. In the alternative, the plaintiffs have claimed that they be
declared 1/5th owners of the suit property. The plaintiffs have denied
any legal and valid adoption of late Sh. Ajay Kapoor having taken
place. In this regard, the memorandum of family settlement dated
15.11.1992 is relevant and the same is reproduced hereinbelow :
“Memorandum of family settlement and understanding
3rd PARTY
“This memorandum of family settlement is made on this 15 th
day of November in the year 1992, between Shri Yashpal
Kapoor son of Late Lajpat Rai Kapoor R/o 32 Golf Lilnks,
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.8 of 13
New Delhi as FIRST PARTY (adopted father), as SECOND
PARTY, ANJALI SARIN W/o Shri Sunil Sarin R/o C7,
Maharani Bagh, New Delhi as THIRD Party and Shri
ASHWANI KAPOOR S/o Shri Yashpal Kapoor presently at
32 Golf Links, New Delhi as FOURTH PARTY, Shri ASHOK
KAPOOR S/O Yashpal Kapoor R/o 32 Golf Links, New Delhi
as FIFTH PARTY and Smt. AMBIKA VIJ W/o Shri Atul Vij
R/o 22B, DDA Flats, PhaseI, Masjid Moth, New Delhi as
SIXTH PARTY.
WHREAS Smt. Kailash Kapoor w/o Shri Yashpal Kapoor,
the First Party, died on 30th October, 1992 leaving behind
properties both movable and immovable.
AND WHEREAS Shri Ajay Kapoor, Second Party and Smt.
Anjali Sarin, Third Party are the natural born children of
Shri Yashpal Kapoor and the deceased Smt. Kailash Kapoor
and had been adopted as son and daughter by late Shri
Bishan Das Galhotra vide Adoption Deed No.(not legible).
AND WHEREAS late Shri Bishan Das Galhotra died leaving
as legal heirs, his widow Smt. Ram Murti alias Murti Devi,
adopted son Shri Ajay Kapoor, adopted daughter Smt. Anjali
Sarin, and Smt. Kailash Kapoor being the natural daughter
as his only legal heirs.
AND WHEREAS on the death of Late Smt. Ram Murti Alias
Murti Devi W/o Late Shri Bishan Das Galhotra had left
behind movable and immovable properties and other various
assets, which were only received by Shri Ajay Kapoor,
Second Party with the consent of two legal heirs namely Late
Smt. Kailash Kapoor and Smt. Anjali Sarin, Third Party,
who had relinquished their rights/claims in favour of Shri
Ajay Kapoor, Second Party, and for which various
documents were got executed by Shri Ajay Kapoor, Second
Party, from them.
AND WHEREAS Smt. Anjali Sarin, Third party and Shri
Ajay Kapoor, Second Party, have no claim and/or right
and/or interest in the movable and immovable property and
assets of Late Smt. Kailash Kapoor.
AND WHEREAS the said Shri Yashpal Kapoor, First Party,
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.9 of 13
Ashwani Kapor, Fourth Party, Ashok Kapoor, Fifth Party
and Ambika Vij Sixth Party are the only legal heirs of late
Smt. Kailash Kapoor.
AND WHEREAS in order to avoid any future disputes and
differences, the parties hereto had entered into a Family
Settlement which has been acted upon and are not desirous
of reducing in writing the terms of the said Family
Settlement.
It is hereby recorded and declared by and between the
parties hereto as follows :
(i) Shri Yashpal Kapoor, Shri Ashwani Kapoor and
Shri Ashok Kapoor shall continue to be the joint
owners of property situated at No.32, Golf Links, New
Delhi, absolutely.
(ii) Smt. Ambika Vij had been given jewellery and
cash earlier during the life time of late Smt. Kailash
Kapoor and also has been given jewellery and other
movable assets including cash from the estate of late
Smt. Kailash Kapoor in full and finally settlement of
her claim.
(iii) Shri Yashpal Kapoor would be the owner of all
the remaining properties and assets, movable and
immovable, of whatsoever nature including Bank
accounts, Fixed Deposits, Unit Trust, Shares, Life
Insurance Policies, Cash, Bank Lockers, Loans
given to Companies and individuals etc. left behind by
late Smt. Kailash Kapoor.
IN WITNESS WHEREOF the parties hereto have set their
respective hands on the day and the year first above written.
Witnesses
1. Not legible sd/
Shri Yashpal Kapoor (First Party)
2. Not legible sd/
Ajay Kapoor (Second Party)
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.10 of 13
sd/
Anjali Sarin (Third Party)
sd/
Ashwani Kapoor (Forth Party)
sd/
Ashok Kapoor (Fifth Party)
sd/
Smt. Ambika Vij (Sixth Party)”
(Emphasis Mine)
12. From the perusal of the abovesaid memorandum of
family settlement, the factum of his adoption came to the knowledge
of late Sh. Ajay Kapoor at least on 15.11.1992. He did not challenge
his adoption during his life time. There is no dispute regarding the
legal proposition that presumption under Section 16 of the Hindu
Adoptions and Maintenance Act, 1956 as to registered documents
relating to adoption is rebuttable on the basis of evidence. In para 17
of the plaint which relates to cause of action, it has not been
specifically mentioned as to when the plaintiffs or late Sh. Ajay
Kapoor came to know that no actual adoption had taken place of late
Sh. Ajay Kapoor by Smt. and Sh. Bishamber Das. It is a case of clever
drafting of the plaint. When late Sh. Ajay Kapoor came to know of the
adoption at least on 15.11.1992, he did not take any action to get the
same annulled by filing a suit. Thus, challenging the adoption deed
dated 13.02.1960 in the present suit is hopelessly barred by time.
Therefore, no relief as prayed for in prayer clause (d) of the suit can
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.11 of 13
be granted to the plaintiffs.
13. It is the settled law that once a person is given in
adoption, he loses his right over the properties of his natural parents.
When the suit challenging the adoption of late Sh. Ajay Kapoor is
barred by limitation, he has no right, title or interest in the properties
left by his natural parents. Thus, the plaintiffs have no locus standi to
file the present suit as the plaintiffs are claiming through deceased Sh.
Ajay Kapoor who himself had no right, title or interest over any
portion of the suit property as he was given in adoption by the owner
of the suit property to his adoptive parents way back in the year 1960.
The plaintiffs, therefore, have no right to challenge the judgment and
decree dated 13.12.2002 passed in suit no.2187/1993 or for restraining
defendant no.5 from mutating the suit property in any name(s) on the
basis of the award dated 28.10.2002/judgment and decree dated
13.12.2002 passed in suit no.2187/1993 or for any permanent
injunction with respect to the suit property. The plaintiffs are,
therefore, held not entitled to any of the reliefs as claimed in prayer
clauses (a) to (f) of the plaint. The suit of the plaintiffs is, therefore,
held to be barred by limitation qua challenging the adoption deed. It
is, therefore, held that the plaintiffs have no cause of action for
claiming reliefs (a), (b), (c), (e) and (f) of the prayer clauses of the
plaint.
14. Considering the facts and circumstances of the case, the
preliminary issue is decided against the plaintiffs and in favour of the
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.12 of 13
defendants. The suit of the plaintiffs is, therefore, dismissed with
costs. Since the present suit is an abuse of the process of law, the
same is dismissed with further cost of Rs.1,00,000/, and such costs
shall be deposited by the plaintiffs with the website
www.bharatkeveer.gov.in within a month from today. In case the cost
is not deposited by the plaintiffs within the said period and the receipt
for the same is not filed in this court, Reader/Ahlmad is directed to
place the file before this court for proceeding against the plaintiffs in
accordance with law. Decree sheet be prepared accordingly. File be
consigned to Record Room after due compliance.
PRAVEEN
Digitally signed
by PRAVEEN
KUMAR
KUMAR Date: 2018.10.16
04:48:04 +0530
Dictated and announced in (PRAVEEN KUMAR)
open court today i.e. on 12.10.2018. Additional District Judge05,
NDD,Patiala House Courts,
New Delhi. (R)
CS No.57731/2016
Anuradha Kapoor Ors. Vs. Ashok Kapoor Ors. Page No.13 of 13