Himachal Pradesh High Court
Mridula Sood And Others vs . Himanshu Sood And on 27 September, 2024
Mridula Sood and others vs. Himanshu Sood and another a/w connected matter.
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Civil Suit No. 140 of 2022 a/w Civil Suit No. 28 of 2024 Reserved on 13.08.2024.
27.09.2024 Present: Mr. Ajay Kumar, Senior Advocate, with Mr. Rohit, Advocate, for the plaintiffs No. 1, 2 and 4. Mr. K.D. Sood, Senior Advocate, with Mr. Rahul Gathania, Advocate for the defendant No.1.
Mr. Suneet Goel, Advocate for defendants No. 2to 7.
Defendant No.8 proceeded against the ex- parte.
Mr Deepak Bhasin, Senior Advocate, with Ms Geeta Devi, Advocate for defendant No.9. (transposed as defendant No.9 vide order dated 29.07.2024) CS No. 28 of 2024.
Mr Ajay Kumar, Senior Advocate, with Mr Rohit, Advocates, for the plaintiffs.
Mr. K.D. Sood, Senior Advocate, with Mr. Rahul Gathania, Advocate for the defendant No.1.
Mr. Vivek Sharma, Advocate, for defendant No.2.
Mr. Arvind Sharma, Advocate, for defendant No.3.
Mr. Sumeet Goel, Advocate, for defendants No.4 and 5.
OMP No. 847 of 2024The applicants/plaintiffs have filed the present application for seeking an ad interim injunction for ::: Downloaded on - 27/09/2024 20:42:55 :::CIS restraining defendant No. 8 from paying the rent of Shop .
No. 34 The Mall Shimla to defendant No.1 Sh. Himanshu Sood and restraining the defendant No. 1 from receiving it.
It has been asserted that the applicants/plaintiffs have filed a civil suit for partition, recovery of mesne profits, the appointment of receiver and prohibiting defendant No.8 from making the payment of lease money or rent to defendant No.1. As per the plaint, the parties except defendant no. 8 are the legal heirs of Late Sh. Amar Chand Sood who was a karta of a Hindu Undivided Family consisting of himself, his wife, five daughters and one son.
The Hindu Undivided Family (HUF) owned various properties mentioned in para 2 and the head note of the plaint. Lala Amar Chand Sood died intestate on 02.12.1991 leaving behind his widow and six children to succeed to the properties. Vijay Kumar Sood started managing the properties inherited by the parties from late Lala Amar Chand Sood. The ancestral business of hardware was being run in the building No. 34 The Mall Shimla/54 Middle Bazar, Shimla. Vijay Kumar Sood used to share the rent and income of the business with his mother- plaintiff No.4. He regularly paid an amount of ₹30,000/- to 32,000/- per month to plaintiff No.3 Meenakshi Sood by remitting it to her bank account. The plaintiffs and defendants No. 2 to 5 ::: Downloaded on - 27/09/2024 20:42:55 :::CIS are occupying a portion of a multistoryed building known .
as Amar Niwas Subji Mandi, Shimla. The top floor and the attic were occupied by late Sh. Vijay Kumar Sood, his wife and daughters. After the death of Vijay Kumar Sood, this floor is in occupation of his wife and unmarried daughters.
One room has been forcibly occupied by defendant No.1 who is acting contrary to the interest of all the co-owners and wants to grab the entire property of HUF based on a Will stated to have been executed by Vijay Kumar Sood. The first floor of the building known as 34 The Mall Shimla/54 Middle Bazaar Shimla has been let out to defendant No.8.
The other floors of the building are jointly owned by the parties and defendant No. 1 is running an eatery known as Wake and Bake. Another eatery by the name of Himachali Rasoi is being run in the back portion of the building known as 54 Middle Bazaar Shimla. Plaintiffs or defendants No. 6 and 7 did not object to the distribution of the income of the joint property, as Vijay Kumar Sood was regularly paying the money to his mother from the rental and business income of the building. After the death of Vijay Kumar Sood on 31.07.2022, defendant No.1 Himanshu Sood started proclaiming himself to be an absolute owner of the building No. 34 The Mall Shimla/54 Middle Bazaar, Shimla and the portions of Amar Niwas Sabji Mandi ::: Downloaded on - 27/09/2024 20:42:55 :::CIS Shimla. He refused to give accounts of rental and business .
income from the buildings known as 34 The Mall Shimla/54 Middle Bazaar Shimla. Defendant No.1 propounded a Will stated to have been executed by Vijay Kumar Sood. This Will has already been challenged by defendants No. 2 to 4 in the Court of learned District Judge, Shimla. Building No. 34, The Mall Shimla/54 Middle Bazaar, Shimla was never owned by Vijay Kumar Sood exclusively and he could not have executed any Will regarding the same. The plaintiffs and defendants 6 and 7 and late Sh. Vijay Kumar Sood had an equal interest in the properties known as Amar Niwas Sabji Mandi, Shimla and HUF of the properties of the Late Lala Amar Chand Sood.
Vijay Kumar Sood was admitted to the Cardiac Care Unit at Indira Gandhi Medical College and Hospital (IGMCH) on 09.07.2022. He was got discharged by defendant No. 1 on 10.07.2022 against medical advice. He was taken by defendant No.1 to Chandigarh around 26.07.2022. No treatment was given to him. He died on 31.07.2022. The Will propounded by defendant No.1 was stated to have been executed on 09.07.2022 on which date Vijay Kumar Sood was admitted to the Cardiac Care Unit in IGMC. Defendant No.1 cannot usurp the joint properties of the parties. He is liable to pay use and occupation charges/mesne profits to ::: Downloaded on - 27/09/2024 20:42:55 :::CIS the other co-sharers. He is also liable to pay the mesne .
profits in the future. Hence, the suit was filed to seek the relief mentioned above.
2. The suit was opposed by filing a written statement by defendant No.1 Himanshu Sood taking preliminary objection regarding the property being the self-acquired property and not the ancestral property and Vijay Kumar Sood being competent to execute a Will regarding the same. It was asserted that plaintiffs are not entitled to any reliefs as they have no right, title or interest in the suit property. The suit properties located in Shimla were non-ancestral and some were self-acquired properties of late Vijay Kumar Sood. He had bequeathed the suit property to defendant no. 1 in a sound disposing state of mind through a registered Will. He had given a flat in Fakland Estate to Smt. Asha, who had been looking after him for several years. The defendant is the son of the late Sh. Vijay Kumar Sood who was the sole owner in possession of the properties since the death of Amar Chand Sood. Plaintiffs No. 1, 2 and 3 and defendants No. 6 and 7 were married. They left the house before the death of their father. The property stood divided by way of family partition in the year 1975 and by way of a Will executed by Amar Chand Sood on 18.11.1991. Plaintiffs never raised any ::: Downloaded on - 27/09/2024 20:42:55 :::CIS objection during the lifetime of Vijay Kumar Sood. Plaintiff .
No.2 and defendant No. 6 are not Indian citizens and they have been residing in Canada and the United States of America since the 1970s. Plaintiff No.3 is residing separately in Chandigarh. Defendant No.7 is also residing in the USA and they have furnished the wrong address.
Defendant No.2 is residing at Summer Lead Apartment, Chota Shimla 2008 after she abandoned her husband late Sh. Vijay Kumar Sood. He resided alone on the top floor of Amar Niwas. Defendant No.1 took care of him. Defendant No.4 is also residing at Summer Lead Apartments, Chhota Shimla. Defendant No.5 is a resident of New Delhi. Vijay Kumar Sood was in exclusive possession of the top floor of Amar Niwas Shimla. He had a care provider named Asha.
Vijay Kumar Sood was the sole owner of the property and he was competent to execute the Will. Lala Amar Chand Sood had bequeathed all the properties to Vijay Kumar Sood on 18.11.1991. The ownership of Vijay Kumar Sood was never questioned during his lifetime. Vijay Kumar Sood was involved in a false criminal case under Section 376 of IPC and Section 67 of the Information and Technology Act.
He was acquitted of the commission of an offence punishable under Section 376 of IPC but was convicted of the commission of an offence punishable under Section 7 ::: Downloaded on - 27/09/2024 20:42:55 :::CIS of the Indecent Representation of Women (Prohibition Act) .
Act 1986. He was sentenced to undergo one year's imprisonment and to pay a fine of ₹ 1,000/- and in default of payment of the fine, to further undergo imprisonment for one month. He was directed to pay ₹ 1,00,000/- to the prosecutor. This judgment was challenged and was set aside by learned Additional Sessions Judge, Fast Track Court, Shimla. All the family members including his wife and sisters deserted him. He was living alone and only defendant No.1. was looking after him along with Smt. Asha, who served him for 10 years. Vijay Kumar Sood executed a Will on 09.07.2022 in the morning between 11 AM to 1 PM before being admitted to the hospital on the same day in the evening. The application for the registration of the Will was made on 12.07.2022 with a request to carry out the registration at the house of Vijay Kumar Sood. The Will was registered on 19.07.2022 in the presence of the Sub Registrar and the marginal witnesses.
Plaintiffs No.2 & 3 and defendants No. 7 did not participate in any ceremony of late Vijay Kumar Sood. He was paying maintenance of ₹25,000/- enhanced by 12% every three years to his wife defendant No.2 since 01.05.2008. The other sisters also did not take care of Vijay Kumar Sood.
The Medical Officer had advised to shift him to a lower ::: Downloaded on - 27/09/2024 20:42:55 :::CIS altitude and he was taken to Panchkula. He took the .
treatment from Max Hospital Mohali. The suit has been filed without any basis. Therefore, it was prayed that the suit be dismissed.
3. A separate written statement was filed on behalf of defendants No. 2 to 7 substantially admitting the
4.
r to contents of the plaint and praying that the suit of the plaintiffs be decreed.
Subsequently plaintiff No.3 was ordered to be transposed as defendant No.9 as per the application filed by her.
5. Replication denying the contents of the written statement and affirming those of the plaint was filed by the plaintiffs.
6. The applicants/plaintiffs also filed an application seeking an interim injunction which was opposed by respondent No.1 and supported by respondents No. 2 to 7.
7. I have heard Mr. Ajay Kumar, learned Senior Advocate, assited Mr. Rohit, Advocate for the applicants/plaintiffs No.1, 2 and 4, Mr. K.D. Sood, learnd senior Advocate, assisted by Mr Rahul Gathania, Advocate for the non-applicant/defendant No.1., Mr Suneet Goel, learned counsel for non-applicants/defendants No. 2 to 7 ::: Downloaded on - 27/09/2024 20:42:55 :::CIS and Mr Deepak Bhasin, learned Senior Advocate, assisted .
by Ms Geeta Devi, Advocate, for non-applicant/defendant No.9.
8. Mr Ajay Kumar, learned Senior Advocate for applicants/plaintiffs No.1, 2 and 4, submitted that the suit property was equally inherited by the legal heirs of Lala Amar Chand Sood. Defendant No.1 is not entitled to usurp the rent of the property and retain the possession of the property. The plaintiffs have a birthright being the daughters and defendant No.1 is liable to restore their share to them. Therefore, he prayed that the present application be allowed and defendant No.8 be restrained from paying the rent to defendant No.1 during the pendency of the suit.
9. Mr. K.D. Sood learned Senior Advocate for non-
applicant/defendant No.1. submitted that deceased Lala Amar Chand Sood had executed a Will in favour of his son Vijay Kumar Sood and Vijay Kumar Sood executed a Will in favour of defendant No.1. The plaintiffs and defendants had abandoned Vijay Kumar Sood during his last days.
Defendant No.1 took care of him along with Asha, his caretaker. The deceased executed a Will in their favour after being satisfied with the services rendered by them.
::: Downloaded on - 27/09/2024 20:42:55 :::CISTherefore, he prayed that the present application be .
dismissed.
10. Mr. Suneet Goel, learned counsel for defendants No. 2 to 7 supported the submission of Mr. Ajay Kumar, learned Senior Advocate for the plaintiffs No.1, 2 and 4 and prayed that the application be allowed.
11. Mr Deepak Bhasin, learned Senior Advocate, for defendant No.9. submitted that defendant no. 9 is not being permitted to meet her mother and a direction be issued to the plaintiffs to allow defendant No.9 to meet her mother.
12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
13. Defendant No.1 asserted in his written statement that Lala Amar Chand Sood had executed a Will in favour of Vijay Kumar Sood; however, Vijay Kumar Sood had made a statement on oath on 08.01.2002 in the Court of learned Rent Controller Shimla in a case titled Meenakshi versus Sh. Rajender Sood that no Will was executed by his father and no family partition had taken place between the co-sharers. He volunteered to say that an oral family settlement had taken place which was not entered in the revenue department. No intimation was ::: Downloaded on - 27/09/2024 20:42:55 :::CIS given to the Income Tax Department regarding the family .
settlement. No tenant was informed about the family settlement.
14. Vijay Kumar Sood was the best person to know about the execution of the Will in his favour and when he categorically stated that no Will was executed in his favour, the plea taken by defendant No.1 that deceased Lala Amar Chand Sood had executed a Will in favour of Vijay Kumar Sood is prima-facie not acceptable.
15. The matter in the previous rent petition reached this Court and this Court held in Civil Revision No. 132 of 2005 along with Civil Revision No. 120 of 2007 titled Meenakshi vs. Rajinder Kumar and others decided on 31.05.2018 that Meenakshi was one of the co-sharers and competent to maintain the eviction petition. No Will was executed by Lala Amar Chand Sood. The property devolved by way of succession and the family settlement was not established. Thus, the plea regarding the execution of the Will by Lala Amar Chand Sood taken by the defendant cannot be prima facie accepted in these proceedings.
16. Defendant No.1 has also relied upon a Will stated to have been executed by Vijay Kumar Sood in his favour and in favour of Asha. This Will is stated to have been executed on 09.07.2022. The discharge card of the ::: Downloaded on - 27/09/2024 20:42:55 :::CIS Cardiology Department of Vijay Kumar Sood shows that .
Vijay Kumar Sood was admitted to the Cardiology Department on 09.07.2022 and was discharged on 10.07.2022 with a complaint of shortness of breath for three months. He was managed with a moist oxygen inhaler and was discharged on request. Prima facie the execution of a Will on the date when Vijay Kumar Sood was admitted to the hospital appears to be suspicious and even if it is accepted that Vijay Kumar Sood had executed a Will in favour of defendant No.1, it will not deprive his sisters of the estate of their father which they are entitled to inherit being the children of Lala Amar Chand Sood. Hence, the plea that the parties except defendant no. 8 are to be treated as co-sharers of the property of Lala Amar Chand Sood has to be prima facie accepted as correct at this stage.
17. Once it is held that defendant No.1 is not entitled to exclusively use the property left by Lala Amar Chand Sood, the other co-sharers would be prima-facie entitled to enjoy the usufructs of the joint property. Hence, the plea of the applicants/plaintiffs that defendant No.8 cannot exclusively tender the rent to defendant No.1 has to be accepted as correct.
18. It was submitted that the property was partitioned. This plea cannot be accepted because of the ::: Downloaded on - 27/09/2024 20:42:55 :::CIS statement on oath made by Vijay Kumar Sood denying that .
a partition of the property had taken place. Defendant No. 1 being the successor of Vijay Kumar Sood is bound by the admission made by the latter and his plea cannot be accepted that he is entitled to exclusively use the property of Lala Amar Chand Sood.
19. Therefore, the version of the plaintiffs has to be accepted prima facie as correct that defendant No.1 is liable to render the accounts to the plaintiffs and defendants No.2, 6, 7 and 9 and they have a prima facie arguable case in their favour.
20. In case the injunction prayed for is withheld, the plaintiffs will suffer irreparable loss and injury as they would be deprived of the usufructs of the joint property owned by them, whereas defendant No.1 will not suffer as he has failed to show any exclusive right in himself to enjoy the property. Thus, the balance of convenience also exists in favour of the plaintiffs.
21. Therefore, the present application is allowed and defendant No.8 is restrained from tendering the amount of the rent to defendant No.1 during the pendency of the suit.
::: Downloaded on - 27/09/2024 20:42:55 :::CIS22. The observations made herein before shall .
remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case.
O MP No. 848 of 202223. The applicants/plaintiffs have filed this application for seeking a direction for the appointment of the receiver for collecting the rent of shop No.34, The Mall Shimla during the pendency of the suit with further directions as may be deemed appropriate. It has been asserted that the rent of the shop is ₹2,00,000/- per month. The parties are entitled to the same as per their share. Defendant No.1 does not have any exclusive right to get the rent. Therefore, it was prayed that the application be allowed and the receiver be appointed to receive the rent.
24. The application was opposed by filing a reply denying the contents of the application. It was asserted that Vijay Kumar Sood had inducted the tenant. He had executed a Will in favour of defendant No.1 during his lifetime in his sound disposing state of mind. There is no question of the appointment of the receiver. Defendant No.1 would keep the account. Therefore, it was prayed that the present application be dismissed.
::: Downloaded on - 27/09/2024 20:42:55 :::CIS25. I have heard Mr. Ajay Kumar, learned Senior .
Advocate assisted by Mr. Rohit, Advocate, for the applicants/plaintiffs. Mr. K.D. Sood, learned Senior Advocate, assisted by Mr Rahul Gathania, Advocate for non-applicant/defendant No.1., Mr Suneet Goel, learned counsel for non-applicants/defendants No. 2 to 7 and Mr Devi, Advocate applicant/defendant No.9.
Deepak Bhasin, Senior Advocate, assisted by Ms. Geeta learned counsel for non-
26. It has been found above that the plea taken by defendant No.1 that he is the exclusive owner of the property and entitled to enjoy the same has not been established.
27. In the present case the plaintiffs have shown prima facie at this stage by the admission made by Vijay Kumar Sood that Lala Amar Chand Sood had not executed any Will in his favour and Vijay Kumar Sood was admitted to the Hospital on the date of execution of the Will stated to have been executed by him. Therefore, the plaintiffs have excellent chances of succeeding in their suit. Defendant No.1 cannot enjoy the property to the disadvantage of the other co-owners. Hence, defendant No. 8 is restrained from paying the rent exclusively to defendant No.1.
Defendant No. 8 has to pay the rent to someone and the ::: Downloaded on - 27/09/2024 20:42:55 :::CIS rights of the parties have to be protected during the .
pendency of the suit. Hence, it would be appropriate that the rent be deposited in an account to protect the rights of the parties during the pendency of the suit. Such a course will not harm any co-sharer and will protect the rights of the parties during the pendency of the suit. Therefore, the present application is allowed and the rent payable by defendant No. 8 is ordered to be deposited in the bank account to be opened separately for this purpose. The amount so deposited shall not be disbursed to any person during the pendency of the suit without a specific order of the Court and shall be subject to the ultimate decision of the case.
28. The observations made herein before shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 27th September, 2024 (Nikita) ::: Downloaded on - 27/09/2024 20:42:55 :::CIS