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Smt. Kamlesh vs Sh. Shri Kishan & Ors on 30 August, 2022

                          $~14
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CS(OS) 62/2019
                                 SMT. KAMLESH                                   ..... Plaintiff
                                         Through:             Ms. Jyoti Nambiar, Advocate.

                                                     versus

                                 SH. SHRI KISHAN & ORS.                ..... Defendants
                                           Through: Mr. Sanjay Rathi, Mr. Deepak Khatri,
                                                    Mr. Ashish Khatri, Mr. Nikhil Kumar
                                                    Singh, Advocates for D-1 & 2, 7 to 10
                                                    (Ph.9811075210, e-mail:
                                                    [email protected])

                                 CORAM:
                                 HON'BLE MS. JUSTICE MINI PUSHKARNA
                                                     ORDER

% 30.08.2022 I.A. 8566/2021

1. This is an application under Order 1 Rule 10 (2) read with Section 151 CPC for transposition of defendant No. 6 as a plaintiff in the present suit.

2. The present is a suit for partition. Plaintiff is the sister, while defendant Nos. 1 and 2 are the brothers, defendant Nos. 3 to 6 are also the sisters, defendant Nos. 7 to 10 are sons of defendant Nos. 1 and 2 and defendant No. 11 is the mother of all the parties except defendant Nos.7 to 10.

3. It is the case of the defendant No. 6 i.e. the applicant that she being a Class I heir is also entitled to 1/8 th share in the entire suit Signature Not Verified Digitally Signed By:PREETI Signing Date:07.09.2022 11:26:51 property. Attention of this Court is drawn to the written statement filed on behalf of defendant Nos. 3 to 6 and 11, wherein in Para 2 of the Preliminary Submissions, it has been stated as follows:

"2. That the suit filed by plaintiff is correct. Due share of answering defendants may be given/ allotted and separate possession may also be given to answering defendants."

4. A perusal of the aforesaid written statement categorically shows that the defendant No. 6, who is the sister of the plaintiff has admitted the claim of the plaintiff and has admitted that the claim of the plaintiff is correct and that the defendants may also be given their separate possession of their respective shares accordingly.

5. In view of the fact that the defendant No. 6 has admitted to the claim of the plaintiff and likewise, has claimed 1/8th share in the suit property, it is deemed expedient that the present application is allowed.

6. Thus, in view of the aforesaid discussion, the present application is allowed thereby transposing the defendant No. 6 as plaintiff.

7. Application is disposed of in the aforesaid terms.

8. This is an application under Section 151 CPC seeking condonation of delay of 76 days in re-filing the application i.e. I.A. 10020/2022.

9. Considering the averments made in the present application, the delay of 76 days in re-filing I.A. No. 10020/2022 is condoned.

10. The application is accordingly disposed of.

11. This is an application under Order 22 Rule 4 CPC for seeking substitution of name of defendant No. 3 on account of her death and to bring on record the LR of defendant No. 3.

12. It is submitted that defendant No. 3 expired on 25.11.2021 leaving behind only one legal heir i.e. the daughter of defendant No. 3, details of whom are as follows:

"Smt. Pooja D/o late Smt. Krishna R/o H. No. 512/69, Arya Mohalla Ishu Public School, Gali No.7 Nangloi, Delhi 110041"

13. It is submitted that the right to sue survives upon the legal heir of defendant No. 3 since the present suit is filed for declaration, partition and permanent injunction and the same is a family dispute amongst the various family members.

14. Learned counsel appearing for the defendant Nos. 1, 2, 7 to 10 submits that he has no objection if the legal heir of defendant No. 3 is brought on record.

15. Accordingly, the present application is allowed. The deceased defendant No.3 will now be represented through her legal heir as mentioned above.

CS(OS) 62/2019

16. Let amended memo of parties be filed by the plaintiff within one week.

17. Learned counsel appearing on behalf of the defendant Nos. 1, 2, Signature Not Verified Digitally Signed By:PREETI Signing Date:07.09.2022 11:26:51 7 to 10 submits that plaintiff do not have any share in the suit property as there is a Will in their favour duly executed by the grandfather of defendant Nos. 7 to 10 dated 12.03.2013. He also submits that since the defendant No. 6 has now been transposed as a plaintiff, therefore, the plaintiffs will now have to value their suit properly and pay requisite court fee.

18. The plaintiffs may consider this aspect accordingly.

19. Learned counsel for the parties submit that the present matter being family dispute, the same can be referred to mediation and the parties are ready to explore the possibility of settlement.

20. List before the Delhi High Court Mediation and Conciliation Centre on 05.09.2022.

21. List before this Court on 28.11.2022.

MINI PUSHKARNA, J AUGUST 30, 2022 PB Signature Not Verified Digitally Signed By:PREETI Signing Date:07.09.2022 11:26:51