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[Cites 3, Cited by 0]

Delhi District Court

Smt. Urmila & Ors vs Shiv Charan & Ors on 13 December, 2011

                  IN THE COURT OF SH BALWANT RAI BANSAL  
                      COMMERCIAL CIVIL JUDGE (SOUTH),
                          SAKET COURTS,  NEW DELHI

Civil Suit No.  03/08


Smt. Urmila & Ors.
                                                               ........... Plaintiffs.
           Versus


Shiv Charan & Ors.
                                                               ........... Defendants.


ORDER

1. Vide this order I shall dispose of 4 applications, two applications u/o 39 rule 1 & 2 of CPC moved by the plaintiffs and defendant no. 1, another application u/o 11 rule 12 of CPC moved by the plaintiff and another application moved by the defendant no. 1 for getting certified copy of registered GPA from the office of Sub­Registrar.

2. Before deciding the aforesaid applications, it would be relevant to discuss brief facts of the present suit. The plaintiffs have filed the present suit for partition u/s 32 of The Indian Succession Act, u/s 10 Rule (1) & (2) of the Hindu Succession Act 1956 and U/s 6 of Hindu Succession (Amendment) Act 2005 against the defendants stating that Suit No. 03/08 Page 1 of 12 the plaintiffs are the real daughters of Smt. Gulab Devi and late Sh. Puranram who died on 26.03.2006 and the defendants no. 1 to 4 are the sons of late Sh. Puranram and Smt. Gulab Devi. The plaintiffs are governed by Mitakshara Coparcenary Rights and are legally entitled to their respective share in the undivided coparcenaries properties of deceased Late Sh. Puran Ram and Smt. Gulab Devi being the Class I heirs. It is stated that the suit properties as mentioned in para 5 of the plaint are the self acquired properties of deceased late Sh. Puranram and Smt. Gulab Devi and plaintiffs no. 1 and 2 are in actual and constructive possession of the aforesaid joint family properties. Therefore, the present suit has been filed for passing a decree to the effect that each plaintiff is entitled to 1/7th share in the suit schedule properties left by deceased Sh. Puranram along with the defendants.

3. Written statement has been filed by defendants no. 1 and 2 contending that present suit is not maintainable and has not been properly valued and same has been filed by the plaintiffs in connivance with the defendant no. 3 and 4 by concealing material facts. It has been denied that suit properties are coparcenary properties and further that the properties as mentioned in para 5 are liable to be distributed by Mitakshara Coparcenary Successory Rights and the plaintiffs have the Suit No. 03/08 Page 2 of 12 share in the said properties. It is stated that except the property No. I­ IInd/80, Madangir, New Delhi, all the other properties belong to the answering defendants and their family members and only the property bearing No. I­IInd/80, Madangir, New Delhi belongs to late father of the defendants and as such the plaintiffs are entitled to 1/7 share in the said property. It has been further denied that the suit schedule properties are self acquired properties of deceased late Sh. Puranram and enjoyed by the share holders. It is stated that the property bearing No. I­IInd/80, Madangir, New Delhi is self­acquired property of late Sh. Puran Ram, father of the plaintiffs and defendants and rest of the properties except Shop No. 277, Sidharth Market, Dakshinpuri, New Delhi - 62 belongs to the answering defendants and their family members and are in possession of the same except shop bearing No. 228, 229, 230, 231, 232, 233, 291, 282, 151, 152, 153, 154, 155, 159 and 160 which are in possession of defendants no. 3 and 4. The other contents of the plaint are stated to be wrong and denied and the defendants no. 1 and 2 have prayed for dismissal of the suit.

4. The defendants no. 3 and 4 did not file any written statement to the present suit despite service of the summons. Thereafter, issues were framed vide order dated 17.03.2010 and matter was fixed for PE. Before, Suit No. 03/08 Page 3 of 12 the plaintiffs could have led their evidence, the aforesaid applications have been filed by the parties which are under disposal.

5. In the application u/o 11 rule 12 of CPC moved by the plaintiff, it is stated that the defendants no. 1 and 2 in their written statement have denied the claim of the plaintiffs that the suit properties are the self acquired properties of late Sh. Puranram, father of the plaintiffs and defendants and they have claimed their own ownership over the suit properties stating that suit properties are their self acquired properties, but they have not shown any title documents of the same. Therefore, it has been prayed that an order may be passed directing the defendants no. 1 and 2 to make discovery on oath of the documents and the title deeds pertaining to the suit properties which are in their possession.

6. The defendant no. 1 filed reply to the aforesaid application contending that the application is not maintainable and same has been filed by the plaintiff in connivance of defendant no. 3 and 4. It is stated that the answering defendant despite being the absolute owner of the properties mentioned in the written statement tried to trace his documents pertaining to the properties, but despite the best efforts he is not able to trace the same and he has an apprehension that the plaintiff may have removed the said documents from the house of the answering Suit No. 03/08 Page 4 of 12 defendant in collusion with the defendants no. 3 and 4. Other contents of the application are stated to be wrong and denied and the defendant no. 1 has prayed for dismissal of the application.

7. The defendant no. 2 also filed reply to the aforesaid application stating that the valid title deeds and the document pertaining to the suit properties are in possession of the defendant no. 1 and he has no objection if the defendant no. 1 produces the same on record.

8. From the reply filed by the defendant no. 1, it is evident that the title documents of the suit properties of which the defendant no. 1 has claimed that some of the suit properties are owned by the defendants no. 1 and 2 and their family members are not in power and possession of the defendant no. 1 and despite best efforts, he is not able to trace out the same. As such, in view of the reply filed by the defendant no. 1 which is supported by the affidavit of the defendant no. 1, when the title documents of the suit properties are not in possession of the defendant no. 1, no directions are warranted to the defendant no. 1 to place on record the title documents of the suit properties as prayed by plaintiff in her aforesaid application u/o 11 rule 12 CPC.

9. In the application u/o 39 rule 1 & 2 CPC moved by the plaintiffs, it is stated that on 08.04.2010 the applicant had gone to meet her mother Suit No. 03/08 Page 5 of 12 at House No. I­2nd 78­80, Madangir, New Delhi, one of the properties comprising of the suit properties and she was informed by her mother Smt. Gulab Devi that the defendants who are the real brothers of the applicant in order to defeat the suit of the applicant are in negotiation with various property dealers for disposing of the suit properties, which are the self acquired properties of the applicant's parents and are coparcenary properties wherein the applicants have also their share which cannot be legitimately sold/ alienated by the defendants. It is stated that in case the suit properties are sold/alienated or in any other manner altered during the pendency of the suit, the applicant would suffer irreparable loss and injury which cannot be compensated in terms of money. Therefore, it has been prayed that an order may be passed in favour of the applicants and against the defendants thereby restraining them from creating third party interest in the suit properties and further to maintain status quo with regard to the suit properties till the final adjudication of the suit.

10. The defendant no. 1 has filed the reply to the application of the plaintiffs denying the contents of the application and re­iterating the averments made in the written statement. It is also stated by defendant no. 1 that he along with his family and defendant no. 2 and his family Suit No. 03/08 Page 6 of 12 are the absolute owner of the properties as mentioned in their written statement and they have already disposed off the property bearing No. 165, 166 and 168, Madangir, New Delhi to meet out their bonafide need and requirement by way of executing the documents of sale i.e. Power of Attorney, agreement to sell, affidavit, Will, Receipts etc.

11. The defendant no. 2 also filed the reply to the aforesaid application of the plaintiffs in which he has stated that he has no objection if the said application filed by the plaintiff is allowed and the defendants are restrained from selling off the properties till the final adjudication of the suit.

12. Before this application of the plaintiff could have been disposed of, the defendant. 1 also moved an application u/o 39 rules 1 & 2 CPC in which it is stated that the defendant no. 2 in order to grab the suit properties which are owned by the defendant no. 1 has started looking for buyers to sell the suit properties including the property No. I­ IInd/168, Madangir, New Delhi­62 and he has also executed a registered General Power of Attorney in favour of his wife namely Smt. Kamlesh. Therefore, the defendant no. 1 has prayed that the defendant no. 2 may be restrained from selling, alienating, creating third party interest in the suit properties.

Suit No. 03/08 Page 7 of 12

13. The plaintiffs have not filed any reply to the aforesaid application of the defendant no. 1 and the Ld. Counsel for the plaintiffs has stated that he has no objection if the application is allowed.

14. The defendant no. 2 also did not file any reply to the said application despite granting opportunity. The defendants no. 3 and 4 are not contesting the present suit and did not file reply to the said application moved by defendant no. 1.

15. In view of above, it has emerged out that the plaintiffs have sought the decree of partition of the suit properties as mentioned in para 5 of the plaint on the ground that these properties are self acquired properties of their parents late Sh. Puranram and Smt. Gulab Devi and are coparcenary properties in which they have also 1/7th share each. The defendants no. 1 and 2 in their written statement have taken a stand that only the property bearing No. I­IInd/80, Madangir, New Delhi is the self acquired property of late Sh. Puranram and Smt. Gulab Devi and the rest of the properties are the self acquired properties of defendants no. 1 and 2 and their family.

16. It is pertinent here to mention that though the defendants no.1 and 2 have claimed that the suit properties as mentioned in para 5 of the plaint are not coparcenary properties and except the property bearing Suit No. 03/08 Page 8 of 12 No. I­IInd/80, Madangir, New Delhi, the other properties are owned by them and their family, but not a single document has been placed on record by the defendants no. 1 and 2 to substantiate their claim. As discussed herein above, despite filing of the application u/o 11 rule 12 CPC by the plaintiff to direct the defendants no. 1 and 2 to produce the title documents of the suit properties on record, the same has not been placed on record on account of non­availability.

17. Therefore, in the absence of any title documents of the suit properties, at this stage, it cannot be said that except the property No. I­ IInd/80, Madangir, New Delhi, the rest of the properties as mentioned in para 5 of the plaint are owned by the defendants no. 1 and 2 and their family. It is a matter of trial as to whether the suit properties as mentioned in para 5 of the plaint are self acquired properties of late Sh. Puranram and Smt. Gulab Devi and the plaintiffs have 1/7th share each in the said properties or except the property No. the property No. I­IInd/80, Madangir, New Delhi, the other properties are owned by defendants no. 1 and 2 and their family.

18. Moreover, defendant no. 1 has also apprehension that the defendant no. 2 in order to grab the suit properties is going to dispose of the properties owned by defendant no. 1 and plaintiffs have no objection Suit No. 03/08 Page 9 of 12 if the defendant no. 2 is restrained from creating any third party interest to the suit properties. Similarly, the defendant no. 2 in his reply to the application of the plaintiff u/o 39 rules 1 & 2 CPC has stated that he has no objection if the defendants are restrained from creating third party interest in respect of the suit properties till the final disposal of the present suit.

19. In the facts and circumstances of the case, it would be in the interest of the parties that during the pendency of the suit, the suit properties as mentioned in para 5 of the suit are preserved and if the same are allowed to be sold by the defendants, it would create multiplicity of litigation between the parties and would render the present suit infructuous. As the defendant no. 1 has claimed in his reply to the application of the plaintiffs u/o 39 rule 1 & 2 CPC that he has already disposed off the property bearing No. 165, 166 and 168, Madangir, New Delhi to meet out his bonafide need and requirement, therefore, the defendants are restrained from selling, alienating, creating third party interest in the suit properties except property no. 165, 166 & 168, Madangir, New Delhi till the final disposal of the present suit.

20. Accordingly, both the applications moved by the plaintiffs and defendant no. 1 u/o 39 Rule 1 & 2 are disposed off.

Suit No. 03/08 Page 10 of 12

21. So far the application moved by the defendant no. 1 for getting the certified copy of registered GPA from the Office of Sub­Registrar is concerned, it is stated by defendant no. 1 that after filing of the written statement, the defendant no. 2 has joined hands with the defendants no. 3 and 4 on whose instance, the present suit has been filed by the plaintiffs and the defendant no. 2 in order to grab the suit properties which are owned by the defendant no. 1 has started looking for buyers to sell the suit properties including the property No. I­IInd/168, Madangir, New Delhi­62 and he has also executed a registered General Power of Attorney in favour of his wife namely Smt. Kamlesh. It is further stated that the defendant no. 1 has also moved an application for getting certified copy of the said GPA , but the concerned Sub­Registrar­V refused to allow the application on the pretext that certified copy can only be given to the parties of the above said GPA. Therefore, it has been prayed that the Sub­Registrar­V, Mehrauli, New Delhi may be directed to give certified copy of the General Power of Attorney as mentioned above.

22. First of all, the defendant no. 1 has not disclosed under which provision this application has been filed and under which provisions relief sought can be granted. Furthermore, if the office of the Sub­ Suit No. 03/08 Page 11 of 12 Registrar­V has refused to give certified copy of the GPA as prayed by defendant no. 1, he can approach to the higher authorities to give such directions to the office of Sub­Registrar if the O/o Sub­Registrar is not providing the Certified copies for which the petitioner has any right. But, no such directions are warranted by this court. Hence, there is no merit in the application moved by the defendant no. 1 and same is hereby dismissed. 

Announced in the open court                                   (Balwant Rai Bansal)
on 13th December, 2011                                        CCJ (South), New Delhi




Suit  No. 03/08                                                                     Page 12 of 12
 E­ 03/08

13.12.2011

           Present: Counsel for the petitioner.

Sh. M. A. Ansari, Advocate. He has filed the Vakalatnama for defendant no.2. He seeks adjournment.

No case is made out for granting adjournment as matter is fixed today for orders on interim application.

Put up at 4.00 PM. for orders.

(Balwant Rai Bansal) CCJ/ARC/ACJ(South), New Delhi 13.12.2011 4.00 PM :

Present: None Vide my separate order of even date dictated and announced in the open court, two applications u/o 39 rule 1 & 2 CPC moved by plaintiffs and defendant no. 1 is allowed, another application u/o 11 rule 12 of CPC moved by plaintiffs is disposed off and another application moved by defendant no. 1 for getting certified copy of registered GPA from the office of Sub­Registrar is dismissed.

Now, put up on 02.03.2011 for PE.

Suit No. 03/08 Page 13 of 12

(Balwant Rai Bansal) CCJ/ARC/ACJ(South), New Delhi 13.12.2011 Suit No. 03/08 Page 14 of 12