Delhi High Court - Orders
Pamela Bhagat & Anr vs Lalita Gadhiok on 22 December, 2020
Author: Mukta Gupta
Bench: Mukta Gupta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 444/2020
I.A.12475/2020 (under Order II Rule 2 CPC)
I.A.12476/2020 (under Order XXXIX Rule 1 and 2 CPC)
I.A.12477/2020 (exemption)
PAMELA BHAGAT & ANR. ..... Plaintiff
Represented by: Ms.Roma Bhagat, Advocate.
versus
LALITA GADHIOK ..... Defendant
Represented by: Mr.Shivek Trehan, Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 22.12.2020 The hearing has been conducted through video conferencing. I.A.12477/2020 (exemption)
1. Exemption allowed subject to just exceptions.
2. Application is disposed of.
CS(OS) 444/2020 I.A.12475/2020 (under Order II Rule 2 CPC) I.A.12476/2020 (under Order XXXIX Rule 1 and 2 CPC)
1. Plaint be registered as a suit.
2. Issue summons in the suit and notice in the applications to the defendant.
3. Mr.Shivek Trehan, learned counsel accepts summons in the suit and notice in the applications on behalf of the defendant.
Signature Not Verified Digitally Signed By:JUSTICECS(OS) 444/2020 PageGUPTA MUKTA 1 of 3 Signing Date:22.12.2020 19:45:50
4. By the present suit, the plaintiff seeks a decree of declaration in respect of their shares in the suit properties. According to the plaintiffs, late father of the plaintiff and father-in-law of the defendant had acquired property bearing No. C-429, Defence Colony, New Delhi admeasuring 325 Sq.Yards which was wholly owned by him (in short, the Defence Colony property) besides a flat bearing No. 219, Block 34, Third Floor, Indian Airlines (Cargo) Co-operative Group Housing Society, Dwarka, New Delhi (in short the Dwarka property). The plaintiffs claim their share in the two suit properties that have been devolved on them by inheritance. According to the plaintiffs, on the death of late Lt. Col. A.N. Gadhiok on 5th October, 2008, the Defence Colony property devolved on the two sisters, their brother i.e. the husband of the defendant and their mother in 1/4 th ratio each. Unfortunately, in April, 2016, the brother of the plaintiffs and the husband of the defendant died and thus, according to the plaintiffs, 1/4th share of the brother in the Defence Colony property devolved equally on his wife and the mother, thereby increasing the share of the mother to 37.5 %. Since the Dwarka property was in the name of brother of the plaintiffs, the same was equally divided between the defendant and the mother of the plaintiffs. On 24th October, 2018, Mrs. Swarn Gadhiok, the mother of the plaintiffs also passed away and thus the plaintiffs claimed their increased share in the two suit properties.
5. Learned counsel for the defendant who enters appearance on advance notice states that despite the fact that the plaintiffs are aware of the fact that there were registered Wills, both executed by the plaintiffs' mother as also the brother of the plaintiffs, existence of the same is disputed merely on the ground that the same were not probated and in view of the registered Wills Signature Not Verified Digitally Signed By:JUSTICE CS(OS) 444/2020 PageGUPTA MUKTA 2 of 3 Signing Date:22.12.2020 19:45:50 in favour of the defendant, plaintiffs have no shares, as claimed in the two suit properties. Learned counsel for the defendant states that along with the written statement, all these documents will be filed and till the next date of hearing, to show the bona-fide, the defendant will not create any third party rights in the Defence Colony property. The statement made on behalf of the defendant by the learned counsel is taken on record.
6. Learned counsel for the defendant also challenges the maintainability of the suit seeking a declaration on the ground that having pleaded complete ouster, the plaintiffs are not seeking the consequential reliefs and hence, the suit is not maintainable. Learned counsel also states that during the lifetime of the father of the plaintiffs, the suit properties had been reconstructed and he was left with interest in the basement, ground floor and the terrace rights in the Defence Colony property, the first floor and the second floor of the said property having been assigned to the builder. He states that the Dwarka property was in the joint name of the defendant and her husband.
7. Written statement to the suit and reply affidavit to the application along with the affidavits of admission-denial be filed within thirty days. Replication and rejoinder affidavit along with the affidavit of admission- denial within three weeks thereafter.
8. List the suit and applications before Court on 19th March, 2021.
9. Copy of the order be uploaded on the website of this Court.
MUKTA GUPTA, J.
DECEMBER 22, 2020 akb Signature Not Verified Digitally Signed By:JUSTICE CS(OS) 444/2020 PageGUPTA MUKTA 3 of 3 Signing Date:22.12.2020 19:45:50