Delhi High Court - Orders
Deepak Batra & Anr vs Kavita Batra & Ors on 22 July, 2022
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 367/2018
DEEPAK BATRA & ANR. ..... Plaintiffs
Through:
versus
KAVITA BATRA & ORS. ..... Defendants
Through:
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 22.07.2022 I.A. 5628/2021
1. This is an application filed on behalf of the plaintiffs under Order 22 Rule 2 CPC r/w Section 151 CPC to bring on record the legal representatives of deceased defendant No. 2 - late Mrs. Sushila Batra.
2. On behalf of the plaintiffs, it is submitted that the defendant No.2 was the mother of the parties, plaintiffs being her sons, defendant No.1 being the unmarried daughter and defendant No. 3 also being the son of deceased defendant No.2. Thus, it is averred that the plaintiffs, defendant No. 1 and defendant No. 3 are the legal heirs of defendant No. 2. By way of the present application, the plaintiffs have prayed to bring on record the legal representatives of defendant No. 2 viz. plaintiff No.1, plaintiff No. 2 and defendant No. 3 being sons and defendant No. 1 being the daughter of deceased defendant Signature Not Verified Digitally Signed By:PREETI Signing Date:27.07.2022 16:16:38 No. 2.
3. The present application has been vehemently opposed on behalf of the learned counsel for the defendant No.1.
4. The present suit is a suit for partition filed on behalf of the two sons being the plaintiffs against their sister, defendant No.1, their mother, deceased defendant No.2 and brother, defendant No.3 with respect to property bearing No.18 in Block E, ad measuring 237.85 sq. yards situated in Lajpat Nagar- III, New Delhi -110024.
5. The defendant No.1 has contended that the aforesaid property, which is subject matter of dispute in the present proceedings belonged to her mother, deceased defendant No.2, as she was the sole and exclusive owner of the suit property.
6. Lease deed dated 20.06.1958, Supplementary Lease Deed dated 28.10.2010 and finally Conveyance Deed dated 26.12.2011 was executed by the President of India in her favour. Defendant No. 2 being the exclusive owner of the suit property, had gifted the said property in favour of defendant No.1, who is the unmarried daughter, by way of duly registered Gift Deed dated 04.04.2018. It is, thus, contended on behalf of defendant No. 1 that she is now the sole and exclusive owner of the suit property.
7. It is also pointed out that this Court on 29.08.2018 had recorded the statement of deceased defendant No.2, mother of the parties under Order 10 CPC. In this regard, IA No. 10997/2018 had been filed seeking oral examination of defendant No. 2 under Order 10 CPC. In the said application, it had been pleaded that defendant No. 2 had voluntarily out of her own will registered the Gift Deed in favour of Signature Not Verified Digitally Signed By:PREETI Signing Date:27.07.2022 16:16:38 defendant No. 1, her daughter. Thus, statement of deceased defendant No. 2 under Order 10 CPC was recorded by this Court on 29.08.2018, which is as follows:
"This house i.e. House No. 18, Block E, Lajpat Nagar-III, New Delhi -24 belongs to me. About one month ago, I transferred this property in the name of my daughter i.e. defendant No. 1. I have done this out of my own free will. My daughter takes care of me."
8. On the other hand, the plaintiffs have sought to declare the said Gift Deed dated 04.04.2018 as null and void. Further, defendant No. 3 has not filed any written statement, but is supporting the case as set up by the plaintiffs. It is, thus, contended on behalf of the defendant No.1 that deceased defendant No. 2, mother of the parties, stood in an adversarial capacity in so far as the plaintiffs No. 1 and 2 and defendant No. 3 were concerned. The said parties i.e. plaintiffs No. 1 and 2 and defendant No. 3 have chosen to deny the exclusive title and ownership of the defendant No. 2 which she had in the suit property. The said parties are on the contrary claiming that the suit property is a Joint Hindu Family property.
9. In view of the aforesaid, it is contended on behalf of defendant No. 1 that since plaintiffs No. 1 and 2 and defendant No. 3 have interests which are in conflict with the interests of the defendant No.2, deceased mother of the parties, therefore, they are not entitled to be treated as her legal representatives.
10. I have considered the rival contentions made on behalf of the parties. It is trite to mention that when the interests are in conflict with each, a person, even though a legal heir, is not entitled to be treated as Signature Not Verified Digitally Signed By:PREETI Signing Date:27.07.2022 16:16:38 a legal representative of the deceased. Plaintiffs No. 1 and 2 and defendant No. 3 have conflict of interests with their deceased mother since they are opposing the Gift Deed executed by their mother in favour of defendant No.1 and opposing the stand of their mother that the suit property was under her exclusive title and ownership. The said parties have set up a contrary and adversarial stand that the suit property is a Joint Hindu Family property. Thus, in view of the conflict of interests between plaintiffs and defendant No. 3 with their deceased mother-defendant No. 2, they cannot be treated as her legal representatives.
11. At this stage, it would be useful to refer to the judgment in the case of G.N. Kishore Reddy vs. R.Venugopal Rao and Ors., AIR 2004 Andhra Pradesh 498, wherein it has been held as follows:
Para 15 ...
12. In view of the aforesaid findings that plaintiffs No. 1 and 2 and defendant No. 3 have interests which are in conflict with the stand taken by their deceased mother, they cannot be considered as legal representatives of their deceased mother, defendant No. 2.
13. In view of the aforesaid, the present application is dismissed.
14. All the parties claiming right to the suit property are already parties in the present suit.
15. The plaintiff is directed to file amended memo of parties, showing defendant No. 2 as deceased.
MINI PUSHKARNA, J JULY 22, 2022/PB Signature Not Verified Digitally Signed By:PREETI Signing Date:27.07.2022 16:16:38