Delhi High Court - Orders
Suman Garg & Ors vs Kamal Kumar Garg & Ors on 1 March, 2021
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 81/2021
SUMAN GARG & ORS. ..... Plaintiffs
Through: Mr. Rajat Aneja and Ms. Rajula,
Advocates.
versus
KAMAL KUMAR GARG & ORS. ..... Defendants
Through: Mr. Niraj Jha, Advocate for
Dr. Rajeev Sharma, Advocate for D-1
to 3.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 01.03.2021 I.A. No. 1778/2021 (for exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
CS(OS) 81/2021
3. Mr. Rajat Aneja, learned counsel for the Plaintiffs draws the attention of this Court to paras 9 and 20 of the plaint and submits that the Plaintiff is the co-sharer of the suit property bearing No. B-268, Saraswati Vihar, Pitampura, Dehli-110034 (hereinafter referred to as the 'suit property') and is in constructive possession thereof. He submits that accordingly, in terms of the provision of the Court Fees Act, 1870 and Suits Valuation Act, 1877 the Plaintiff is only required to pay the fixed court fees at this stage. In Signature Not Verified Digitally Signed CS(OS) 81/2021 Page 1 of 4 By:SAPNA SETHI Signing Date:05.03.2021 17:34 support of his submission, he relies upon the judgment of the Supreme Court in Neelavathi and Ors. v. N. Natarajan and Ors., (1980) 2 SCC 247 and the judgment of a coordinate bench of this Court in Poonam Bhanot v. Virender Sharma and Ors. in CS (OS) 587/2017 dated 15th January, 2019.
4. Learned counsel for the Defendants submits that the judgments relied upon by Mr. Aneja are not applicable. He submits that in terms of the averments made in para 5 of the plaint, the Plaintiff has himself claimed that he has been ousted from the suit property. He further submits that the suit property is the subject matter of two registered wills. One executed by Shri Ram Ratan Garg, who expired on 26th November, 2007 and other one by Smt. Maya Devi, his surviving widow who has also now expired on 14th June, 2020.
5. Having heard the counsel for the parties, the Court is prima facie of the opinion that the objection raised by the Defendant is untenable.
6. Let the plaint be registered as a suit.
7. Issue summons to the Defendant. Summons are accepted by Mr. Niraj Jha, learned counsel for the Defendant Nos. 1 to 3. The written statement to the plaint shall be filed positively within 30 days from today. Along with the written statement, the Defendant shall also file an affidavit of admission/denial of the documents of the Plaintiffs, without which the written statement shall not be taken on record.
8. Liberty is given to the Plaintiffs to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiffs, an affidavit of admission/denial of documents of the Defendant, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any Signature Not Verified Digitally Signed CS(OS) 81/2021 Page 2 of 4 By:SAPNA SETHI Signing Date:05.03.2021 17:34 documents, the same shall be sought and given within the timelines.
9. List before the Joint Registrar for marking of exhibits on 8th May, 2021. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
10. List before Court for framing of issues thereafter.
I.A. No. 1777/2021 (under Order 39 Rule 1 & 2 under Section 151 CPC)
11. The present suit seeks relief of declaration, partition and permanent injunction in respect of the suit property. The case of the Plaintiff is that the suit property was purchased by the father-in-law of Plaintiff No. 1 (Shri Ram Ratan Garg) and he was the exclusive and absolute owner thereof. Shri Ram Ratan Garg died intestate on 29th November, 2007 and was survived by his wife - Smt. Maya Devi, (now deceased) husband of the Plaintiff No. 1 and Defendant Nos. 1, 2 and 3. Subsequently, the mother-in-law of Plaintiff No. 1 (Smt. Maya Devi) also died intestate on 14th June, 2020 and accordingly the suit property devolved on the deceased husband of the Plaintiff No. 1 and Defendant Nos. 1 to 3 in equal shares. Thus, the Plaintiffs jointly claim 1/4th undivided share in the suit property. It is further asserted that the Defendants are denying Plaintiffs rights over the suit property by relying upon documents which they contend to be the Wills of the parents. It is the case of the Plaintiffs that the said documents are false and have been fabricated at the instance of Defendant Nos. 1 and 2.
12. Learned counsel for the Defendant contends that the Wills in question are registered documents and in accordance with the terms whereof, the Plaintiffs do not have any share in the suit property.
13. Having heard the submissions of the parties, a query was raised by the Signature Not Verified Digitally Signed CS(OS) 81/2021 Page 3 of 4 By:SAPNA SETHI Signing Date:05.03.2021 17:34 Court regarding the propounding of the aforesaid Wills. It is noted that Shri Ram Ratan Garg deceased on 26th November, 2007. The Will executed by him, as per the assertions made by Mr. Aneja, has been propounded for the first time in September, 2020 i.e., after the death of the Smt. Maya Devi. Defendant's counsel is not able to contradict the said statement. Further, till date, no proceedings have been initiated to seek a probate of the Wills in question. Having considered the facts of the case, in the opinion of this Court, Plaintiffs have established a prima facie case in their favour. Further, since the suit seeks a partition of the suit property, it is essential that the suit property is preserved so as to protect the inter-se rights of the parties. Accordingly, till the next date of hearing, it is directed that the parties shall maintain status quo regarding the title, construction and possession with respect to the suit property in question.
14. List before the Court on 26th July, 2021.
SANJEEV NARULA, J MARCH 1, 2021 nk Signature Not Verified Digitally Signed CS(OS) 81/2021 Page 4 of 4 By:SAPNA SETHI Signing Date:05.03.2021 17:34