S. Anand Deep Singh vs Smt. Ranjit Kaur And Others
1991 Latest Caselaw 32 Del

ORDER

1. This order will dispose of IAS 4224/89 and 8283/90. Plaintiff filed the 1 application under 0. 39, Rr. 1 and 2 read with Section 151 of the Code of Civil Procedure (Code for short) along with a suit for partition of immovable properties, rendition of accounts as also for declaration against the defendants. The second application is moved by defendants 6, 7, 11 and 12 for consolidation the present suit with Suit No. 63 of 1975.

2. In the plaint, the case is that plaintiff is the grandson of late S. Datar Singh (IS DS for short) being son of his eldest son. S. Maninder Singh (SMS for short). Defendant No. I Sint. Ranjit Kaur is the widow of Kanwar Mohinder Pal Singh (KMPS for short), a brother of his father SMS. Defendants 2 to 5 are the daughters of defendant No. 1. Defendant No. 6 is the mother of the plaintiff while defendant No. 7 is the brother. Defendants 8 and 9 are the daughters of ISDS. Defendant No. 10 is the daughter of defendant No. 9 while defendants I I and 12 are sisters; of the plaintiff. The plaint goes on to narrate that the plaintiff attained majority on 28th October, 1986 and the suit is being filed within 3 years of attaining majority for partition rendition of accounts and declaration. ISD9 inherited about 6000 acres of land from his father Sardar Gopal Singh which was situated in Pakistan. It was mutated in the name of ISDS who got some of this land mutated in the name of his two sons. After partition of the country the claims of ISDS were assessed at Rs. 16,79,000/- and he was held entitled to a compensation of Rs. 1,8 89/ - (sic). ISDS purchased the property situate at 18, Rohtak Road, New Delhi for a sum of Rs. 1,63, 100/ in auction which price was adjusted against his claims. Land in village Punjab Khore measure in 13065 sq. yards was also allotted to him. Besides that he was also allotted lands in Raisen District, Madhya Pradesh which was exchanged by ISDS with land at village Pipal Kheria. Besides that ISDS purchased property at Bairagarh in 1968 for Rs. 1,30,000/-. There were thus the self acquired properties of ISDS in which plaintiff's share is set out in Annexure B and Schedule I with the plaint. Besides that ISDS left behind various HUF properties on his death on 17-6-1973 which are detailed in Annexure C of Schedule 11. ISDS had executed a will on 27-10-1972 bequeathing his share in various properties to the plaintiff and defendants. SMS was a very simple man who it is allowed, did not understand worldly affairs because he was born a spastic. He was always dependent on his family for help and his family members got executed various power of attorneys in favor of ISDS and KMPS. SMS was depending on his father and after his death on KMPS who took over the role of the manager of the joint Hindu family property. KMPS took undue advent age of physical and mental infirmity of SMS It is then allowed that SMS was persuaded to institute a suit being Suit No. 63 of 1975 for ,partition of various properties which is still pending in this Court. During the pendency of that suit SMS came to know for the first time that KMPS had obtained a decree in his favor of one-half of the house situate at New Rohtak Road, Delhi whereas in law he had only 1/4th share in the aforesaid house. That suit resulted in a collusive decree in 1963where as in fact SMS had no knowledge of any compromise decree having been obtained by KMPS. Thus the judgment and decree dated 9-9-63 being obtained fraudulently are liable to be declared null and void. KMPS as Karta or manager of the joint Hindu Family acquired properties described in Schedule 11and some other properties with the aid of sufficient ancestral nucleus. Thus such properties were also ancestral and were joint Hindu family coparcenary properties. After the death of KMPS, defendant No. 1 is alleged to be using the Joint Hindu Family property and income there from for her own benefit in the shape of Realizing rent and profits etc., and converting the joint family properties to their personal use. KMPS did not render any account during his lifetime and similarly thereafter defendant No. I behaved in the same manner. Therefore, defendants I to 5 are liable not only to render accounts of the properties in their possession, management or control but also to pay the plaintiff and defendant No. 7 their share of properties purchased in their own name.

3. This suit is being contested on behalf of defendants I to 5 who have raised various pleas which will be noticed during discussion of the first application.

4. By means of first application the plaintiff desires that since he has a share in the properties set out in Schedules I and 11 to the extent it devolved upon SMS under the Will dated 27th October, 1972, the defendants should be restrained from selling, alienating, encumbering or in any manner parting with possession of the properties in Schedules I and 11. An ad interim ex parte order was passed on 26th May, 1989 that till further orders status quo will be maintained in respect of the properties described in both the Schedules. Reply to this application is filed only by defendants 1 to 5. It is stated in the reply that the ex parte order was obtained by the plaintiff by suppressing true and correct facts. Plaintiff did not mention about the filing of Suit No. 63 / 75 by his predecessor-in interest which is still pending in this Court. In that suit B. N. Kirpal, J. had refused stay in respect of half of Kothi No. 15, New Rohtak Road, Delhi, 41.2 acres of land situate in village Punjab Khore and in respect of another piece of land measuring 41.2 acres belonging to KMPS. Stay was confirmed only with respect to 41.2 acres of land which was gifted by LSDS. Therefore, the ex parte order passed in favor of the plaintiff should be vacated on this ground alone. The suit is also alleged to be barred by limitation in respect of the order of partition passed by Revenue Assistant on 29-4-1978 (sic) and 28-1975 (sic) which facts were admitted by SMS. in his previous Suit No. 63/75. SMS was estopped from filing a suit in respect of the Orders of Revenue Assistant referred above. SMS is also alleged to have acted on the orders of the Revenue Assistant and cultivated his plot of land ad-measuring 41.2 acres of land. He also sold a part of that land. Similarly defendant 8 had sold part of land allotted to her in the partition. Defendant 5 had donated a part of the land allotted to her to Maa Anand Mai Ashram. Therefore, having acted on the partition effected by the Revenue Assistant, the plaintiff was estopped from filing this suit and since he suppressed this fact the injunction was liable to be vacated. The application was also contested on merits.

5. I have heard arguments advanced by learned counsel for the parties and have given my careful consideration to the points in dispute. It may be noted that it is admitted in the plaint that Suit No. 63 of 1975 was filed by SMS, father of the present plaintiff during his life time for partition of alleged joint Hindu Family properties. A copy of that plaint has been produced as a document by defendants I to 5 and is at pages 13 to 27 along with reply in IA. No. 1492/90 by them. There are five Schedules with that plaint describing various properties which are also subject-matter of present suit. In the present suit the plaintiff has mainly added a plot of land B-68, Greater Kailash Part II, New Delhi. So far as the New Rohtak Road house is concerned, SMS claimed I/ 3rd share of that house measuring 1242 1/2 sq. yards as shown in Schedule V. There was an application for ad-interim injunction in that case also which B. N. Kirpal, J. disposed of vide order dated 20-7-1988. In that order, it observed as follow:

"It is, of course, not disputed that half share in New Rohtak Road house did belong to Maninder Singh (inadvertently written for KMPS) by virtue of a compromise decree which was passed by a Court of competent jurisdiction on 9-9-63.

Thus, it will be seen prima facie that even the decree dated 9-9-63 was not challenged by SMS in the suit filed by him in 1975. It was also admitted in that case at half of the share in New Rohtak Road property belonged to KMPS by virtue of the decree dated 9-9-1963. Similarly this order shows that there was a partition of the land in village Punjab Khore also because 41.2 acres was alleged in this order to have admittedly fallen to the share of KMPS. The injunction in that case was granted only with respect to 41.2 acres of land belonging to LSDS. No injunction was granted in respect of half share of the property at New Rohtak Road because that admittedly fell to the share of KMPS. Therefore, it will be seen that in this suit the plaintiff has gone even beyond the claim set up by his own father during his life time. In any case it appears prima facie that if the plaintiff or his brother, mother and sister who have already been made a party in Suit -No. 63 of 1975 as the legal representatives of their deceased father, the plaintiff alone could not have instituted a fresh suit for partition. If he and other IRs had any such claim left out in the previous suit they could have sought amendment of the plaint in the previous suit and added properties, if any, left out for partition etc.

6. Mr. Kaul, learned counsel for some of the defendants other than defendants I to 5 submitted that in that event this suit should be consolidated with the suit pending previously before this Court and there is no prima facie reason to come to a conclusion that this suit should be stayed under Section 10 of the Code as pleaded on behalf of defendants I to 5. Reliance is placed for this view on the case of P. P. Gupta v. East Asiatic Co., and Brijlal & Co. v. Madhya Pradesh Electricity Board, . 1 have carefully gone through these authorities and I am of the view that these authorities are not applicable to the present case. In the case o P. P. Gupta (supra) the parties had entered to a contract for the purchase by Gupta of a printing press which was offered by the Company for Rs. 19,0001' - F.O.R. Agra. The press was delivered at Agra. Gupta paid Rs. 2,000/- in advance and further sums totalling Rs. 3,220/- in all Rs. 5,220/ towards the price of the machinery. After this there was a dispute between the parties regarding the performance of the contract. On 26-4-55 Gupta filed the first suit pending before Civil Judge, Agra accusing the Company of breach of contract and praying for Rs. 6,991/ 7 annas, being the amount paid by him towards the sale price together with interest. On 8-10-56, the Company filed the second suit in the same court for recovery of the balance of the sale price together with interest. It was on the basis of these facts that it was held that the principle of consolidation in no way conflicts with the purpose of Section 10, on the contrary, it preserves and promotes it. If the subsequent suit by the Company was postponed till after the decision in Gupta's suit, the result will be a long delay in the disposal of their claims even if they are victorious party in Gupta's suit. Thus it will be seen that there were two cross suits filed by both the parties and not like the one in our case wherein both the suits are filed by the same party. Similarly there were two separate suits filed by both the parties at two different places in the case of Brij Lal & Co. (supra). One suit was for refund of price in respect of defective supply of goods under contract while the second suit was for certain amounts under the contract and also for damages for breach of contract. There can be no dispute with the proposition that if two different suits are filed by each of the parties based on a contract and breach thereof, the suits have to be consolidated because otherwise even if one of the parties is victorious in one such claim, it will not be entitled to reap fruits of the victory immediately on the disposal of the first case. This is possible only when both the suits are tried together by consolidating them so that decree is passed in favor of one of those parties who is victorious. Adoption of that course cuts the delay of time and enables a winning party to reap the fruits of its defense. But in the present case both the suits for partition and separation of share are filed by the same party. I am of the prima facie view that when such as the case, the course to be followed will be one of stay of the subsequent suit and asking the party to follow its previous suit. In that case the party may even be allowed to make suitable amendments in its first plaint and may be permitted to add the left out portion of its claims. Therefore, prima facie, I am of the view that this second suit filed by the plaintiff is liable to be stayed and not consolidated. Even otherwise it may be possible to say that the claims left out in the first suit may be barred by 0. 2, R. 2 of the Code.

7. The plaintiff has included property bearing No. B-68, Greater Kailash Part 11, New Delhi in this suit by alleging that it is also a joint family property. First of all it may be noted that details of the payments made for acquiring this property are not given in the plaint. In any case the defendants have produced on record the photo copy of a sale deed dated 12-6-1965 which is executed by DLF Housing and Construction P. Ltd. in favor of Ranjit Kaur, defendant No. I wife of KMPS. This sale deed recites that consideration for acquiring this property was paid by two receipts dated 25-11-58 and 11-12-88 in the sum of Rs. 3,300/- and Rs. 17,600/respectively. Defendant I has placed on record an affidavit on 14-11-1990 in which she swears that her marriage with KMPS was solemnised at Gurgaon on 13-4-1960. The plaintiff or any of other defendants have not controverter this fact. Therefore, it is clearly proved prima facie from the recital in the sale deed that the consideration for purchase of this plot was paid by defendant No. I before her marriage with KMPS. If she had not come to the family of the plaintiff or LSDS at the time of the payment of consideration for this plot, it is prima facie not possible to say that the nucleus for purchase of this property came from the joint Hindu family funds.

8. In the case of K. Madna Vati v. Raghunath Singh, , it was held (at p. 46 of AIR),

Under Section 60(2) of the Registration Act the Certificate given by registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned. Therefore, there is a presumption which attaches to the correctness of the endorsement made on the document by the registering officer. These endorsements show the presentation of the document personally by Sint. Madna Wati for registration. She was identified by Kanwar Jawala Singh and her signatures were also appended by registering officer on both the endorsements."

I am in respectful agreement with the observations made in the aforesaid authority. Therefore, on the basis of the endorsements made in the sale deed, by the Sub-Registrar, it will prima facie have to be presumed that the consideration for acquiring this plot flowed from the Vendee i.e. Sint. Ranjit Kaur, defendant I who was unmarried at the time of making payments of the sale consideration and that the same could not have come from KMPS. In the circumstances of this case, it is, therefore, immaterial that the sale deed was executed on 12-5-1965, by which time she had been married.

9. It is not at all stated in this plaint as to why a second suit for partition has been filed. No reasons have been disclosed and it is simply stated in para 13 that in the previous suit various properties were not Included for partition. It is, therefore, not understood as to on what basis an argument was advanced by learned counsel for the plaintiff' that the second suit was more comprehensive because certain joint family properties were left out in the earlier suit due to involuntary omission. To meet this situation learned counsel for defendants I to 5 cited the case of Nageshar Tiwari v. Dwarka Pd., which laid down that relinquishment or omission to sue for any portion of claims, includes accidental or involuntary omission, as well as acts of deliberate relinquishment. Therefore, it appears prima facie that this second suit is barred under 0. 2, R. 2 of the Code.

10. The grant of permission to consolidate this suit with Suit No. 63,17) will otherwise be also against public policy and will create in-roads so that the brother, mother and sister of the plaintiff will also in, future he encouraged to file similar suits if during the course of these suits they find something lacking or something con ing against them. In that situation, they will be able to come forward one after the other to the utter harassment of the widow of KMPS, their own kith and kin. The permission to consolidate this suit, therefore will open flood gates of litigation as a powerful tool in the hands of the plaintiff and his family members, thereby encouraging multiplicity of judicial proceedings instead of preventing it when all such matters can be settled in one suit only, that is, Suit No. 63 of 1975. 1 am pained to observe that the brother of the plaintiff who is actually a defendant in this suit has been seen calling learned counsel for the plaintiff thereby given an impression to the Court as if it is he only at whose instance this suit is being prosecuted. Therefore, looked at from all angles, legal and moral, it is not in the interest of justice that the suit should be consolidated with the previous suit prima facie.

11. In view of the above discussion, I am of the view that there is no prima facie case in favor of the plaintiff in the present suit because his late father already filed a suit for partition in which he and his other brother, sisters etc. have become parties as the legal representatives of the deceased father. They can suitably amend their plaint in that case, if otherwise permissible by law. Balance of convenience also does not seem to be in favor of the plaintiff because prima fac ie defendant I purchased the Greater Kailash property while she was unmarried and KMPS was admittedly owner of one-half share of New Rohtak Road property. Therefore, I am of the view that there being neither any prima facie case nor balance of convenience in favor of the plaintiff, he is not likely to suffer any irreparable loss. Both these applications are accordingly dismissed and the order of status quo in favor of the plaintiff in IA No. 4224/ 89 is hereby vacated.

12. Applications dismissed.