Jagpal Singh Aulak vs Chattar Singh Aulak & Ors.
1998 Latest Caselaw 199 Del

ORDER

K.S. Gupta J.

1. Plaintiff has filed application under order XII Rule 6 read with Section 151 CPC which is being contested by filing reply by the defendants. Since the averments made in the application refer to the plaint allegations and admissions made in the written statement, I propose to straightway narrate the case as set up by the parties in the pleadings.

2. It is inter-alia, alleged in the plaint that Lahora Singh Aulak who owned immoveable and moveable properties, died at Sirmingham (U.K.) on 27.9.90 leaving behind the plaintiff, defendants 1 & 2 (sons), Smt. Amar Jeet Kaur, Smt. Ravinder Kaur. Smt. Rajinder Kaur. and Km. Noblojit Kaur (daughters). His wife, Smt. Mohinder Kaur Aulak had earlier died on 26.9.89. Aforesaid Lahora Singh Aulak executed a will dated 6.2.90 which was duly registered at Dehradun (U.P). Under the will he had-bequeathed all his immoveable and moveable properties to the Plaintiff and defendants 1 & 2 in equal shares with certain stipulations. It is further alleged that soon after the death of Lahora Singh Aulak, defendants 1 & 2 started causing harassment to the plaintiff and his family. They did not pay the share of the plaintiff in the income from the agricultural land felling in Khasra Nos. 12/19(4-8), 20(1-9), 21(3-15), 22(4-16), 31(2-2), 32(0-19), 35(0-6), 36(0-2), 16/1(4-16), 2(4-16), 10(6-12), 19/5(1-7), and 6(0-12, total measuring approximately 36 bighas situated in village Kapashera, Delhi. Esti-

mated annual income from the said land is about Rs. 5,00,000/-. Aforesaid Lahora Singh Aulak also owned property popularly known as Standard Hotel in Jalandhar and a plot measuring about 1,000 sq.yds. in Mohali near Chandigarh. Property at Jalandhar is in possession of various tanants while plot at Mohali is in joint prosecution of the plaintiff and defendant 1 & 2. Estimated annual Income from both these properties is about Rs 1,00,000/- out of which plaintiff is entitled to 1/3rd share which he has not been paid. It is stated that the plaintiff has no intention to sell or alienate his 1/3rd share in the immoveable properties mentioned in schedule-I and moveable properties mentioned in schedule-II annexed to the plaint until his eldest living male child attains the age of 21 years as provided under the said will. It was prayed that a decree of declaration be passed in favour of the plaintiff and against the defendants thereby declaring that the plaintiff is entitled to 1/3rd share in the immoveable and moveable properties as Incorporated in the Will dated 26.2.90. Preliminary decree for partition and rendition of accounts in respect of the properties noted in schedules I & II to the extent of 1/3rd share is further sought to be passed besides decree of permanent injunction against the defendants.

3. Defendants in their joint written statement by way of preliminary objection No.4 have alleged that there is no dispute with regard to the execution of the Will left by Lahora Singh Aulak and they at no point of time disputed 1/3rd share of the plaintiff in the properties left by the deceased. However, the share of the plaintiff. In the properties is subject to the limitations contained in the Will itself. By way of preliminary objection no.5 it is pleaded that the defendants have already got mutated 1/3rd share in the name of the plaintiff in the land situated at Kapashera vide order of the Settlement Officer dated 28.4.93. By way of preliminary objections 6 & 7 it is stated that the defendants have instructed the concerned bankers where the fixed deposits which came to their notice belonging to Lahora Singh Aulak were, lying to make separate fixed deposits in the name of the plaintiff to the extent of 1/3rd share. Defendants have no objection if the same arrangement is made in respect of the other fixed deposited as may be in the notice of the plaintiff as well as for the other invasive properties left behind by Lahora Singh Aulak. In para No.6 of the written statement on marit. It is further stated that defendants have no objection to the rendition of accounts of the income and the expenses qua the agricultural land actuated at Kapashera. In para No.17 of the written statement, it is stated that plot at Mohali is lying vacant and there is no income from the plot. Property located at Jalandhar is in possession of the brother of deceased Lahora Singh Aulak who had been managing it as his attorney. For want of knowledge it is denied that the said property is fetching annual income of Rs.1,00,000/- as alleged. In para No.6 of the written statement on merit, it is also alleged that the plaintiff is incapable of protecting his interest and the suit as filled without a next friend cannot proceed.

4. Submission advanced by Sh. Alok Kumar appearing for the defendants was two fold. First, that the plaintiff by reason of mental infirmity was/is incapable of Protecting his interest within the meaning of latter part of Rule 15 of Order XXXII CPC and the plaint having been filed without a next friend is, therefore liable to be taken of the file. Second, that on the bala of the pleadings of the parties, no order under Order XII-Rule 6 CPC can be passed in favour of the plaintiff.

5. Coming to the first submission, pursuant to an order dated 19.10.95 the plaintiff appeared in person on 23.2.96 and after considering the replies to as many as 17 questions put to him it was observed by this court hus:

"I have put all the above questions to the plaintiff in English language and he has replied them. While giving the replies he was quite consistent. From questioning him I am unable to find if there is any defect in his mental capacity. From his appearance as well as from the replies given by him I am unable to hold that he is a person of unsound mind."

6. In the face of the above finding, said submission is replied being without any merit.

7. This takes me to the second submission referred to above on behalf of the defendants. Needless to repeat that in the written statement defendants 1 & 2 do not dispute of their father Lahora Singh Aulak having executed the Will dated 26.2.90, plaintiff having been bequeathed 1/3rd share in the moveables and immoveable left behind by the deceased under the Will, defendants being in possession over the agricultural land in Kapashera and their liability to render accounts in respect of the income and expenditure thereof to the plaintiff. Further, according to the defendants they have already instructed the concerned bankers where the fixed deposits which came to their notice belonging to aforesaid Lahora Singh Aulak were lying, to make separate fixed deposits in the name of the plaintiff to the extent of 1/3rd share and they also did not have any objection if the same arrangement is made in respect of the other fixed deposits as may be within the knowledge of the plaintiff as well as qua the other moveable properties left by the deceased. Thus, leaving aside the dispute about the income from the property at Jalandhar and plot at Mohali, the suit can be decreed partially under Order XII Rule 6 CPC in so far as it relates to the partition of moveable and immoveable properties as shown in schedules I & II annexed to the plaint and rendition of accounts of the income and expenditure of the agricultural land at Kapashera beside that of the declaration sought for.

8. Accordingly, decree is passed declaring the plaintiff to be entitled to 1/3rd share in the immoveable and moveable properties as noted in said schedules I & II. Preliminary decree of partition is further passed in respect of the properties mentioned in both the schedules in addition to that of rendition of accounts w.e.f. 26.2.90 in respect of the income and expenditure of the agricultural land at Kapashera in favour of the plaintiff and against defendants 1 & 2. Sh. Anil Soni, Advocate is appointed as Local Commissioner to suggest ways and means for partition of the immoveably properties noted in schedule I, to distribute in equal shares the moveables including the contents found in the lockers in Bank of India, Arya Samaj Road branch and Canara Bank, East Patel Nagar branch in the name of Lahora Singh Aulak as shown in said schedule II and to go into the accounts w.e.f 26.2.90 of the income and expenditure of agricultural land at Kapashera. Local Commissioner's fee is tentatively fixed at Rs. 15,000/-. Report be filed within three month.