Meera Gupta vs Dinesh Chand & Ors.
1999 Latest Caselaw 474 Del

ORDER

M.S.A. Siddiqui, J.

1. I.A.No. 11944/92 is an application under Order 12 Rule 6 and under Order 40 Rule 1 read with Section 151 C.P.C. filed y the defendant No. 2 for a judgment on admissions and for appointment of a receiver for the suit properties.

2. The plaintiff filed the present suit for partition, rendition of accounts and for a permanent injunction restraining the defendants from interfering with the plaintiff's possession over a portion of the property bearing No. 1607-08, Dariba Kalan, Delhi. According to the plaintiff, her husband Subhash Chand Gupta (since deceased) and Dinesh Chandra (defendant No. 1) were real brothers. They were joint owners of the following properties:-

(i) Property bearing No. 1607-08, Dariba Kalan, Delhi.

(ii) Property bearing No. 818, Chhota Bazar, Kashmeri Gate, Delhi.

(iii) Property No. C-7, Geetanjali, New Delhi.

3. Defendant No. 1 sold the property bearing No. 818, during lifetime of Subhash Chand Gupta. Defendant No. 3 is the adopted daughter of Subhash Chand Gupta. There are three shops in the ground floor of the property bearing No. 1607-08, which are in possession of tenants. First and second floor of the said property are in occupation of the plaintiff and the defendant Nos. 1 and 2 respectively. Property No. C-7, Geetanjali, New Delhi is in occupation of a tenant. It is alleged that on 20.3.1991, Subhash Chand Gupta died intestate as a result whereof the plaintiff and defendant Nos. 1 and 3 became co-owners of the aforesaid properties and their respective shares are as under:-

Plaintiff-1/4.

Defendant No. 3-1/4

Defendant No. 1-1/2

(1/2 share left by the deceased Subhash Chand)

4. According to the plaintiff after the death of plaintiff's husband, defendants wrongfully removed debentures, shares, National Saving Certificates, fixed deposit receipts and other documents belonging to the deceased Subhash Chand from plaintiff's possession. The defendants No. 1 and 3 have not paid to plaintiff her 1/4 share of the rent realised by them from the tenants, and they had also attempted to dispossess plaintiff from the portion of the House No. 1607-08 occupied by her.

5. Defendants 3 and 4 resisted the plaintiff's suit contending that on 24.11.1968, late Subhash Chand Gupta married Smt. Prakash. Since they did not have any issue, they adopted defendant No. 3 (daughter of the defendant No. 4) vide registered adoption deed dated 24.7.1981. On 16.7.1988, Smt. Prakash died leaving behind her husband and the daughter (defendant No. 3) as her legal heirs to succeed her property detailed in Annexure A. On 10.12.1990, late Subhash Chand married the plaintiff. On 16.9.1998, Subhash Chand executed a registered Will bequeathing his properties to defendant No. 3. Subhash Chand died on 20.3.1991. It is alleged that the residential house on Plot No. C-T, Geetanjali was jointly owned and possessed by Subhash Chand and his brother Dinesh Chand (defendant No. 1), the same having been acquired by them by testamentary succession through the registered Will dated 13.12.1973 executed by their grand mother Smt. Nirmala Devi. It is also alleged that property bearing No. 1607-08 Dariba Kalan is an old residential house with shops and godown on the ground floor. The said property was also jointly owned and possessed by the defendant No. 1 and late Subhash Chand. Subhash Chand had bequeathed his 1/2 undivided share in the said house to defendant No. 3 under the registered Will dated 16.9.1988. It is further alleged that after the death of Subhash Chand, defendant No. 3 became the absolute owner of the properties (detailed in Annexure-A) left by late Smt. Prakash. As regards the properties left by Subhash Chand (detailed in Annexure B), defendant No. 1 and 3 became owners thereof in equal shares. Defendant No. 3 is absolute owner of the properties mentioned in Annexure C and the properties detailed in Annexure D came to be acquired by defendant No. 3 by way of gift from her parents and maternal grand-parents. Defendant No. 3 has also preferred a counter claim for declaration of her title in respect of the properties detailed in Annexure A.B.C. & D. In their written statements, defendants No. 1 and 2 have supported the case of defendants 3 and 4.

6. In the replication filed on behalf of the plaintiff, it is alleged that the registered Will dated 16.9.1988 executed by Subhash Chand was revoked by him vide deed of revocation dated 5.3.1991. The plaintiff has also admitted that the property bearing No. C-7, Geetanjali was jointly owned and possessed by her husband late Subhash Chand and Dinesh Chand (defendant No. 1). However, the plaintiff has reiterated her claim of 1/2 share in the properties left by her husband Subhash Chand.

7. Thus, insofar as the estate of the deceased Subhash Chand Gupta is concerned, the plaintiff has unequivocally admitted in the plaint and the replication that after the death of Subhash Chand, his estate devolved upon the plaintiff and the defendant No. 3 in equal shares. In other words, there is no dispute with regard to the defendant No. 3's 1/2 share in the properties left by her adoptive father Subhash Chand. Learned counsel for defendant No. 3 submitted that in view of the said admissions, defendant No. 3, is entitled to have judgment on admissions regarding partition of her 1/2 share in the properties detailed in Annexure A.

8. Plaintiff resisted the application on the ground that since the defendant No. 3 has disputed the document dated 5th March, 1991 whereby the Will dated 16.9.1998 was revoked by late Subhash Chand Gupta, she cannot take advantage of the plaintiff's admissions regarding her half share in the assets left by her adoptive father. It is also alleged that defendant No. 3's share in the property cannot be separated during pendency of the suit and it is neither just nor convenient to appoint a Receiver as prayed for. Learned counsel for the plaintiff has raised a preliminary objection that there cannot be more than one preliminary decree in a suit and so a preliminary decree for partitioning defendant No. 3's half share in the disputed properties, leaving remaining claim of the defendants for trial cannot be passed in the present suit. In my opinion, the aforesaid submission of the learned counsel deserves to be repelled. In Phool Chand Vs. Gopal , it was held that there is nothing in the Code ofCivil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits.

9. As noticed earlier, defendant No. 3 has also filed Counter Claim for declaration of her title in respect of the disputed properties. It is undisputed that on the death of Smt. Prakash (adoptive mother of the defendant No. 3), her properties (detailed in Annexure A) devolved upon the defendant No. 3 and Subhash Chand in equal shares. According to the defendant No. 3 upon the death of Subhash Chand she acquired his half share in the said properties by testamentary succession through the registered Will dated 16.9.1988 executed by Subhash Chand in her favour. On the contrary, plaintiff's case is that the said Will was revoked by Subhash Chand vide deed of revocation dated 5.3.1991. Assuming for a moment that Subhash Chand died intestate, and on his death, plaintiff and defendant No. 3 inherited his share in the said properties in equal shares, then in such a situation, defendant No. 3 became owner of 3/4 share in the properties (Annexure A) left by her adoptive mother Smt. Prakash and the remaining 1/4 share thereof is covered by the registered Will dated 16.9.1988, which is under challenge. If the plaintiff succeeds in proving that the said Will was revoked by Subhash Chand, she will be entitled to a decree of partition in respect of her 1/4 share in the said properties.

0. As far as the estate (Annexure - B) left by late Subhash Chand is concerned, plaintiff's case is that upon his death, she alongwith the defendant No. 3 inherited it in equal shares. On the contrary, defendant No. 3 pleaded that the properties mentioned in Annexure B are also covered under the registered Will dated 16.9.1988 executed by Subhash Chand in her favour. As noticed earlier, plaintiff's specific case is that Subhash Chand died intestate as the said Will was revoked by him vide the deed of revocation dated 5.3.1991. However, according to the plaintiff's own showing, defendant No. 3 is entitled to 1/2 share in the properties mentioned in Annexure-B. Remaining 1/2 share therein is covered by the Will dated 16.9.1988. If the plaintiff succeeds in proving that the said Will was revoked by Subhash Chand, she will be entitled to decree of partition in respect of her 1/2 share in the properties mentioned in Annexure-B.

11. Learned counsel for the defendant No. 3 contended that in view of the aforesaid admissions in the pleadings, defendant No. 3 is entitled to a decree for partition of the properties detailed in Annexures A & B to the extent of her share indicated above.

12. The question is whether on the facts and circumstances of the present case, defendant No. 3 is entitled to a preliminary decree for partition of the properties mentioned in Annexure A & B in respect of her admitted share therein leaving remaining claims of the parties for trial. In this context, I am constrained to observe that this Court is weighed down to sinking level with arrears of more than 27000 cases on the original side. Suits are being posted for trial somewhere in 2002 and litigants are crying in vain for expeditious disposal of their cases. We have yet to devise radical methods of tackling docket explosion which distressingly accumulates and virtually asphyxiates dispensing of justice. In this view of the matter, I am of the opinion that defendant No. 3 is entitled to judgment on admissions when the suit of the instant nature may take years for its disposal. Consequently, defendant No. 3 who has filed a counter claim, is entitled to a preliminary decree for partition of the properties mentioned in Annexures A & B leaving remaining claims of the parties for trial. However, if an event transpires after the preliminary decree necessiating a change in shares of the parties, the same shall be done before passing the final decree.

13. For the foregoing reasons, the defendant No. 3 is declared as an owner of 3/4 share in the properties (Annexure A) left by her adoptive mother Smt. Prakash and 1/2 share in the properties detailed in Annexure B. Since partition of the said properties, cannot be conveniently made without further inquiry. Mr. Pawan Kumar Jain, Advocate, Chamber No. 693-694, Western Wing, Tis Hazari Court, Delhi is appointed Commissioner to make partition of the properties mentioned in Annexure A and B. His remuneration is fixed at Rs. 10,000/- to be paid by the parties in equal shares. Commissioner's fee shall be paid within eight weeks. The Local Commissioner shall submit his report within six months. A preliminary decree be drawn up accordingly.

14. I.A. is disposed of accordingly.