Kewal Krishan Sharma vs Shri Madan Mohan Sharma & Ors.
1999 Latest Caselaw 984 Del

ORDER

Vikramajit Sen, J.

1. The suit is for the passing of decree to the effect that property bearing Municipal No. 6A/24, Western Extension Area, Karol Bagh, New Delhi (suit property) is belongs to a Hindu Undivided Family comprising the parties hereto; for the passing a preliminary decree of partition of the suit property; and for a decree directing Defendant No. 1 to render accounts. It has been averred in the plaint that late Shri Dev Dutt Sharma owned agricultural lands and three houses in Delhi, and that after his death his three sons, the Plaintiff and Defendants 1 and 2 jointly sold the properties and from the sale proceeds acquired the suit property. It has also been averred that apart from the suit property, immovable property in Amritsar was partitioned between these male descendants, i.e. the Plaintiff and Defendant 1 and 2, Late Shri Dev Dutt Sharma is stated to have died in the 1947 partition holocaust and since no disputes existed between the parties, the suit property was purchased from HUF funds benami in the name of the mother/widow late Smt. Vidya Wati, who died on 22.4.1996. Defendants 3 to 5 are her daughters and sisters of the other parties to the suit. In paragraph 7 of the plaint it is averred that having been purchased from funds of the family, the suit property is ancestral in the hands of the male lineal descendants, subject to the rights of the females to maintenance and residence. It is further alleged that Defendant No. 3 wanted to oust the Plaintiff from his share in the property, and had asserted that he was the holder of a General Power of Attorney of his mother late Smt. Vidya Wati, and hence the need to file the suit had arisen.

2. On submission made by the learned counsel for the Plaintiff that the Defendants had been informed of the ex parte ad interim orders passed on 22.5.1996, and since Defendant No. 5 had not appeared despite service of summons, publication orders were passed on 21.1.1997, and the Defendants were proceeded ex parte on 8.7.1997, and the parties were directed to maintain status quo.

3. Affidavits by way of evidence were filed, firstly on 6.11.1997 and thereafter on 20.1.1998. The site plan of the suit property is Ex. P-1, Plaintiff's letter dated 25.9.1996 to the Tehsildar, Vikas Sadan, New Delhi is Ex. P-5, and in this letter an objection against further mutation of the suit property on the basis of any will was recorded. The Plaintiff has deposed that he was in occupation of the second floor till 1959 and that two floors of the suit property are lying vacant; and that Defendant No. 1 had tried to exclude him from his share thereof. He has further deposed that the suit property was purchased in the name of deceased Smt. Vidya Wati from monies received from the sale of immovable properties of late Shri Dev Dutt Sharma and from the family ancestral nucleus. In the affidavit dated 6.2.1998 it has been deposed that the suit property was purchased benami in the name of Smt. Vidya Wati so that during her life time she would be financially independent of her children/sons.

4. In the absence of any denial of the averments in the plaint and any evidence to the contrary, I accept the case put forward by the Plaintiff and his testimony that the suit property belonged to Hindu Undivided Family of which the Plaintiff and Defendants 1 & 2 and then widowed mother deceased Smt. Vidya Wati were members. Since the mother died in 1996 intestate (no will having been propounded before the Court) her one fourth share thereof would devolve in equal shares on her Class I heirs, i.e. her six children, the parties hereto.

5. I accordingly pass a decree in respect of the suit property declaring it to be HUF property as mentioned hereinabove, and declare the shares therein as follows:-

Plaintiff & Defendants 1 & 2 = 1/4 + (1/6 of 1/4 = 1/24) = 7/24 each.

Defendants 3 to 5 = 1/24 each.

6. I further appoint Mr. P. Banerjee, Advocate, 148/37, Arun Vihar, NOIDA as the Local Commissioner, directing him to visit the suit property and report as to whether it can be divided by metes and bounds in the respective shares of the parties. The fees of the Local Commissioner is fixed at Rs. 10,000/- to be paid by the plaintiff. The Local Commissioner shall also be reimbursed by the Plaintiff for all expenses incurred. He will file his report within two months.

7. I further pass a decree directing Defendant No. 1 to render accounts of all receipts and expenditure from the profits of the property No. 6A/24, Western Extension Area, Karol Bagh, New Delhi whether lying in his hands or lying in deposit in the Courts of law.

8. Decree-sheet be prepared accordingly.

9. The Plaintiff will be entitled to the costs incurred in the suit.