S. Rajinder Singh (Deceased) vs S. Dalip Singh
2000 Latest Caselaw 144 Del

ORDER

Mukul Mudgal, J.

1. The IA. 12765/95 has been filed on behalf of the plaintiff under Order XXXIX, Rules 1-2 CPC for confirmation of the interim orders granted on 20th December, 1995 in favour of the plaintiff Shri Rajinder Singh (since deceased). The defendant has also filed an application, i.e., IA. 326/96 under Order XXXIX Rule 4 CPC for vacation of interim order dated 20th December, 1995. Both these applications are taken up together for disposal.

2. The suit filed by the plaintiff claims the following reliefs :

"(a) that the parties are co-owners of the properties mentioned as follows:

(I) Properties at Nai Sarak, bearing No. 1685-91;

(i) 9 shops on the ground floor;

(ii) Flats on the first floor;

(iii) flats on the Second floor;

(II) 10 Basant Lok, Community Centre,

(III) 8/46, South Patel Nagar, New Delhi

(IV) Chowk Chatti Kui, Amritsar's property

(b) directing the defendants to render the accounts to the Plaintiff;

(c) Restraining Defendant from in any manner selling, alienating, transferring and parting with possession of the properties mentioned in para (a) above;

(d) appoint an Administrator/Receiver in respect of the properties mentioned hereinabove.

(e) Pass any other or further order/direction which this Hon'ble Court deems fit and proper in the facts and circumstances of the case."

3. By an order dated 29.12.1995, passed by the Hon'ble Vacation Judge in IA. 2966/95 & CCP. 168/96 in the main suit, the defendant was further restrained from creating any third party rights.

4. The plea of the learned counsel for the defendant for seeking vacation of the interim order is that the plaintiff had suppressed material facts deliberately in order to secure an ex-parte order and has thereafter continued the interim order by delaying the hearing of the case.

5. The two main grounds urged by the defendant are that the plaintiff has by way of the Deed of Agreement dated 16.9.1968 signed by him along with the other three brothers referred to the will of his father in the following terms:

"That in consideration of Party No. 4 (i.e. plaintiff) giving up all his rights over the Partnership Firm of M/s. Atlas Paint Industries as Partner and paying Rs. 30,000/- in cash to Parties No. 1, 2, 3 (i.e. defendant) shall give up their share in 4/13 W.E.A., Karol Bagh, New Delhi to party No. 4 (i.e. plaintiff)."

6. The defendant/applicant submits in this application is that the stand of the plaintiff that he became aware of the will of his father on the basis of which the suit is founded in 1995, is totally false as there are several documents apart from the agreement of 1968 which indicate that the plaintiff was fully aware of the existence of the will as far back as at least 1968.

7. The learned counsel for the defendant has also submitted that in an appeal to the Appellate Assistant Commissioner of Income-tax in the year 1969-70 filed by the plaintiff on 8.4.1972, the plaintiff stated that the appellant inherited the rights in the goodwill/tenancy rights in the business premises in accordance with the Will of the late father and was entitled to inherit the same under the provisions of Hindu Law and had therefore claimed that the Income-tax Officer should have made an unqualified assessment.

8. These are the two main pleas on the basis of which the defendant has sought to assail the conduct and the bona fides of the plaintiff in obtaining an interim order from this Court.

9. There are several other points argued by the learned counsel for the defendant to seek the vacation of the interim orders. In view of the fact that this is merely an application for vacation of interim order and the view which is being taken in this order it is not necessary to consider the other pleas.

10. In reply to the defendant's pleas, the plaintiff in its submits that the defendant No. 1 was in total control of the affairs of the family and the defendant was a youngman at that time and never came to know that his father had left behind a Will. His further plea is that since the defendant No. 1 was in total control of the affairs of the family and the signing of the agreement dated 16.9.68 and the signing of the appeal before the Income-tax Department on 8.4.1972 by him is for the same reason. In the plaintiff's own words "As is prevalent in old Punjabi families, any and every word an elder brother said was obeyed without every daring to ask why or how".

11. Therefore the sum and substance of the plaintiff's case is that he had signed the Deed of Agreement dated 16.9.1968 under the influence of his elder brother, defendant No. 1 without knowing that in that document there was an acknowledgement of the existence of the Will. Similar is the argument of the learned counsel for the plaintiff on the signing of the appeal dated 8.4.1972 wherein the Will of the late father was relied upon to claim income-tax benefits. Significantly, the said document dated 8.4.1972 has been signed more than four years after the first document.

12. I am, therefore, satisfied that the plaintiff's averments to the effect that he came to know of the existence of the Will in 1995 is prima facie not capable of being believed. I am prima facie of the view that the plaintiff has made incorrect statement and is not entitled to continuance of interim reliefs from the court.

13. I have further gone through the division which took place in 1968 and have considered the share which fell to the lot of the plaintiff and do not prima facie find it to be unreasonable, oppressive or unjust.

14. In this view of the matter, the defendant's application (IA. 326/96) for vacation of interim order is allowed. The interim order dated 20th December, 1995 and 29th December, 1995 stands vacated.

15. Both the IAs stand disposed of.