Master Dipesh Anand Mehtani ... vs Mr. Ajay Anand And Ors.
2002 Latest Caselaw 1618 Del

JUDGMENT

S. Mukerjee, J.

I.A. No. 9891/99 (Order XXXIX Rule 1&2) I.A. No. 12116/00 (Order XXXIX, Rule 4) in S.No. 2186/99.

1. A suit for partition, possession and injunction, has been filed claiming the following reliefs:-

i) a decree of partition thereby declaring the plaintiff as 1/4th share in the suit property by metes and bounds and exclusive separate possession may be delivered to the plaintiff of his share so partition;

ii) a decree of permanent injunction thereby restraining the defendants No. 1 & 2, their agents, assigns or legal heirs for selling, alienating or parting with the possession and partition in the suit property bearing No. 13/20, East Patel nagar, New Delhi to any third person and they further be restrained to hand over to any third person for changing or altering the real possession and identify of the suit property.

AND

iii) Any other relief or reliefs that this Hon'ble Court deems fit and proper in the circumstances of the case may also be passed in favor of the plaintiff and against the defendants. 2. The suit has been filed in relation to the suit property being 13/20, Patel Nagar, New Delhi, by the minor son through the mother, who is having the sole custody of minor under Canadian Court orders.

3. Defendant No. 1 is the father of the plaintiff. Defendant No. 2 is the mother of defendant No. 1 and grand mother of the plaintiff.

4. This property had been allotted to the father-in-law of defendant No. 2 (i.e., grand father of defendant No. 1), in lieu of his property in Pakistan, which is also stated to have been self-acquired.

5. It is stated that the property in Pakistan was valued at Rs. 6913/-, and the balance amount of Rs. 9246/- was paid by the late Shri Dina Nath from his self-acquired income.

6. The averment made by the plaintiff, is that the suit property had been purchased from the joint income of the defendants and other legal heirs, and the construction has also been made from the joint income.

7. The plaintiff has pointed out that a divorce has taken place between his mother through whom the suit has been filed, and his father who is defendant No. 1.

8. The case of the plaintiff is that being the son of defendant No. 1, and the grandson of defendant No. 2, he is entitled to 1/4th share, and he claims partition and possession accordingly.

9. It is contended by the plaintiff, that without giving a share to the plaintiff, the defendant are likely to sell the property and hence he has filed the present suit.

10. Written statement has been filed separately by defendant Nos. 1 & 2. Replication has also been filed to the same.

11. In the written statement, the defendant has taken the stand that late Shri Dina Nath, grand father of defendant No. 1, passed away on 29.6.64. Thereafter, all the three sons of late Shri Dina Nath executed registered deeds of release and relinquishment in favor of their mother (wife of late Shri Dina Nath), Smt. Puran Devi Anand.

12. The property was accordingly mutated in the name of Smt. Puran Devi Anand.

13. Smt. Puran Devi Anand passed away on 16.10.78, leaving behind a "Will" dated 15.4.74, bequeathing the said property to her two sons viz., Shri V.P. Anand and Shri Om Prakash Anand.

14. Shri V.P. Anand, the father of defendant No. 1 and husband of defendant No. 2 also passed away on 22.12.82. The said Shri V.P. anand had two sons and one daughter, and all the three of them executed affidavits, being the only legal heirs and executed deed of release and relinquishment in favor of defendant No. 2 on 10.6.83 which was registered vide Volume No.1844, diary No. 4220 from pages 126 to 127 dated 10.6.83.

15. On the basis of the said relinquishment, the L & DO issued a letter dated 21.2.84 including the name of defendant No. 2 and mutating the same in her favor Along with Shri O.P. Anand (brother of Shri V.P. Anand).

16. It is further averred by defendant that Shri O.P. Anand was having his own properties and was living elsewhere, and therefore he wanted to transfer, for gain, his half undivided share in the property, to the defendant No. 2.

17. The defendant No. 2 paid Rs. 1,60,000/- to the said Shri O.P. Anand, vide bank draft No. A-019276/15 dated 4.3.83 issued by Syndicate Bank, Rajendra Place, New Delhi, and Shir O.P. Anand in turn executed an affidavit affirming that he is vacating the possession of the said half undivided share in the property in favor of defendant No. 2.

18. On 10.7.84, the L & DO mutated the property in favor of defendant No. 2.

19. The plaintiff, his mother and defendant No. 1, are all staying abroad for several years now.

20. The defendant No. 2, as the owner of the said property, entered into a collaboration agreement with one M/s. Makhan Construction, for development and construction of the property in terms of collaboration agreement dated 9.10.91 and 18.10.94. The said builders have sold off their share in the property.

21. the defendant No. 2 has also sold almost her entire share of property, except for one small office in the basement, which is presently being used by defendant No. 2's younger son of Sanjay Anand, who is also having exclusive possession thereof, and is running his office there.

22. In the replication filed by the plaintiff, and in particular para (j) at internal page 3 thereof, the factum of the relinquishment deed has been accepted, since a stand is taken to the effect that allegedly there was some understanding (oral), to the effect that every one will be having his/her legitimate share/right at the time of the disposal of the property.

23. In view of the above, no further aspect need to be gone into, except to state that in para (p) of the written statement wherein it is categorically stated that the entire property has been sold by the defendant No. 2 and the collaborator (except for one small basement office), has not been controverter at all. Rather, in the replication, the plaintiff has chosen to skip this paragraph totally from which it would follow that the plaintiff is avoiding to take a stand on this aspect.

24. In view of the above, it follows that the plaintiff does not, and cannot, have conceivably any entitlement to the grant of any ad-interim relief since, as appears from the pleadings of the parties, even before the plaintiff was born (rather even before the marriage of plaintiff's mother and rather), the relinquishment stood executed in favor of defendant No. 2.

25. As such, prima facie, even before the birth of the plaintiff, the defendant No. 1 was left with no share in the suit property at all.

26. Furthermore, the relinquishment has been acted upon by firstly the mutation of the property in the name of the defendant No. 2, and secondly by the defendant No. 2 entering into a collaboration agreement with M/s. Makhan Builders and thereafter thirdly the property was constructed and totally sold out except or one small basement office, which is also in the control and possession of Shri Sanjay Anand.

27. The facts and circumstances of the present case, do not therefore make out the three essential requirements which are pre-requisites for the grant of ad-interim injunction. The application of the defendant No. 2 filed under Order 39 Rule 4 C.P.C., being I.A. No. 12116/00, therefore deserves to be allowed, and the order of status-quo dated 10.2.2000 passed in IA No.9891/99 calls for being vacated.

28. For the same very reasons, the injunction application of the plaintiff, being I.A. No. 9891/00, calls for dismissed.

29. In view of the above, defendant Nos. 2 & 3's application under Order 39 Rule 4 (being I.A. No. 12116/00) is allowed, and the status-quo order dated 10.2.2000 is vacated. The plaintiff's application for injunction (I.A. No. 9891/00) is dismissed on the ground that the present case, does not satisfy the three requirements of prima facie case, balance of convenience and irreparable harm. As such, the plaintiff is not entitled to any ad-interim injunction.

30. Both the applications are disposed off in the above terms. There will however be no order as to costs.