Saurabh Prakash vs Samir Prakash
2004 Latest Caselaw 78 Del

ORDER

Manmohan Sarin, J.

1. By this Order, I.A. No. 4913/ 98 being an application moved by the plaintiff under Order XII, Rule 6, Order XV, Rule 1 r/w Section 151, C.P.C., for passing of a preliminary decree of partition is being decided. Plaintiff-Saurabh Prakash, filed the present suit for partition against his elder brother, Samir Prakash-defendant. Plaintiff claims to be the joint owner along with the defendant of the properties mentioned in the schedule to the plaint. It is averred that the properties mentioned in Part I of the Schedule fell to the share of the plaintiff and the defendant pursuant to the Award made by Shri Ram Ratan Kapur in S. No. 626/1980. The said Award was made rule of the Court on 8th January, 1981. The properties mentioned in Part II of Schedule are stated to be a gift from the mother Smt. Laxmi Anand Prakash to the plaintiff and the defendant, who are in joint possession. Properties mentioned in part III of Schedule to the plaint are those which are claimed to be jointly owned by the plaintiff and the defendant.

2. Plaintiff has made averments in the plaint regarding the non-co-operation and alleged obstruction being caused by the defendant in dealing with the properties which have resulted, as per the plaintiff, in litigation and disputes with third parties, incurring of liabilities for preservation of properties, properties remaining idle without being rented out on account of unreasonable conditions for renting sought to be imposed by defendant, non-prosecution of the cases against the tenants, etc.

3. Amended written statement has been filed. The case of the defendant is that it is a suit for partial partition and does not take into account all the Joint properties. It is claimed that the suit is not properly valued for the purposes of Court-fee and jurisdiction. It is alleged that suit has been filed to deprive him of his just dues and share in HUF, ancestral and joint properties. The devolution of the properties on the plaintiff and the defendant pursuant to the decree in S.No. 626/1980 passed on 8th January, 1981 is sought to be assailed as being a collusive decree. Similarly, the relinquishment of share in the HUF by the late father of the parties is sought to be questioned by saying that the defendant was only nominally acting as a Karta of the HUF and actually It was being managed by their late father. It is claimed that even if decree is held to be valid, award contemplates partition if both the plaintiff and defendant consider it fit to do so. The partition resulting in Smt. Laxmi Anand Prakash getting the property at W-17, G.K.-II is assailed as collusive on the ground that defendant simply signed the papers on asking of his brother. In the written statement the defendant averred "the defendant shall be filing appropriate proceedings for reopening the partition and having the proceedings set aside in case no compromise that is fair and reasonable and comprising of all the joint ancestral properties is arrived at. It is submitted that the defendant is not setting out all the facts and contentions herein in order to avoid further bad blood in the family and to prevent complications from arising including possible complications for his mother and his sisters". Defendant states that partition cannot be done only in respect of the properties set out in the Schedule leaving out W-17, G.K.-II and other properties which may have been joint.

4. Plaintiff in his replication has categorically averred that no properties that are joint between the plaintiff and the defendant have been left out in the plaint. The defendant has failed to furnish details of other properties which are claimed to be joint. The defendant's plea that decree in S. No. 626/ 81 being collusive Is wholly devoid of merit. The parties accepted the same and acted thereupon all along till the filing of the suit. The defendant had acted as Karta from 4th February 1978. He was 22 years of age and the averment that he signed blank papers without knowing or understanding the same is prima facie incredible.

5. For the purposes of this application, it is not necessary to go into the details of the individual properties. It is sufficient to notice that the defendant has not denied that the plaintiff and defendant are joint owners of the properties of which partition is sought. The defendant's grievance is with regard to leaving out W-17, G.K.-II and certain other properties which may have been joint. The defendant has singularly failed to point out which are the other joint properties. Plaintiff has averred in the application that all the joint properties between the plaintiff and the defendant have been Included in the suit. As regards, W-17, G.K.-II, the suit property has devolved upon Smt. Laxmi Anand Prakash-mother of the parties in terms of the Award which was made rule of the Court in S. No. 626/81. The defendant admittedly was a party to the said suit and was an adult when the decree was passed. As noted earlier, the defendant had averred in the written statement, that he would be filing appropriate proceedings for reopening the partition and having the proceedings set aside. No such proceedings appear to have been filed or particulars thereof furnished by the defendant. Accordingly, no case is made out for treating W-17, G.K.-II, as joint property between plaintiff and defendant.

6. The present application is an old one being of 1998. Adjournments had been sought between 28th May, 1998 to 3rd April, 2000. The defendant's right to file reply was , closed on 3rd April, 2000. In view of the amendment in the plaint the defendant was again permitted on 21st August, 2000 to file reply to this application. Reply to the application was not filed. On 19th April, 2001, it was again ordered that the right to file reply stood closed. Thereafter, the defendant sought amendment of the written statement which was allowed. On 16th October, 2001, the defendant sought adjournment on the ground of throat infection and again sought adjournment on 11th January, 2002 on the ground that he wanted to move an application for impleadment of the mother as a necessary party. In the meanwhile, FAO (OS) No. 47/2002 was filed by the plaintiff and the Division Bench vide order dated 14th April, 2002 took the suit before it. Chamber hearings were held in an attempt to settle the matter. On 30th May, 2002, the Division Bench released the suit and directed it to be heard by the single Judge with a further direction that an endeavor be made to expeditiously dispose of all pending applications.

7. The plaintiff preferred an appeal, being FAO (OS) No. 375/2002 submitting that despite the order of Division Bench of 30th May, 2002 pending applications were not being decided. The said appeal was disposed of vide order dated 15th November, 2002 by the Division Bench, keeping the appeal pending and expressing the hope that pending applications would now be heard and disposed of expeditiously.

8. Thereafter the matter was delayed with number of Judges refusing themselves from the case either on the prayer of the defendant or otherwise.

9. When the present application was taken up, the defendant informed the Court that he had talks with his mother in an attempt to settle the entire disputes within the family. The plaintiff expressed reservation and skepticism over such negotiations and professed settlement. The Court observed that considering the nature of the proceedings that had taken place so far and the submissions made, parties should be left to reach a settlement of their own as even a suggestion of appointing an amices Curiae to act as a Conciliator or have a Chamber hearing was not acceptable to the defendant. Accordingly, it was directed that an application under Order XXIII, Rule 3, C.P.C., be filed on or before the next date of hearing, failing which the application would be taken up for disposal. On 14th October, 2003, the defendant claimed that he had filed an application under Order IV, Rule 32-A. C.P.C. of which an advance copy had been served on the plaintiff. On 17th October. 2003, the said application, being LA. No. 10107/2003, came up before the Court. The defendant claimed that he had reproduced the agreement and the understanding reached with his mother, who is not a party to the suit. The application was neither signed by the plaintiff nor by the mother of the parties. The defendant was heard for some time. The application under Order XII, Rule 6, C. P.C., was listed for 23rd October, 2003. On 23rd October, 2003, the defendant raised a plea that the undersigned should consider recusing himself from the case. The prayer was declined vide order dated 29th October, 2003 for reasons recorded on 3-11-2003.1. A. Nos. 4913/1998 and 10107/2000 were listed for disposal on 4th November, 2003. The defendant was heard on 4th November, 2003, and was given three days time to file additional written submissions and order in I.A. 4913/1998 was reserved.

1O. Defendant has moved a number of applications:

(a) I.A. No. 10107/2003 seeking a direction to Smt. Laxmi Anand Prakash for admitting/denying facts relating to the professed agreement as shown in Annexure A.

(b) I. A. No. 10528/2003 seeking enquiry into facts by directing filing of affidavit by Smt. Laxmi Prakash or giving effect to settlement agreement as consequential relief or otherwise.

(c) I. A. No. 11710/2003 seeking disposal of applications dated 14-10-2003, 3-11-2003 and 9-12-2003 prior to disposal of I.A. No. 4913/1998.

(d) I. A. No. 11882/2003 for listing of applications dated 14-10-2003 and 3-11-2003.

11. By the above applications the defendant seeks deferment of the decision on LA. No. 4913/1998 by propounding the professed settlement dated 26th September, 2003, allegedly reached with his mother and an enquiry into the said circumstances. Directions have been sought to direct Smt. Laxmi Anand Prakash to file an affidavit with regard to the settlement allegedly reached.

12. I am not inclined to defer the pronouncement of judgment in I.A. No. 4913/ 1998 on the basis of the abovementioned applications. In case the parties reach a settlement in future or the defendant succeeds in proving a settlement as claimed in the applications, the same can be taken a note of in future; As of now, plaintiff denies the professed settlement. Moreover, from the narration of proceedings in this case as noted hereinbefore, it would be seen that the present application I.A. 4913/1998 under Order XII, Rule 6, C.P.C. was moved in the year 1998. The case had been repeatedly adjourned for settlement. Settlement efforts made by the Division Bench by taking the suit on its board for a period of four months or so proved futile. The suit was released to the single Judge on the original side for expeditious disposal of applications including I.A. No. 4913/1998. An appeal against the non-disposal of I. A, No. 4913/ 1998 has been kept pending with an observation that the learned single Judge should dispose of the same expeditiously. The case has also witnessed a number of Hon'ble Judges recusing themselves from the case. On 26th September, 2003, the matter was adjourned to enable the defendant to file an application under Order XXIII, Rule 3, C.P.C. on or before 14th October, 2003, falling which the matter would be taken up for arguments and disposal of the application under Order XII, Rule 6, C.P.C. that is, I.A. No. 4913/1998. Defendant did not move the application under Order XXIII, Rule 3, C.P.C., instead filed I.A. No. 10107/2003, which was noted as signed only by the defendant, that is, neither by his mother nor the plaintiff. This case as noted earlier has witnessed adjournments galore on account of adoption of one legal strategem or the other. Adjournments on account of parties counsel, numerous applications and request for recusal by the Hon'ble Judges have all contributed to the delay. The above applications are culmination of an alleged claim of having reached a family settlement with the mother who is not a party to the suit. Settlement is also claimed In respect of family disputes relating to property which had fallen to the share of the mother in terms of a decree in S. No. 626/1980, to which plaintiff and the defendant were both parties. The decree has attained finality and has not yet been questioned. In these circumstances, the present prayer made by the defendant for deferment of orders in the present application filed under Order XII, Rule 6, C.P.C., till the decision in the abovementioned applications moved by him is yet another attempt to delay and scuttle the prosecution of the suit.

13. 1 am conscious of the fact that in family matter's, the mandate of the statute is to encourage settlement. However, in this case, this process had been attempted over protracted period of time, not only before the single Judge but also the Division Bench. Litigation fatigue also does not appear to have either set in. I am therefore of the view. In this case, that law must run its course with expedition as directed by the Division Bench. I find no good ground to defer decision on the application filed under Order XII, Rule 6, C.P.C. As noted earlier, if and when a settlement is reached and proved by the defendant, the same can be taken note of.

Let us consider the present application under Order XII, Rule 6, C.P.C.

14. There is no denial by the defendant of being joint owner with equal shares of the properties in the suit with the plaintiff. Defendant has failed to give particulars of other properties which are claimed to be joint and ancestral. Plaintiff has categorically affirmed that all the joint properties owned by the plaintiff and the defendant are included as properties in the suit. The shares of the parties being admitted, the defendant having failed to either challenge the decree in suit No. 626/1980 or to list out other properties claimed to be joint demonstrate that suit is one for a partial partition. In view of the above discussion and the pleas and inferences drawn as noticed in paras 4 and 5, the present application deserves to be allowed.

15. Accordingly, I pass a preliminary decree of partition with the shares of the plaintiff and the defendant being 50% each in respect of the properties mentioned in the Schedule to the plaint. Considering the facts and circumstances of this case, I am of the view that a senior advocate should be appointed as a Local Commissioner to suggest the modes of partition of the properties by metes and bounds or any other manner and to apportion the liabilities. Accordingly, I appoint Mr. Jugal Kishore Seth, Senior Advocate, 113, Lawyers' Chamber, High Court (Ph: 23389109); Res: E-217, Greater Kailash-I. New Delhi 110048., (Ph: 26444062, 26445029), as the Local Commissioner for the aforesaid purpose. The fee of the Local Commissioner is fixed initially at Rs. 25,000/- to be borne by the plaintiff in the first instance subject to outcome of the cause. Copy of the judgment be sent to the Local Commissioner.

16. IA is allowed In the above terms.