Ms. Seema & Ors vs Sh. Surender Kumar & Anr
2008 Latest Caselaw 1519 Del

10
*IN THE HIGH COURT OF DELHI AT NEW DELHI


      CS(OS) 178/2008 & IAs 10586/2008, 1176/2008

      MS. SEEMA & ORS               ..... Plaintiff
                    Through Mr.R.D.Sharma, Advocate.

                   versus

      SH. SURENDER KUMAR & ANR       ..... Defendant
                   Through Mr.C.K.Sharma, Advocate for defendants
                   No.1 and 2.

%     02.09.2008

CORAM:
Mr. Justice S. Ravindra Bhat

1.

Whether reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

Mr. Justice S. Ravindra Bhat (OPEN COURT)

1. Learned counsel for the parties submit that in view of the

admitted pleadings, the applications can be considered and preliminary

decree order can be made.

2. In the present suit, the following reliefs have been claimed:-

"A. A decree of partition of properties in suit bearing No.21, Masjid Road, Jungpura, Bhogal, New Delhi and property No.154/1, Back Portion, Masjid Lane, Jangpura, Bhogal, New Delhi-110014, and plaintiffs may be given their 1/5th each share in the same and if the Hon'ble Court is of the view that aforesaid properties cannot be divided by metes and

CS-178/08 Page 1 bounds, this Hon'ble Court be pleased to order for the sale of property(s) in suit and sale proceeds be divided in accordance with their respective 1/5th each share in the suit properties more fully shown and described in the site plan attached with the plaint; and

B. the Hon'ble Court may be pleased to direct the defendant(s) to render the true and proper accounts of moveable properties in the possession of the defendant No.1 to the plaintiff, which are the forming parts of estate left behind by the deceased parents of the plaintiffs and the defendant No.1 and the plaintiffs be given 1/5th each share in the accounts of render by defendant(s); and

C. Permanent Injunction be issued against the defendant(s), their employees; agents; representatives; servants, assignees etc. not to sell, transfer, alienate, mortgage, create third party interest, let out or part with the possession of any portion of the property(s) in the suit and also not interfere in the peaceful possession of the plaintiffs in the suit properties and also not raise any construction in any portion of the suit property(s) as more fully described and detailed in various colours in the site plan with the plaint; and

D. The plaintiffs also claim cost of the present suit"

3. The plaintiffs and defendant No.1 are children of late Shri Dal

Chand, who died on 23.10.1987. According to the further averments, the

said deceased - Dal Chand, left behind a registered Will bequeathing the

properties to his wife - Kalawati. Late Dal Chand's widow Kalawati

succeeded to the estate and held the properties, which included 66.5

sq.yds.plot allotted to the deceased and an adjacent plot measuring 42.5

sq.yds. area occupied by the family on payment of damages basis. The

CS-178/08 Page 2 position continued to be as such till 27.3.2006 when Smt. Kalawati died.

4. The plaintiffs claim one-fifth share in the entire properties

including the said two immovable properties as well as movable properties.

The suit also adverts to a previous proceeding being suit No.108/1997 filed

by late Kalawati against one Khem Chand for permanent and mandatory

injunction.

5. As noticed earlier, the defendant No.1 is a son of late Dal Chand

and Kalawati. The defendant No.2 is his wife. In the common written

statement filed by them, the factual narrative is not denied. The defendants

admit that the properties can be apportioned in equal shares among the

plaintiffs and the defendants in the following terms:-

"A) That the defendant no.1 has no objection for partition of suit property in equal shares amongst the plaintiff and defendant. However defendant no.1 again has no objection to sell the said property failing in the share of the plaintiffs and the defendant has high objection for the sale of his own share."

6. The Court attempted to have the disputes resolved through

mediation since the parties were close family members. However,

according to the Mediation Report submitted in the proceedings, an

amicable settlement is not possible.

7. The plaintiff has moved an application, i.e. IA 10586/2008 under

Order 12 Rule 6 CPC for a decree on admission. Both counsel were heard

today in view of the admitted position in the written statement.

CS-178/08 Page 3

8. Learned counsel for the defendant submitted that the suit

properties should not be sold and that a method whereby defendant No.1

can retain some portions of the properties should be explored. Learned

counsel, however, did not dispute that in the averments in the written

statement, the said defendant has admitted to the claim for partition.

9. In view of the averments in the plaint, which have not been

denied, so far as the claim for partition is concerned, a preliminary decree

declaring the one-fifth share of the plaintiff and defendant No.1 in respect

of the suit properties is hereby issued. Shri N.K.Kantawala, Advocate, 124,

Lawyers' Chamber, Delhi High Court, New Delhi-110003,

Mobile:- 9810069100, is hereby appointed as Local Commissioner to inspect

the properties, ascertain the views of the parties and report to the Court

about the best method of partition or dealing with the properties.

10. Counsel for the parties, during the course of hearing, submitted

that the defendant No.1 is in possession of a sealed box left behind by

Kalawati containing movables and jewelries to be used by plaintiff No.1.

Learned counsel for the defendant did not dispute that the contents of this

box were meant for plaintiff No.1 but submitted that they are to be used by

her for her marriage. In the circumstances, the defendant No.1 shall hand

over to the Local Commissioner the said box; who shall open it and prepare

CS-178/08 Page 4 an inventory which shall be filed along with the Report. The Box shall be

sealed thereafter and returned to the said defendant No.1.

11. The fee of the Local Commissioner is fixed at Rs.40,000/- of

which the plaintiffs shall bear Rs.30,000/- and the defendants shall bear

Rs.10,000/-. The Local Commissioner shall file his report within four weeks.

12. List on 19th January, 2009 for further proceedings concerning

final decree. Let a preliminary decree be drawn in the above terms.

Order dasti.

S. RAVINDRA BHAT,J

SEPTEMBER 02, 2008 'sn'

CS-178/08 Page 5