Surendra Verma vs Uma Verma & Ors.
2009 Latest Caselaw 4197 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          I.A. No.1721 /2008 in C.S. [OS] No.895 /1998

                                   Reserved on:     22nd September, 2009

%                                  Decided on:     20th October, 2009

Surendra Verma                                        ...Plaintiff
                       Through : Mr. P. Budhiraja, Adv.

                       Versus

Uma Verma & Ors.                                    ...Defendants
                       Through : Mr. Manu Nayar, Adv. with Mr. Karan
                                 Chauhan, Adv.
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                    No

2. To be referred to Reporter or not?                                 No

3. Whether the judgment should be reported                            No
   in the Digest?

MANMOHAN SINGH, J.

1. This order shall dispose of the application filed by the

plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908 to

pass a decree in his favour.The plaintiff filed the suit, inter alia, seeking

against the defendant a decree for partition of the property bearing

No.C-87, Shivaji Park, Village Madipur, Delhi measuring 252 sq. yds.

(hereinafter referred to as 'the suit property') by metes and bounds in

2/5th and 3/5th respectively to the shares of plaintiff and defendants

No.1-3.

2. The plaintiff is the brother in law of defendant No.1 and the

real uncle of defendant Nos.2 and 3 and brother of defendant No.4. The

case of the plaintiff is that Smt. Nanti Devi, mother of the plaintiff and

wife of Dr . K.S. Verma (father of the Plaintiff) purchased the suit

property vide registered sale deed dated 8 th May, 1964 registered in the

office of Sub-Registrar-II, Delhi as document No.1730 in additional

book No.1, volume 314 on pages from 10 to 13. Smt. Nanti Devi died

intestate on 9th June, 1974 leaving behind her husband Dr. K.S. Verma,

three sons namely Surendra Verma (plaintiff herein), Sh. P. S. Verma

and Sh. Mahendra Singh Verma and one daughter Priya Nandal as her

legal heirs and successors. Therefore, on the death of Smt. Nanti Devi,

the above said suit property devolved upon her aforesaid legal heirs in

equal and undivided shares i.e. 1/5th each. Smt. Mahender Singh

Verma died on 17th July, 1988 leaving behind defendants No.1, 2 and 3

as his legal heirs and successors and thus his share to the extent of 1/5th

in the suit property was devolved upon them.

3. The plaintiff submits that on 8th May, 1997 Sh. P.S. Verma

son of Smt. Nanti Devi who inherited 1/5th share in the suit property

released/relinquished his share in favour of defendants No.1, 2 and 3 for

a consideration of Rs.2 lac vide a registered release deed. Maj. K.S.

Verma also executed a registered release deed on 30 th June, 1997 in

favour of defendants No. 1, 2 and 3 relinquishing his 1/5 th share. Smt.

Priya Nandal, daughter of Smt. Nanti Devi, defendant No.4 herein also

released her 1/5th undivided share in the suit property in favour of the

plaintiff vide registered release deed dated 5th September, 1997.

4. The plaintiff's contention is that as a result of the above said

release/relinquishment deeds, he became entitled to 2/5 th share of the

suit property and defendants No.1, 2 and 3 became the owner of 3/5th

share in the suit property.

5. In the written statement filed by the defendants No.1-3, it is

urged that Smt. Nanti Devi had no income of her own and the property

was purchased benami by Sh. K.S. Verma who was its true and

absolute owner. The construction of the suit property was also raised by

the funds provided by Maj. K.S. Verma and Sh. M.S. Verma (deceased

husband of defendant No.1). The defendants No.1-3 contend that Smt.

Priya Nandal relinquished her right in favour of all the legal heirs of

Smt. Nanti Devi and not in favour of the plaintiff.

6. It is alleged that Smt. Nanti Devi died intestate but since the

property belonged to Sh. K.S. Verma, he made an oral

partition/arrangement be requesting the suit property in favour of the

plaintiff to the extent of 1/4th share and the shares of Sh. K.S.Verma,

Sh. P.S. Verma and Priya Nandal would be relinquished in favour of

the defendants No.1-3. The legal heirs of Sh. Mohinder Singh Verma

are therefore, allegedly entitled to 3/4th share in the suit property. The

defendants relied upon the Will of Sh. K.S. Verma made on 16th

September, 1992 wherein the abovesaid family arrangement was

mentioned and was acted upon by the parties. However, in para 6 of the

written statement, the defendants No.1-3 admitted the relinquishment

deed executed by Sh. P.S. Verma and Major K.S. Verma relinquisning

their respective shares in favour of defendants No.1-3.

7. It is to be pointed out here that though in para 4 of the

written statement, the defendants No.1-3 pleaded to have been entitled

to 3/4th share in the suit property, in para 9 they stated to be entitled to

4/5th share in the suit property referring to the two relinquishment deeds

executed by Sh. P.S. Verma and Maj. K.S. Verma. No reason was given

by the defendants No.1-3 as to how they became entitled to 4/5th share

in the suit property.

8. During the pendency of the suit the plaintiff filed an

application under Order XII Rule 6 of the Code to pass a decree in his

favour in view of the admissions made by the defendants No.1-3. It can

be clearly seen in order dated 18th August, 2006 and also the written

statement that reference is made to a relinquishment deed dated 8th May,

1997 purportedly executed by Sh. P.S. verma releasing his 1/5 th share in

favour of the defendants No.1-3 and a relinquishment deed dated 30 th

June, 1997 executed by Maj. K.S. Verma also releasing his share in

favour of the defendants No.1-3. Admission/denial of documents is

complete. The matter was listed before the Joint Registrar for

admission/denial of the above said two relinquishment deeds and the

defendnat No.1 admitted the said deeds executed by Sh. P.S. Verma and

Maj. K.S. Verma respectively on 25th September, 2006 after comparing

the same with the originals which are with her.

9. The plaintiff submits that he filed an application under Order

12 Rule 6 of the Code earlier also but the same was dismissed in default.

10. The plaintiff contends that on one hand, reference has been

made by the defendants No.1-3 to the relinquishment deeds in the

written statement and they were also admitted during admission/denial,

on the other hand they are alleging the oral family partition. On the

basis of the above circumstances, the plaintiff filed an application under

Order 12 Rule 6 for decree in his favour.

11. In reply to the application, defendants No.1-3 reiterated the

contentions raised in their written statement. It is stated that the plaintiff

earlier also filed an application under Order 12 Rule 6 being IA

No.2506/2007 for decreeing the suit on admission which was dismissed

in default on 15th May, 2007. The plaintiff concealed this fact and is

guilty of suppressio vari and suggetio falci. The learned counsel for the

defendants No.1-3 relied upon Section 141 of the Code to contend that

the consequences of the suit having been dismissed in default are

equally applicable to the miscellaneous application filed under Order 12

Rule 6 and therefore, the application of the plaintiff is not maintainable.

12. The defendants No.1-3 stated that after the oral partition, Sh.

P.S. Verma entered into an agreement to sell which was witnessed by

defendant No.4, Smt. Priya Nandal but which was later on cancelled and

defendants No1-3 purchased the said portion from Sh. P.S. Verma. It is

also stated that Smt. Priya Nandal has already executed a

relinquishment deed in favour of defendants No.1-3, therefore, she

could not execute another relinquishment deed with respect to the same

property in favour of the plaintiff.

13. Defendant No.4 filed the written statement and supported the

case of the plaintiff by admitting that she executed a relinquishment

deed on 5th September, 1997 releasing her 1/5th share in the suit property

in favour of the plaintiff.

14. I have gone through the pleadings carefully and perused the

record. The relinquishment deeds in dispute dated 8 th May, 1997 and

30th June, 1997 have been admitted by the defendants No.1-3 and

exhibited as Ex. P-1 and Ex.P-2, however, they have pleaded oral

portion as well as challenged the execution of relinquishment deed of

Smt. Priya Nandal, who allegedly cancelled the earlier deed and

executed another relinquishment deed in respect of the same property in

favour of the Plaintiff.

15. Considering the overall circumstances of the matter and

without going into the merits of the case, this Court is not inclined to

exercise its discretion under the provisions of the Order XII Rule 6 of

the Code due to reason that there are certain disputed facts where

evidence of the parties is required. Under these circumstance, the

present application is disposed with the direction that trial in the main

suit be expedited. IA is disposed off.

C.S. [OS] No.895 /1998

16. List the matter for framing of issues on 12.01.2010 as well as

issuance of direction of trial.

MANMOHAN SINGH, J OCTOBER 20, 2009 SD