Delhi High Court
Col. (Retd.) Suresh Chand & Anr. vs Sh. Satish Dayal on 28 October, 2009
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 1637/2007 in CS(OS) No.2319/2006
% Decided on: 28th October, 2009
Col. (Retd.) Suresh Chand & Anr. ...Plaintiffs
Through : Ms. Mala Goel, Adv. with Ms. Usha
Kumar, Adv.
Versus
Sh. Satish Dayal ....Defendant
Through : Mr. Akshay Makhija, Adv. with
Mr. Abhijat and Mr. Vikas Bhadauria,
Advs.
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. The application under consideration in the present case has
been filed by the defendant under Order XXXIX Rule 4 of the Code of
Civil Procedure, 1908 for modification of the order dated 15 th
December, 2006.
2. The plaintiffs have filed the present suit for partition of
immoveable and moveable properties allegedly owned by HUF stated in
Annexure „A‟ and „B‟ of the plaint.
3. Summons were issued in the suit on 15 th December, 2006. On
the same date, this court granted the status quo order in respect of the
properties mentioned in Annexure „A‟ and „B‟ of the plaint. The
defendant in the meanwhile filed an application under Order 39 Rule 4
for the modification of the abovesaid order to lift the status quo order in
respect of the following properties urging that they do not belong to
HUF assets:-
(i) 20, Sadhna Enclave, New Delhi.
(ii) 1, Bharti Colony, New Delhi.
(iii) Land measuring 325 sq.yards adjacent to the northern
boundary wall of 20, Sadhna Enclave, New Delhi, on
lease from Delhi Waqf Board to late Smt. Chandra
Dayal.
4. When the application of the defendant was put up for hearing
on 18th August, 2008 the learned counsel for the defendant stated that he
would confine the relief only to the property mentioned in sub para (b)
of the prayer clause in the application i.e. property No.1, Bharti Colony,
New Delhi.
5. It is stated that the property at Bharti Colony stands in the
name of Smt. Nina Dayal, wife of the defendant who is not a member of
HUF. It is the self acquired property of Smt. Nina Dayal. She became
the member of the Bharti Co-operative House Building Society in 1966
prior to her marriage with the defendant. The said property stands
conveyed in the in her name vide conveyance deed dated 2 nd March,
2000 which is filed by the defendant on record.
6. The plaintiffs despite giving repeated opportunities, have not
filed their reply to the defendant‟s application under Order 39 Rule 4
CPC.
7. Having heard the learned counsel for the defendant, I find
force in the submission made by him. There is no document on record
filed by the plaintiffs to substantiate their claim that the property at
Bharti Colony is an HUF property. In the case of Gava Devi & Anr.
Vs. Gangadhar Mallik & Ors., AIR 1978 Orissa 107 a case of
Nagayasami Vs. Kochadai; AIR 1969 Mad 329 was referred in para 7
wherein it was held as under :
"7.......if on the side of the plaintiffs there is no
evidence, there is no need for detailed scrutiny of the
case of the female members or persons claiming
through them, as to the resources of the female members
and as to how they acquired the properties in question."
8. Accordingly, the ex parte ad interim injunction granted on
15th December, 2006 is discharged in respect of the property situated at
1, Bharti Colony, New Delhi. The status quo with regard to the other
properties as mentioned in Annexure „A‟ and „B‟ of the plaint shall
continue to operate. With the above directions, the application filed by
the defendant under Order XXXIX Rule 4 of the Code is disposed of.
CS(OS) No.2319/2006
8. List the matter before Joint Registrar on 25th January, 2010.
MANMOHAN SINGH, J
OCTOBER 28, 2009
SD
