Mankaran Singh Johar vs Smt. Satwant Kaur Johar And Ors.
2010 Latest Caselaw 5671 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Pronounced on: 13.12.2010

+           CS(OS) No. 709/2008

MANKARAN SINGH JOHAR                           .....Plaintiff

                           - versus -

SMT. SATWANT KAUR JOHAR AND ORS.               .....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr Deepak Dhingra, Adv.
For the Defendant:      Mr Rajiv Garg, Adv. for D-2,4&9
                        Ms Priya Kumar, Adv. for D-3

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not?                  No

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

V.K. JAIN, J. (ORAL)

IA Nos. 4792/2008 (O 39 R 1& 2 CPC) and 14347/2010

1. This is a suit for partition of property No. B-60,

Greater Kailash, New Delhi. Admittedly, the aforesaid

property was owned by late Sardar Gurbachan Singh Johar.

Late Shri Gurcharan Singh Johar had nine children, six

daughters and three sons, including late Shri Pratap Singh

Johar. The case of the plaintiff, who claims to be the

grandson of late Sardar Gurbachan Singh Johar, is that the

aforesaid property was thrown by late Sardar Gurbachan

Singh Johar into hotchpotch of Gurbachan Singh Johar

(HUF) and, therefore, he also has a share in this property,

he being the son of Pratap Singh, a pre-deceased son of

Sardar Gurbachan Singh. Vide IA No. 4792/2008, the

plaintiff has sought an interim injunction, restraining

defendants from transferring or alienating the suit property

and creating any third party interest therein.

2. The case of the defendants, however, is that the

aforesaid property continued to be the self-acquired

property of late Sardar Gurbachan Singh Johar and was

never thrown into the hotchpotch of HUF. This is also the

case of defendants other than defendant No.3 that the

plaintiff is not the son of late Shri Pratap Singh Johar.

3. Vide interim order dated May 2, 2008, the

defendants were directed to maintain status-quo qua title

and disposal of the suit property till disposal of IA No.

4792/2008. IA No. 14347/2010 has been filed by

defendant No.3, seeking vacation of the interim order on the

ground that the plaintiff has failed to make out a prima

facie case in his favour and has relied upon a forged and

fabricate document, in support of the case set up by him.

4. In support of his contention that this property was

thrown into the hotchpotch of Sardar Gurbachan Singh

Johar (HUF), the plaintiff has relied upon an affidavit,

alleged to have been sworn by late Sardar Gurbachan Singh

Johar on 07th December, 1966 and attested by Shri H.G.

Mullick, Notary, Delhi on 26th August, 1971. The case of

the plaintiff is that copies of affidavit were submitted by late

Sardar Gurbachan Singh Johar to various authorities and a

photocopy of the same was handed over to him by his father

late Shri Pratap Singh Johar. It is pertinent to note here

that the photocopy, placed on record by the defendant, does

not bear any signature of the deponent and the case of the

defendants is that this is a forged and fabricated document.

5. The question as to whether the suit property was

thrown into the hotchpotch of Sardar Gurbachan Singh

Johar (HUF) or not is a disputed question of fact though,

prima facie, there is no authentic evidence of the property

having been thrown into the hotchpotch of the HUF. No

affidavit sworn by late Sardar Gurbachan Singh Johar has

been produced in original and the plaintiff has also

disclosed where the original affidavit is available. Even the

photocopy filed by him does not bear signature of the

deponent though it purports to have been attested by a

public notary at New Delhi on 26th August, 1971, this

otherwise unsigned affidavit purports to have been executed

at Guwahati on 07 th December, 1966. However, assuming

that the property No. B-60, Greater Kailash, New Delhi was

never thrown into hotchpotch of Sardar Gurbachan Singh

Johar (HUF), as claimed by the plaintiff, it would continue

to remain as self-acquired property of late Sardar

Gurbachan Singh Johar and if the plaintiff is the son of

Sardar Pratap Singh, a pre-deceased son of late Sardar

Gurbachan Singh Johar, he being one of the Class I legal

heir of Sardar Gurbachan Singh Johar, would be entitled to

1/10 share in the property. It was also be pertinent to note

here that in a letter written by defendant No.3 in reply to

legal notice sent on behalf of the plaintiff, Shri Mnkaran

Singh and his mother Mrs. Mala Chavda to late Smt.

Satwant Kaur Johar, wife of late late Shri Gurbachan Singh

Johar, it was not the case of defendant No.3 Shri Harvinder

Johar that Shri Mnkaran Singh was not the son of late Shri

Pratap Singh Johar. In any case, whether the plaintiff is the

son of late Shri Pratap Singh Johar or not is a question of

fact which can be adjudicated only after trial and prima

facie, for the purpose of deciding these applications, the

Court has to proceed on the assumption that he is the son

of late Shri Pratap Singh Johar, as claimed by him.

6. In these circumstances, prima facie, it is difficult to

dispute that the plaintiff thus has a share in property No. B-

60, Greater Kailash, New Delhi. The defendants, therefore,

need to be restrained from creating any third party interest

in the property No.B-60, Greater Kailash, New Delhi during

pendency of the. The parties to the suit are accordingly

directed to maintain status-quo with respect to the title and

possession of property No.B-60, Greater Kailash, New Delhi

during pendency of the suit. They shall not sell, assign,

transfer or otherwise part with possession of the aforesaid

property during the pendency of the suit, without prior

permission of the Court.

Both these applications stand disposed of.

CS(OS) 709/2008

Replication, wherever not filed, can be filed within four

weeks. Documents can also be filed within that period. The

parties are directed to appear before the Joint Registrar for

admission/denial of documents on 02nd February, 2011.

The matter be listed before the Court for framing of

issues on 20th April, 2011.

(V.K. JAIN) JUDGE

DECEMBER 13, 2010 bg