Ms. Seema And Ors. vs Sh. Surender Kumar And Anr.
2011 Latest Caselaw 2315 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                           Decided on : 29.04.2011

+                               REV. PET. 229/2011 IN CS (OS) 178/2008

       MS. SEEMA AND ORS.                                            ..... Plaintiffs
                      Through : Nemo.

                       versus

       SH. SURENDER KUMAR AND ANR.                        ..... Defendants
                      Through : Sh. S.S. Dahiya, Advocate, for the applicants.



       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.

     Whether the Reporters of local papers         YES
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?            YES

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


MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)


%

1. In this proceeding, review of the order dated 02.09.2008 is sought. By that judgment and order, the Court had issued a preliminary decree, dividing the suit properties into five equal shares. The plaintiffs and the contesting defendants were held entitled to one-fifth share each.

2. The plaintiffs and the first defendant were children of late Dal Chand, who died on 23.01.1987, leaving behind a registered Will by which the properties were bequeathed to his widow - Kalawati. The estate comprised of two plots. On 27.03.2006, Kalawati died. The Court noticed that in the common Written Statement by the first defendant, (i.e. one of the sons of Kalawati, and brother of plaintiffs), and the second defendant, (the first defendant's wife), it was stated as follows:

REV. PET. 229/2011 IN CS (OS) 178/2008                                                       Page 1
        "XXXXXX                        XXXXXX                          XXXXXX
       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.

XXXXXX XXXXXX XXXXXX"

3. Subsequently, the Court proceeded to appoint a Commissioner to inspect the premises and report to the Court. The order sheet in this case would reveal that on various dates, directions were sought by some of the parties. Apparently, the defendants who are also Review Petitioners in this case had appealed to the Division Bench in FAO (OS) 145/2010, which was dismissed on 26.02.2010.

4. It is urged that the Review Petitioners became aware of a document executed by late Kalawati, styled as a "Declaration", dated 08.06.2005; a copy of the same has been produced as Annexure-2 to the Review Petition. A translation has also been filed. The Review Petitioners particularly rely upon the following contents of the said document:

"XXXXXX XXXXXX XXXXXX .................And keeping in view all the circumstances I Kalawati declare that my youngest son Surinder Kumar who is doing the labour job"he out of his earning made bank fd's, wherein he is made nominee and the amount lying in the bank and all kissan patra he endorsed my name first and made himself as nominee. Whatever money lying in my bank passbook a/c. no. 16844 and post office a/c no. 31631 and the bank fd's kissan patra on all this my youngest son Surinder has the absolute right. And my Son Jagdish Chander, Prem Chand, Purushotam and Daughter Seema will not have any kind of claim. And I Kalawati gave the jewellery of Jagdish Chand shares in his marriage, remaining jewellery I will divide when Premchand and Purushotam, Surinder Kumar and Daughter Seema get married.

14. I, Kalawati along with my son Surinder Kumar are living in tin shed room above of the old room at ground floor of this house no. 21, Masjid Road, Bhogal, New Delhi and I give these rooms and shop to Surender Kumar and also gives ground floor of house no. 154/1. Masjid Lane. This declaration is written by my son Surender Kumar, and has been written in the presence of following two witnesses.

XXXXXX XXXXXX XXXXXX"

5. It is contended that the above document came into light at the time the written statement

REV. PET. 229/2011 IN CS (OS) 178/2008 Page 2 had to be filed and a copy of the same was made available to the counsel for defendant Review Petitioners despite which no mention of it was made in the written statement. It is submitted that the effect of the document is to bring new facts into light which would necessitate a review in as much as Review Petitioner would be entitled to ½ share in the suit properties in his own right as a legatee of his mother, the sole owner of the property after the death of the original owner, i.e. predecessor-in-interest of the defendants and the plaintiffs. Learned counsel also argues that copies of the documents were annexed to Applications filed in the year 2010.

6. This Court has considered the submissions. The attempt by the Review Petitioners is to make-out a case as if the document which is sought to be relied upon is really a Will. The record would indicate that the decree was drawn by this Court pursuant to the order dated 02.09.2008. As on that date, the Review Petitioners had no objection to the drawing of the decree. In fact, the averment specifically stated that there was no objection to the partition of the suit property amongst the plaintiffs and the defendants. The written statement was verified by both the defendants. In these circumstances, it is difficult for this Court to believe that all of a sudden, after the proceedings were afoot to draw a final decree, the Review Petitioners became aware of the omission on part of their counsel. The Review Petition is bereft of any particulars as to whether a legal notice was issued to the previous counsel for not having produced the documents, as is alleged now or whether any proceedings have been initiated in that regard. That apart, a plain reading of the document would also show that it does not claim to be a Will but is a mere declaration. Even if the Court ignores the label or appellation given to the document, there is no indication as to whether Kalawati, the maker of the document wished to disown the other heirs, who are also parties to the proceedings.

7. In view of the above discussion, and also having regard to the delay of 920 days, the Court is not inclined to entertain the Review Petition. It is accordingly dismissed.

                                                                           S. RAVINDRA BHAT
                                                                                     (JUDGE)
       APRIL      29, 2011
       'ajk'




REV. PET. 229/2011 IN CS (OS) 178/2008                                                      Page 3