Delhi High Court
Sushil Mohan Saini vs Dr. Inderjit Singh & Ors on 21 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.351/2001
% 21st February, 2011
SUSHIL MOHAN SAINI ...... Appellants
Through: Mr. Som Dutt Sharma, Adv.
VERSUS
DR. INDERJIT SINGH & ORS ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. At the outset, I must note that the counsel for the appellant states
that the appellant is not giving him instructions and therefore he is not in
a position to argue the matter.
2. This case is on the „Regular Board‟ of this court since 3.1.2011 and
today it is effective item no.5 on the „Regular Board‟. I have accordingly
perused the record and am proceeding to dispose of the appeal.
3. By the present regular first appeal under Section 96 of the Code of
Civil Procedure, 1908 (CPC) challenge is laid to the impugned judgment
RFA No. 351/2001 Page 1 of 4
and decree dated 13.7.2001 whereby the suit of the respondent
no.1/plaintiff was decreed for partition and a preliminary decree of
partition was passed declaring the plaintiff/defendants as 1/8 th share
owners each in the property bearing no.3097, Kucha Tara Chand, Darya
Ganj, New Delhi-110002.
4. As per the case set out in the plaint late Shri. Shanti Swaroop Saini
was the father of the parties and was the only son Sh. Bihari Lal Saini and
on the death of Sh. Bihari Lal Saini, Sh. Shanti Swaroop Saini therefore
inherited the subject property and became the owner thereof. On the
death of Sh.Shanti Swaroop Saini, the parties to the suit, who are his
children, inherited the property in equal shares inasmuch as Sh. Shanti
Swaroop Saini died intestate. Plaintiff claimed 1/8th share in the suit
property. The limited defences of the appellant/defendant no.1 were
under a technical head relating to the valuation of the suit property and
also that defendant no.3 was not entitled to a share as he had taken a
sum of Rs.10 lac in lieu of his share. The other defendants did not
effectively contest the suit and defendants no.6 and 7 being the sisters,
specifically stated that they were not contesting the suit.
5. After the pleadings were complete the trial court framed the
following issues.
1) Whether plaintiff is a co-sharer in the property
in question and if so whether he is entitled to
decree of partition of the suit property as
alleged?OPP
2) Whether plaintiff is entitled to decree of
injunction as prayed?OPP
RFA No. 351/2001 Page 2 of 4
3) Whether the suit has not been property valued
for the purposes of court fees and jurisdiction
as alleged? OPD 1 & 2.
4) Whether defendant No.3 had taken (ten lakhs)
in lieu of his share in the property in question
from his father during his lifetime and if so
whether due suit is not maintainable?OPD
5) Whether the suit is signed, verified and
instituted by duly authorised person on behalf
of the plaintiff as alleged? OPD
6) Relief.
6. The relevant issues are really issue nos. 1 and 2 and findings on
which are contained in paras 13 and 14 of the impugned judgment and
which read as under:-
"13. Onus of proving these issues were on the
plaintiff. It is admitted case of the parties that plaintiff
and defendants are real brothers and sisters and there is
property in question was owned by Bihari Lal Saini the
grandfather of the parties to the suit. Sh. Bihari Lal was
having only one son namely Dr. Shanti Swaroop Saini, the
present parties to the suit are sons and daughters of Dr.
Shanti Swaroop. The property in question i.e. bearing
No.3097 Kucha Tara Chand, Darya Ganj is measuring 250
sq. yeards and is built up property. The property in
question was inherited by Sh. Shanti Swaroop Saini from
his father Sh. Bihari Lal Saini, he was the exclusive owner
of the said property at that time. Being the legal heirs of
late Dr. Shanti Swaroop Saini the parties have inherited
the property inquestion jointly in equal shares as Dr.
Shanti Swaroop died intestate. After his death the
property inquestion is in the joint possession of parties to
the suit. The suit property has not yet been partitioned
between the parties to the suit. This position of fact that
the property was joint property of plaintiff and defendants
inherited by their father Dr. Shanti Swaroop Saini who died
intestate has been admitted by the parties to the suit
except defendant No.2 who has taken the plea that there
was an arrangement to share the property in the manner
detailed above but no such arrangement has been proved
on record. Defendant No.1 has taken the plea that
defendant No.3 has taken Rs.10 lakhs during the lifetime
of his father as his share in the joint family property and
RFA No. 351/2001 Page 3 of 4
he is not entitled to any share in that property. Though,
this fact is not denied by the plaintiff. He has also made
party to the suit as per the case of the plaintiff he has paid
Rs.10 lakhs to the account of defendant No.3 and he
lateron adjust his account with defendant No.3. As
property in dispute is joint property of defendant 1 to
defendant 8 and has not been partitioned as proved on
record and plaintiff being son of Bihari Lal Saini the late
owner of property in suit who has died intestate he is a co-
sharer in the property in suit and being a co-sharer is
entitled to show in property in suit."
7. I completely agree with the aforesaid finding and conclusion of the
trial Court. On the death of Sh. Shanti Swaroop Saini, the parties inherited
the property in equal shares as Sh. Shanti Swaroop died intestate and
since his death the joint property was not partitioned. The
plaintiff/respondent no.1 was rightly held entitled to 1/8 th share in the suit
property.
8. In view of above, I do not find any illegality or perversity in the
impugned judgment and decree which calls for interference by this court
in appeal. The appeal being devoid of merits is therefore dismissed
leaving the parties to bear their own costs. Interim orders stand vacated.
Trial court record be sent back.
FEBRUARY 21, 2011 VALMIKI J. MEHTA, J.
ib
