Mahesh Kumar vs Kishore Kumar & Ors
2012 Latest Caselaw 2716 Del

*         HIGH COURT OF DELHI: NEW DELHI

                                      Order decided on : 25.04.2012

+                   CS (OS) No. 224 of 2010

Mahesh Kumar                                            ..... Plaintiff
                    Through:     Mr. Alok Gupta, Adv

                    Versus

Kishore Kumar & Ors                                 .... Defendants
                Through:         Defendants No. 1 & 4 Ex-parte


CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. Plaintiff Mahesh Kumar has filed the suit for partition, permanent injunction and rendition of accounts against four defendants, namely, Kishore Kumar, Ganesh Kumar, Smt. Shakuntla Devi and Smt. Chander Kanta.

2. The following prayers are sought:

"(a) Grant a decree of partition by metes and bound against the defendant No.1 by directing the separation of specific share of the plaintiff in the suit property bearing No.RZ-329/19, Tughlakabad Extn., New Delhi;

(b) Grant a decree of permanent injunction in favour of the plaintiff and against the defendant No.1 restraining the defendant No.1, his family members, servants, agents and representatives from in any manner dispossessing or interfering in the peaceful possession of the plaintiff vis-à-vis the suit property as shown in blue in the site plan and further restraining them from in any manner alienating, parting with possession,

selling or transferring or encumbering in any manner the suit property as shown in Red in the site plan;

(c) Grant a decree of rendition of accounts against the defendant No.1 directing him to render true and correct accounts with respect to the movable assets left by the deceased father namely late Sh. Chandan Singh (as per List attached as „Schedule-A‟)."

3. The facts of the case are that the plaintiff and defendants are the children/legal heirs of Late Sh. Chandan Singh. That the deceased was the absolute owner of the suit property, admeasuring about 130 sq yards. It is stated in the plaint that during the lifetime Sh. Chandan Singh was desirous to partition the suit property and executed a Will dated 22.12.1999 registered as Doc. No. 5946 in Addl Book No. 3, Vol No. 37 on pages 111 to 113 on 22.12.1999 with the Office of Sub Registrar, Delhi. A copy of the Will was given to each of his five children namely Kishore Kumar, Ganesh Kumar, Mahesh Kumar, Ms. Shakuntala Devi and Ms. Chander Kanta.

4. As per the Will dated 22.12.1999, deceased late Sh. Chandan Singh had duly determined and bequeathed the respective shares of each of the legal heirs. It is stated in the plaint that plaintiff is in possession of 25 sq. yards of the suit property along with his brother (defendant No. 1) who is behaving in an improper way and is also refusing to hand over the possession to plaintiff and to defendant Nos.2 to 4.

5. The plaintiff states that since January 2000, defendant No. 1 and his family started quarrelling and misbehaving with the father. Late Chandan Singh was compelled to publish a disinheritance Notice dated 31.03.2000 in Rashtriya Sahara Newspaper thereby, disinheriting defendant No.1 and his family members from getting any

kind of shares in the movable and immovable properties. A police complaint was made by the plaintiff and his wife against defendant No. 1 and his wife, as they both were trying dispossess/harass the plaintiff and his wife. Defendant No.1 also filed a case of injunction against his father.

6. It is submitted that while Late Chandan Singh was severely ill and admitted in the hospital, defendant No. 1 and his wife broke open the trunk and removed all the original documents including the original Will dated 22.12.1999 and took away all the jewellery, ornaments, etc. worth approximately Rs. 4,50,000/-. When the plaintiff and his wife confronted defendant No. 1, he assured that it is a family matter and it would be sorted out amicably. Defendant No. 1 kept lingering the mater on various pretexts. Again when the plaintiff confronted defendant No.1 in the month of November 2009, defendant No. 1 refused to give any share to plaintiff and defendant Nos. 2-4 and asked the plaintiff to enforce his right in Court.

7. It is also averred in the plaint that the defendant No.1 illegally and forcibly disconnected the electricity connection and the water supply from plaintiff‟s portion as an act of vengeance. A legal notice dated 27.11.2009 was sent by the plaintiff to defendant No. 1, calling upon the defendant to restore the electricity connection and water supply, immediately. The plaintiff also asked the defendant to hand over the original Will, the cash and the jewelry and also to hand over the possession of the respective shares of plaintiff and defendant Nos. 2-4, but he refused to do so. In December 2009, defendant No.1 threatened to sell off the suit property. That several property dealers alongwith several interested persons were visiting the premises

thereby, causing great inconvenience to the plaintiff. Therefore, the present suit was filed.

8. Written statement has been filed by defendant No. 2 and 3 wherein both the defendants have adopted and acknowledged the submissions of the plaintiff and have no objection if, the prayer in the plaint is granted and the suit is decreed accordingly. They did not adduce any evidence.

9. Defendant No.3 Smt. Shakuntla Devi was the daughter of late Sh. Chandan Singh. She died on 01.07.2008 before filing of the suit. Prior to her death, her husband Sh. Bhim Singh had expired on 01.12.2002. As per plaintiff, Sh. Arun Kumar is the son of defendant No.3, there is no other legal heir of late Smt. Shakuntla Devi.

10. Defendant No.4 refused to accept the summons. Hence, she was proceeded ex-parte vide order dated 23.02.2012. No written statement has been filed by the defendants No.1 and 4 and defendants No.2 and 3 have supported the case of the plaintiff.

11. Ex-parte evidence has been filed by the plaintiff. The following documents are exhibited and marked:-

a. Ex PW1/1 - The site plan of the suit property shown in red and the portion marked in blue is in the possession of the plaintiff b. Ex PW1/2 - The copy of the disinheritance Notice published in "Rashtirya Sahara" newspaper declaring that defendant No. 1 would not have any share, rights, title and interest in the movable and immovable property of the his father. c. Ex PW1/3 - The copy of the Police complaint dated

d. Ex PW1/4 - The copy of the police complaint dated 13.06.2000

e. Ex PW1/5 - The prayer clause of the plaint. f. Ex PW1/6 - The original Death Certificate of plaintiff‟s father.

12. I have heard the learned counsel for the plaintiff and have also gone through the affidavit in ex parte evidence of the Mahesh Kumar i.e Plaintiff, and of Mr. Jaipal (PW2) R/o, A-1/219, Madangir, New Delhi, as well as the documents placed on the record. In evidence, the plaintiff has proved the averments made in the plaint and has also exhibited the relevant documents in support of its case. As no cross- examination of the plaintiff‟s witnesses was carried out, therefore, the evidence filed by the plaintiff has gone unrebutted. Therefore, the averments made by the plaintiff in the plaint are taken as correct deposition.

13. Therefore, a preliminary decree is passed holding that the property, i.e., RZ-329/19, Tughlakabad Extn., New Delhi, left behind by the father of the parties to be divided in equal shares.

14. Ms Shradha Saxena, Advocate (Mobile No.9810012444) is appointed as a Local Commissioner to visit the suit property and to give her report as to whether the suit property can be divided by metes and bounds by means of partition. The fee of the Local Commissioner is fixed at Rs.40,000/- which shall be paid by the plaintiff and defendant Nos.2 & 3 in equal share. The Local Commissioner shall file her report by the next date of hearing. List on 16.10.2012 for awaiting the report of the Local Commissioner.

MANMOHAN SINGH, J.

APRIL 25, 2012