Pradeep Kumar Saxena vs Prashant Vihar
2012 Latest Caselaw 2727 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment:25.04.2012

+     CM(M) 495/2012 & CM Nos.7475/2012


      PRADEEP KUMAR SAXENA                  ..... Petitioner
                  Through  Petitioner in person.

                      versus


      PRASHANT VIHAR                                ..... Respondent
                   Through              None.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The order impugned before this Court is the order dated

27.07.2011 whereby the application field by the plaintiff under Section

151 of the Code of Civil Procedure (hereinafter referred to as the

'Code') seeking reconsideration of the case in view of the ratio of the

judgment of the Apex Court reported as AIR 1962 SC 1439 Munna Lal

Vs. Raj Kumar had after reconsideration declined to interfere with its

earlier order dated 03.12.2007 vide which the suit of the plaintiff had

been dismissed for non-joinder of parties.

2 Record shows that Beena Saxena was an unmarried lady; she had

died leaving four siblings i.e. two brothers and two sisters. The

petitioner Pradeep Saxena had filed a suit for declaration and mandatory

injunction on 17.08.2004; on 24.12.2007, the suit had been dismissed

for want of necessary parties; the Court was of the view that other

siblings of deceased Beena Saxena should have also been joined as

parties in the absence of which the suit was dismissed. An appeal was

preferred vide which the judgment was set aside; the parties were

directed to appear before the trial Court on 18.05.2009. The plaintiff

moved an application seeking impleadment of his two sisters; the

brother Dalip Saxena had already died and legal representatives of Dalip

Saxena were admittedly not taken on record; contention of the petitioner

all along being that they would have no right or interest in the suit

property; the Court was of the view that since Beena Saxena had died

inte-state leaving behind four heirs in class II i.e. two brothers and two

sisters and Dalip Saxena although deceased, his legal representatives

would also be entitled to a share. The contention of the petitioner that

the legal heirs of deceased Dalip Saxena would have no share had been

repelled and rightly so. Thereafter the present application which is the

subject matter of the impugned judgment had been filed seeking a

reconsideration of the orders passed by the trial Court in view of the

judgment the Apex Court noted supra. Facts of that case have been

discussed in paras 3 to 5 of the impugned order are reproduced herein as

under.

"3 I have perused the judgment of Hon'ble Supreme Court. In that case before Hon'ble Supreme Court in a partition suit, the trial court passed a preliminary decree for partition thereby holding that the widow Mst. Khilona i.e. wife of original owner will inherit 1/4th share in the property. Mst. Khilona Bai died prior to passing final decree and the trial Court gave an opinion that the share of Mst. Khilona Bai will be inherited by her two grandsons in equal share and no share will go the great grand son i.e. son of predeceased grandson. This order of the trial Court was set aside by Hon'ble High Court by holding that the share of Khilona Bai will go to all three i.e. 1/3rd share each to two grand sons and one great grand son. Hon'ble Supreme Court however, reversed the finding of Hon'ble High Court and re- affirmed the order of trial Court holding that since on the date of death of Mst. Khilona Bai, she had only two surviving grand sons, the question of the great grand son i.e. the son of pre-deceased grand son inheriting a share will not arise and the share of Mst. Khilona Bai will go half each to two surviving grand sons.

4. If the same law apply to the facts before me, admittedly, on the date of death of deceased Beena Saxena i.e. 01.04.1999, she had four surviving legal heirs i.e. two brothers and two sisters who will inherit 1/4th share each in the property. Dalip Saxena admittedly died on 07.01.2001 and he has already inherited 1/4th share left behind by her deceased sister. Had he pre-deceased Beena Saxena, the inheritance should have been different and in case of Dalip Saxena pre-deceasing his sister, the legal heirs of Dalip Saxena will not inherit any share in the property since there wre

other legal heirs of a class preferable to them. Once Dalip Saxena has inherited share in the property, his share will be inherited by his legal heirs and the arguments put forth by the plaintiff that the legal heirs of Dalip Saxena will not inherit any share is without any face and is not the law of land as argued by the plaintiff.

5 As already said that a review petition seeking review of the order for impleading the legal heirs of deceased Dalip Saxena has already been dismissed by this Court, it appears that the only mention of the plaintiff is to delay the trial by not impleading the legal heirs of Dalip Saxena. This application is being most frivolous and vexatious and is dismissed with a cost of Rs.2,000/- to be deposited in DLSA."

3 This order in no manner suffers from no infirmity. Both law and

fact has been clearly deciphered and appreciated in the correct

perspective.

4 The petitioner appears in person. This petition is an abuse of the

process of the Court. It is accordingly dismissed.

                                                       INDERMEET KAUR, J
APRIL        25, 2012
A