Smt Maluki @ Raj Decd Thr Lrs & Ors vs Ajay Kumar @ Dev
2012 Latest Caselaw 984 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             RFA 551/2011

%                                                       13th February, 2012

SMT MALUKI @ RAJ DECD THR LRS & ORS            ..... Appellants
                  Through : Mr. M. Qayam-Ud-din, Advocate.

                     versus

AJAY KUMAR @ DEV                                              ..... Respondent
                              Through :    Mr. Vinod Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?

VALMIKI J. MEHTA, J. (ORAL)

1. Once again, a request for adjournment is made by learned counsel

for the respondent/defendant. On the facts of the case, as stated hereinafter,

there is no valid reason to grant an adjournment. I have, therefore, heard

learned counsel for the appellants and after perusing the record am

proceeding to dispose of the appeal.

2. The challenge by means of this Regular First Appeal (RFA) filed

under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial Court dated 30.7.2011 by which the trial

Court most surprisingly dismissed the suit for partition filed by the

plaintiffs being the mother and sisters, against the

respondent/brother/defendant, although, the respondent/brother/defendant

was ex parte in the trial Court. The trial Court has dismissed the suit for

partition and rendition of accounts on the strange reasoning that the

appellants failed to prove that they are the legal heirs of late Sh. Nanak

Chand, who was the owner of the property. The trial Court has also held

that the photocopy of the rent deed, Ex.P1 was exhibited, however, the

same cannot be looked into as no witness was called to prove the same.

3. The trial Court has quite clearly fallen into an error, inasmuch as,

surely once the widow and daughters of the deceased come forward and

say that they are the legal heirs and lead evidence on that basis, and such

evidence is not rebutted, surely such unrebutted evidence has to be

believed. I fail to understand that what more, in the facts of the case, were

the appellants/plaintiffs required to show that they were the widow and

daughters of deceased Sh.Nanak Chand. Further, the trial Court has erred

in disbelieving the rent deed which showed the letting out of the property

by the respondent/brother merely on the ground that the rent deed, Ex.P1

filed was only a photocopy and, therefore, could not be said to be proved in

accordance with law of evidence, inasmuch as, the Supreme Court in the

judgment reported as R.V.E. Venkatachala Gounder vs. Arulmigu

Viswesaraswami & V.P.Temple 2003 (8) SCC 752 has held that unless

an objection is taken to exhibition of the documents at the time when the

documents are exhibited, the right to object to such exhibition of

documents is waived. In this case, as already stated above, the

respondent/defendant was ex parte and, therefore, the trial Court ought to

have believed the rent deed, Ex.P1, to which there was no objection to

exhibition by any cross-examination.

4. It may be noted that the mother-Smt. Maluki died intestate after the

dismissal of the suit and, therefore, now there are only three legal heirs of

deceased Sh.Nanak Chand i.e. two daughters being appellants/plaintiffs and

one son/defendant/respondent.

5. Accordingly, it is held that each of the appellants/sisters/plaintiffs

will have 1/3rd ownership share each in the suit property bearing No. 2/124,

Jheel Khurenja, Delhi, situated in a plot admeasuring 100 sq. yds. The

respondent/defendant will be entitled to 1/3rd ownership interest in the

property. The respondent/defendant will be bound to render accounts of

rent received by him from letting out the portion of the suit property for a

period of three years prior to filing of the suit.

6. In view of the above, the present appeal is accepted. The impugned

judgment and decree dated 30.7.2011 is set aside. The suit of the

appellants/plaintiffs for partition and rendition of accounts is decreed. A

preliminary decree for partition is accordingly passed declaring each of the

parties as 1/3rd co-owners in the aforesaid suit property. The

respondent/defendant will also be liable to render accounts.

7. The trial Court will pursuant to today's judgment take further steps

for passing a final decree for partition and including the aspect of the

respondent/defendant for rendering of accounts.

In the facts of the present case in view of the ratio of the recent

judgment of the Supreme Court reported as Ramrameshwari Devi and

Others v. Nirmala Devi and Others (2011) 8 SCC 249, I find that it is a fit

case for imposition of costs at `10,000/- on the

respondent/defendant/brother.

8. A copy of this judgment alongwith the impugned judgment be sent

to the Chairman of the committee of the Inspecting Judges of the relevant

year of the Judicial Officer who has passed the impugned judgment.

9. Appellant to appear before the District Judge, Karkardooma Court,

Delhi on 6th March, 2012, and on which date the District Judge will mark

the suit for disposal to a competent Court for taking further steps for

passing of a final decree for partition and rendition of accounts in

accordance with law. Trial Court record be sent back.

VALMIKI J. MEHTA, J.

FEBRUARY 13, 2012 AK