Rajinder Kumar Gupta vs Rameshwar Prasad Gupta
2012 Latest Caselaw 294 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on : January 10, 2012
                      Judgment Pronounced on: January 16, 2012

+                         RFA(OS) 89-90/2011

       RAJINDER KUMAR GUPTA              ..... Appellant
            Through: Mr.Anil Grover, Advocate.

                                 versus

       RAMESHWAR PRASAD GUPTA           ....Respondent
           Through: Mr.Ravi Gupta, Senior Advocate with
                    Mr.Lalit Gupta, Advocate for R-1.
                    Ms.Rashmi Rai, Advocate and
                    Mr.Nikhil Singla, Advocate for R-2
                    & R-3.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J.

1. Late Janki Devi who died on 03.03.1995 was blessed with three sons and a daughter. The sons are named Rameshwar, Rajender and Rajesh. The daughter is named Urmila. Husband of Janki Devi, Lala Ram Sarup had pre- deceased her.

2. Janki Devi was the owner of a built up property bearing Municipal No.92, Banarasi Dass Estate, Timarpur, Delhi-110054. Her three sons were residing in the said house along with her.

3. Urmila has admittedly executed a deed of relinquishment dated 26.03.1999 in favour of her brothers with respect to the aforesaid property belonging to Janki Devi.

4. During the life time of their brother, the three brothers and their families were occupying separate portions in the property owned by Janki Devi, but not as a result of partition thereof; it being a matter of convenience to enjoy the property.

5. All was well till the year 1999 when Rameshwar sought a Letter of Administration, registered as PC No.291/06/99, from the learned District Judge, Delhi on the plea that Janki Devi had died intestate.

6. Whereas Rajesh and Urmila supported him, Rajender opposed the claim setting up a Will dated 18.08.1984, stating the same to be the last legal and valid testament of Janki Devi.

7. Rajender failed to prove the Will and vide order dated 13.10.2008 the learned Additional District Judge, Delhi, Sh.Ashwani Sarpal held that the Will was not proved. For reasons which are totally incorrect in law, he declined to grant a Letter of Administration to Rameshwar. PC No.291/06/99 was dismissed. We highlight that declining Letter of Administration, the learned Judge held that Rameshwar had led no evidence. We do not understand what evidence Rameshwar could have led except in the negative, that his mother never executed a Will. In view of the finding returned that Rajender had failed to prove the Will set up by him, the logical corollary was to have granted the Letter of Administration sought.

8. For reasons known to him, Rameshwar did not challenge the order dated 13.10.2008. Rajender filed FAO No.430/2008 challenging the said order. The appeal was dismissed vide order dated 07.03.2011. Review sought by

Rajender of the order dated 07.03.2011 vide RP No.244/2011 resulted in a failure when RP No.244/2011 was dismissed vide order dated 28.04.2011, against which Petition for Special Leave to Appeal filed before the Supreme Court succeeded, but with a remand. Vide order dated 18.07.2011 the Supreme Court directed RP No.244/2011 to be decided afresh. The said petition has thus to be heard, and as we are informed, is listed for hearing before a learned Single Judge on the Appellate Side on 16.01.2012.

9. In the year 2008, Rameshwar filed a suit praying that property No.92, Banarasi Dass Estate, Timarpur, Delhi- 110054 be partitioned and each son of Janki Devi be declared one-third owner and be put in possession of one-third portion of the property.

10. As before, Rajesh and Urmila filed written statements supporting Rameshwar. Rajender once again pleaded inheritance under the Will dated 18.08.1984. He stated that as per the Will, the mother had put the three sons in possession of different portions of the property.

11. Suffice would it be to state that the issue of the Will dated 18.08.1984 propounded by Rajender would have to be debated by the parties when RP No.244/2011 is argued afresh and if the said petition fails and order dated 07.03.2011 dismissing FAO No.430/2008 attains finality, unless overruled by the Supreme Court, the decision in PC No.291/06/99 shall operate as res-judicata. Likewise, if the review succeeds or the Supreme Court were to hold to the contrary, the said decision would operate as res-judicata.

12. Proceeding with the narratives of what happened resulting in the instant appeal being filed, we need to swim in

the orders passed by the learned Single Judge in CS(OS) No.2362/2008.

13. On 21.08.2009 the learned Single Judge noted that in the presence of his counsel Sh.P.Banerjee, Rajender stated in Court that each son of Janki Devi had one-third share in the suit property, but stated that the portion of the property occupied by him, if allotted to him, would be accepted by him towards his one-third share in the property.

14. Welcoming the stand taken by Rajender, the learned Single Judge held that this request made pertained to physical partition and thus held that the best place to sort out the matter would be the table of a mediator and thus referred the parties to mediation, with a mandate to the Mediator to evolve, by consent, any appropriate mode to physically partition the property.

15. Envisaging that without a visit to the property and without understanding the physical contours thereof the learned Mediator may not be able to evolve consensus, Rameshwar filed IA No.11209/2009 praying to the learned Single Judge that a qualified architect be appointed to assist the Mediator in measuring the property at site. Various other directions were also sought. Vide order dated 01.09.2009, the learned Single Judge disposed of IA No.11209/2009 directing the Chief Engineer, PWD, GNCT Delhi to nominate an Assistant Engineer who was authorized to prepare the drawings and take photographs and make video of the premises. Direction issued was that the Assistant Engineer would submit a report which would be considered by the Mediator.

16. Rajender did not permit the commission to be executed. He filed an application under Order VII Rule 11 CPC,

registered as IA No.13539/2009, praying that the plaint be rejected on the ground that Rajesh had filed a suit seeking partition of the same property which was registered as Suit No.120/2004 before the District Judge, Tis Hazari which suit was stayed in view of the pendency of PC No.291/06/99. Since the said suit was withdrawn by Rajesh, Rajender did not press IA No.13539/2009, which was dismissed as not pressed vide order dated 23.07.2010.

17. Rameshwar filed an application under Order 12 Rule 6 CPC, registered as IA No.13665/2009, praying that in view of the Will set up by Rajender being held not proved and in view of admissions made by Rajender, the suit be decreed.

18. But before that Rajender sought to withdraw the admissions made by him, by filing IA No.13540/2009 under Order VI Rule 17 CPC. He also sought recall of the order dated 21.08.2009 which had recorded his admission in Court vide IA No.14592/2009, which was dismissed vide order dated 27.11.2009, against which appeal filed by Rajender, registered as FAO(OS) No.654/2009 was dismissed.

19. Rajender filed another application under Order VII Rule 11 CPC praying that the plaint be rejected. It was registered as IA No.6852/2011. He pleaded that since Letter of Administration was declined to Rameshwar vide order dated 13.10.2008 passed by Sh.Ashwani Sarpal, ADJ, Delhi, the plaint was liable to be rejected. He read the order to mean that intestate succession was held against Rameshwar.

20. Vide impugned order dated 18.07.2011, application filed by Rameshwar under Order XII Rule 6 CPC has been allowed and application filed by Rajender that plaint be rejected has been dismissed.

21. From the facts noted herein above it is apparent that a wrong conclusion drawn by Sh.Ashwani Sarpal, ADJ, Delhi, as reflected in the order dated 13.10.2008, has resulted in fertile litigation created by Rajender. Suffice would it be to state that when Rameshwar sought Letters of Administration to the estate of his mother on the plea that Janki Devi died intestate, Rajender opposed by setting up the Will dated 18.08.1984. The learned Judge rightly framed the issue whether the Will dated 18.08.1984 was the last legal and valid testament executed by Janki Devi. Having held against the propounder of the Will, the other issue whether a Letter of Administration was required to be granted, had of necessity to be decided in favour of Rameshwar, but for reasoning which is totally perverse, the learned Judge declined to do so.

22. As held in the decision reported as 1959 PLR 264 Manohar Lal vs. Onkar Dass & Ors. which was followed by approval by a Division Bench of this Court in the decision dated 24.10.2011 allowing RFA(OS) No.47/2007 Ashok Singh Lodhi vs. Pratap Singh & Ors., as long as jointness of possession and unity of title continues, the cause of action continues to seek partition, notwithstanding an earlier suit seeking partition being dismissed in default and not restored or even where a preliminary decree is obtained in a suit for partition, but not taken to its logical conclusion i.e. a final decree.

23. Thus, unless Rajender succeeds either in RP No.244/2011, or if he fails therein, before the Supreme Court i.e. unless there is a judicial verdict that the Will set up by him was the last legal and valid testament of his mother, the suit

property has to be partitioned on the premise that late Smt.Janki Devi died intestate.

24. We dispose of the appeal, declining prayer made therein, but directing the learned Single Judge that while continuing with the proceedings in the suit, final decree should await the fate of RP No.244/2011 and we simultaneously request the learned Single Appellate Judge who is seized of RP No.244/2011 to decide the same as expeditiously as possible, but not later than 29.02.2012. We do so for the reason, family peace and harmony is at stake and it would be the duty of every Judge to decide family litigations pending before the Judge with utmost dispatch. The three litigating parties are past their middle age and are above the age of 65 years. This casts a greater obligation on the shoulder of the learned Judges to decide their disputes by giving them precedence since they are all senior citizens. We note that Rameshwar is aged 79 years and is paralytic for about a decade.

25. Notwithstanding that Rajender has filed an appeal which is frivolous, to maintain harmony and hoping that he sees reason and logic, we refrain from imposing costs.

                                    (PRADEEP NANDRAJOG)
                                             JUDGE



                                        (PRATIBHA RANI)
January 16, 2012                           JUDGE
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