Manoj Jain vs Smt. Krishna Jain & Ors.
2012 Latest Caselaw 4526 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) 2413/2007

%                                                           31st July, 2012

MANOJ JAIN                                                      ......Plaintiff
                            Through:     Ms. Tara V.Ganju, Advocate.


                            VERSUS

SMT. KRISHNA JAIN & ORS.                                         ..... Defendants
                   Through:              Mr. Vijay Gupta, Adv. for D-2.

                                         Mr. Dheeraj Gupta, Adv. for D-1,5 and 6.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

In this case, evidence of both the parties was completed and which is

recorded in the order dated 26.4.2010. By the order of that date, the case was

listed in the category of 'Finals'. The suit thereafter came out from the category of

'Finals' because the defendant no.2 made an application for discovery and

production of certain documents and which was allowed by the order dated

7.4.2011. The application for discovery and production was filed on the basis that

the plaintiff had with him certain properties, namely shares and securities, of which

account must be rendered by the plaintiff. The plaintiff in terms of the order dated

7.4.2011 has filed compliance affidavit, which however according to the defendant

No.2 does not comply with the order dated 7.4.2011. The plaintiff has thereafter

moved an application being I.A.No. 10353/2012 for directions to certain

companies to give the present status of the shares, so that better particulars can be

given with respect to the shares and securities details of which were ordered to be

filed by the plaintiff pursuant to the order dated 7.4.2011. I am not taking up the

issues of the compliance of the order dated 7.4.2011 and I.A. No.1035/2012 filed

by the plaintiff inasmuch as these aspects are being covered as per the judgment

being passed hereinafter.

2. In my opinion, once the suit is ripe for final arguments, the filing of

repeated applications by one party or the other should not be permitted and the suit

itself should be disposed of when the same very much can be. Considering the

facts of the present case, which I am stating hereinafter, and which will not even

require evidence of the parties to be referred to, I wanted to hear and dispose of the

suit, but, when I put this to the counsel for defendant no.2, he states that the Court

can pass any order. I have failed to understand this sort of attitude inasmuch as the

counsel for the plaintiff agrees that the suit can be disposed of in terms of the stand

taken by the defendant nos. 2 to 4 themselves in their written statement. Plaintiff

also accepts that the plaintiff is liable to render accounts with respect to the shares

and securities as aforementioned. I therefore refuse to subscribe to the manner in

which adjournments are sought in suits which can be disposed of on the admitted

basis, and which in any case are ripe for final arguments and were in fact in the

recent past put in the 'Finals' category.

3. The present suit is a suit for partition and rendition of accounts. The

parties to the present suit are the legal heirs of late Sh. Lakhpat Rai. Plaintiff and

defendant nos. 2 to 4 are the sons of late Sh. Lakhpat Rai and defendant nos. 5 and

6 are the daughters of late Sh. Lakhpat Rai. Defendant No.1 is the widow of late

Sh. Lakhpat Rai. The main dispute is with regard to the immovable property

bearing no. C-9, NDSE Part-II, New Delhi admeasuring 500 sq. yards. The

plaintiff has essentially claimed partition with respect to this property on the

ground that the property was the property of the father. Plaintiff also in the plaint

made averments with respect to the fact that at one point of time an HUF business

known as Lakhpat Rai and Sons HUF came into existence and if any movables

thereof exist the same also be dealt with in the present suit.

4. Defendant nos. 2 to 4 in the written statement denied the case as set

up in the plaint that the father was the owner in his individual right of the property

bearing no. C-9, NDSE Part-II, New Delhi. The defendant nos. 2 to 4 laid out a

case that the suit property was HUF property.

5. Learned counsel for the plaintiff argues that let the case of the

defendant nos. 2 to 4 as pleaded in the written statement be accepted that the

property is a HUF property. Learned counsel for the plaintiff further argues that

since after amendment of Section 6 of the Hindu Succession Act, 1956 by Act 39

of 2005 w.e.f. 9.9.2005, the daughters have an equal right to that of the son in the

HUF property therefore the suit can be decreed by passing a preliminary decree

giving the daughters also their shares of the properties, and only because of which

issue/dispute the suit remains pending.

Learned counsel for the plaintiff has in my opinion rightly relied upon

Section 6(1) of the said Act which specifically provides that now daughters will

have an equal share as a male coparcener in the HUF properties. Therefore in my

opinion once we accept the admitted case of defendant nos. 2 to 4 in their written

statement that there was a HUF, the suit accordingly will have to be decreed on

that accepted basis that there was a HUF of which father late Sh. Lakhpat Rai was

the karta, the plaintiff and defendant nos. 2 to 4 (sons) were male coparceners and

defendant nos. 5 and 6 (daughters of Sh. Lakhpat Rai) and defendant No.1/mother

would be the family members of the HUF and all the parties to the suit have an

equal share in the properties of the HUF, including the house C-9, NPSE-II, New

Delhi.

6. In view of the above, in my opinion, there are really no disputed

questions of fact which require any adjudication, once we accept the admitted

stand of the defendant nos. 2 to 4 in their written statement. I, therefore, hold that

a preliminary decree is liable to be passed, and I hereby pass such a preliminary

decree declaring that the plaintiff and the defendants each will have 1/7 th share in

the HUF properties including in the house No. C-9, NDSE Part-II, New Delhi .

Counsel for the plaintiff also agrees to that the plaintiff will render accounts with

respect to the shares and securities in possession of the plaintiff and as ordered

against the plaintiff vide order dated 7.4.2011. Counsel for the plaintiff states that

an affidavit which has been filed disclosing the details of the shares and securities,

will have to be followed up further, inasmuch as, the present status of certain

shares would be with the Registrar of the companies with respect to the shares of

those companies. This aspect of rendition of accounts by the plaintiff with respect

to the shares and securities, in power and possession of the plaintiff, will be done

by the plaintiff before the Local Commissioner whom I propose to appoint and the

plaintiff will be considered as the person liable to render accounts with respect to

the shares and securities of the HUF which were in his power and possession. I

may also state that the defendant no.1will also be an accounting party jointly with

the plaintiff with respect to the aforesaid shares and securities inasmuch as the

defendant no.1/ mother is also the holder of almost all the shares and securities.

Counsel for defendant no.1 has no objection to this course of action. Issues of

existence of HUF and rendition of accounts framed on 6.3.2009 are decided

accordingly.

7. In view of the above, let the registry draw up a preliminary decree

declaring that each of the parties to the present suit will have a 1/7th share in the

suit property bearing no. C-9, NDSE Part-II, New Delhi and the properties of the

HUF. Plaintiff and defendant no.1 are held as accounting parties liable to render

accounts with respect to the shares and securities of the HUF in their possession.

8. The suit property is a residential house and parties are staying in the

residential house. Ordinarily, once parties are staying in such a residential house,

there should be firstly an endeavour made for partition by metes and bounds of

such a house otherwise the parties will be without roof over their head. Partition

by metes and bounds is the preferred course of action if the same is possible, and

as held by Division Bench of this High Court in the case of Faquish Vs. Raj Rani,

AIR 1984 Delhi 168.

9. Accordingly, I appoint Sh. Sudhir Makkar, Advocate, who is present

in Court, as a Local Commissioner who will suggest the modes of partition of the

aforesaid property bearing no. C-9, NDSE Part-II, New Delhi. The Local

Commissioner will visit the aforesaid property, after giving due notice to the

counsel for the parties, and after seeing the present status of the property including

the portions in possession/occupation/residence of the different shareholders, will

suggest ways and means to partition the property by metes and bounds. In case

exact division as per the respective shares is not possible, then the Local

Commissioner will suggest ways and means to offset any extra area/portion for and

against any of the parties. I may also clarify that partition by metes and bounds is

really partition of a property in terms of equivalence of the monetary value. The

plaintiff and the defendant no.1 will also render accounts before the Local

Commissioner. The fees of the Local Commissioner for the present will be at a

sum of ` 1,10,000/-(Rupees one lakh ten thousand only) in addition to all out of

pocket miscellaneous expenses and which will be paid in three parts i.e. 33% by

the plaintiff and defendant no.1, 33% by the defendant nos.2 to 4 and 33% jointly

by the daughters defendant nos. 5 and 6.

10. Let a copy of this order be given to the Local Commissioner and the

counsel for the parties. Local Commissioner will endeavor to complete the local

commission proceedings as expeditiously as possible.

11. List for directions on 4th October, 2012.

12. Since a preliminary decree has been passed all pending applications

stand disposed of and merged in the present judgment.

JULY 31, 2012                              VALMIKI J. MEHTA, J.
ib