Ashok Anand vs Raj Rani Anand & Ors
2012 Latest Caselaw 3501 Del

*            HIGH COURT OF DELHI: NEW DELHI

%                                    Judgment decided on: 25.05.2012

+ I.A. No.20543/2011 & I.A. No.3790/2012 in CS(OS) No.202 of 2011

ASHOK ANAND                                        ..... Plaintiff
                      Through     Mr. Amitabh Kumar Verma, Adv. with
                                  Mr. Jyotindra Kumar, Adv.

                      Versus

RAJ RANI ANAND & ORS                               ..... Defendants
               Through            Mr. J.C. Mahindro, Adv. with
                                  Mr. Mahesh K. Chaudhary, Adv.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I propose to decide the two pending applications filed by the plaintiff after passing the preliminary decree by this court with the consent of the parties. I.A. No.20543/2011 has been filed under Section 151 CPC by the plaintiff for rendition of accounts by defendants Nos.1 and 3. Second application being I.A. No.3790/2012 has been filed by the plaintiff under Order VI Rule 17 read with Section 151 CPC seeking amendment of plaint.

2. The plaintiff filed the suit for partition and permanent injunction claiming 1/4th share of the properties mentioned in the plaint. The plaintiff was seeking the following prayer:-

(i) Pass a decree of partition in favour of the plaintiff in respect of immovable properties left by late Hari Kishen Anand at C-29, Vivek Vihar, Phase-I, Delhi-95 and the agricultural properties located in Punjab;

(ii) Restrain the defendants or any authority or representative working on their behalf from making or constructing or doing any addition and alteration in the building bearing No.C-29, Vivek Vihar, Phase-I, Delhi-95;

(iii) Restrain the defendants or any authority or representative or attorneys or agents working on their behalf from sale, leasing out, mortgaging, executing Power of Attorney or rent agreement or any kind of transaction or creating any third party interest with regard to the property bearing No.C-29, Vivek Vihar, Phase-I, Delhi-95 and also in the agricultural property located in Distt. Hoshiarpur in Punjab;

(iv) Pass the cost of litigation in favour of the plaintiff and against the defendants.

3. After completion of pleadings, with the consent of the parties, the preliminary decree was passed vide order dated 21.09.2011. The matter was referred before the Delhi High Court Mediation and Conciliation Centre to suggest the mode of partition. Despite of various meetings, the settlement could not be arrived at between the parties. The report in this regard was received by this Court on 13.10.2011.

4. Later on, defendants No.1 to 3 filed the application being I.A. No.18092/2011, under Section 151 CPC for clarification of order dated 21.09.2011. It was stated in the application that the defendants ought to have brought the factum of another property, the details of which are mentioned in para-9 of the written statement, i.e. Shop in Sarafan Bazar, P.O. Hariana, District Hoshiarpur (Punjab), as well as the correction of the details of the property at Town Hariana and Village Dhaki given in the plaint. The prayer in the said application was that in the preliminary decree for partition, the said property was also required to be added, and no prejudice would be caused to the plaintiff in case, the necessary clarification is made in the order dated 21.09.2011, rather it would be for the benefit of the plaintiff as well as the defendants. Notice of this

application was issued to the plaintiff. The same was allowed vide order dated 30.01.2012.

5. Before the above said application was allowed, the plaintiff filed an application being I.A. No.20543/2011 praying for rendition of accounts by the defendants. Second application being I.A. No.3790/2012 was also filed by the plaintiff for amendment of plaint. By means of the application for amendment, the plaintiff now wants to incorporate additional facts by amending the plaint. The details are given as under :

(a) That title of suit should be read as "SUIT FOR PARTITION, RENDITION OF ACCOUNTS AND PERMANENT INJUNCTION" instead of "SUIT FOR PARTITION AND PERMANENT INJUNCTION".

(b) After Para 9 (B) iv of the plaint, the following facts be incorporated as Para 9 (B) v and it would state as under:

"v. Plot at Meerut, near Meerut Grossing Ritham, Pocket B, Sector-5"

(c) After para-9B, another para-9C be incorporated in the plaint with regards to details of moveable properties and it would read as under:

"C. Details of moveable properties such as deposits and investments owned by Late Hare Kishen Anand are:

i. Deposits made in bank account No.SB 20477 in Canara Bank, Delhi in joint name of Late Hare Kishen Anand & Raj Rani Anand;

ii. Deposits and interest made thereon in HDFC Bank, Surya Kiran Building, New Delhi;

iii. Valuables kept made in Safe Deposit Locker No.240, Canara Bank, Vivek Vihar, Delhi-92;

iv. Ornaments containing 85 tolas of gold and silver

ornaments purchased by Late Hare Kishen Anand;

v. Deposits made in Saving Bank A/c No.7012 in Bank of Maharashtra, C-2, Vivek Vihar, Delhi;

vi. FDRs made in Steel Authority of India Limited (SAIL) of about Rs.36 Lac by Late Hare Kishen Anand which was withdrawn by Mrs. Raj Rani Anand till October, 2009;

vii. Deposits in the State Bank of India, R.K. Puram, New Delhi by Late Hare Kishen Anand;

viii. Investment and deposits made in Bank of Patiala, Preet Vihar, Delhi by Late Hare Kishen Anand;

ix. Investment and deposits made by Late Hare Kishen Anand in ICICI Bank of Rs.35,500/-;

x. Investment and deposits made by Late Hare Kishen Anand in IDBI Bank of Rs.23,500/-;

xi. Deposits made by Late Hare Kishen Anand by way of Bonds of Reserve Bank of India of Rs.10,375/-;

xii. Investment made by Late Hare Kishen Anand in HUDCO, Lodhi Road, Delhi of Rs.30,000/-;

xiii. Investment made by Late Hare Kishen Anand in National Savings Certificates (NSCs) of Rs.42,000/-;

xiv. Investment made by late Hare Kishen Anand in The Hindustan Times of Rs.46,000/-;

xv. Rs.40,000/- in cash in hand left by late Hare Kishen Anand at the time of his death;

xvi. Investment of Rs.2,50,000/- made in an account of State Bank of India, Parliament Street, New Delhi;

xvii. Investment made in Vijaya Bank, Hauz Khas, New Delhi

by Late Hare Kishen Anand;

xviii. Payment forwarded from PPF A/c No.397 to State Bank of India, Shahdara, Delhi; and

xix. CDR in the name of Late Hare Kishen Anand under lien for Locker No.88 IV of Bank of Maharashtra, Vivek Vihar, Delhi."

(d) Following lines be incorporated at end of Para 30 of the Plaint and it would read as:

"The Defendant Nos. 1 and 3 had sold the undivided ancestral property bearing Khata No.299/361/362 located at Hariana, Tehsil Hoshiyarpur, Punjab to a third party on 06.06.2008 without any intimation and consent to the plaintiff and this fact has been deliberately suppressed by them. The said sale deed as executed by the defendant Nos.1 and 3 are illegal, unwanted, and void and the same is liable to be quashed. Despite repeated requests, the defendants have not divulged any information to the plaintiff with regard to investment and deposits made by his late father in various banks and financial institutions as mentioned in Para 9 C of the Plaint. True copy of the sale deed dated 06.06.2008 executed by Anil Kumar Anand and the details of investments/deposits are annexed herewith vide Annexure-P19 and P20 (Colly.) respectively."

(e) The following prayer clause Nos.II, III, VI and V be incorporated in the Prayer clause of the plaint and it would read as under:

"II. Pass a decree of partition in favour of the plaintiff in respect of Plot at Meerut, near Meerut Crossing Ritham, Pocket B, Sector-

5.

III. Pass a decree of partition in respect of moveable properties mentioned in Para 9 C (i-xix) of the plaint;

IV. Direct defendant Nos.1 and 3 to render the accounts of joint family income including investment and deposits made by late Hare Kishen Anand in different banks and financial institutions

and its withdrawal; and

V. Declare the sale deed dated 06.06.2008 by defendant Nos.1 and 3 in respect of undivided ancestral property bearing Khata No.299/361/362, located at Hariana, Tehsil Hoshiyarpur, Punjab to a third party void."

6. It is submitted by the plaintiff that the proposed amendments would not change the nature of the suit as they are based on the admitted documents of the parties which have already been filed along with the plaint and grave injustice would be caused to him if, the proposed amendments are not allowed. It is alleged by the plaintiff that the defendants have suppressed the sale transaction and the said fact came into knowledge of plaintiff during his visits to Punjab while the suit was pending before Delhi High Court Mediation Centre.

7. Prayer made in both the applications are strongly opposed by the defendants. It is argued by the defendants‟ counsel that the proposed amendments are opposed by the defendants who have filed their reply to the present applications. In the said reply, it is stated that after the passing of the Preliminary Decree dated 21.09.2011 read with Order dated 30.01.2012, the present application is not maintainable. Even otherwise, the proposed amendments are irrelevant, when the issues proposed to be added in the plaint, have already been decided by the Succession Court, vide order dated 04.05.2010.

8. As per defendants, the application has been filed by the plaintiff only to side track the issue of perjury committed by the plaintiff, which was brought to the notice of this Court by the counsel for the defendants on 15.02.2012 and it has only been filed by the plaintiff to prolong litigation. The proposed amendments are neither necessary nor

proper for effectual disposal of the case and the plaintiff was aware of the same before filing the suit for partition.

9. The defendants in the written statement has explained the said fact in para 11 which reads as under :

"The plaintiff has attempted to play a fraud upon the Court, by submitting partially legible Xerox copy of page 21 of the List of documents and also the incomplete/incorrect translated copy at page 22 of the List of documents (Columns 9 to 12 of Jamabandi have been left blank intentionally) in order to conceal the true and correct present position. From the partially readable Fard submitted by Plaintiff, it can be seen that plaintiff has tried to hide the information given at column 9-12 regarding sale of the undivided share of defendants No. 1 and 3. The plaintiff is aware of the developments. The plaintiff may be directed to submit the original Fard along with its complete translated copy."

10. It appears from the record that the plaintiff was all throughout aware of the facts regarding the transfer/sale of the undivided share of defendants No.1 and 3 in the name of Shri Munish Chander son of Shri Jagdish Chander son of Shri Devi Dass. Correct copy of the fard alongwith the translated copy was handed over by the counsel for the defendants to this court while addressing the arguments on 15.02.2012. The plaintiff has filed incomplete fard which is available at page No.21 and its translation at page 22. Infact the plaintiff has committed a perjury by filing of incomplete document in the Court.

The fact relating to execution of Sale Deed dated 06.06.2008 by defendants No.1 and 3 was well within the knowledge of the plaintiff at the time of filing of the suit in February, 2011 and the plaintiff had

never prayed for the cancellation of the said Sale Deed dated 06.06.2008 in the original plaint.

11. Further in the legal notice dated 24.05.2008 was replied on 02.06.2008 which is placed as Annexure P-13 and the reply reads as under :

"None of the movable articles are in possession of my client and in fact Late Shri Hari Kishen Anand did not leave Gold ornaments and other articles as mentioned in Annexure A, except the old furniture/fixtures". The deposits were in the joint names of Shri Hari Kishan Anand and Mrs. Raj Rani Anand, the same have automatically been transferred in the name of Mrs. Raj Rani Anand".

12. It is further proved that the plaintiff had earlier filed a petition in January, 2005 under Section 372 of Indian Succession Act for the grant of Succession Certificate regarding securities as mentioned in Annexure „C‟ and the said petition was dismissed by the Court of Sh. Sanjeev Kumar Singh, Administrative Civil Judge, (Central), Delhi, on 04.05. 2010. No appeal was filed against the said order. The plaintiff has got no right to agitate the same plea again.

13. Defendant No.1/wife of deceased Sh. Hari Kishen Anand was the joint depositor/joint holder in all the fixed deposits/securities with Shri Hari Kishen Anand and after his death, the defendant No.1 automatically became the owner of the same.

14. It is submitted that in the contents of the legal notice dated 24.05.2008 and its reply dated 02.06.2008 sent by the defendants it was clearly mentioned that Shri Hari Kishen Anand and Mrs. Raj Rani Anand were joint depositor in all fixed deposits with facility "Number 1 or Survivor". As regards Bank deposits, the plaintiff himself has filed the

statement of accounts which also shows that Mrs. Raj Rani was the joint account holder with her husband Shri Hari Kishen Anand, question of rendition of accounts by the defendants does not arise.

15. As regards immoveable property mentioned as Plot at Meerut, near Crossing Ritham, Pocket-B, Sector-5, it is submitted that the plaintiff has neither submitted the specific plot number nor the defendants are aware of any such property owned by Shri Hari Kishen Anand at Meerut. The plaintiff has not filed on record, any document in support of these averments regarding immoveable property at Meerut. The defendants have denied having any plot at Meerut.

16. It is clear that both the applications are full of concoction and have been moved by the plaintiff with malafide intentions to cause delay in the passing of the final decree of partition and more so, to cause harassment to his old mother aged 83 years and widow sister aged 63 years. As agreed, the application for rendition of account is concerned, the same is also misconceived. Thus, the applications are totally misconceived and the same are dismissed with cost of Rs.10,000/- to be deposited by the plaintiff with the Prime Minister Relief Fund within four weeks.

CS(OS) No.202/2011

17. List the matter before Court on 30.07.2012 for appointment of Local Commissioner who would suggest the mode of partition so that the final decree can be passed.

MANMOHAN SINGH, J.

MAY 25, 2012