Kamal Mohini Passi vs Raj Kumar Khosla Thru??? Lr & Ors.
2012 Latest Caselaw 6609 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: November 19, 2012

+                          RFA(OS) 110/2012

       KAMAL MOHINI PASSI                         ..... Appellant
              Represented by: Mrs.Santosh Singh, Advocate and
              Mr.Rakesh K.Mudgal, Advocates.

                                   versus

       RAJ KUMAR KHOSLA THRU' LR & ORS.                    ..... Respondents
               Represented by: Nemo.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

CM No.19230/2012 Allowed; subject to all just exceptions.

RFA(OS) 110/2012

1. Raj Kumar Khosla instituted a suit impleading his three brothers as defendants and sought partition of various properties alleging that he and his three brothers had equal share therein. The subject properties were stated to be owned by the parents of the parties. As per the plaint, claim was predicated on wills executed by the parents, in which wills no share was bequeathed to their daughter i.e. the appellant.

2. In the written statement filed by the three other brothers they did not deny that each brother had 1/4th share in the properties of their parents.

3. Therefore, on May 20, 1998 a preliminary decree was passed

that share of each parties is 1/4th. Parties were given an opportunity to decide how they would like to partition the properties and unfortunately, as is being noted by us in large number of cases where there is too much money, parties treat the Courts as if their mutual bickering and tantrums have to be borne by the Courts and resolved as if parents are dealing with children.

4. Since parties agreed on nothing, orders were passed that properties be sold and in view of said order, as per order dated February 07, 2008 it was directed that a decree shall be drawn when parties furnish stamp paper of the value as per Article 45, Schedule-I of the Stamp Act.

5. Unfortunately, this has not been done and ignoring the order dated February 07, 2008, interim applications have been entertained by learned Judges on the Original Side, ignoring the law that once a final decree is drawn up, other issues have to be dealt with in Execution, till when the learned Single Judge so opined as per order dated August 28, 2012, requiring stamp papers to be filed and final decree to be drawn.

6. It was at that stage that the applicant i.e. the sister filed an application to be impleaded as a party challenging the decree passed.

7. The learned Single Judge has correctly opined that a consent decree cannot bind a party who is not a party to the litigation and has correctly advised the sister to take resort to a substantive proceeding.

8. It is true that the four brothers have not joined issues with each other that their parents executed wills in their favour, but the sister would have a right to challenge the wills if she so desires, but for which she has substantive remedy i.e. to file a suit challenging the wills and claiming a share in the estate of her parents.

9. We ignore the fact that the suit remained pending since the year 1996 till August 28, 2012 and the appellant never staked any claim

to the properties of her parents and has suddenly surfaced in the year 2011. That would be an aspect to be considered if the brothers predicate a defence on limitation.

10. Concurring with the view taken by the learned Single Judge that the applicant could not be impleaded as a party in the suit and that the decree passed cannot affect her rights and she has an independent cause to seek partition of the estate of her parents, we dismiss the appeal in limine but without any order as to costs.

CM No.19229/2012 Since the appeal stands disposed of, instant application seeking stay of the impugned order till disposal of the appeal stands disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE NOVEMBER 19, 2012 dk