Home Pvt. Ltd. & Ors. vs Neelu Kapur & Ors.
2012 Latest Caselaw 5479 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : September 12, 2012

+                         RFA(OS) 83/2012

       NIRMAL SAREEN                                   ...Appellant
                Represented by:       Mr.Ashesh Lal, Mr.Raghav, and
                                      Ms.Salima Siddiqui, Advocates.

                                   versus

       NEELU KAPUR & ORS.                                ...Respondents
               Represented by:        None.

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


PRADEEP NANDRAJOG, J. (Oral)

CM No.16023/2012 Allowed.

RFA(OS) 83/2012

1. The record of the suit has been summoned and perused.

2. Shravan Kapur, his minor sister Sakshi Kapur (through her next friend Neelu Kapur) and their mother Neelu Kapur filed a suit seeking partition of the assets of the Joint Hindu Family in which they impleaded only 6 defendants; defendants No.1 to 5 being the three sons of Diwan Kapur, Diwan Kapur himself and his wife Sudershan Kapur. Defendant No.6 was a person to whom one of the many joint family properties was stated to be sold.

3. Later on, daughters of Lajia Ram Kapur, the common ancestor of the parties were impleaded as defendants No.7 to 11. But, the pleadings in the suit continued to be the same i.e. as per the plaint only the plaintiffs and defendants No.1 to 5 had a share in the joint family properties. The newly impleaded parties i.e. the daughters of Lajia Ram Kapur did not file any written statement. Applications filed by them to condone the delay in filing the written statements were dismissed vide order dated September 15, 2010 recording:-

"The learned counsel for defendants No.7 to 11 seeks to withdraw the captioned applications with liberty to file a fresh proceedings with regard to the properties mentioned in the plaint."

4. In other words, there was no defence from the side of defendants No.7 to 11 to oppose the prayer made in the suit requiring any issues to be settled with respect to the pleadings in the plaint qua said defendants.

5. The plaintiffs and defendants No.1 to 5 entered into a settlement and in terms thereof the learned Single Judge disposed of the suit as per order dated September 20, 2010, which on being challenged in RFA(OS) No.98/2010, resulted in the matter being remanded to the learned Single Judge for re-deciding the application filed under Order XXIII Rule 3 by the plaintiffs and defendants No.1 to 5 on the issue of right of defendants No.7 to 11; defendant No.6 being given up.

6. Vide impugned order dated August 30, 2012 the learned Single Judge has opined that as per the pleadings in the suit and the prayers made therein and the traverse to the pleadings only by defendants No.1 to 5, and there being no traverse to the pleadings by defendants No.7 to 11, requires it to be held that no issue has to be settled inter-se the plaintiffs and defendants

No.7 to 11, and as regards the other defendants, noting that defendant No.6 has been dropped from the array of defendants and defendants No.1 to 5 have entered into a settlement, the suit would be decreed in terms of the compromise effected, but has clearly observed that the rights of defendants No.7 to 11 would obviously be in terms of the order dated September 15, 2010, in which the counsel for said defendants is recorded to have made a statement that his clients would be at liberty to file proceedings as per law.

7. We agree with the reasoning of the learned Single Judge for the reason as per pleadings in the suit no relief is claimed against defendants No.7 to 11 who were not even impleaded as parties in the suit. Since the estate of the joint Hindu family was traced since the days of late Lajia Ram Kapur who had only one son, Diwan Kapur (impleaded as defendant No.4), as per the plaint the joint family would be consisting of Lajia Ram Kapur, his son Diwan Kapur and the sons of Diwan Kapur.

8. In the absence of defendants No.7 to 11 asserting any right by filing a written statement as the daughters of Lajia Ram Kapur and claiming a deemed partition on his death and then staking a claim to the share of Lajia Ram Kapur to be inherited by succession, the learned Single Judge is correct in opining that the suit would be disposed of as per the compromise between the contesting defendants.

9. But what happens to the right of defendants No.7 to 11 to stake a claim in the joint family properties, questions the learned counsel for the appellants?

10. When told that the appellants have already been granted a right to institute a proceedings and have the right determined as observed by the learned Single Judge in the order dated September 15, 2010, which we note

has become final and has not been challenged, learned counsel for the appellants states that the appellants would be satisfied if the Division Bench were to observe that the compromise decree impugned does not affect the right of the appellants.

11. We need not so state for the reason, in the impugned order the learned Single Judge has already clarified so.

12. Learned counsel for the appellants says, that being satisfied, and desirous of filing a suit, this Court should preserve the subject properties for at least a month.

13. There is no danger of the properties being wasted or secreted within the next one month. Unless it is a case of a distress sale, it takes time to find buyers and negotiate the price and then sell immovable properties. The appellants can file a suit within the next two or three days if they sense any danger to the properties to which they seek to lay a claim, but we highlight as of today there is no claim because the appellants did not file any written statement to the plaint.

14. The appeal is accordingly dismissed in limine.

15. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE SEPTEMBER 12, 2012 dk