Master Sidak Malhotra vs Prem Malhotra & Ors.
2013 Latest Caselaw 3625 Del

*                        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                            I.A. No.14999/2011 in CS(OS) 729/2010

+                                                Date of Decision: 19th August, 2013

#       MASTER SIDAK MALHOTRA                                              ..... Plaintiff
                                             Through: Mr. Rishab Raj Jain, Advocate

                                            VERSUS
$       PREM MALHOTRA & ORS.                                        ..... Defendants
                     Through:                Mr. Sangram Patnaik, Mr. Umesh Yadav
                                             & Ms. Swyamsidha, Advocates for
                                             proposed defendant no. 4

        CORAM:
*       HON'BLE MR. JUSTICE P.K.BHASIN

                                         ORDER

P.K.BHASIN, J:

This suit was filed by the plaintiff, who is the minor son of defendant no.2 and grandson of defendant no.1 and nephew of defendant no.2, through his mother, who appears to have been deserted by her husband, claiming that he is being deprived of his legitimate share in the ancestral property in Lajpat Nagar which was originally owned by his great paternal grandfather late Shri Dewan Chand Malhotra and after his death was

inherited by his grandfather, defendant no.1, and his brother late Shri Jagdish Malhotra, by his father and grandfather. It is pleaded that after the death of the great grandfather of the plaintiff some understanding was arrived at between the plaintiff's grandfather and his brother late Shri Jagdish Malhotra and as per that understanding part of the property was agreed came to be allotted to late Shri Jagdish Malhotra and part to defendant no.1. The present suit is in respect of the portion which came to be allotted to defendant no.1 and which is now being claimed to be ancestral property . The plaintiff claims that he is entitled to seek partition as a coparcener but defendants 1 and 2 are not agreeable to partition and so this suit had to be filed.

2. The following reliefs have been claimed by the plaintiff in the plaint:

"a) Pass a preliminary decree of partition thereby defining the shares of the Plaintiff as half the share of Defendant no.2 in the suit property being property bearing A-111, Basement and Ground Floor, Lajpat Nagar-I, New Delhi along with half the share of Defendant no.2 in any other ancestral/undivided property of the Defendants.

b) Appoint a local commissioner with the direction to visit the suit properties and suggest the mode of partition of the suit property.

c) A decree of mandatory injunction in favour of the Plaintiff and against the defendant no.2 thereby directing the Defendant no.2 to disclose the details of the various properties inherited by him or in

which he has a share, including those which may have been acquired from out of the profits/income generated from the business run by the Defendants at the Suit Property;

d) A decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining them, their agents, servant, representatives, relatives, assigns, friends, associates etc. from selling, transferring, alienating or parting with the possession or creating any third party interest in the suit property and/or any other ancestral/undivided property in which the Defendant no.2 has a share, including those which may have been acquired from out of the profits/income generated from the business run by the Defendants at the suit property;

e) Pass a final decree of partition partitioning the Suit Property and/or any other ancestral/undivided property in which the Defendant no.2 has a share, including those which may have been acquired from out of the profits/income generated from the business run by the Defendants at the Suit Property and direct that the parties i.e. the plaintiffs and the defendant may assume the occupation/actual physical possession of the portions earmarked for them as per the final decree and the parties may be put into actual possession thereof;

f) Pass a decree of rendition of accounts directing the defendants to render true and correct accounts of the income accrued from the business being run by the Defendants at suit property in which the Plaintiff has a share, as well as from the sale, if any, of any of the properties in which the Defendant no.2 has a share, with effect from October, 2003, so that amount falling to the share of the plaintiff can be determined;"

3. The defendants have filed a joint written statement in which it has been pleaded that after the death of late Shri Dewan Chand Malhotra the

suit property was inherited by his two sons and four daughters and the daughters had relinquished their rights in favour of their brothers. Thereafter first floor and 2nd floors were sold. Brother of defendant no.1 gifted his undivided share to defendant no.1 and defendant no.1 in turn has gifted the suit property to defendant no.3 and then defendant no.3 has also sold the same and therefore the present suit is even otherwise not maintainable. Some other objections have also been taken by the defendants which include the objection regarding the valuation of the plaint for the purposes of court fee and jurisdiction.

4. As a result of the pleas taken by the defendants that the brother of defendant had gifted his share to defendant no.1 and that defendant no.1 had gifted the suit property to his other son, defendant no.3, vide gift deed dated 27.03.2009 and further that the defendant no.3 had already sold the suit property vide sale deed dated 22.04.2010 the plaintiff has filed the present application for amendment of the plaint so as to include therein his challenge to the gift made by defendant no.1 in favour of defendant no.3 and the sale of the suit property in favour of M/s Jagmal Builders by defendant no.3. It is also pleaded that as a result of transfer of the suit property it has also become necessary to implead the buyer Firm and for its

impleadment separate application(being I.A.No. 15000/2011) has also been filed.

5. The defendants have not filed any reply to this application. In fact, on the date of hearing even their counsel did not appear. So, only counsel for the plaintiff was heard. Though counsel for the proposed defendant(buyer of suit property pendente lite) sought to be impleaded and on whose behalf reply to the separately filed impleadment application(being I.A.No. 15000/2011) stood already filed in which it had been stated that this buyer was not a necessary party in this suit between the family members was present but he had stated that that application could be taken up for hearing after disposal of the present amendment application.

6. Counsel for the plaintiff had submitted that since the plaintiff's mother was not aware of the gift deed allegedly executed by his grandfather, defendant no.1, in favour of his other son, defendant no.3, to the exclusion of plaintiff and his father, defendant no .2, and it was only after the defendants took this plea in the written statement that the plaintiff's mother came to know about that and, therefore, it has become essential to amend the plaint to challenge the validity of that gift deed since defendant no.1 could gift only his undivided share in the ancestral property and similarly it had also become necessary to challenge the sale of the

entire suit property by defendant no.3 in favour of M/s Jagmal Builders. It was argued that amendment of the plaint would avoid multiplicity of cases which plaintiff shall have to file if amendment of the plaint is not allowed.

7. In my view, however, this application for amendment of the plaint is liable to be dismissed since the proposed amendments are not at all necessary for the effective adjudication of the controversy between the plaintiff and the three defendants. The dispute between the parties is whether the suit property is ancestral property in which the plaintiff has also a share as a coparcener and entitled to seek its partition, as is is his case pleaded in the plaint. The plaintiff shall have to establish this plea taken by him and in case he succeeds in establishing that the property which allegedly had fallen to the share of his grandfather, defendant no.1, as per some understanding allegedly arrived at between defendant no.1 and his deceased brother Shri Jagdish Chander Malhotra became a coparcenery property in his hands in which the plaintiff as well as his father acquired some share as coparceners the Court shall be then declaring the shares of the plaintiff and the defendant nos. 1 and 2 as on the date of execution of the gift deed by defendant no.1 in favour of defendant no.3 and depending upon that declaration of shares the gift deed and the sale deed executed by defendant no.1 in favour of defendant no.3 and the sale

deed executed by defendant no.3 in favour of M/s Jagmal Builders 2 would automatically take effect limited to those shares only and there would be no necessity of filing a fresh suit to have those declarations particularly when the buyer has already taken the stand that it is neither a necessary nor a proper party in this family litigation as it has purchased the suit property from defendant no.3 being the exclusive owner after the execution of gift deed in his favour by his father, defendant no.1, and it is for the family members to resolve their inter se disputes. So, it is already prepared to face the consequences of this Court declaring that the suit property which it has acquired from defendant no.3 was an ancestral property in which the plaintiff as well as defendant no.2 also had some share.

8. This application is accordingly dismissed.

P.K. BHASIN, J

AUGUST 19, 2013