Anita Kumari Gupta vs Ved Bhushan & Ors.
2013 Latest Caselaw 2851 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
20
+                            CS (OS) No. 1093 of 2011
          ANITA KUMARI GUPTA                       ..... Plaintiff
                     Through: Mr. Anupam Srivastava, Advocate.
                             versus

          VED BHUSHAN & ORS                   ..... Defendants
                      Through: Mr. Sanjeev Mahajn, Advocate
                      for D-1, 3 & 4.
                      Mr. Sanjiv Kakra with Ms. Vaishali Kakra,
                      Mr. Vipin Bhaskar, Mr. Bharat Arora and
                      Mr. Vibhu Tyagi, Advocates for D-2,5 & 6.
    CORAM: JUSTICE S. MURALIDHAR

                                      ORDER

% 09.07.2013 IA No. 14420 of 2011 (u/O VII Rule 11 CPC) & CS (OS) No. 1093 of 2011

1. The Plaintiff has filed a suit for partition to declare the Plaintiff to be a co-owner to the extent of 1/6th share in the property at 24, Pusa Road, New Delhi - 110 005 ('the suit property'). The Plaintiff and Defendants 1 to 4 are real brothers and sisters respectively. The Defendant Nos. 5 and 6 are the two sons of the deceased brother, Mr. Sushil Bhushan.

2. The case of the Plaintiff is that she is the youngest of the children of the deceased father late Mr. Pitamber Lal and mother late Mrs. Lajwanti Devi. She is a non-resident Indian ('NRI'). Soon after marriage, the Plaintiff settled in Australia. However, she claims to

have retained the physical possession of one room at the ground floor and another room on the first floor of the suit property where she has been keeping her belongings. It is stated that whenever she visits India, she stays in the said rooms in her possession.

3. It is stated that the father, late Mr. Pitamber Lal, died on 18th December 1965 and the mother late Mrs. Lajwanit Devi expired on 28th March 1991. The suit property is stated to have been purchased by her father late Mr. Pitamber Lal in the early 1950s and thereafter a building was also constructed by him soon thereafter. After the death of the father, the suit property devolved on the mother of the Plaintiff and Defendants 1 to 4. It is further stated that the mother late Mrs. Lajwanti Devi died intestate and the Plaintiff inherited 1/6th undivided share in the suit property.

4. The Plaintiff claims that there was an oral agreement between the Plaintiff and the Defendants that since there was no urgent need, the suit property would not be sold till all the parties as legal heirs reached an unanimous decision about the division of the suit property.

5. The Plaintiff states that despite requests to the Defendants for a copy of all the title documents pertaining to the suit property, the Defendants kept resisting such request. Despite approaching the Land & Building Department, the Plaintiff was unable to get the documents. The case of the Plaintiff is that there was extensive correspondence exchanged

between the parties regarding division of the suit property. There was no cooperation of the parties despite repeated requests made by the Plaintiff for partition of the suit. In the circumstances, the present suit was filed.

6. In the suit it is prayed that a preliminary decree for partition, followed up by a final decree of partition of the suit property by metes and bounds be passed after appointing a Local Commissioner ('LC') and thereafter the parties be put in possession of their respective portions. An incidental prayer for declaration for permanent injunction and for damages and costs has also been made.

7. While directing to issue summons in the suit and notice in the application (IA No. 7352 of 2011) under Order XXXIX Rules 1 & 2 CPC, it was noted by the Court in paras 2 to 9, as under:

"2. The learned Senior counsel for the Plaintiff submits that the suit property bearing No. 24, Pusa Road, New Delhi - 110 005 was owned by late Pitamber Lal who died intestate on 18th December 1965 whereupon the suit property devolved upon the Plaintiff, Defendants and their mother. It is submitted that the Plaintiff's mother Lajwanti Devi also died intestate on 28th March 1991 whereupon her share also equally devolved upon the Plaintiff and the Defendants. The Plaintiff claims to have 1/6th share in the suit property.

3. The learned counsel for Defendants No. 1,2,3,5 and 6 submit that the suit property was owned by late Lajwanti Devi who died on 28th March 1991 leaving behind Will dated 8th December 1988 in favour of the four sons, namely Defendant Nos. 1, 2, 3 and father of

Defendant Nos. 5 and 6. It is submitted that the Plaintiff gave her no objection to the said Will whereupon the said suit property was mutated by DDA in the aforesaid names on 1st March 1996.

4. The learned Senior counsel for the Plaintiff submits that the record of the DDA may be requisitioned to verify the statement given by the learned counsel for the Defendant.

5. The notice is issued to DDA through the learned Standing counsel to produce the record of property bearing No. 24, Pusa Road, New Delhi - 110005 including the relevant papers relating to the mutation. The record be produced before Court on 12th May 2011.

6. The notice to the DDA be given dasti to learned counsel for the Plaintiff who shall serve the same on the learned Standing counsel for the DDA. The Plaintiff shall also furnish the complete set of the paper book to learned Standing counsel for DDA.

7. The learned Senior counsel for the Plaintiff seeks interim injunction in this matter. The same shall be considered after examining the record of the DDA on the next date of hearing.

8. The parties shall remain present in Court on the next date of hearing.

9. Copy of this order be given dasti to learned counsel for both the parties under signature of Court Master."

8. On the next date of hearing, i.e., 12th May 2011 a direction was issued to the Delhi Development Authority ('DDA') to produce the relevant record relating to the suit property.

9. On 16th May 2011 the original records relating to the mutation of the suit property was produced by the DDA. A copy thereof was retained.

10. On 8th August 2011 a statement was made on behalf of Defendants 1, 2, 3, 5 and 6 on instructions that till the next date of hearing the said Defendants have no intention to sell, alienate or part with possession of the suit property. That statement made by the said Defendants has continued since.

11. The original record of the DDA was again called for by an order dated 19th September 2011, brought to the Court on 23rd November 2011 and has been retained since.

12. It may be mentioned at this stage that Defendant No. 1 has filed IA No. 7833 of 2011 under Section 340 of the Code of Criminal Procedure ('CrPC') alleging that false statements have been made by the Plaintiff.

13. On 20th March 2013 a statement was made on behalf of the Plaintiff that she was prepared to deposit in Court a sum of Rs. 3,50,000 within four weeks.

14. Defendant No. 1 expired and his legal representatives were brought on record by its order dated 19th March 2013 in IA No. 4115 of 2013. The interim order was directed to continue.

15. The case of the Defendants in the written statement is that late Mrs. Lajwanit Devi (mother of the Plaintiff and Defendants 1 to 4) left behind her last Will and Testament dated 8th December 1988 by virtue of which the suit property was bequeath by her in favour of four sons. In the said Will she had specifically mentioned that she does not want to give any property to her daughters, i.e., Plaintiff and Defendant No.

4. It was stated in the Will that both daughters are married and they have their own families. The mother stated that they were given "whatever I wanted to give during my life and I do not wish to give them anything more out of my estate, except as specified by me hereunder in para No. 3." As a result, the four sons (Defendants 1 to 3 and father of Defendants 5 and 6) became the absolute and exclusive owners of the entire property and this was accepted by the daughters, including the Plaintiff. It is stated that on the basis of the Will the said property was mutated in name of the four sons in the record of Municipal Corporation of Delhi ('MCD') by letter of mutation dated 20th November 1991. The said mutation was within the knowledge of the both daughters (Plaintiff and Defendant No. 4) since the beginning and they never objected to it. Thereafter, the four sons applied to the DDA for mutation of the suit property on the basis of the mother's Will dated 8th December 1988. Statements were recorded before the DDA of all the six legal heirs, i.e., four sons and two daughters

including the Plaintiff. Thereafter DDA allowed the mutation of the suit property in favour of the four sons by letter of mutation dated 1st March 1996. At no stage was any objection raised by the Plaintiff to the said mutation. It is asserted by the Defendants that the Plaintiff did not have any right in the suit property. It is submitted that the suit is barred by laches since nearly twenty years after the death of the mother, the Plaintiff has filed a false and frivolous suit for partition.

16. The submissions of learned counsel for the parties have been heard. The original records of the DDA have been perused by the Court. It is seen that the records containing a copy of the Will dated 8th December 1988, the original of which appears to have been produced for verification. The notings on the file disclose what transpired before the DDA. There was a request by Defendants 1 to 4 to the DDA on 18th September 1995 informing it of the death of the mother on 28th March 1991, enclosing the death certificate as well as a copy of her Will. A request was made for mutation of the property in their names in equal shares. There are notings on what transpired on 23rd November 1995. The statements made by Mr. Sushil Bhushan have been recorded. He has signed on the left hand of the page. Mr. Vijay Bhushan and Mr. Ved Bhushan have also signed on the left side of the page. On 11th January 1996 the statement of Smt. Anita Gupta (Plaintiff herein) was recorded. This was witnessed by Mr. Anand Bhushan. She had expressed her no objection to the mutation being carried out in favour of the Defendants 1 to 3 and the father of Defendants 5 and 6. Mr. Anand Bhushan has signed as a witness on the left side of the page.

Mr. Anand Bhushan has given below his signature the details of his driving licence number by way of identification. Below her signature again on the left side, the Plaintiff herein has given her passport number by way of identification.

17. It was earnestly pleaded by learned counsel for the Plaintiff that the said signature of Plaintiff was taken on a blank paper which was then got filled up and inserted in the DDA's file. He, therefore, alleged that the record of the DDA in this regard was false and fabricated.

18. The above submissions have been considered. There is no need for DDA to resort any fabrication. The files appear to have been continuously numbered. There does not appear to be any sign of a tempering. Significatnly, there is no averment in the plaint that the Plaintiff was asked to sign blank papaers. This stand is plainly an afterthought. On the other hand the Plaintiff has no satisfactory explanation as to what she was doing all these years after the death of her mother, and after the mutation was carried out in favour of the Defendants 1 to 4 admittedly to her knowledge. The suit is barred by laches. Further, the Court is satisfied that the Plaintiff has not come with clean hands and has suppressed material facts of her having agreed to the mutation of the suit property in favour of the Defendants 1 to 4.

19. The plaint, therefore, does not disclose any cause of action giving rise to any of the reliefs as prayed for by the Plaintiff. The application, IA No. 14420 of 2011 under Order VII Rule 11 CPC is accordingly allowed and the plaint is rejected.

IA Nos. 7352 of 2011 (filed by the Plaintiff u/O XXXIX Rules 1 & 2 CPC) & 7355 of 2011 (filed by the Plaintiff u/O XXVI Rule 9 CPC)

20. These applications do not survive and they are disposed of accordingly.

IA No. 7834 of 2011 (filed by Defendants 1 to 3, 5 & 6 u/O XXV Rule 1 CPC)

21. The application does not survive and it is disposed of accordingly.

IA No. 7833 of 2011 (filed by Defendants 1 to 3, 5 & 6 u/S 340 CrPC)

22. Since the Plaintiff is residing in Australia and this being essentially a family dispute, and with a view to ensure finality, it is not considered appropriate to entertain this application further. It is disposed of.

IA No. 8823 of 2011 (filed by the Plaintiff u/O VI R 17 CPC)

23. By this application, the Plaintiff seeks to amend the entire plaint incorporating a challenge to the Will dated 8th December 1988 of the mother.

24. For the aforementioned reasons, there is no merit in the application for amendment and it is dismissed as such.

IA No.7727 of 2013 (u/S 151 CPC)

25. The application does not survive and it is disposed of accordingly.

S. MURALIDHAR, J

JULY 09, 2013 Rk