Seema Seth & Anr. vs A.L. Seth & Anr.
2013 Latest Caselaw 2972 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS(OS) 3176/2012

                                            Date of Decision: 15.07.2013

SEEMA SETH & ANR.                                      ...... Petitioner
                           Through:     Mr. Dinesh Garg with Ms.
                                        Surbhi Sharma, Advs.

                                   Versus

A.L. SETH & ANR.                                   ...... Respondent
                           Through:     Ms. Vandana Sharma, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. The plaintiffs have filed this suit for mandatory injunction or in

the alternative for declaration.

2. Plaintiff No. 1, Seema Seth, was married to Rajeev Seth on 15th

February, 1987 and plaintiff No. 2, Ms. Karishma Seth, was born out

of the wedlock on 24th May, 1989. Rajeev Seth suffered serious head

injuries resulting in his mental disorder and consequent thereto their

marriage getting dissolved by a decree of divorce on 1st November,

1996. In the said divorce proceedings plaintiff No. 1, Ms. Seema Seth

filed an application under Section 25 of Hindu Marriage Act for grant

of permanent alimony and maintenance for herself and her then minor

daughter Ms. Karishma Seth, the plaintiff No. 2. Ultimately, the

matter was compromised by the plaintiffs with defendant No. 1 who is

the father of Rajeev Seth and who was appointed his Guardian ad litem

in those proceedings. As per the compromise, that was arrived at

between the parties, entire first floor of the property bearing No. D-65,

Gulmohar Park Extension, New Delhi, measuring 200 sq.yds.,

consisting of three bed rooms accommodation, was given by defendant

No. 1 to the plaintiffs towards their claims of permanent alimony and

maintenance.

3. The grievance of the plaintiffs is that despite that they have

become the absolute owners of the said property, they do not have any

marketable title in respect thereto and the defendant No. 1, though

willing, but, has shown reluctance to execute the required documents

on account of his ill-health. The defendant No. 1 had purchased the

said property from defendant No. 2 by virtue of documents such as

power of attorney, agreement to sell etc. Now, the said property is

stated to be in possession of the plaintiffs. The defendant No. 1 for

himself and defendant No. 2 admitted the case of the plaintiffs and

stated that he being not in physical possession to move has no

objection to the appointment of Court Commissioner for the purpose of

execution of the documents in favour of the plaintiffs in terms of the

compromise that was arrived between them in the aforesaid divorce

petition.

4. I have heard learned counsel for the plaintiffs and defendants.

5. There is no dispute that suit property, comprising of entire first

floor of property bearing No. D-65, Gulmohar Park Extension, New

Delhi, was given by defendant No. 1, who is the natural guardian ad

litem of his son Rajeev Seth, to the plaintiffs as towards their claims of

permanent alimony and maintenance against Rajeev Seth. The

plaintiffs are in possession of the said property. That being so, the

plaintiffs have become the absolute owners thereof by virtue of Section

14(1) of the Hindu Succession Act. Since defendant No. 1 has no

objection to the relief prayed by the plaintiffs, the latter are entitled to

marketable title of the suit property. In such a situation either the

defendant No. 1 is required to execute the sale deed in favour of the

plaintiffs or in the alternative the plaintiffs can be declared to be

owners of the suit property and have the title of absolute owners

thereof. Since, due to ill health the defendant No. 1 is unable to do the

needful on his own or even through any attorney, the plaintiffs would

be entitled to alternative relief of declaration.

6. Consequently, the suit of the plaintiffs is decreed in that they are

declared as lawful owners of the entire First Floor of property D-65,

Gulmohar Park Extension, New Delhi, measuring 200 sq.yrds.

consisting of the existing construction as also other rights and interest

therein, which are owned and possessed by the defendant No. 1.

7. The decree will be drawn accordingly and will be required to be

stamped by the plaintiffs as per the Stamp Act. The office may draw

the decree and call upon the plaintiffs to get the same stamped as per

law.

8. The suit stands disposed accordingly.

M.L. MEHTA, J.

JULY 15, 2013 acm