Delhi High Court
Sukhinder Kaur & Anr vs Vaneet Kaur on 10 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12.05.2014
Date of Decision: 10.11.2014
+ CM(M) 1258/2012, CM APPL. 19471/2012
SUKHINDER KAUR & ANR ..... Petitioner
Through: Mr. Rakesh Taneja, Adv.
versus
VANEET KAUR ..... Respondent
Through: Mr. A.S.Dateer, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.
1. This petition impugns the order dated 25.10.2012 by which
petitioner No. 1 was impleaded as defendant No. 2 in a suit for permanent
injunction filed by the respondent (plaintiff) seeking restrainment of the
defendant from selling or parting with possession or handing-over of flat
No.J-59, B.K. Butta Colony, J-Block, Karbala, New Delhi - 110 003 and
for further restrainment of taking any amount from the Saving Account,
Current Accounts or Fixed Deposits lying with the Centurion Bank of
Punjab Ltd. and other banks, and from selling the vehicles which were in
the name of the plaintiff‟s late husband, namely Shri S. Parminder Singh.
2. The plaintiff‟s case was that her husband died on 19.08.2007 only
after five months of their marriage; that the suit property was her
matrimonial home; that she had not been allowed to enter into the
aforesaid matrimonial home some time after her husband‟s demise and
that her father-in-law, i.e. the present petitioner No. 2 was attempting to
sell off or otherwise appropriate the estate of her late husband; the estate
comprised of several cars and other travel vehicles.
3. The plaintiff sought to amend the plaint by impleading petitioner
No. 1, Smt. Sukhinder Kaur, as she was alleged by petitioner No. 2 to be
the owner of the suit premises, alongwith certain consequent grammatical
changes such as expression „defendant‟ to be read in the plural; date of
marriage to be corrected to 18.03.2007 instead of 28.03.2007; the details
of vehicles belonging to the estate of her husband and finally that the suit
premises were purchased from the funds of her late husband as benami in
the name of Smt. Sukhinder Kaur.
4. The impugned order allowed the impleadment on the ground that
Smt. Sukhinder Kaur was the owner of the suit premises but disallowed
the amendment sought in para 5 of the plaint because it was not
considered "imperative and authentic" for the proper and effective
adjudication of the case, especially since the plaintiff had failed to bring
on record any document to show that her deceased husband was the owner
of the property and had a bank account with Bank of Baroda, Patparganj.
The impugned order records that the suit was filed in November, 2007,
the Written Statement (WS) was field in January 2008 while and the
application for amendment was filed in November 2010 i.e., after a lapse
of almost two years from the date of filing the WS.
5. The learned counsel for the petitioners would contend that in the
first place, the plaintiff had no cause of action to file the suit and by
refusing permission to amend paragraph 5 of the plaint, the impugned
order had itself wiped out the whole basis for impleadment of petitioner
No. 1 as defendant No. 2 in the suit; therefore, the order impleading
petitioner No. 1 as a party to the suit is liable to be set aside.
Furthermore, it is contended that the impugned order itself records that the
plaintiff had failed to bring on record anything to show that she has a
right, title or interest in the suit property nor had she brought on record
any document to show that her deceased husband was the owner of
property J-59, B.K. Dutt Colony, Karbala, New Delhi-110003, hence
there was no basis for either filing or pursuing the matter with respect to
the suit property. The learned counsel further submits that in the five
years since the demise of the late husband of the plaintiff, she had brought
nothing on record for claiming entitlement of the relief sought in the suit
and petitioner No. 1 has been dragged into the litigation only for the
purpose of causing harassment and humiliation to her.
6. In reply, the learned counsel for the respondent submits that the
plaintiff is dominus litis and is the best judge of her interest and she has
the right to choose her opponents in the suit; that apart from the said
property, there are a number of movable properties like vehicles, fixed
deposits, bank accounts etc. for the possession of which petitioner No.1
has filed a petition for succession certificate; hence, it was prudent for the
plaintiff that petitioner No.1 too be impleaded as a defendant in the
present suit. The counsel further submits that an application filed under
Order VII, Rule 11 of CPC by petitioner No. 2 had already been
dismissed by the Trial Court on 08.01.2010 since the Court found that the
suit ex facie disclosed a cause of action. He submits that the rule
governing amendment is that the Court should try the merits of the case
before it would allow all amendments as may be necessary for
determining the real question in controversy between the parties. He
further submits that the trial of the case is yet to commence and issues had
not yet been framed. It is also submitted that the widow did not know as
to in whose name the property was recorded since she was a new bride in
the matrimonial family/home and had incomplete information about the
property; that she has a share in her husband‟s property. The learned
counsel for the respondent relied upon the dicta of the Supreme Court in
Cherotte Sugathan and others v. Cherotte Bharathi and others, (2008) 2
SCC 610 to contend that upon the death of the husband of the respondent
(widow), his share vested in his widow absolutely. Such absolute vesting
of property in her could not be subjected to divestment, save and except
by reason of a statute.
7. This Court is of the view that when petitioner No. 1 herself had
sought a Succession Certificate apropos the suit property claiming herself
to be the owner of the premises as against the plaintiff, therefore the Trial
Court rightly impleaded her as a necessary party. The reasons for and the
conclusion arrived at in the impugned order one are unexceptionable.
Besides, the Supreme Court‟s dicta in Cherotte Sugathan and others
(supra) holding that upon the death of the husband, his share vested in his
widow absolutely and could not be subjected to divestment, save and
except by reason of a statute, would squarely be applicable in this case.
This Court finds that no ground is made out for interference with the
impugned order under Article 227 of the Constitution of India. This
petition is without merit and is accordingly dismissed.
NOVEMBER 10, 2014 NAJMI WAZIRI, J.
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