Mr. Naval Soni vs Mr. Surinder Soni & Others
2015 Latest Caselaw 2010 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1374/2007

       MR. NAVAL SONI                   ..... Plaintiff
                          Through:      Ms. Deepakshi Jain & Mr. Vishal
                                        Saxena, Advs.

                          versus

       MR. SURINDER SONI & OTHERS         ..... Defendants
                     Through: Mr. Abhinav Malhotra, Adv. for D-1
                              & 4.
                              Mr. K.P. Mavi & Mr. B.P. Mishra,
                              Advs. for D-3.


%                                  Date of Decision : 9th March, 2015

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                             JUDGMENT

MANMOHAN, J: (Oral)

1. Today learned counsel for defendants No.1 and 4 prays for an adjournment on the ground that he has been entrusted with the case file this morning. However, a perusal of the order-sheet reveals that the right of defendant No.4 to file his written statement was closed as far back as 26th October, 2009 and the evidence of defendant No.1 was closed on 30 th March, 2012. Moreover as the present suit had been filed in the year 2007,

this Court declines the prayer for adjournment.

2. It is pertinent to mention that the present suit has been filed for partition by the plaintiff against his two brothers and his sister. The plaintiff's nephew was impleaded as a party to the present proceedings vide order dated 23rd September, 2009 passed by this Court.

3. The relevant facts of the present case are that the father of the plaintiff had purchased the suit property bearing No. B-2/118C Safdarjang Enclave, New Delhi of a plot land measuring 125 square yards in the year 1975 from Shri Roop Ram. However, the Sale Deed was executed in favour of Smt. Sumitra Soni, wife of Shri Jagan Nath Soni, who was a housewife. It is the case of the plaintiff that Shri Jagan Nath Soni had raised construction on the said plot out of his own funds and Smt. Sumitra Soni had no source of income.

4. Learned counsel for the plaintiff states that Sh. Jagan Nath Soni died intestate on 1st September, 2003 leaving behind his estate comprising suit property as well as moveables.

5. On 5th January, 2004 Smt. Sumitra Soni also passed away. It is the case of the plaintiff that after her demise the plaintiff and defendant No.1 to 3 became 1/4th owner each of the suit property.

6. In the plaint it has been averred that various efforts were made to resolve the matter amicably. It is the case of the plaintiff that though an oral agreement was agreed to between the parties, yet defendant No.1 had refused to sign the same and abide by it. It is this refusal which made the plaintiff file the present suit in July, 2007.

7. On 10th January, 2008 this Court directed the defendants not to alienate or transfer their interest in the property to any third person.

8. As this Court was informed that it was the defence of the defendant No. 1 that the Will had been executed by Smt. Sumitra Soni in favour of defendant No.4, it was ordered that in the event the defendants failed to prove the Will the suit property would be liable to be partitioned.

9. It is pertinent to mention that defendants No.2 and 3 are supporting the case of the plaintiff.

10. On 26th October, 2009 the right of defendant No.4 to file written statement was closed.

11. On 23rd November, 2009 this Court framed issues, since this Court was once again informed that defendant No.1 had pleaded a Will in favour of defendant No.4, it clarified that the onus would be on defendant No.4 to prove issue no.1 and if he failed to prove the said issue first, then the suit property would devolve by succession. The relevant portion of the order dated 23rd November, 2009 is reproduced herein below:-

"Since defendant No.1 has pleaded a Will and if there is no Will, there is no doubt that this property has to go by succession, therefore, the onus would be on defendant No.1 to prove issue No.1 first. Defendant No.1 shall lead evidence first."

12. On 30th March, 2012 as no one was present on behalf of the defendants the evidence of defendant No.1 was taken as closed.

13. On 23rd August, 2014 the right of defendants to cross-examine PW-1 was also closed.

14. It is pertinent to mention that the orders dated 26 th October, 2009, 30th March, 2012 and 23rd August, 2014 have not been challenged and have attained finality.

15. Since defendant No.1and 4 have neither proved nor placed on record the alleged Will executed by Smt. Sumitra Soni, a preliminary decree is passed defining the share of plaintiff and defendants No.1 to 3 as 1/4th share each in property bearing No. B-2/118 C, Safdarjung Enclave, New Delhi- 110029.

16. Learned counsel for the plaintiff prays for appointment of Local Commissioner to suggest modes of partition of the suit property.

17. Accordingly, Mr. Gaurav Barathi, Advocate, Mob. No. 9810526981 is appointed as Local Commissioner to suggest mode of partition. The fee of Local Commissioner is fixed at Rs. 1,00,000/- to be shared equally between the parties.

18. In the event, one of the parties does not pay the fees of the Local Commissioner, the outstanding amount shall be paid by the plaintiff in the first instance which would be adjusted at the stage of final decree.

19. Let the report of the Local Commissioner be filed within eight weeks.

20. List the matter before Court on 7th July, 2015.

MANMOHAN, J MARCH 09, 2015 nk