Mohd. Shamim vs Mst. Aman Jamal & Ors
2016 Latest Caselaw 2347 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 23rd March, 2016

+      RFA 37/2014 & CMs No.1754/2014 (for stay) & 7780/2016 (of R-
       3&4 for direction)

       MOHD. SHAMIM                                     .... Appellant
                   Through:            Ms. Gyan Mitra, Adv.

                                Versus

    MST. AMAN JAMAL & ORS                ..... Respondents

Through: Mr. Ajay Sharma, Mr. Punam Lau and Mr. S.U. Abbas, Advs. for R-3&4.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The appeal impugns a judgment and preliminary decree of partition of

the Court of Additional District Judge (ADJ)-08 (Central), Tis Hazari

Courts, Delhi in Suit No.121/2010 declaring that "all the sisters are entitled

to 1/8th share in the suit property and 1/24th in the share of Mohd. Shamil and

the brothers are entitled to 1/4th share in the suit property and 1/12th in the

share of Mohd. Shamil".

2. The appeal is pending in this Court since 28th January, 2014.

However, a perusal of the order sheet shows that the respondents No.1&2

namely Mst. Aman Jamal and Mst. Surraiya Jamal appeared on caveat and

though no notice of the appeal was issued but the counsel for the respondents

No.3&4 Mst. Shahida Jamal and Mst. Hoor Jamal also started appearing and

the Trial Court record was requisitioned and the parties were referred to

mediation.

3. On 9th February, 2016, though no report from the mediation cell had

been received but the counsel for the appellant and the counsel for the

respondents No.1&2 stated that before the Mediation Centre a Settlement

Agreement dated 18th January, 2016 had been arrived at between the

appellant and the respondents No.1&2 whereunder the respondents No.1&2

had agreed not to claim any right, title, interest or share in the property or

against the appellant on receipt of Rs.18 lakhs each from the appellant. The

appellant on 9th February, 2016 paid the said sum of Rs.18 lakhs to each of

the respondents No.1&2 and the decree impugned in this appeal insofar as in

favour of respondents No.1&2 was modified in terms of Settlement

Agreement which was ordered to form part of the decree.

4. On 9th February, 2016 itself arguments on the appeal vis-a-vis the

respondents No.3&4 were also heard and certain observations made and

recorded in the order and the counsel for the respondents No.3&4 sought

time to respond thereto. Thereafter, the matter was adjourned on a few dates

to explore the possibility of settlement between the appellant and the

respondents No.3&4 also but no settlement could be arrived at.

5. The counsel for the respondents No.3&4 has been heard further.

6. The position which emerges is as under:

(i) that the respondents No.3&4 along with the respondents

No.1&2 had filed the suit for partition from which this appeal arises;

(ii) that in the said suit, besides the appellant who is the brother of

the respondents No.1 to 4, one Mohd. Shamil another brother of the

appellant and respondents No.1 to 4 was impleaded as the defendant

No.2;

(iii) that however the respondents No.3&4 subsequent to the filing

of the suit withdrew themselves from the suit stating that they did not

claim any share in the property and that they admitted the appellant

being the sole owner of the property;

(iv) though the counsel for the respondents No.3&4 on 9 th February,

2016 had stated that the respondents No.3&4 after so withdrawing

from the suit filed an application for again joining in the suit and their

said application was rejected and that order had attained finality and

this Court had recorded so in the order dated 9th February, 2016 and

also observed that the order of rejection of the application was not

under challenge in these proceedings but the counsel for the

respondents No.3&4 today states that only the respondent No.4 Mst.

Hoor Jamal had made such an application and no application for re-

joining the suit was filed by the respondent No.3 Mst. Shahida Jamal;

(v) the Trial Court nevertheless in the preliminary decree impugned

in this appeal, declared the respondents No.3&4 also to be having a

share in the property.

7. It was in the aforesaid factual scenario that on 9th February, 2016 it

was enquired from the counsel for the respondents No.3&4 as to how the

decree, awarding share in the property to the respondents No.3&4 who had

withdrawn from the suit stating that they did not claim any share in the

property and admitted to the appellant / defendant being the sole owner of

the property, could be sustained.

8. The counsel for respondents No.3&4 has today drawn attention to

page 593 of the Trial Court record being an application filed by the

respondents No.1&2 as the then only plaintiffs, under Order XXII Rule 4

read with Section 151 Civil Procedure Code, 1908 (CPC), for substitution of

legal representatives of the defendant No.2 Mohd. Shamil, stating that the

said Mohd Shamil died on 10th November, 2010 and was unmarried and had

not left any Will and hence his name be deleted from the array of parties.

The counsel for the respondents No.3&4 has next drawn attention to the

order dated 7th January, 2012 on the said application inter alia recording:

"It is an admitted fact that he was unmarried and he did not left behind any LR except his brother and sisters. All those brothers and sisters are already on record. Ld. counsel for defendant no.1 submitted that the defendant No.1 had succeeded the entire estate, whereas, the sisters also claim that they had also succeeded the share of Md. Shamil, after his death. The issue of succession by any of them is to be decided at the relevant stage. However, there is no other LR except the brother and sisters who are already on record and therefore, the name of Md. Shamil is ordered to be deleted from the array of party. Ld. counsel for the plaintiff is directed to place on record the amended memo of parties."

9. The counsel for the respondents No.3&4 has next invited attention to

the amended memorandum of parties filed in the suit pursuance to the

aforesaid order and in which the names, besides of the appellant and the

respondents No.1&2, of the respondents No.3&4 as heirs of the defendant

No.2 Mohd. Shamil were shown.

10. The counsel for the respondents No.3&4 agrees that the respondents

No.3&4 as on 7th January, 2012 were not "already on record". There is no

mention in the order dated 7th January, 2012 supra for inclusion of the

respondents No.3&4 as heirs of the said Mohd. Shamil. All that the order

observes is that the brothers and sisters of Mohd. Shamil being already on

record, the name of Mohd. Shamil be deleted from the array of parties. The

counsel for the respondents no.1&2 / plaintiffs however in pursuance to the

said order, instead of filing an amended memorandum of parties deleting the

name of Mohd. Shamil as defendant No.2, filed the amended memorandum

of parties to which attention is invited by the counsel for the respondents

No.3&4 and which is clearly contrary to the order in pursuance to which the

same was filed. In fact, it is also not known as to when the said amended

memorandum of parties was filed. Not only so, the respondents no.1 and 2

in their application, on which the said order directing deletion of name of

defendant No.2 Mohd. Shamil was made, also had not sought impleadment

of respondents no.3 and 4 as heirs of defendant No.2 Mohd. Shamil but had

sought deletion of name of defendant No.2 Mohd. Shamil from memo of

parties in the suit.

11. On my query, how filing of an amended memorandum of parties

contrary to what was claimed before the Court and on the basis whereof the

Court had passed an order and in contravention of the order can create any

rights in favour of any party, the counsel agrees that the memo of parties to

which he had drawn attention could not have and cannot create any rights in

favour of respondents no.3&4. However the counsel now, while the order is

being dictated states that written arguments in support of application were

filed and in which such a stand was taken. He however agrees that neither

the order of suit Court refers to written arguments nor observes that the

respondents No.3&4, though on earlier occasion had withdrawn from the suit

admitting the defence of the appellant / defendant No.1 of being the sole

owner of the property of which partition was claimed (even to the exclusion

of the defendant No.2) could be so brought back as heirs of defendant No.2

Mohd. Shamil. On enquiry, the counsel for the respondents No.3&4 states

that the defendant No.2 Mohd. Shamil had supported the claim of the

appellant / defendant No.1 of being sole owner of the property and dis-

claimed any right, title, interest or share in the property. However, after I

have dictated so, the counsel for the respondents No.3&4 states that he needs

to check the same.

12. The only claim of the respondents No.3&4 which has been urged, as

heir of defendant No.2 Mohd. Shamil, does not find any mention in the

impugned judgment as well. In fact the learned ADJ appears to have been

guided by the memorandum of parties of the suit as originally filed and

having not realised that the respondents No.3&4 who in the suit as originally

filed were plaintiffs, had withdrawn from the suit. It thus cannot be said that

the impugned judgment and decree awarding share to the respondents

No.3&4 is on the basis of the share of respondents No.3&4 as heir of Mohd.

Shamil, inasmuch as there is no discussion on the said aspect.

13. No other argument has been urged.

14. The impugned judgment and decree awarding share to the respondents

No.3&4 is thus clearly erroneous and has to be set aside and is so set aside.

15. The counsel for the respondents No.3&4 at this stage states that liberty

be given to the respondents No.3&4 to, in an independent proceeding claim a

share in the property, not as heirs of their father but as heirs of Mohd.

Shamil.

16. The respondents No.3&4, if so entitled to, would be entitled to do so

and the appellant would be entitled to defend the same on grounds as may be

available to him.

17. The appeal thus qua the respondents No.3&4 is allowed and the

impugned judgment and decree insofar as in favour of the respondents

No.3&4 and / or holding the respondents no.3 and 4 entitled to a share in the

property is set aside leaving the parties to bear their own costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

MARCH 23, 2016 bs