Gita Saran Singh & Anr vs Sabita Uberoi
2017 Latest Caselaw 3123 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         FAO(OS) 344/2016
                                       Date of decision: 10th July, 2017
        GITA SARAN SINGH & ANR                       ..... Appellant
                      Through     Ms. Manmeet Arora, Mr. Rishabh
                      Bansal and Mr. Tarang Gupta, Advocates.

                          versus

        SABITA UBEROI                                   ..... Respondent
                          Through     Mr. Samar Bansal, Advocate for R-1.
                          Ms. Tania Sharma and Ms. Saumya Parmarthi,
                          Advocates for R-2.
        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE NAVIN CHAWLA

SANJIV KHANNA, J. (ORAL)

C.M. Nos.44284/2016 & 44285/2016

Counsel for the respondents states that they do not oppose these

applications seeking condonation of delay in filing and re-filing.

The applications are allowed and the delay of 48 days in filing and 6

days in re-filing is condoned.

FAO(OS) 344/2016

This intra-Court First Appeal filed under Order XLIII read with

Section 104 of the Code of Civil Procedure, 1908 impugns order dated 9th

August, 2016 passed in I.A. Nos. 9567/2016 and 9568/2016. In the prayer

clause, the appellant has also impugned order dated 19th September, 2016,

dismissing I.A.No.11442/2016. This application was filed for

modification/clarification/correction of the order dated 9th August, 2016.

2. The appellant-Geeta Saran Singh in fact has partly impugned order

dated 9th August, 2016, which had disposed of I.A. No.9567/2016 for

amendment of the plaint and I.A. No.9568/2016 under Order XI Rule 12 of

the Code.

3. The impugned order notices the nature of amendments sought and has

crystallized the same in paragraph 5, which reads as under:-

"5. The plaintiff, by of amendment (i) wants to place particulars of certain properties which according to the plaintiff also form part of the estate of father; (ii) wants to incorporate a claim for partition of the moveable estate of the mother; (iii) wants to take additional pleas to challenge the Will set up by the defendant no.1 and to file documents in support thereof; and, (iv) elaborate on the plea on which this bench had declined to frame issue and which order has been set aside by the Division Bench."

4. Thereafter, the impugned order dated 9th August, 2016 records that

vide earlier order dated 8th February, 2016, the appellant has been granted

liberty to raise the question of rendition of accounts in respect of the estate

of the late father, which had not been statedly disclosed by the contesting

defendant No.1, namely, Sabita Uberoi, who is respondent No.1 in this

appeal. We may note that there is another sibling namely, Asha Bhalla, who

it is stated substantially supports the appellant.

5. The impugned order records that as far as the plea with regard to

properties, which were left behind by the father, the same had been already

addressed, inasmuch as the appellant would have the benefit of the order

dated 8th February, 2016. To this extent, in fact, the appellant has not raised

any grievance. With regard to the Will propounded by the respondent No.1,

the impugned order records the statement made by the said respondent that

he would be leading evidence in support of the Will. Issue in this regard has

already been framed and the parties would be entitled to lead evidence in

respect of the circumstances and facts pleaded by the appellant in support of

his contention challenging the Will. To this extent also the impugned order

does not require any interference as rights of the appellant are protected. No

ground for interference is made out.

6. The sole aspect raised by the appellant relates to the estate left behind

by the mother. The impugned order records that the appellant and

respondent No.1 had stated that they had no objection in case the appellant

files a separate suit qua the estate of the mother. The counsel for the

appellant as recorded in the order dated 9th August, 2016 had accepted that

this was agreeable. It was a consent order. Accordingly, it was directed and

held while disposing of the application for amendment that the appellant

would be entitled to file separate proceedings in respect of the estate of the

mother.

7. On this aspect i.e., the estate of the mother, the appellant had

thereafter filed I.A. No. 11442/2016. This application states that the mother

had joint accounts with father and single bank accounts. She had jewellery,

FDRs etc. The appellant has given some details but it is accepted and

admitted that full particulars with regard to jewellery, FDRs etc., were/are

not available and discovery as per the appellant would be necessary. The

mother, it is pointed out, did not own any immovable asset. Pertinently, the

application I.A. No.11442/2016 did not have an averment that the counsel

for the appellant had not made the statement as recorded in the order dated

9th August, 2016 to the effect that the appellant would file a separate suit in

respect of the estate of the mother. I.A. No.11442/2016 was dismissed vide

order dated 19th September, 2016 stating that the matter cannot be re-heard

or reviewed in this manner. Counsel for the parties should have either urged

or not made the statement at the time when the application for amendment

was disposed of on 9th August, 2016.

8. Having heard counsel for the appellant and the respondent No.1 and

in the facts of the present case, we are not inclined to interfere with the two

impugned orders.

9. As noticed above, the mother had not left behind any immoveable

asset and, as per the appellant she had left behind moveable assets.

Pertinently, the mother had expired on 6th July, 2001 and the father, whose

estate is a subject matter of CS (OS) 189/2008, had died subsequently on 3 rd

August, 2002. Even with regard to the estate of mother, the appellant is not

clear as to what was left behind by her. As recorded above, the appellant

states that discovery would be required. The father, as per the appellant,

had left behind immoveable properties including two residential flats in

Defence Colony, which are in possession of the appellant and respondent

No.2, respectively. The first respondent, it is stated, is collecting rent in

respect of the commercial immoveable property located in Safdarjung

Development Area. The suit was filed in the year 2008 and the amendment

application was filed in the year 2016. Allowing the amendment application

will result in re-start of the entire process of filing of written statement,

replication, documents, discovery and take back the suit by about 8-9 years.

We are informed that the parties had agreed that evidence in the suit should

be recorded before the Local Commissioner and one year's time was fixed

for the said purpose as recorded in the order dated 9th August, 2016.

10. Counsel for the appellant accepts that the appellant may have a legal

right to file a civil suit in respect of the estate of the mother. She submits

that estate of the mother was inherited by father also, and disputes relating to

inheritance from mother should be decided in the present suit. However, it

is accepted that the main issue is regarding the estate of the mother, i.e. the

assets left by her. This is a separate and distinct issue, which can be

adjudicated independently and not necessarily in this case. Inheritance by

the appellant and the respondent Nos.1 and 2, and the late father in equal

share is accepted. The issue of Will of the father is subject matter of the

present case. Once the said issue is decided either in favour of the appellant

or in favour of the first respondent, it would decide and adjudicate dispute

on the question of inheritance of the estate of the father.

11. Counsel for the appellant has drawn our attention to the judgment of

the Supreme Court in Sampath Kumar Vs. Ayyakannu and Anr., (2002) 7

SCC 559 in support of his submission that even if a fresh suit is

maintainable, the amendment application could have been allowed. In the

said case, the plaintiff had filed an application for amendment in a suit for

permanent prohibitory injuction seeking declaration of title and

consequential relief of the delivery of possession. In the aforesaid

circumstances, the Supreme Court had allowed the plaintiff by amendment

to convert the suit for permanent prohibitory injunction into a suit for

declaration of title and recovery of possession. Judgment in Sampath

Kumar (supra) is not of any assistance and help to the appellant in the

present case. In the facts of the present case, we are of the opinion that the

single Judge was right in observing that the appellant should file a separate

claim for partition of moveable assets of the mother. The said position was

then accepted by the counsel for the appellant. We do not think that it will

be appropriate and proper to interfere with the said consent order, which we

find is just and fair.

12. Recording of evidence before the Local Commissioner would resume

immediately. Parties will appear before the Local Commissioner on 11 th

August, 2017, when a date will be fixed. The appeal is disposed of with the

aforesaid observations. No order as to costs.

SANJIV KHANNA, J.

NAVIN CHAWLA, J.

JULY 10, 2017/NA