Sweety Gupta vs Neety Gupta And Ors
2017 Latest Caselaw 2786 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+   RFA(OS) 32/2017 and C.M. Nos.19968/2017 & 19969/2017
                           Date of decision: 30th May, 2017
    SWEETY GUPTA                              ..... Appellant
                 Through   Mr. Mandeep Singh Vinaik and Ms.
                 Aswathy Menon, Advocates.

                        versus

    NEETY GUPTA AND ORS                 ..... Respondent
                 Through
    CORAM:
    HON'BLE MR. JUSTICE SANJIV KHANNA
    HON'BLE MS. JUSTICE PRATHIBA M. SINGH

    SANJIV KHANNA, J. (ORAL)

There is delay in filing and re-filing of the appeal and

applications seeking condonation of delay have been filed. Before

issuing notice on the said applications, we have deemed it appropriate

to first examine the appeal on merits.

2. The present Regular First Appeal impugns order dated 19th

September, 2016 by the Learned Single Judge, passing the final

decree in the suit for partition.

3. The appellant and the respondents are sisters being children of

late Shri B.K. Gupta and late Smt. Tara Gupta.

4. Neety Gupta, the first respondent in this appeal, had filed CS (OS) No.2209/2008, for partition of property bearing No.B-7, 80/2,

Safdarjung Enclave, New Delhi, which belonged to and was acquired

by late B.K. Gupta as a member of the cooperative society. The

plaint also refers to the two other properties namely, No.B-9, Rohit

Kunj, Pitampura and immovable property/agricultural land at Karnal,

Haryana. The present appellant, namely, Sweety Gupta was defendant

No.4 in the aforesaid suit. She was proceeded ex-parte vide order

dated 7th July, 2009. Evidence was recorded and thereafter a

preliminary decree of partition dated 27th September, 2011 was passed

holding that the five sisters were entitled to 1/5th share each in the suit

properties bearing No.B-7, 80/2, Safdarjung Enclave, New Delhi and

property bearing No.B-9, Rohit Kunj, Pitampura. The preliminary

decree for partition also recorded that in the absence of particulars of

the property at Karnal, the plaintiff had consented to give up the claim

for the same.

5. The present appellant had thereafter filed an application under

Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting

aside of the ex-parte decree. In the said application, evidence was

recorded. The application was dismissed vide order dated 28 th January, 2016. The review application filed by the appellant was also

dismissed.

6. The appellant had thereafter filed FAO (OS) No.108/2016,

which was dismissed vide order dated 25 th October, 2016. SLP

preferred by the appellant against the said order, it is stated, has been

rejected.

7. In view of the aforesaid position, the preliminary decree of

partition holding that the present appellant along with respondent

Nos.1 to 4 are entitled to 1/5th share in the suit properties bearing

No.B-7, 80/2, Safdarjung Enclave, New Delhi and No.B-9, Rohit

Kunj, Pitampura stands affirmed and confirmed. We cannot in the

present appeal go behind and examine the preliminary decree and

whether or not 1/5th share as affirmed and declared is justified or

correct.

8. Counsel for the appellant submits that the appellant relies upon

a registered Will of late Smt. Tara Gupta, wife of late B.K.Gupta. It

is noticed that the question of Will was specifically adverted to and

contested in the plaint. We do not think that the appellant can be

permitted to urge and raise the issue of purported Will in her favour once the preliminary decree of partition apportioning the share of the

appellant and respondent Nos.1 to 4 in property bearing No.B-7. 80/2,

Safdarjung Enclave, New Delhi has been passed. This would amount

to re-opening of the issue already decided and challenging the

preliminary decree, which contest has already been denied to the

appellant vide order dated 28th January, 2016 dismissing the

application under Order IX Rule 13 for setting aside of the ex-parte

decree. The said dismissal stands affirmed by the Division Bench and

the SLP against the said decision has also been rejected. Therefore,

the reliance placed by the appellant on the alleged Will has to be

rejected.

9. No other ground is urged or argued.

10. In view of the aforesaid, we do not find any reason to issue

notice on the applications seeking condonation of delay. The said

applications and the appeal are dismissed.

SANJIV KHANNA, J

PRATHIBA M. SINGH, J MAY 30, 2017 NA