Delhi High Court
Gurdeep Singh & Ors vs Parkash Kaur & Ors on 1 February, 2019
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 01.02.2019
+ RFA(OS) 44/2018 & CM APPL 26705-26706/2018
GURDEEP SINGH & ORS ..... Appellants
Through Mr. L.S. Solanki and Ms. Anu
Solanki, Advocate
versus
PARKASH KAUR & ORS ..... Respondents
Through Mr. S.K. Rungta, Senior Advocate
with Mr. Prashant Singh, Advocate
for Respondent no.2
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
CM APPL 26705/2018 (delay)
1. For the reasons stated in the application, delay of 91 days in filing of
the appeal is condoned
2. The application stands disposed of.
RFA(OS) 44/2018 & CM APPL 26706/2018 (stay)
3. Challenge in this appeal is to the order dated 01.02.2018 passed by the
Learned Single Judge of this Court by which, a final decree of
partition has been passed in CS(OS) 394/2007 and CS(OS) 80/2009.
4. Learned counsels for the parties submit that CS(OS) 80/2009 was
filed for (i) partition of property no. D-202, Anand Vihar, Delhi-110
092; (ii) declaration of the alleged Wills dated 6th September, 2002
and 23rd February, 2004 of the deceased Satwant Kaur Tikka
propounded by the defendants as null and void' (iii) declaration that
the mutation letters dated 5th November, 1982 in favour of the
deceased Smt. Satwant Kaur Tikka and mutation letter dated 19th
October, 2005 in favour of defendant no.2, Rajbans Kaur, issued by
the Delhi Development Authority (DDA) in respect of property no.D-
202, Anand Vihar, Delhi are null and void; (iv) declaration that the
Conveyance Deed dated 12th December, 2005 of freehold rights in the
land underneath the property no.D-202, Anand Vihar, Delhi executed
by the DDA in favour of the defendant no.2 Rajbans Kaur as null and
void; and (v) permanent injunction restraining the three defendants
namely (a) Manjeet Singh Tikka; (b) Rajbans Kaur; and, (c) Harjeet
Kaur from dealing with property no.D-202, Anand Vihar, Delhi.
5. CS(OS) 394/2007 was filed by Manjit Singh Tikka & Bikramjit Singh
Tikka for (i) possession of 1st and 2nd floors of property no.D-202,
Anand Vihar, Delhi; (ii) mandatory injunction directing the
defendants to make payment of Property Tax of property no.D-202,
Anand Vihar, Delhi; (iii) perpetual injunction restraining the
defendants from dealing with the property no.D-202, Anand Vihar,
Delhi; and (iv) recovery of damages for use and occupation.
6. In CS(OS) 80/2009, a preliminary decree was passed on 26.03.2015
when the following order was passed:-
"IA No. 4632/2013
The learned counsel for the defendants state, upon
instructions, that the plaintiff, like defendant nos. 1 to 4
has equal share in the property, i.e. 1/5th each bearing
No.D-202, Anand Vihar (Village Karkardooma), Delhi.
Mr. Rungta, the learned Senior Advocate for defendant
no.1 suggests that the property could either be disposed
off by way of an auction or defendant Nos. 2 and 4, who
are in occupation of the property could buy out the
interest of other parties after the property being valued
by an approved valuer.
In view of the aforesaid submissions let a
preliminary decree be drawn up declaring 205 share
each, in the suit property to the plaintiff and defendant
Nos. 1,2,3 and their mother Mrs. Satwant Kaur Tikka.
At the request of the learned counsel for the
parties, M/s. Kaushal & Associates (Government
Approved), B-5/4483, Vasant Kunj, New Delhi (Mobile
No. 9811153104) is appointed as a the valuer to assess
the value of the property. The valuer shall submit its
valuation report within two (2) weeks from today. The
fee of the valuer is fixed at Rs. 15,000/- to be shared
equally by the parties, i.e. the plaintiff and defendant Nos.
1 to 3.
The learned Senior Advocate for defendant No.1
states that during the pendency of the suit, the mother
passed away. Competing Wills have been set up by
defendant no.1 on the one hand and defendant Nos. 2 and
3 on the other. This inter se dispute would not have an
effect on the division of shares of the other parties.
Therefore, all that would need to be done is that the share
falling to the deceased mother when liquidated, shall be
deposited in the Court and its appropriation would be
determined in CS(OS) No. 394/2007.
Emphasis Added"
7. It may be noted that in CS(OS) 80/2009, the mother of the parties
namely Smt. Satwant Kaur was also arrayed as a party. As per the
preliminary decree, the share of all the parties was declared as 1/5th
share each, in property D-202, Anand Vihar, Delhi. In the latter half
of the order, it was observed that during the pendency of the suit, the
mother has passed away and competing Wills have been set up by
defendant no.1 on one hand and defendant nos. 2 and 3 on the other
hand.
8. Counsels for the parties submit that in this backdrop, it was agreed
that when the property is liquidated, the share of the mother would be
deposited in the court and appropriation would be determined in
CS(OS) 394/2007. It is submitted that the position remained
unchanged as the share of the mother is yet to be determined and there
is no settlement between the parties pertaining to her share.
9. Counsel for the appellant and Mr. Rungta, the learned Senior Counsel
appearing for respondent no.2 submit that respondent no.1 was not
present before the learned Single Judge when the impugned order was
passed, nor respondent no.1 has appeared today, nor respondent no.1
was represented before this Court despite service, as is evident upon
reading of order 13.09.2018. Learned counsel for respondent no.2
points out that the appearance has been wrongly marked when the
order was passed.
10. Counsels for the parties are in agreement that the latter part of the
order dated 26.03.2015 was not brought to the notice of the learned
Single Judge and resultantly the Court ignored the fact that the share
of the mother was in dispute and uniformly divided the property into
four parts. It is submitted that the final decree cannot be passed till
the share of the mother is decided by a competent court of
jurisdiction.
11. We may note that in the order dated 26.03.2015 by which the
preliminary decree was passed, it is recorded that competing Wills
had been set up by the defendant no.1 therein on one hand and
defendant nos. 2 and 3 on the other. It was also directed that the
share falling to the deceased mother when liquidated, shall be
deposited in the court and its appropriation would be determined in
CS(OS) 394/2007 and the matter was directed to be listed before the
Joint Registrar on 09.07.2015. We extract the relevant part of the
order as under :-
"The learned Senior Advocate for defendant No.1 states
that during the pendency of the suit, the mother passed
away. Competing Wills have been set up by defendant
no.1 on the one hand and defendant Nos. 2 and 3 on the
other. This inter se dispute would not have an effect on
the division of shares of the other parties. Therefore, all
that would need to be done is that the share falling to the
deceased mother when liquidated, shall be deposited in
the Court and its appropriation would be determined in
CS(OS) No. 394/2007.
List on 9.7.2015 before the Joint Registrar.
Emphasis Added"
12. For the reasons stated above, the impugned judgment dated
01.02.2018 is set aside. It is agreed that only CS(OS) 394/2007
would survive and evidence would be led only with respect to Issue
nos. 4 to 9. An additional issue shall be framed regarding the share of
the deceased, Smt. Satwant Kaur Tikka, in property bearing No. D-
202, Anand Vihar, Delhi.
13. The appeal along with pending application stands disposed of in terms
of the above agreed directions.
14. Parties agree that the evidence would be led before the Local
Commissioner, so that the matter can be decided expeditiously. It is
also agreed that the fees of the Local Commissioner, so appointed will
be shared by the parties.
15. List the matter before the learned Single Judge on 06.03.2019 for
further orders.
G.S.SISTANI, J
JYOTI SINGH, J
FEBRUARY 01, 2019
savita
