Delhi High Court
Lalit Mohan Mendiratta vs Gianinder Mendiratta And Ors on 29 July, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th July, 2019
+ CS(OS) 376/2018, IA No.10156/2018 (u/O XXXIX R-1&2
CPC) & IA No.3079/2019 (u/O VI R-17 CPC)
LALIT MOHAN MENDIRATTA ..... Plaintiff
Through: Mr. R.S. Chaggar, Ms. Sangeeta
Singh & Mr. Sajan Arora, Advs.
Versus
GIANINDER MENDIRATTA AND ORS. ..... Defendants
Through: Mr. Virag Kumar Agarwal, Ms.
Shalini Agarwal & Mr.
Kamaljeet Singh, Advs. For D-
1&2.
Mr. Pankaj Gupta, Adv. for D-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit for partition of house No.A-
20, G.T. Road, out of Khasra No.38, situated in the area of village
Bharola, colony known as Adarsh Nagar, Delhi constructed over land
ad-measuring 400 sq. yds.
2. The defendants have filed their written statements and the suit is
ripe for framing of issues.
3. The counsel for the defendants no.1 and 2 and the counsel for
the defendant no.3 appear.
4. The counsel for defendants no.1 and 2, upon asking, states that
the defence of the defendants no.1 and 2 is, that (i) the property
belonged to the father of the parties; (ii) the father of the parties in his
lifetime put the plaintiff and the defendant no.1 in possession of
separate portions of the property, partitioning the property between
CS(OS) No.376/2018 Page 1 of 6
plaintiff and defendants no.1; (ii) while the defendant no.1 is in
possession of the entire first floor and three out of five shops on the
ground floor of the property, the plaintiff is in possession of the
second floor of the property and two shops on the ground floor of the
property; (iii)the defendants no.2 and 3, being the sisters of the
plaintiff and defendant no.1, after demise of the father have executed a
deed relinquishing their respective one-fourth undivided share in the
property jointly in favour of the plaintiff and the defendant no.1; and,
(iv) the defendant no.3, in her separate written statement is supporting
the plea of the defendant no.1, of the father in his lifetime having
partitioned the property between the plaintiff and defendant no.1.
5. The counsel for the defendant no.3, on enquiry states that
defendant no.3 in her written statement is supporting the plaintiff.
6. The question for adjudication is, whether an issue should be
struck on the plea of the defendant no.1, supported by the defendant
no.2, of the father of the parties in his lifetime having so partitioned
the property between the plaintiff and the defendant no.1.
7. Admittedly, there is no document in this respect.
8. In my view, no issue is required to be struck on the aforesaid
plea and there is no need to relegate the parties to trial, for the reasons
hereafter appearing.
A. Once the father of the parties was the owner of the
property and remained the owner of the property till his
demise and during whose lifetime neither the plaintiff nor
CS(OS) No.376/2018 Page 2 of 6
the defendant no.1 had any share in the property, there
could have been no partition by the father, dividing the
property between plaintiff and defendant no.1. An oral
partition can take place only between the parties each of
whom has a share therein. The father of the plaintiffs, if
at all had a desire to, in his lifetime, transfer any part of
the property to the plaintiff and / or the defendant no.1,
the same could have been done only by a registered Gift
Deed or a Sale Deed and admittedly which was not
executed.
B. The said plea of partition is also falsified by the
relinquishment got executed by the plaintiff and
defendant no.1 from defendants no.2 and 3 of their
respective shares in the property; had there been any
partition, as pleaded by defendants no.1 and 2, or had
there been any mutual understanding of division of the
property as contended by the counsel for the defendants
no.1 and 2, even if of after the lifetime of the father, the
release by the defendants no.2 and 3 would have been of
their share in the separate portions of plaintiff and
defendant no.1 and not of their share in the entire
property, jointly in favour of the plaintiff and defendant
no.1.
C. It is quite obvious that the defendant no.1, in possession
of a larger and better share of the property, has taken the
plea aforesaid, just to take the matter to trial, to delay the
CS(OS) No.376/2018 Page 3 of 6
disposal of the suit and perpetuate his occupation of the
larger / better portion of the property.
D. The version of the defendant no.2 and defendant no.3 in
their respective written statements is of no avail, after
having executed the Relinquishment Deed. Moreover,
the stand taken by the defendant no.2 is contrary to the
Relinquishment Deed executed by her own self.
9. The counsel for the defendants no.1 and 2, inspite of again
asking, has not been able to state any other issue which arises for
consideration from their written statements.
10. I may mention, that IA No.3079/2019 of the defendant no.1 for
amendment of the written statement is pending. However the counsel
for the defendants no.1 and 2 himself states that the amendments
sought are only to take legal pleas of, (i) the plaint not disclosing any
cause of action and being liable to be rejected owing to the property
having been already partitioned; (ii) the suit being bad for misjoinder
of defendants no.2 and 3, who after the Relinquishment Deed have no
share in the property; (iii) the suit not being properly valued for the
purpose of court fees and jurisdiction; and, (iv) the plaintiff having
instituted the suit to harass the defendant no.1.
11. Though the counsel for the defendants no.1&2 has not argued,
but I find that the defendant no.1, by way of amendment also wants to
take a plea of having made constructions to the property at his own
costs, in the year 2000.
12. The said plea now sought to be taken by way of amendment is
in withdrawal of the admission earlier made, of the entire property
CS(OS) No.376/2018 Page 4 of 6
having been partitioned in the lifetime of the father. Moreover, the
Relinquishment Deed obtained by the defendant no.1 from the
defendants no.2 and 3, is again of a subsequent date and the plea now
sought to be taken by way of amendment is contradictory thereto also.
13. Thus, the defendant no.1 is not found entitled to the amendment
sought and in any case the amendment sought does not come in the
way of the findings aforesaid.
14. The written statement of the defendants no.1 and 2 is thus not
found to contain any substantial plea inviting framing of an issue. It
has been held in Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC
OnLine Del 1479, Adarsh Kumar Puniyani Vs. Lajwanti Piplani
2015 SCC OnLine Del 14022, Abbot Healthcare Pvt. Ltd. Vs. Raj
Kumar Prasad (2018) 249 DLT 220, Bhavana Khanna Vs. Subir
Tara Chand 2019 SCC Online Del 6978, Anil Kumar Vs. Devender
Kumar, 2019 SCC OnLine Del 8782 and Precision Steels Vs. Reeta
Salwan (2013) 205 DLT 695 that issues are not to be framed on every
plea, howsoever frivolous and without any standing in law.
15. Else, it being not in dispute that the share of the plaintiff and
defendant no.1 in the property is one-half each, a preliminary decree
for partition of property bearing house No.A-20, G.T. Road, out of
Khasra No.38, situated in the area of village Bharola, colony known as
Adarsh Nagar, Delhi is passed, declaring the plaintiff Lalit Mohan
Mendiratta and defendant no.1 Gianinder Mendiratta to be having one-
half undivided share therein.
16. Preliminary decree for partition be drawn up.
CS(OS) No.376/2018 Page 5 of 6
17. The counsels state that there is a possibility of division of the
property by metes and bounds.
18. Time is given to the parties to attempt the same, with each of
the party drawing up two equal portions of the property with
willingness to accept either of the said portions.
19. On enquiry, it is stated that there are no tenants in the property.
20. If the counsels are unable to so come up with a proposal for
division by metes and bounds, the Court shall have no option but to
pass a final decree for partition, of sale of the property and of
distribution of sale proceeds amongst the parties as per shares declared
in the preliminary decree for partition.
21. IA No.10156/2018 of the plaintiff is disposed of making the ex
parte order dated 2nd August, 2018 absolute till the disposal of the suit.
22. List on 26th September, 2019.
RAJIV SAHAI ENDLAW, J.
JULY 29, 2019
'gsr'
