Delhi High Court
Shri Rohit Sachdeva vs Shri Dinesh Kumar Sachdeva & Anr. on 9 January, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 9th January, 2020
+ CS(OS) 281/2019, IA No.7797/2019 (u/O XXXIX R-1&2
CPC), IA No.16748/2019 (of D-1 for condonation of 102 days
delay in filing written statement) & IA No.16749/2019 (of D-
1 for modification of order dated 18th October, 2019)
ROHIT SACHDEVA ..... Plaintiff
Through:
Mr. Fanish K. Jain, Mr.
Paritosh Budhiraja and Mr.
Deepanshu Garg, Advs.
Versus
DINESH KUMAR SACHDEVA & ANR. ..... Defendants
Through: Mr. Vikas Arora, Ms. Radhika
Arora and Mr. Rishabh
Agnihotri, Advs. for D-1.
Mr. Vikas Bapurao Pakhiddey,
Adv. for D-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has sued his brother and sister, for partition of (i)
house no.H-93/1 constructed over land ad measuring 146 sq. yds.,
Shivaji Park, Punjabi Park West, New Delhi; (ii) sites bearing no.89
and 90 part of Village Panchayath Katha No.198, Property No.198
formed in converted Residential Purpose Survey No.44 of Rayasandra
Village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District,
measuring both sites are 4801 sq. ft. i.e. land measuring 30 guntas;
and, (iii) Toyota Corolla Altis car bearing Registration No.DL10CT
5790 registered with Registration Authority, Janak Puri, New Delhi.
CS(OS) No.281/2019 Page 1 of 6
2. The suit came up before this Court first on 27th May, 2019 when
the counsel for the defendant no.1 appeared on caveat. Vide
subsequent order dated 9th July, 2019, summons of the suit were
ordered to be issued and the plaintiff as well as the defendants
restrained from alienating, encumbering or parting with possession of
and/or making any additions, alterations, construction or demolition in
House No.H-93/1, Shivaji Park, Punjabi Park West, New Delhi and
Site No.89 and 90, part of Village Panchayath Katha No.198, Property
No.198, Survey No.44 of Rayasandra Village, Kasaba Hobli,
Devanahalli Taluk, Bangalore Rural District, Karnataka and from
parting with possession of Toyota Corolla Altis Car bearing
registration No.DL 10 CT 5790.
3. IA No.16748/2019 of the defendant no.1 for condonation of
delay of 102 days in filing the written statement is for consideration
today.
4. The counsel for the defendant no.1 states that the delay of 102
days is after the expiry of 30 days for filing the written statement.
5. The counsel for the plaintiff states that in Iridium India
Telecom Ltd. Vs. Motorola Inc. (2005) 2 SCC 145 it has been held
that delay beyond 90 days from expiry of 30 days cannot be condoned
and thus the written statement filed by the defendant no.1 cannot be
taken on record.
6. The counsel for the defendant no.1 states that the delay occurred
for the reason of the defendant no.2, being the sister of the plaintiff
and the defendant no.1, as well as the plaintiff informing the defendant
CS(OS) No.281/2019 Page 2 of 6
no.1 that they were attempting amicable settlement and that the
defendant no.1 should not file the written statement as the same would
precipitate the dispute.
7. The plaintiff claims 1/3rd undivided share in the Delhi property,
half undivided share in the Bangalore property and half undivided
share in the Toyota Corolla Altis Car.
8. During the hearing it has emerged (i) that the properties at Delhi
and Bangalore belonged to the father of the parties and the car
belonged to the mother of the parties; (ii) that the plaintiff claims the
father of the parties to have left a Will bequeathing the Delhi property
equally to the plaintiff and the two defendants and the Bangalore
property equally to the plaintiff and the defendant no.1; (iii) that the
mother of the parties pre-deceased the father of the parties and thus on
the intestate demise of the mother, 1/4th share each in the car was
inherited by the father of the parties, the plaintiff and the two
defendants and the father of the parties has under the Will aforesaid
bequeathed his 1/4th share in the car to the plaintiff; (iv) that the father
of the parties was also the owner of two other immovable properties
situated in Delhi and which under the Will have been bequeathed
exclusively to the plaintiff; (v) that the defendant no.1 does not admit
the Will of the father and the said Will has not been proved in any
other proceedings; and, (vi) that the defendant no.2 admits the Will.
9. I have thus enquired from the counsels for the parties, the need
for putting this suit for partition with respect to the properties at Delhi
and Bangalore and the car aforesaid to trial, inasmuch as even in the
CS(OS) No.281/2019 Page 3 of 6
absence of the Will, the plaintiff and the two defendants would have
1/3rd undivided share each in the house at Delhi and though the
defendant no.2 in the absence of the Will would also have a share in
the property at Bangalore but since is accepting the Will, would not
have any share therein and the Bangalore property can be divided
equally between the plaintiff and the defendant no.1.
10. I have enquired from the counsel for defendant no.2, whether
the defendant no.2 claims any share in the Bangalore property or in
the car.
11. The counsel for defendant no.2 states that the defendant no.2 is
not claiming any share in either of the said two properties.
12. The counsel for the defendant no.1 however states that the suit
be put to trial for adjudication of the validity of the document claimed
by the plaintiff to be the Will.
13. If for the purposes of adjudication of the reliefs claimed in this
suit, the need to adjudicate the validity of the Will is not felt, there is
no need to put the suit to trial for adjudicating on validity of the
document claimed to be the Will.
14. While the counsel for the plaintiff states that the other two Delhi
properties which have been bequeathed exclusively to the plaintiff, are
in exclusive possession of the plaintiff, the counsel for the defendant
no.1 states that out of the said other two properties, the property at
Bawana Industrial Area is in the name of a company and the plaintiff
as well as the defendant no.1 are in joint possession thereof and the
CS(OS) No.281/2019 Page 4 of 6
property at Peera Garhi is in the exclusive possession of the defendant
no.1.
15. The counsel for the plaintiff controverts. However for the
purposes of present suit concerning aforesaid three properties only, the
need to go into the aforesaid controversy is not felt. It will be open to
any of the parties to initiate appropriate legal proceeding with respect
to properties other than properties subject matter of this suit.
16. Thus in the aforesaid state of affairs, a preliminary decree for
partition of (i) house no.H-93/1constructed over land ad measuring
146 sq. yds., Shivaji Park, Punjabi Park West, New Delhi; (ii) sites
bearing no.89 and 90 part of Village Panchayath Katha No.198,
Property No.198 formed in converted Residential Purpose Survey
No.44 of Rayasandra Village, Kasaba Hobli, Devanahalli Taluk,
Bangalore Rural District, measuring both sites are 4801 sq. ft. i.e. land
measuring 30 guntas; and, (iii) Toyota Corolla Altis car bearing
Registration No.DL10CT 5790 registered with Registration Authority,
Janak Puri, New Delhi is passed, (i) declaring the plaintiff, defendant
no.1 and defendant no.2 to be having 1/3rd undivided share in house
no.H-93/1constructed over land ad measuring 146 sq. yds., Shivaji
Park, Punjabi Park West, New Delhi; (ii) declaring the plaintiff and
the defendant no.1 to be having one half undivided equal share in sites
bearing no.89 and 90 part of Village Panchayath Katha No.198,
Property No.198 formed in converted Residential Purpose Survey
No.44 of Rayasandra Village, Kasaba Hobli, Devanahalli Taluk,
Bangalore Rural District, measuring both sites are 4801 sq. ft. i.e. land
CS(OS) No.281/2019 Page 5 of 6
measuring 30 guntas; and, (iii) declaring the plaintiff and the
defendant no.1 to be having one half undivided equal share in Toyota
Corolla Altis car bearing Registration No.DL10CT 5790 registered
with Registration Authority, Janak Puri, New Delhi.
17. On enquiry, it is informed that the house no.H-93/1 constructed
over land ad measuring 146 sq. yds., Shivaji Park, Punjabi Park West,
New Delhi is in joint possession of the plaintiff and the defendant no.1
and the Bangalore property is a vacant piece of land and the car is in
the custody of the plaintiff.
18. Preliminary decree for partition be drawn up.
19. The counsel for the plaintiff states that opportunity be given to
explore the possibility of partition by metes and bounds of the two
properties aforesaid.
20. List on 6th February, 2020.
21. In view of the aforesaid, IA No.16748/2019 and IA
No.16749/2019 have become infructuous and are disposed of.
RAJIV SAHAI ENDLAW, J.
JANUARY 09, 2020
'pp'..
