Delhi High Court
Mrs. Kamaljit Kaur @ Mrs. Suresh ... vs Mr Maninder Singh & Anr. on 15 February, 2021
$~Suppl.-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA (OS) 8/2021
MRS. KAMALJIT KAUR ALIAS
MRS. SURESH KUMAR .....Appellant
Through: Mr. Hemant Malhotra with
Mr.Rovins Francis Verma,
Advocates
Versus
MR MANINDER SINGH & ANR. .....Respondents
Through: Ms. Gurmeet Bindra, Advocate
% Date of Decision: 15th February, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J (Oral):
CM APPL. 5759/2021
Allowed, subject to just exceptions.
CM APPL. 5758/2021
Keeping in view the averments in the application, the delay in
filing the appeal is condoned.
Accordingly, the application stands disposed of.
RFA (OS) 8/2021 & CM APPL. 5757/2021
1. Present appeal has been filed challenging the order dated 23rd
January 2020 whereby a preliminary decree of partition of the property
had been passed by the Ld. Single Judge.
2. Learned counsel for the appellant states that the learned Single
Judge had erred in exercising her power under Order XII Rule 6, CPC.
He submits that the impugned order was passed on the assumption that
Sardarni Harbans Kaur had died intestate. He emphasises that the Single
Judge ought to have taken into consideration that the division of the
property was to take place as the property left behind by late Sardar
Jagmohan Singh, who is the brother of the Appellant and not as the
property of late Sardarni Harbans Kaur and in such an event, no legal
right arises in favour of the respondent/plaintiff.
3. He submits that the learned Single Judge erred in treating the non-
production of the original will as an admission by the appellant of the
non-existence of the registered will. He points out that the photocopy of
the will was duly placed on record which was ignored by the learned
Single Judge.
4. Per contra, learned counsel for respondent/plaintiff states that the
impugned order dated 23rd January, 2020 was a consensual order. She
states that subsequently on 15th July, 2020 and 11th December, 2020 the
appellant had reiterated her consent and had even stated that she will
coordinate with the Local Commissioner in execution of the sale deed
and other necessary documents. She has, today in Court, handed over a
copy of the order dated 11th December, 2020.
5. In rejoinder, learned counsel for the appellant states that the earlier
counsel had misguided the appellant and suppressed material facts from
her.
6. A perusal of the order dated 11th December, 2020 reveals that on
the said date, the appellant's counsel in the presence of the appellant had
stated, in virtual hearing, that the appellant would cooperate with the
Local Commissioner for execution of the sale deed and other necessary
formalities. Consequently, the appellant is today estopped from
contending to the contrary.
7. In any event, on a perusal of the order dated 15th July, 2020 and
11th December, 2020, this Court is of the view that the impugned order
was a consensual order.
8. We are also not able to comprehend as to why the said order of
dated 11th December, 2020 had not been placed on record by learned
counsel for the appellant, especially considering the fact that present
matter is a Regular First Appeal and the entire trial court record should
have been filed.
9. Further, as the appellant has not filed an application for review of
the order dated 23rd January, 2020, this Court is of the view that the
impugned order calls for no interference. Accordingly, the present appeal
and application are dismissed.
MANMOHAN, J
ASHA MENON, J
FEBRUARY 15, 2021
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