Alark Singh vs Durga Devi and Others

Kamlesh Sharma, J.—The immoveable and movable properties enumerated in Schedules I, II, III and IV attached with the plaint (here in after called the properties in dispute) are the subject matter of this suit. According to the Plaintiff, these properties were ancestral joint Hindu family properties which Maharaja Rajinder Parkash held as an impartible estate till his death upto 1964. The Plaintiff has, inter alia, sought decree of declaration that he and his brother late Shri Mandhata Singh Defendant No. 48 (died during the pendency of the suit leaving behind no legal heir except the Plaintiff) are entitled to 54-1/6 share of the properties in dispute (Schedules I, III and IV) and are ''Bhumidars'' of entire agricultural land at Dehradun (Schedule II), being surviving coparceners of the Hindu undivided family, after the death of late Maharaja Rajinder Parkash and revenue entries contrary to their claim are wrong, illegal and inoperative. The Plaintiff has further prayed for decree of partition of these properties and also for rendition of accounts thereof. His another prayer is that during the pendency of the suit Defendant 1 to 4, their agents adn assigness may be restrained from selling and creating charge or otherwise dealing with the properties in dispute in any manner.

An application under Order 39 Rules 1 & 2 CPC (OMP 436 of 1987) was also filed along with the suit which has finally been decided on 4.7, 1992. Accepting the undertaking given by learned Counsel for Defendants No. 1 to 4 that they will not alienate and/or transfer the property in dispute or any part thereof in any manner during the pendency of the suit and if any such need arises they will alienate and/or transfer the suit property or any part thereof after seeking permission, this Court passed the interim order accordingly,

Another application under Order 26 Rule 9 CPC (OMP No. 150 of 1989) has been filed by the Plaintiff seeking the following interim order:

A commission be issued by deputing an officer of this Hon''ble Court for a Senior Civil Executive Officer of the State ordering the preparation of inventory of all moveable goods lying stocked in Royal Palace at Nahan including strong room, Tent Godown, Tosha Khana at Nahan and Bungalow No. 2 Kaulagarh Tea Estate of Dehradun after due inspection and thereafter sealing and locking the same for safe custody and further empowering such commission to enter upon the premises aforesaid which are in the control of the Respondents. The interim relief has been sought against Defendants No. 1 to 10 only.

It has been alleged in the application that most of the valuable moveable goods have been kept in the strong room and premises of Royal Palace, Ten Godown and Tosha Khana at Nahan and also Bungalow No. 2 Kaula Garh Tea Estate at Dehradun. Complete list of the articles kept in strong room of Royal Palace at Nahan were prepared in the presence of the Co - sharers or their representatives in the year 1965 after the death of Maharaja Rajinder Parkash and after physical verification of such moveables, the strong room was locked by the co - sharers after putting their separate locks on the main door of the strong room. Though, in the year 1971, an effort was made by the co - sharers to partition these moveable goods, yet due to stay order passed by this Court in Civil Suit No. 6 of 1970 titled Norbir Singh v. Union of India and Ors. it was not effected and the strong room was again locked and sealed. According to the Plaintiffs, two locks were put on the main door of the strong room by the representatives of late Rajmata Mandalsa Devi and were properly sealed. Key of one lock was handed over to Sh. Vidur Ji, General Power of attorney of Maharani Durga Devi Defendant No. 1, Rajkumari Nalni Devi Defendant No. 2 and Sh. Uday Singh Defendant No4 under a proper receipt and key of other lock and seal thereof are still with the representatives of Maharani Prem Lata Devi.

It is further stated by the Plaintiff that since the start of litigation amongst the co - sharers Defendants 1 to 4 have tightened their control over the palace and do not permit him to enter and supervise the palace premises for ascertaining the physical existence of moveable properties lying in its strong room. He has expressed his apprehension that valuable goods which include precious antiques and jewellery, gold, silver etc. worth billions of rupees might be removed, stolen and misappropriated by Defendants 1 to 4 unless all these moveables are immediately secured from being frittered away. He has made all these goods subject matter of the partition suit which are covered by lists prepared by the co- sharers, declared under the Gold Control Order and submitted before the Estate Duty Officer. The Plaintiff has alleged that earlier also Defendants No 1 to 4 had actually removed, stolen and misappropriated the valuable goods from the palace building and strong room during the pendency of proceedings u/s 192 of Indian Succession Act, 1925 before this Court and the Court of District Judge, Sirmaur, in respect of which report was lodged with the police for necessary action in the matter. The Plaintiff has shown his ignorance about the number and extent of all these moveable goods actually in existence as the lists and stock register detailing these properties are not available to him. Therefore, to prevent concealment and disposal of such property in the custody of such persons including Defendants No. 1 to 4, the making of an inventory of such moveables is essential.

This application has been resisted by Defendants No. 1 to 4 but reply has been filed on behalf of Defendant No. 3 only. Number of preliminary objections have been raised that the Plaintiff has no prima facie case nor the balance of convenience is in his favour to grant him any interim relief. His suit is speculative and not maintainable. It has been filed to harass and humiliate the replying Defendant. List of alleged moveables has been prepared without any basis as the alleged articles do not exist and by getting the Commissioner appointed the Plaintiff wants a fishing enquiry to the belongings of replying Defendant and Defendants No. 1 and 2 lying at their residence at Nahan and at Dehradun. According to Defendant No. 3, these are the household and other aritcles including wearing apparels of Defendants No. 1 to 3 and the property left by her mother to which the Plaintiff has got no right. Since the death of Maharaja Rajinder Parkash in the year 1964, the Plaintiff has for the first time come forward to get the personal properties of Defendants 1 to 3 accounted. His claim in relation to moveable properties is apparently time barred.

On merits, the allegations of the Plaintiff are denied and it is claimed that answering Defendant along with Defendants 1 & 2 are the exclusive owners in possession of the suit properties including moveable and immoveable. Neither the Plaintiff nor Defendants 4 to 11 have got any right, title or interest in the suit properties nor they are in possession thereof. It is specifically denied that any list of articles kept in strong room of the Royal Palace at Nahan were prepared in the presence of co- sharers and their representatives in the year 1965 and that strong room was locked and sealed by the co- sharers after the death of Maharaja Rajinder Parkash. It is alleged that the father of the Plaintiff late Major Virender Sing was not co-parcener or co-sharer of the property of late Maharaja Rajinder Parkash. He was only son of a concubine of late Maharaja Amar Parkash and was not entitled to inherit through survivorship.

It is also specifically denied by Defendant No. 3 that she and Defendants 1 & 2 had ever stolen or misappropriated any property as alleged by the Plaintiff. According to Defendant No. 3, the Plaintiff has filed this application mala fide and has not come to the Court with clean hands inasmuch as'' on the one side he has attached the list of moveable property with the plaint and on the other he is making the prayer for appointment of commissioner to make inventory on the ground that lists of goods are not available to him. Therefore, it is clear that the list attached with the plaint are based on his Imagination and are not admitted to be correct. In fact, the Plaintiff by seeking the relief in the present application itends to get a fishing enquiry made in order to know the details of property which belongs to Defendants No. 1 to 3 but the preparation of the inventory of the properties owned and possessed by Defendant No. 3 will cause great humiliation and harassment to her. Defendant No. 3 has prayed that the present application be dismissed as it has no merit.

In the rejoinder filed by the Plaintiff submissions made in the application are reiterated and contrary stated in the reply are denied. The preliminary objections raised on behalf of Defendant No. 3 have been denied. It is further asserted that list of gold articles submitted under the Gold Control Order and list of movables submitted before the Estate Duty Officer form part of main list prepared after the death of Maharaja Rajinder Rarkash in 1964, as such the said list is now part of public record. According to the Plaintiff, these movables are joint family property and do not belong to Defendants 1 to 3. If these articles do not exist, it is apparent that these have been misappropriated, regarding which criminal proceedings shall stand revived, The Plaintiff has reasserted that in the facts and circumstances on the record preparation of inventory, sealing and locking valuables will preserve and protect the suit property. He has specifically denied that this application has been filed to harass the Defendants in any manner as alleged by Defendant No. 3. It is also stated in the rejoinder that after the death of late Maharaja Rajinder Parkash in the year 1964 various claims and counter claims of the parties have been pending adjudication in various forums and courts in which the father of the Plaintiff and after his death the Plaintiff has been agitating their claims.

I have heard learned Counsel for parties and gone through the record. Sh. Tikku learned Counsel appearing on behalf of the Plaintiff urges that in view of the order passed in OMP No. 436 of 1987 which was under Order 39 Rules 1 and 2 Code of Civil Procedure, prima facie case in favour of the Plaintiff stands admitted by Defendants 1 to 3. He further submits that if the Plaintiff has a right to partition the suit property including the movabies, appointment of local commissioner to prepare the inventory of all movable goods lying in strong room/Tosh Khana of Royal Palace at Nahan and other places and sealing and locking the same will not in any manner prejudice Defendants 1 to 3, rather it will be in the interest of both the parties. According to Shri Tikku learned Counsel it has been prima facie shown by the Plaintiff that goods enumerated in Schedule, I,III and IV did exist at the time of death of Maharaja Rajinder Parkash as list of gold articles was submitted under Gold Control Order and list of all the movables was tendered before Estate Duty Officer which form part of public record.

On the other hand Shri Chhabil Dass learned Counsel for Defendants 1, 2 and 4 and Shri Jain learned Counsel for Defendant No. 3 have submitted that Plaintiff must show prima facie case in his favour that the property which has been made subject matter of the present suit is joint property and he has a share in it. According to them, at the time of passing order dated 4.7.1992 in OMP No. 436 of 1987 neither this Court has adjudicated upon merit nor Defendants 1 to 4 admitted that there is prima facie case in favour of the Plaintiff. The undertaking given on behalf of Defendants 1 to 4 was only to arrive at some arrangement during the pendency of suit. Mr. Jain has further urged that the present application has been filed with malafide intention to get fishing enquiry made in respect of movables left by Late Maharaja Rajender Prakash and if the prayer sought for is granted, there will be abuse of the process of the Court. The list of movables annexed with the plaint as Schedules I,III and IV is imaginary as the Plaintiff has himself admitted that he had no access to places where the movables are kept according to him. Defendant No. 3 has denied the existence of movable goods as alleged by the Plaintiff. Therefore, unless the Plaintiff proves their existence by adducing evidence, local commissioner cannot be appointed for preparing the inventory of these goods, as prayed by the Plaintiff. Pt. Om Prakash, appearing vice Shri K.S. Patyal learned Counsel for Defendants 5 to 10, has also supported the application.

This Court finds substance in the submissions made on behalf of Defendants 1 to 4 that while passing order dated 4.7.1992 in OMP No. 436 of 1987 this Court did not adjudicate on merit whether the Plaintiff has prima facie case or not. It is also correct that undertaking on behalf of Defendants 1 to 4 was given for the purpose of interim arrangement during the pendency of suit and it did not mean that they had admitted that the Plaintiff has prima facie case. Moreover, in OMP No. 436 of 1987 interim order was sought in respect of immovable properties only though the words ''property in dispute'' has been used therein.

So far Order 26 Rule 9 CPC is concerned, from its language it is very clear that the Court is to exercise its judicial discretion to issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court, if it deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or for ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits. In the present application. the Plaintiff has tried to make out a case for issuing a commission for making inventory of immovable goods belonging to Late Maharaja Rajinder Parkash and to put them in safe custody, which may fall under the purpose of elucidating any matter in dispute. But this Court does not deem local investigation requisite or proper at this stage in the peculiar facts and circumstances of this case. No arguments have been addressed on behalf of the Plaintiff to show that he has a prima facie case and only reliance has been placed on the order dated 4.7.1992 passed in OMP No. .436 of 1987. Except the pleadings, no material is pointed out existing on record on behalf of the Plaintiff to show, even prima - facie, that suit property including the movable goods which is subject matter of the present suit is joint between him and Defendants 1 to 3 and he has a right to get its share. From the documents filed on behalf of Plaintiff it appears that in various forums and courts, the father of the Plaintiff and after his death the Plaintiff has been agitating their claim, in respect of immovable property of Late Maharaja Rajender Parkash but for moveable goods it is for the first time that the present suit has been filed. Besides the Claim of Plaintiff to the moveables, existence of these moveable goods is seriously in dispute, which the Plaintiff has yet to prove by adducing evidence. The question of identification of these goods and their preservation and protection will arise later. Without prima facie showing that these moveables are joint property and not individual property of Defendants 1 to 3 as claimed by them and he has a share in it, the local investigation as prayed by Plaintiff cannot be ordered.

Local investigation can be ordered at an early stage also but it depends upon nature of the controversy involved in the suit. If the dispute is simply in respect of identification, location, and measurement of land or premises or object, which can be best ascertained on the spot instead of adducing evidence, local investigation should be ordered at an early stage so that parties are aware of the report of the commissioner and go to trial prepared. The dispute in the present case is not of that nature and the purpose of filing the Present application seems to be to collect evidence which the Plaintiff should produce in the Court. Local investigation cannot be ordered to collect evidence for either party.

Therefore, in the peculiar type of dispute arising in the present case and also in the facts and circumstances on record, this Court does not deem it requisite or proper to appoint commissioner to prepare inventory of moveable goods alleged to have been lying in Royal Palace at Nahan and other places as stand in the prayer clause of this application, at this stage. Hence, the application is rejected.