Manoj Jain vs Smt. Krishna Jain and Others

Valmiki J Mehta, J.—In this case, evidence of both the parties was completed and which is recorded in the order dated 26.4.2010. By the order of that date, the case was listed in the category of ''Finals''. The suit thereafter came out from the category of ''Finals'' because the defendant no.2 made an application for discovery and production of certain documents and which was allowed by the order dated 7.4.2011. The application for discovery and production was filed on the basis that the plaintiff had with him certain properties, namely shares and securities, of which account must be rendered by the plaintiff. The plaintiff in terms of the order dated 7.4.2011 has filed compliance affidavit, which however according to the defendant No.2 does not comply with the order dated 7.4.2011. The plaintiff has thereafter moved an application being I.A. No. 10353/2012 for directions to certain companies to give the present status of the shares, so that better particulars can be given with respect to the shares and securities details of which were ordered to be filed by the plaintiff pursuant to the order dated 7.4.2011. I am not taking up the issues of the compliance of the order dated 7.4.2011 and I.A. No.1035/2012 filed by the plaintiff inasmuch as these aspects are being covered as per the judgment being passed hereinafter. In my opinion, once the suit is ripe for final arguments, the filing of repeated applications by one party or the other should not be permitted and the suit itself should be disposed of when the same very much can be. Considering the facts of the present case, which I am stating hereinafter, and which will not even require evidence of the parties to be referred to, I wanted to hear and dispose of the suit, but, when I put this to the counsel for defendant no.2, he states that the Court can pass any order. I have failed to understand this sort of attitude inasmuch as the counsel for the plaintiff agrees that the suit can be disposed of in terms of the stand taken by the defendant nos. 2 to 4 themselves in their written statement. Plaintiff also accepts that the plaintiff is liable to render accounts with respect to the shares and securities as aforementioned. I therefore refuse to subscribe to the manner in which adjournments are sought in suits which can be disposed of on the admitted basis, and which in any case are ripe for final arguments and were in fact in the recent past put in the ''Finals'' category.

The present suit is a suit for partition and rendition of accounts. The parties to the present suit are the legal heirs of late Sh. Lakhpat Rai. Plaintiff and defendant nos. 2 to 4 are the sons of late Sh. Lakhpat Rai and defendant nos. 5 and 6 are the daughters of late Sh. Lakhpat Rai. Defendant No.1 is the widow of late Sh. Lakhpat Rai. The main dispute is with regard to the immovable property bearing no. C-9, NDSE Part-II, New Delhi admeasuring 500 sq. yards. The plaintiff has essentially claimed partition with respect to this property on the ground that the property was the property of the father. Plaintiff also in the plaint made averments with respect to the fact that at one point of time an HUF business known as Lakhpat Rai and Sons HUF came into existence and if any movables thereof exist the same also be dealt with in the present suit.

Defendant nos. 2 to 4 in the written statement denied the case as set up in the plaint that the father was the owner in his individual right of the property bearing no. C-9, NDSE Part-II, New Delhi. The defendant nos. 2 to 4 laid out a case that the suit property was HUF property.

Learned counsel for the plaintiff argues that let the case of the defendant nos. 2 to 4 as pleaded in the written statement be accepted that the property is a HUF property. Learned counsel for the plaintiff further argues that since after amendment of Section 6 of the Hindu Succession Act, 1956 by Act 39 of 2005 w.e.f. 9.9.2005, the daughters have an equal right to that of the son in the HUF property therefore the suit can be decreed by passing a preliminary decree giving the daughters also their shares of the properties, and only because of which issue/dispute the suit remains pending.

Learned counsel for the plaintiff has in my opinion rightly relied upon Section 6(1) of the said Act which specifically provides that now daughters will have an equal share as a male coparcener in the HUF properties. Therefore in my opinion once we accept the admitted case of defendant nos. 2 to 4 in their written statement that there was a HUF, the suit accordingly will have to be decreed on that accepted basis that there was a HUF of which father late Sh. Lakhpat Rai was the karta, the plaintiff and defendant nos. 2 to 4 (sons) were male coparceners and defendant nos. 5 and 6 (daughters of Sh. Lakhpat Rai) and defendant No.1/mother would be the family members of the HUF and all the parties to the suit have an equal share in the properties of the HUF, including the house C-9, NPSE-II, New Delhi.

In view of the above, in my opinion, there are really no disputed questions of fact which require any adjudication, once we accept the admitted stand of the defendant nos. 2 to 4 in their written statement. I, therefore, hold that a preliminary decree is liable to be passed, and I hereby pass such a preliminary decree declaring that the plaintiff and the defendants each will have 1/7th share in the HUF properties including in the house No. C-9, NDSE Part-II, New Delhi. Counsel for the plaintiff also agrees to that the plaintiff will render accounts with respect to the shares and securities in possession of the plaintiff and as ordered against the plaintiff vide order dated 7.4.2011. Counsel for the plaintiff states that an affidavit which has been filed disclosing the details of the shares and securities, will have to be followed up further, inasmuch as, the present status of certain shares would be with the Registrar of the companies with respect to the shares of those companies. This aspect of rendition of accounts by the plaintiff with respect to the shares and securities, in power and possession of the plaintiff, will be done by the plaintiff before the Local Commissioner whom I propose to appoint and the plaintiff will be considered as the person liable to render accounts with respect to the shares and securities of the HUF which were in his power and possession. I may also state that the defendant no.1will also be an accounting party jointly with the plaintiff with respect to the aforesaid shares and securities inasmuch as the defendant no.1/ mother is also the holder of almost all the shares and securities. Counsel for defendant no.1 has no objection to this course of action. Issues of existence of HUF and rendition of accounts framed on 6.3.2009 are decided accordingly.

In view of the above, let the registry draw up a preliminary decree declaring that each of the parties to the present suit will have a 1/7th share in the suit property bearing no. C-9, NDSE Part-II, New Delhi and the properties of the HUF. Plaintiff and defendant no.1 are held as accounting parties liable to render accounts with respect to the shares and securities of the HUF in their possession.

The suit property is a residential house and parties are staying in the residential house. Ordinarily, once parties are staying in such a residential house, there should be firstly an endeavour made for partition by metes and bounds of such a house otherwise the parties will be without roof over their head. Partition by metes and bounds is the preferred course of action if the same is possible, and as held by Division Bench of this High Court in the case of Faquira Vs. Raj Rani and Another, .

Accordingly, I appoint Sh. Sudhir Makkar, Advocate, who is present in Court, as a Local Commissioner who will suggest the modes of partition of the aforesaid property bearing no. C-9, NDSE Part-II, New Delhi. The Local Commissioner will visit the aforesaid property, after giving due notice to the counsel for the parties, and after seeing the present status of the property including the portions in possession/occupation/residence of the different shareholders, will suggest ways and means to partition the property by metes and bounds. In case exact division as per the respective shares is not possible, then the Local Commissioner will suggest ways and means to offset any extra area/portion for and against any of the parties. I may also clarify that partition by metes and bounds is really partition of a property in terms of equivalence of the monetary value. The plaintiff and the defendant no.1 will also render accounts before the Local Commissioner. The fees of the Local Commissioner for the present will be at a sum of Rs. 1,10,000/-(Rupees one lakh ten thousand only) in addition to all out of pocket miscellaneous expenses and which will be paid in three parts i.e. 33% by the plaintiff and defendant no.1, 33% by the defendant nos.2 to 4 and 33% jointly by the daughters defendant nos. 5 and 6.

Let a copy of this order be given to the Local Commissioner and the counsel for the parties. Local Commissioner will endeavor to complete the local commission proceedings as expeditiously as possible.

List for directions on 4th October, 2012. Since a preliminary decree has been passed all pending applications stand disposed of and merged in the present judgment.