Smt. Maluki @ Raj Decd Thr L.Rs. and Others vs Ajay Kumar @ Dev

Valmiki J Mehta, J.—Once again, a request for adjournment is made by learned counsel for the respondent/defendant. On the facts of the case, as stated hereinafter, there is no valid reason to grant an adjournment. I have, therefore, heard learned counsel for the appellants and after perusing the record am proceeding to dispose of the appeal.

The challenge by means of this Regular First Appeal (RFA) filed u/s 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 30.7.2011 by which the trial Court most surprisingly dismissed the suit for partition filed by the plaintiffs being the mother and sisters, against the respondent/brother/defendant, although, the respondent/brother/defendant was ex parte in the trial Court. The trial Court has dismissed the suit for partition and rendition of accounts on the strange reasoning that the appellants failed to prove that they are the legal heirs of late Sh. Nanak Chand, who was the owner of the property. The trial Court has also held that the photocopy of the rent deed, Ex.P1 was exhibited, however, the same cannot be looked into as no witness was called to prove the same.

The trial Court has quite clearly fallen into an error, inasmuch as, surely once the widow and daughters of the deceased come forward and say that they are the legal heirs and lead evidence on that basis, and such evidence is not rebutted, surely such unrebutted evidence has to be believed. I fail to understand that what more, in the facts of the case, were the appellants/plaintiffs required to show that they were the widow and daughters of deceased Sh.Nanak Chand. Further, the trial Court has erred in disbelieving the rent deed which showed the letting out of the property by the respondent/brother merely on the ground that the rent deed, Ex.P1 filed was only a photocopy and, therefore, could not be said to be proved in accordance with law of evidence, inasmuch as, the Supreme Court in the judgment reported as R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, has held that unless an objection is taken to exhibition of the documents at the time when the documents are exhibited, the right to object to such exhibition of documents is waived. In this case, as already stated above, the respondent/defendant was ex parte and, therefore, the trial Court ought to have believed the rent deed, Ex.P1, to which there was no objection to exhibition by any cross-examination.

It may be noted that the mother-Smt. Maluki died intestate after the dismissal of the suit and, therefore, now there are only three legal heirs of deceased Sh.Nanak Chand i.e. two daughters being appellants/plaintiffs and one son/defendant/respondent.

Accordingly, it is held that each of the appellants/sisters/plaintiffs will have 1/3rd ownership share each in the suit property bearing No. 2/124, Jheel Khurenja, Delhi, situated in a plot admeasuring 100 sq. yds. The respondent/defendant will be entitled to 1/3rd ownership interest in the property. The respondent/defendant will be bound to render accounts of rent received by him from letting out the portion of the suit property for a period of three years prior to filing of the suit.

In view of the above, the present appeal is accepted. The impugned judgment and decree dated 30.7.2011 is set aside. The suit of the appellants/plaintiffs for partition and rendition of accounts is decreed. A preliminary decree for partition is accordingly passed declaring each of the parties as 1/3rd co-owners in the aforesaid suit property. The respondent/defendant will also be liable to render accounts.

The trial Court will pursuant to today''s judgment take further steps for passing a final decree for partition and including the aspect of the respondent/defendant for rendering of accounts.

In the facts of the present case in view of the ratio of the recent judgment of the Supreme Court reported as Rameshwari Devi and Others Vs. Nirmala Devi and Others, , I find that it is a fit case for imposition of costs at Rs. 10,000/- on the respondent/defendant/brother.

A copy of this judgment alongwith the impugned judgment be sent to the Chairman of the committee of the Inspecting Judges of the relevant year of the Judicial Officer who has passed the impugned judgment.

Appellant to appear before the District Judge, Karkardooma Court, Delhi on 6th March, 2012, and on which date the District Judge will mark the suit for disposal to a competent Court for taking further steps for passing of a final decree for partition and rendition of accounts in accordance with law. Trial Court record be sent back.