Sushil Mohan Saini vs Dr. Inderjit Singh and Others

Valmiki J Mehta, J.—At the outset, I must note that the counsel for the Appellant states that the Appellant is not giving him instructions and therefore he is not in a position to argue the matter.

This case is on the "Regular Board" of this Court since 3.1.2011 and today it is effective item No. 5 on the "Regular Board". I have accordingly perused the record and am proceeding to dispose of the appeal.

By the present regular first appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) challenge is laid to the impugned judgment and decree dated 13.7.2001 whereby the suit of the Respondent No. 1/Plaintiff was decreed for partition and a preliminary decree of partition was passed declaring the Plaintiff/Defendants as 1/8th share owners each in the property bearing No. 3097, Kucha Tara Chand, Darya Ganj, New Delhi-110002.

As per the case set out in the plaint late Shri. Shanti Swaroop Saini was the father of the parties and was the only son Sh. Bihari Lal Saini and on the death of Sh. Bihari Lal Saini, Sh. Shanti Swaroop Saini therefore inherited the subject property and became the owner thereof. On the death of Sh. Shanti Swaroop Saini, the parties to the suit, who are his children, inherited the property in equal shares inasmuch as Sh. Shanti Swaroop Saini died intestate. Plaintiff claimed 1/8th share in the suit property. The limited defences of the Appellant/Defendant No. 1 were under a technical head relating to the valuation of the suit property and also that Defendant No. 3 was not entitled to a share as he had taken a sum of Rs. 10 lac in lieu of his share. The other Defendants did not effectively contest the suit and Defendants No. 6 and 7 being the sisters, specifically stated that they were not contesting the suit.

After the pleadings were complete the trial court framed the following issues.

1) Whether Plaintiff is a co-sharer in the property in question and if so whether he is entitled to decree of partition of the suit property as alleged? OPP

2) Whether Plaintiff is entitled to decree of injunction as prayed? OPP

3) Whether the suit has not been property valued for the purposes of court fees and jurisdiction as alleged? OPD 1 & 2.

4) Whether Defendant No. 3 had taken (ten lakhs) in lieu of his share in the property in question from his father during his lifetime and if so whether due suit is not maintainable? OPD

5) Whether the suit is signed, verified and instituted by duly authorised person on behalf of the Plaintiff as alleged? OPD

6) Relief.

The relevant issues are really issue Nos. 1 and 2 and findings on which are contained in paras 13 and 14 of the impugned judgment and which read as under:

Onus of proving these issues were on the Plaintiff. It is admitted case of the parties that Plaintiff and Defendants are real brothers and sisters and there is property in question was owned by Bihari Lal Saini the grandfather of the parties to the suit. Sh. Bihari Lal was having only one son namely Dr. Shanti Swaroop Saini, the present parties to the suit are sons and daughters of Dr. Shanti Swaroop. The property in question i.e. bearing No. 3097 Kucha Tara Chand, Darya Ganj is measuring 250 sq. yards and is built up property. The property in question was inherited by Sh. Shanti Swaroop Saini from his father Sh. Bihari Lal Saini, he was the exclusive owner of the said property at that time. Being the legal heirs of late Dr. Shanti Swaroop Saini the parties have inherited the property in question jointly in equal shares as Dr. Shanti Swaroop died intestate. After his death the property in question is in the joint possession of parties to the suit. The suit property has not yet been partitioned between the parties to the suit. This position of fact that the property was joint property of Plaintiff and Defendants inherited by their father Dr. Shanti Swaroop Saini who died intestate has been admitted by the parties to the suit except Defendant No. 2 who has taken the plea that there was an arrangement to share the property in the manner detailed above but no such arrangement has been proved on record. Defendant No. 1 has taken the plea that Defendant No. 3 has taken Rs. 10 lakhs during the lifetime of his father as his share in the joint family property and he is not entitled to any share in that property. Though, this fact is not denied by the Plaintiff. He has also made party to the suit as per the case of the Plaintiff he has paid Rs. 10 lakhs to the account of Defendant No. 3 and he later on adjust his account with Defendant No. 3. As property in dispute is joint property of Defendant 1 to Defendant 8 and has not been partitioned as proved on record and Plaintiff being son of Bihari Lal Saini the late owner of property in suit who has died intestate he is a co-sharer in the property in suit and being a co-sharer is entitled to show in property in suit.

I completely agree with the aforesaid finding and conclusion of the trial Court. On the death of Sh. Shanti Swaroop Saini, the parties inherited the property in equal shares as Sh. Shanti Swaroop died intestate and since his death the joint property was not partitioned. The Plaintiff/Respondent No. 1 was rightly held entitled to 1/8th share in the suit property.

In view of above, I do not find any illegality or perversity in the impugned judgment and decree which calls for interference by this Court in appeal. The appeal being devoid of merits is therefore dismissed leaving the parties to bear their own costs. Interim orders stand vacated. Trial court record be sent back.