Sh. Chitta Ranjan Das & Ors v. Smt. Jyotsna Das & Ors

RAJIV SAHAI ENDLAW, J. FEBRUARY 19, 2020 "gsr"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 19th February, 2020 + CS(OS) 263/2018 & IA No.7445/2018 (u/O XXXIX R-1&2 CPC) CHITTA RANJAN DAS & ORS ..... Plaintiffs Through: Mr. Nishant Das, Mr. Atul Kumar & Mr. Aayushi Jain, Advs. Versus JYOTSNA DAS & ORS ..... Defendants Through: Mr. Rahul Sarkar, Adv. for D-1 to 3. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The six plaintiffs, viz. (i) Chitta Ranjan Das, (ii) Hari Sadhan Das, (iii) Usha Barman, (iv) Prabha Malo, (v) Pratima Roy and (vi) Kalpana Mondal, being siblings have sued the wife and daughters, namely Jyotsna Das, Sushmita Nandi and Arpita Das, impleaded as defendants no.1 to 3, of their deceased sibling namely Subhash Chandra Das and another sibling viz. Bimal Chandra Das impleaded as defendant no.4, for partition of property No.K-2139, Chittaranjan Park, New Delhi. 2. The suit was entertained and summons thereof ordered to be issued. 3. The defendants no.1 to 3 have filed a joint written statement and are contesting the claim of the plaintiffs, of each of the six plaintiffs, defendants no.1 to 3 together and defendant no.4 having one eighth share each in the property. 4. The defendant no.4 did not appear and was vide order dated 29th November, 2019 proceeded against ex parte. 5. On 29th November, 2019 when the suit came up for framing of issues, the following order was passed: "1. The counsel for the plaintiffs has argued, (i) that this suit is for partition of property No.K-2139, Chitranjan Park, New Delhi which belonged to Sh. Subal Chandra Das, who died leaving four sons and four daughters; (ii) Sh. Subal Chandra Das left a Will, whereunder he put the responsibility of re-development of the property on the four sons and on such re-development not happening, provided for sale of the property and distribution of sale proceeds amongst all the eight children equally; (iii) that though for the purposes of re- development, the four sons got the property mutated in their name but after that there has been a deadlock and re-development has not been possible; and, (iv) the plaintiffs are thus seeking sale of the property. 2. The counsel for the defendants no. 1 to 3 states that once the sisters have given the NOC for mutation, they cannot claim any share in the property. However on enquiry, how NOC for mutation can deprive the sisters of the share which has vested in them by inheritance, the counsel seeks adjournment and on further enquiry states that he will pay costs for the adjournment. 3. The counsel for the defendant no.4 states that the defendant no.4 is not in touch with her and she seeks discharge. 4. Ms. Arushi Arora, Advocate for the defendant no.4 is discharged from appearing for defendant no.4. 5. None has appeared for the defendant no.4, who is proceeded against ex parte. 6. Subject to the defendants no. 1 to 3 paying costs of Rs.20,000/- to the counsel for the plaintiffs, list on 19th February, 2020." 6. The counsel for the defendants no.1 to 3 has referred to Mohinder Kaur Vs. Sardar Sarwan Singh Banda 2008 SCC OnLine Del 1165 and on enquiry states that no appeal was preferred thereagainst. It is his argument, that (i) the property was owned by Subal Chandra Das, father of the six plaintiffs and defendant no.4 and who was father-in-law of defendant no.1 and grandfather of defendants no.2 and 3; (ii) the said Subal Chandra Das died leaving a registered Will dated 25th December, 1994; (iii) the plaintiffs no.3 to 6, being the four daughters of Subal Chandra Das, gave a No Objection Certificate (NOC) for mutation of leasehold rights in the land underneath the property in favour of the four brothers i.e. the plaintiffs no.1 and 2, the predecessor of the defendants no.1 to 3 and the defendant no.4 and in pursuance whereto the leasehold rights in the land underneath the property were mutated in the name of four sons of Subal Chandra Das and not in the name of four daughters; and, (iv) thus, the daughters of Subal Chandra Das, after having gi