Sugam Puri v. Sugandha Sethi and Others

order reads as under: "This is an apphcation jfiled by the plaintiff under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (in short 'CPC'). In the apphcation it is aveired that the plaintiff is entitled to a decree of partition by metes and bounds in respect of the suit property situate at 1-35, Jangpura Extn., New Delhi admeasuring 200 sq. yds (in short 'suit property'). Mi* Gupta says that in view of the averments made in paragraph 2, 3 and 4 of the written statement, in reply to the corresponding paragraphs in the plaint, a preluninary decree on the basis of admission ought to be passed It is Mr Gupta's submission that in the plaint it is specificaUy pleaded that no partition of the suit propeity has taken place. It is submitted that the plaintifl^ who is the sister of defendant nos. 1 and 2, after the death of their parents, is entitled to a 1/3'^ shar e in the suit property. Mr-Agnani, who appears for defendant no.2/non-appHcant, says that there was an understanding and/or settlement between the parties, dming the hfe tune of the parents, whereby defendant no.l was allowed possession and use of first floor of the suit property, while defendant no.2 was allowed possession and use of the gr ound and second floor alongwith roof rights of tire suit property. Mr* Agnani also says that even though notice was issued on the application, he had not filed a reply because the mediation proceedings were on going. The learned cormsel for defendant no.l, however, submits that he does not oppose apphcation filed by the plaintiff I have heard the learned cormsel for the plaintiff. A perusal of the avennent made in the written statement filed by defendant no.2, more particularly paragraph 2, 3 and 4 would show that the averment of the plaintiff that no partition has taken place, is not denied. There is a vague averrnerrt to the effect that there is some understanding and/or settlement arrived at in the CS(OS),Nos.l36/2009 & 2954/2011 pagc No.3 of 12 life time of the parents which enabled defendants to occupy the partitions of the suit property, as indicated hereinabove. In these circumstances, I am of the view that a prehmmaiy facie decree in the matter ought to be passed. It is ordered accordingly. The plaiatifiF and the defendants shall have 1/3*^^ shai'e each, in the suit propeity. In so far as the other submission of Mi* Agnani is concemed that there was no effective opportunity given to file a reply to the captioned apphcation, is not dealt with; as at this stage, Mr Agnani says that he does not wish to press that part of submission. Only to be noted notice was issued in the A application on 26.08.2009. The apphcation was posted on

15.01.2010 when counsel for defendant no.2 was present. The matter was referred to mediation on 17.05.2010. There was no direction issued, staying m the interregnum the process of completion of pleadings in the captioned apphcation."

¶8Thereafter, the matter was refeixed to mediation, which failed. The matter was taken up by the Court from time to time for settlement. Parties also sought time to verify the position of the price of the suit property. However, it appears that mode of partition between the parties could not be resolved. ^

¶9The plaintiff Smt. Sugandha Sethi, however, has informed the Couit orahy many times that she is agreeable if the propeity is sold and she may be given 1/3';'^ share of suit propeity at market price. The second option given by her is that she may be given gi-ound floor in the suit property, which is vacant since the death of her mother, as per oral paitition between the paities in the yeai" 1990.

¶10The defendant No. I Sudhii-Puri is agreeable to the first option that the property be sold in the market, but not agreeable to the second option as he is residing at ground floor these days due to certain family PageNoAofU a dispute. The matter was adjourned many times at the request of defendant No.2 Samii-Puri for taking the JSnal decision about the partition of the suit property without selling, if possible, in case fiinds are an-anged.

¶11In between, son of Samir Puri fded the suit, being CS(OS) No.2954/2011, for paifition, declaration and injunction against the three defendants, namely, Smt. Sugandha Sethi, defendant No.l, her two brothers Mi* Samir Puii (father of Sugam Puri) and Mr Sudhir Puri (uncle of Sugam Puri). The following rehefs ar^e souglit in the said suit: "a) that a prehminaiy decree followed by a final decree of partition be passed in respect of suit property, i.e. house bearing No.35 in Block-I, Jangpura, New Delhi admeasruing about 200 Sq. yds. and the share of the Plaintiff be given and handed over to the Plaintiff; b) that a decree of declaration be passed declaring the said earher suit being CS(OS) No. 136 of 2009 titled Smt. Sugandha Sethi -VS-Shri Sudhir' Puri and another, and the orders including the preliminary decree dated 30^'' July 2010 passed therein, which suit is pending adjudication before this Hon'ble Court, as null and void. I c) that a decree of permanent injunction be passed thereby restraining the Defendants, their respective family members, heirs legal representatives, employees, attomeys, agents, ser-vants etc. fiom selling, transferring, encumbering or creating any charge or any third party interest in the suit property or any part thereof to the deti-iment of the Plaintiff; d) that entire cost of the suit be allowed in favour of the Plaintiff and against the Defendants."

¶12The case of the Sugam Pitri/plamtiff in CS(OS) No.2954/20T1 is that the suit property was not self-acquired property of late Sh. Bipan Page No.S of 12 Chand Puri, his grandfather, but the same is ancestral property of the family. The plaintiff, being the gi eat grandson of late Sh. Rattan Chand Puri, has the right, title, shai'e, claim and interest in the suit property since his birth. He admits that he is residing in the suit property with his father Samh Puii and first time in October 2011 he came to know fi^om his mother that Smt Sugandha Sethi is clauning her share in the suit property. Therefore, cause of action has arisen in his favour. He submits that it is apparent firom the pleadings of the earlier suit filed by Smt. Sugandha Sethi, being CS(OS) No. 136/2009, that his father and uncle have colluded with the plaintiff as they have not contested the said suit in order to help their sister. The said act of his father and uncle is against his interest. He has also pointed out indifferent attitude and behavior of the his father towai^ds his family including him. He submits that since the final decree has not been passed, therefore, he is entitled to his share in the suit property.

¶13Later on, his father Samir Puri filed an application, being LA. No.4998/2012, under Order VII, Rule 11 CPC for rejection of the plaint/CS(OS) No. 136/2009 mainly on the ground that the said suit was not properly valued for the purposes of court fee and jurisdiction and proper and requisite court fee was not paid. The objection was also raised that his sister was not in possession of any of the portions of the property. She had to pay ad-valorem court fee and at least as per her share. According to hun, she valued the suit property at Rs.50 lac in 2009 in her suit, therefore, as per her own admission, her share comes to Rs. 16,33,333/- and she be asked to first pay ad-valorem court fee on this amount. Page No. 6 of 12 -/ /

¶14No reply to this application has been JQled by her. She rehed upon the reply earher fded on the same lines in LA. No. 16223/2009 filed by Sainir Puri. The submission has been made that both the apphcations filed by the defendant No.2 are an abuse of process of law. The plaintiff continues to be in joint possession of the suit property, therefore, the plaint has been coirectly valued for the purpose of court fee and jurisdiction. She has rehed upon the case of Umang Puri v. Lt. CoL Pramode Chandra Puri, decided on 13.04.2009.

¶15As far as the valuation of the property is concerned, the plaintiff submits that the plaintiff is entitled to her 1/3'^'' share as per the market value , of the suit property and not the amount refeiTcd to in the valuation clause in the plaint in the year 2009 and in any case if additional court fee is to be paid at the time of drawing final decree, she will pay as per directions of the Corut.

¶16By way of this common order, I propose to decide the pending apphcations, being LA. No.4998/2012 in CS(OS) No. 136/2009 filed by Samir Puri and LA. No.4831/2012 in CS(OS) No.2954/2011 filed by Smt. Sugandha Sethi. Parties have made their rival submissions.

¶17Since a prehminary decree in tire matter has aheady been passed, I am of the considered view that the apphcations under Order VII Rule 11 and 151 CPC raising the objection about Court fee filed by Sariru-Puri/defendant No.2 in CS(OS) No. 136/2009 are misconceived and are not maintainable as the current valuation of the suit property has to be determined at the tune of passing the final decree, the same have been filed by the defendant No.2 in order to delay the proceedings. The prehminary decree has been passed with the consent of the parties. The page No. 7 of 12 .1^ applications are therefore dismissed with cost of Rs. 10,000/- which shall be deposited by Samir Puri/defendant No.2 in CS(OS) No. 136/2009 with the Delhi High Court Advocates Welfar e Fund within foiir weeks.

¶18The defendant No.l/Smt. Sugandha Sethi in CS(OS) No.2954/2011 has filed an apphcation, being 4831/2012, under Order VII, Rule 11 CPC for rejection of the plaint filed by Sugam Puri, son of Samir Puii for the reasons mentioned in paras 5, 7, 8, 9 and 10 of the apphcation, the same are reproduced below: • I v v "5. After the lapse of 1 year and 2 months after passing prehminary decree and within less than two months after failm e of the mediation (where the present plamtiff has been paificipating), the present plaintiff had filed the suit for partition praying for, inter aha, preliminary decree foUowed by a final decree of partition of the suit property, a declai-ation that the prehminary decree dated 30.07.2010 is nuU and void and consequent injunction. The broad ahegation is that the property in the hands of Bipan Chand Puri was ancestral. He along with his two sons constituted a co-parcenary and the father and the two sons under the Hindu law became entitled to 1/3'^'' share. On the death of Bipan Chand Puri on

07.10.1990 his 1/3'^'^ share devolved on the two sons and the apphcant. Therefore, the apphcant would be entitled to 1/3'^ of the 1/3'^'^ of the father's share and thus she would be entitled to 1/9^'^ shai-e. Therefore, the grant of 1/3*^^ share in the earher suit is null and void.

¶7The matter came up on 27.02.2012 and the matter was adjourned to 15.03.2012. The apphcant respectftiUy submits that the plaint is a frivolous one. There is no cause of action for the plaintiff to file the suit and the plaintiff is haired fi-om filing the suit in view of his participation alongwith his father. The plaintiff has suppressed material facts from this Hon'ble Couit. PageNo.SofU

¶8The claim of the plaintiff that the property held by Bipan Chand Puri was ancestral in his hands is wholly misconceived. The plaintiff does not challenge the finding by this Hon'ble Court, on admission by the parties that there had been no partition. In view of the Sec. 6 of the Hindu Succession Act, 1956 as it has been substituted in 2005, the position that the apphcant would be entitled to 1/3'^'^ cannot at all be disputed. The plaintiff does not refer to the amendment of Sec. 6 of the Hindu Succession Act, 1956 in the hght of the facts admitted.

¶9The plaintiff having participated in the proceedings alongwith his father, has with ulterior motives filed this present suit. The filing of the present suit is apart fi-om being a clear-abuse of the process of law clearly vexatious and fiivolous. The avennents made in the plaint are absolutely false, fiivolous and vexatious. The plaintiff if at all has any grievance, he can only clann any right in the share of his father that may be allotted to him in the final decree proceedings. Making wild allegations, the present plaintiff is trying to delay the proceedings in the earher suit. It is obvious fi-om the facts and circumstances that he has been set up by. his fether Sarnir Puri. The consent given by the brothers and the present plaintiff in the proceedings under Order XII Rule 6 constitutes informed consent. The fact that the present plaintiff was sui generis/major is also of singular-unportance.

¶10It is respectfully submitted that when the parties had in the earher suit admitted that tliere was no will and testament left by Bipan Chand and on the basis that the suit proper-ty had not been par-titioned earher in accordance with law is (by a registered deed of partition) 1/3'^ share had been aUotted to the apphcant. Thrs Hon'ble Court disposed of the application under Order 12 Rule 6 on the facts presented by the parties and on the admission by the parties that there was no partition. Therefore, the present suit is barred under Order XXIII Rule 3A. Therefore, it is respectfiihy submitted that the suit is fiivolous and vexations under Order VII r-ule 11 of Code of Ci-vil Procedm-e, 1908. There is no cause of action. The suit is barred under Plindu law by Sec. 6 of the Hindu Succession Act, 1956 and Order XXIII of the C.P.C. Therefore it is pag^ No.9 of 12 f. respectfully submitted that this Hon'ble Court may be pleased to dismiss the suit under Order VI and reject the plaint under Order VII and dismiss the suit under Order XXTTT C.P.C. and under Sec. 6 of the Hindu Succession Act, 1956 as not maintainable."

¶19Reply to this apphcation was filed by the plaintiff Sugam Puri. No reply was filed by the defendants No.2 and 3. The defendant No.3, who is uncle of the plamtif^ during the hearing of the apphcation, has made his submission that the suit filed by Mr Sugam Puri, son of Samn-Puri, is totally false and fiivolous. He submits that his sister Smt. Sugandha Sethi, his brother Samn* Puri and himself are entitled to 1/3"^ share each of the suit property. He has also no objection if the property is sold at the market price and parties ai'e given 1/3'"'^ share each.

¶20After having gone through the contents of the plaint as well as the avennents made in the apphcation, I am of the considered view that the apphcation filed by defendant No. 1 Smt. Sugandha Sethi is hable to be aUowed for the foUowuig reasons as the suit filed by Sugam Puri is baiTed by law: a) A prehmmary decree in the CS(OS) No. 136/2009 was passed on 30.07.2010. The mam aUegation of the plaintiff Sh. Sugam Pmi is that the properly of his grandfather Sh. Bipan Chand Puri was ancestral property. He along with his two sons constituted co-parcenary and the father and two sons rmder Hindu law became entitled 1/3'^ share. However, the plaintiff does not challenge the finding of this Court or admission of the parties that there had been no partition. In view of Section 6 of the Hindu Succession Act, 1956 as it was p^gg No.lO of 12 substituted in 2005, the position of Smt. Sugandha Sethi would be that she is entitled to share which cannot disputed under these circumstances. b) Smt. Sugandha Sethi and Sh. Sudhir Puii have informed the Court that when the matter was referred to mediation, the plaintiff Sugam Puri had participated in the said proceedings along with his father. The present suit has been fhed by the plaintifi/Sugam Puri at the instance of his father with ulterior motives. He has admitted before Court that he is residing with his father. Further, Sarnir Puri, father of the plaintiflG'Sugam Puri, in his written statement filed in CS(OS) No. 136/209 has nowhere stated that Sh. Bipan Chand Puri had pmchased the suit property in his name from the funds of farmly members nor he has taken the defence which has now been taken by his son. c) It appears to me that the present suit has been filed in order to delay the proceedings for passing the final decree in eariier suit, being CS(OS) No. 136/2009. It is also not denied by the plaintiff that in the earlier suit, a preliminary decree was passed with the consent of the parties. It appears to this Court that the present suit has been filed by the plaintiff at the instance of his father Sh. Samir Puri, who had eaiher given the consent for passing a prelnninaiy decree. He and his father ai'e awaie that preliminaiy decree, which was passed with consent of the paifies, cannot be set aside under the provision of Order XXIII, Rule 3A CPC and no suit is maintainable by Page No. 11 ofl2 Vi y: r a party to the suit unless Jfraud has been played upon the Court or the decree is not passed by competent Court having jurisdiction. Rather, it appears from the conduct of his father and himself that the suit has been filed by him in a way to set aside the preliminary decree passed by this Court which is not permissible in law. Thus, the suit is barred by law under the provision of Oi'der XXIII, Rule 3 A CPC.

¶21For the aforesaid reasons, the apphcation filed by defendant No. 1 is allowed. The plaint is rejected. As the plaintijfi has filed a false and frivolous suit, the same is dismissed with cost of Rs.20,000/- to be deposited by the plaintiff with the Delhi High Couit Advocates Welfaie Fund within foui" weeks. CStOSl No.136/2009

¶22Ml". Kaian Bhaiihoke, Advocate, Mobile No.8826122888 is appointed as a Local Commissioner to verify the suit properties in dispute and to file a report with regard to mode and manner in which the suit properties could be partitioned and also to report the present status of the properties on or before 9*'' July, 2012. The fee of the Local Commissioner is fixed at the fii'st instance at Rs.60,000/- which shall be shared by the parties.

¶23List on 02.05.2012, the date already fixed. MANMOHAN SINGH, J APRIL 10, 2012/jk page No.l2 of 12

'vv- * THE HIGH COURT OF DELHI AT NEW DELHI % Judgment pronounced on: 10.04.2012 + I.A. No.4998/2012 in CStOSl No.136/2009 SUGANDHA SETHI Plaintiff Thi'ough: Ms. N.Shoba with Mi". Sriram J.Thalapathy and Mr. V.Adhimoolam, Advs.. Versus SUDHIR PURI AND ANOTHER Defendants Through: Mr. F.Hasan, Adv. for D-1. Mr. Achin Ai'en, Adv. for D-2. AND + I.A. No.4831/2012 in CStOSl No.2954/2011 SUGAMPURI Plaintiff Thi-ough: Mr. Rajiv Shanna, Adv. Versus SUGANDHA SETHI AND OTHERS Defendants Thi'ough: Ms. N.Shoba with Mi". Srham J. Thalapatliy and Mr. V.Adhimoolain, Advs. for D-1. Mr. Achin Ai"en, Adv. for D-2. Ml". F. Hasan, Adv. for D-3. CORAM:- HON'BLE MR JUSTICE MANMOHAN SINGH MANMOHAN SINGH. J 1. Smt. Sugandha Sethi, wife of Mr Rakesh Sethi, filed the suit bearing No. C.S(OS) 136/2009 for pai"tition against her two real brothers, namely, Sudhir Puri and Samir Puri. PageNo.lofU I 4: 2. The plaintiff and defendants are children of late Sh. Bipan Chand Puri and his wife Smt. Ninnal Puri. Sh. Ratan Chand Puri (father of Sh. Bipan Chand Puri) was granted a lease of 99 years regarding plot of 200 sq. yards in Block-I No.35, Jangpuin Extn., New Delhi, which was registered on 08.05.1958. 3. Sh. Bipan Chand Puri was the absolute owner and he died in the year 1990 leaving behind his widow Smt. Nirmal Pmi, who was suffering fi-om paralysis during her last days and died on 24.10.2008. 4. As per Sugandha Sethi, there was no partition in writing. On the basis of the oral settlement in the year 1990, it was settled that the defendant No. 1 Sudhir Pmi shall own and occupy the entire first floor poition and defendant No.2 Samir Pmi shall have second floor portion besides having rights on the top floor of the suit property. The case of the plaintiff was that the gr'ound floor was left with the mother till she smwived and she had also kept her belongings in the ground floor. 5. Therefore, the suit for partition was filed before this Court along with an interim apphcation. The same was hsted before Comi first time on 20.01.2009. The Comt directed the parties to maintain status qua possession, title and construction of the suit property. 6. Dming the pendency of the suit, the defendant No.2 Samir Puri also filed an application, being I.A. No. 16223/2009, seeking direction against the plaintiff to pay the court fee. The notice of that apphcation was issued. 7. Before filing of the said apphcation, the plaintiff filed an apphcation, being LA. No. 10898/2009, under Order XII, Rule 6 CPC. The said apphcation was heard by the Court on 30.07.2010 and it passed page No.2 of 12 f a preliinLnaiy decree in the matter declaring that the plaintiff and the defendants shall have 1/3'^'' share each in the suit property. The said