Nikhil Batra v. Diwakar Batra & Ors

RAJIV SAHAI ENDLAW, J. APRIL 16, 2019 'gsr'/pp/bs' (Corrected & released on 27th April, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th April, 2019. + CS(OS) 374/2018 & IA No.10091/2018 (u/O XXXIX R-1&2 CPC) NIKHIL BATRA ..... Plaintiff Through: Mr. Vinay Jaidka, Adv. Versus DIWAKAR BATRA & ORS. ..... Defendants Through: Mr. Rahul Gupta, Mr. Shekhar Gupta & Mr. Arav Kapoor, Advs. for D- 1,2&4. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff Nikhil Batra has instituted this suit against (i) Diwakar Batra, (ii) Sudhakar Batra, (iii) Ratnakar Batra, (iv) Divya Batra, and, (v) Bhavna Batra, for partition of property No.A-2/27, Janakpuri, New Delhi pleading that, (a) the aforesaid property was acquired by paternal grandmother Kanta Batra of the plaintiff from the monies received by her husband K.N. Batra i.e. the paternal grandfather of the plaintiff for giving up his share in property F-259, New Rajinder Nagar, Delhi which was the property of the Hindu Undivided Family (HUF) of B.D. Batra being the paternal great grandfather of the plaintiff; (b) B.D. Batra along with his sons K.N. Batra and S.K. Batra born in the years 1924 and 1939 respectively, had migrated from Multan now in Pakistan and in lieu of properties left behind in Pakistan was allotted property No.F-259, New Rajinder Nagar, Delhi which was property of the HUF; (c) B.D. Batra died on 3rd June, 1955 leaving two sons viz. K.N. Batra and S.K. Batra and property No.F-259, New Rajinder Nagar, Delhi belonged to the HUF of K.N.Batra and S.K. Batra; (d) as per mutual settlement between K.N. Batra and S.K. Batra, K.N. Batra in lieu of his share in property No.F-259, New Rajinder Nagar , Delhi took money from S.K. Batra and from the said monies brought property No.A-2/27, Janakpuri, New Delhi in the name of his wife viz. Kanta Batra; (e) Kanta Batra died on 22nd March, 2015 leaving defendants no.1 to 3 as her sons and the plaintiff and defendants no.4 and 5 as her grand children; (f) that since property No.A-2/27, Janakpuri, New Delhi has been bought from the funds received on partition of HUF property F-259, New Rajinder Nagar, Delhi, though in the name of Kanta Batra wife of K.N. Batra, would also be HUF property and the plaintiff by birth would have a share therein. 2. The suit came up before this Court first on 1st August, 2018 when, without recording any reasons as to the maintainability thereof the same was entertained and summons thereof ordered to be issued and status quo regarding title of the property ordered to be maintained. 3. The defendant no.1, for himself and on behalf of defendants no.2 & 4 and the defendant no.3 for himself and on behalf of defendant no.5, appeared before this Court on 30th October, 2018. However none of the defendants filed any written statement and their right to file written statement was closed vide order dated 11th February, 2019. 4. The suit came up before this Court yesterday i.e. 15th April, 2019 when it was the contention of the counsel for the defendants no.1,2&4 that the plaintiff, as per averments in the plaint had no cause of action for the suit for partition and the suit was liable to be dismissed. 5. Adjournment was sought on behalf of the counsel for the plaintiff yesterday and the suit was posted for today. 6. Today, the counsel for the plaintiff has appeared and has been heard on the maintainability of the suit. He contends that since the subject property, being property No.A-2/27, Janakpuri, New Delhi, though in the name of Kanta Batra, paternal grandmother of the plaintiff, was purchased from the funds received by her husband K.N. Batra (who was the paternal grandfather of the plaintiff) for giving up his share in property no. F-259, New Rajinder Nagar, Delhi which was a property of the HUF, the property No.A-2/27, Janakpuri, New Delhi also is property of the HUF and the plaintiff, being the son of defendant no.3 who in turn is the son of K.N. Batra, has a share in the property. 7. The plaintiff, along with the plaint has filed (i) proof of his identity; (ii) copy of the Perpe