Ms. Tara Sikand Atwal v. Viraj Sikand & Ors

RAJIV SAHAI ENDLAW, J. APRIL 08, 2019 ‗gsr' (Corrected & released on 22nd April, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th April, 2019 + CS(OS) No.444/2018, IAs No.12262/2018 (u/O XXXIX R-1&2 CPC) & 3769/2019 (u/O VI R-17 CPC). TARA SIKAND ATWAL ..... Plaintiff Through: Mr. Ravi Gupta, Sr. Adv. with Mr. Akhil Sachhar, Mr. Sachin Jain, Ms. Jiya Kapoor & Ms. Sunanda Tulsyan, Advs. Versus VIRAJ SIKAND & ORS. .....Defendants Through: Mr. Gaurav M. Liberhan & Mr. Ankit Jain, Advs. for D-1. Ms. Monisha Handa, Adv. for D- 2&3. Ms. Cauveri Birbal & Mr. Sohan Kumar, Advs. for D-5. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit against (a) Viraj Sikand, (b) Smt. Gita Sikand, (c) Indira Sikand, (d) Vikram Sikand, (e) Sanjay Sikand, for (i) cancellation of registered Relinquishment Deed dated 6th October, 2015; (ii) declaration that the Relinquishment Deed dated 6th October, 2015 executed by defendants no.2 to 5 are not valid and binding on the plaintiff; (iii) partition of property No.98, Sunder Nagar, New Delhi holding the plaintiff to be entitled to 40% share therein; and, (iv) permanent injunction restraining the defendants from alienating, encumbering or otherwise dealing with the property No.98, Sunder Nagar, New Delhi. 2. The suit came up before this Court first on 12th September, 2018 when while issuing summons thereof, vide ex parte ad-interim order the defendants were restrained from dispossessing the plaintiff from property No.98, Sunder Nagar, New Delhi. 3. Finding that the defendant no.4 Vikram Sikand, in the memo of parties itself was described as deceased, vide order dated 17th December, 2018 the defendant no.4 Vikram Sikand was deleted. 4. On 17th December, 2018, on going through the averments in the plaint, it was also prima facie felt that the suit as framed was not maintainable and questions as to the maintainability of the suit were raised and the suit posted to 14th March, 2019 for completion of pleadings and for hearing on the maintainability of the suit and if found to be maintainable, for framing of issues if any in suit. 5. The matter could not be heard on 14th March, 2019 and was adjourned to today. The senior counsel for the plaintiff and the counsel for the defendant no.1 have been heard. 6. The case of the plaintiff is, that (i) properties No.96 and 98, Sunder Nagar, New Delhi were owned by the Hindu Undivided Family (HUF) of which Harnam Dass Sikand was the Karta and the Manager; (ii) vide preliminary decree for partition dated 26th May, 1976 in Suit No.123/1976 of properties No.96 and 98, Sundar Nagar, New Delhi, the share of (a) Harnam Dass Sikand was declared as 1/5th; (b) Ashok Sikand, son of Harnam Dass Sikand was declared as 1/5th; (c) Krishan Sikand, son of Harnam Dass Sikand was declared as 1/5th; (d) Anil Sikand, son of Harnam Dass Sikand was declared as 1/5th; and, (e) Prita Sikand, wife of Harnam Dass Sikand was declared as 1/5th; (ii) Krishan Sikand, son of Harnam Dass Sikand died intestate on 2nd October, 1982 leaving defendant no.5 Sanjay Sikand as his natural heir; (iii) Prita Sikand, wife of Harnam Dass Sikand died intestate on 27th December, 1982; (iv) Ashok Sikand, son of Harnam Dass Sikand died intestate on 5th October, 1983 leaving behind his widow Neira Sikand, plaintiff as his daughter and defendant no.1 as his son; Neira Sikand died intestate leaving plaintiff and defendant no.1 as her heirs; (v) Anil Sikand, son of Harnam Dass Sikand died intestate on 26th August, 2013 leaving defendant no.2 Gita Sikand as his widow and defendant no.3 Indira Sikand as his daughter as his only natural heirs; (vi) Harnam Dass Sikand died on 12th March, 2009 leaving behind a Will dated 21st January, 2009 bequeathing his 1/5th share in property No.96, Sunder Nagar, New Delhi in favour of defendant no.5 Sanjay Sikand and leaving his 1/5th share in property No.98, Sunder Nagar, New Delhi ―in favour of the defendant‖; (vii) in terms of Family Settlement concerning share of Prita Sikand wife of Harnam Dass Sikand in properti