KESHO LAL KAPUR v. VINOD KUMAR — 1999 DIGILAW 419 (DEL)

Dr. M. K. Sharma, J: ( 1 ) BY this tommon order, I propose to dispose of the applications registered as LA. Nos. 10553/1998 and 2003/1999. ( 2 ) I. A. No. 10553/1998 was registered on the basis of an application filed by the defendants under Order 12 Rule 6 Civil Procedure Code praying for a passing of a preliminary decree for partition in view of admissions of both the plaintiffs and also of the defendants that plaintiff No. l and defendant No. l have one-third share each in the suit premises and that plaintiffs No. 2 and 3 have one-sixth share each in the two suit properties. In the aforesaid application, it is also prayed that a Local Commissioner be appointed for suggesting mode and manner of partition of the suit properties on the basis of the share of the partics. ( 3 ) SUBSEQUENT thereto, another application was filed by the plaintiffs registered as I. A. No. 2003/1999 under order 6 Rule 17 Civil Procedure Code read with Section 22 of the Specific Relief Act, seeking for amendment of the plaint. ( 4 ) REPLIES to the aforesaid applications were filed by the respective parties and I also heard arguments of the learned counsel appearing for the parties on the said two application and l propose to dispose of the same by this common order. ( 5 ) THE present suit was instituted by the plaintiffs seeking for a decree for partition separating the shares of the plaintiffs by metes and bounds and also for a decree for rendition of account and also for injunction. The plaintiffs in paragraph I of the plaint has stated that House No. K-30, Lajpat Nagar-II, New Delhi, was allotted in 1950 initially in the name of Smt. Durga Devi Kapur, who is the mother of plaintiff No. l, mother-in-law of plaintiff No. 2 and grand mother of plaintiff No. 3 and also the mother of defendant No. 1. The plaintiffs in paragraph I of the plaint has stated that House No. K-30, Lajpat Nagar-II, New Delhi, was allotted in 1950 initially in the name of Smt. Durga Devi Kapur, who is the mother of plaintiff No. l, mother-in-law of plaintiff No. 2 and grand mother of plaintiff No. 3 and also the mother of defendant No. 1. ( 6 ) IT is indicated from the pleadings of the parties that Smt Durga Devi Kapur had three sons, namely, plaintiff No. l, Shri Har Krishan Lal Kapur, now deceased, who was the husband of plaintiff No. 2 and father of plaintiff No. 3 and Shrivinod Kapur, defendant No. l. It is also staled in the said paragraph that other suit properly, namely, Shop No. 4 at Jangpura Extension, New Delhi, was allotted in the name of Shri Jawanda Ram Kapur, now deceased, who was the father of plaintiff and defendant No. l and late Har Krishan Lal Kapur. It is also alleged in the plaint that immediately after the death of father of the parties in January, 1968, there was anoral partition sometime in 1969 amongst the parties and as agreed to by them in respect of the two properties. According to the said oral partition, plaintiff No. l and Har Krishan Lal Kapur were given half portion each in K-30, Lajpat Nagar-II New Delhi and defendant No. l was given properly Shop No. 4, Jangpura Extension, New Delhi. IT is also alleged in the plaint that since defendant No. l was not abiding by the alleged oral partition, an application for mutation of the said two properties in the name of all the three brothers was made to the competent authority of Ministry of Rehabilitation and thereafter, the Ministry of Rehabilitalion transferred the said properties in the joint names of the three brothers. THUS, it is clear from the averments made in the plaint that although an oral partition. is pleaded in the plaint which allegedly took place after the death of the father, but according to the pleadings in the plaint, defendant No. l did not act upon it. and, therefore, at the instance of all the three brothers, both the properties have been mutated in the joint names and as co-owners. is pleaded in the plaint which allegedly took place after the death of the father, but according to the pleadings in the plaint, defendant No. l did not act upon it. and, therefore, at the instance of all the three brothers, both the properties have been mutated in the joint names and as co-owners. Thus, the claim on alleged oral partition was given up and in the plaint no relief has been sought for and or claimed in respect of the oral partition. ( 7 ) ON the other hand, it has been admilled in the plaint that the said two suit properties. stand transferred in the name of the three brothers by the orders passed by the Ministry of Rehabilitation transferring the Said properties in the joint names of the three brothers. Therefore, it is apparent and crystal clear that it is the case of the plaintiffs themselves that the three brothers became the co-owners of the two properties. ( 8 ) IN paragraph 8 ofthe plaint, it is asserted by the plaintiffs that plaintiff No. l and defendant No. 1 have one-third share each in the suit properties which are two in number and that plaintiffs No. 2 and 3 are jointly entitled to their remaining one-third share in the suit properties being the widow and daughter of late Shri Har Krishan Lal Kapur respectively and being the only legal heirs who inherited his one-third share in the suit properties. ( 9 ) IN the light of the aforesaid pleadings, the plaintiffs have sought for a decree for partition in favour of the plaintiffs and against defendant No. l separating the shares of the plaintiffs by metes and bounds and also for passing a decree for rendition of accounts and also for injunction. ( 10 ) THE defendant No. l has filed a written statement contending, inter alia, that defendant No. l is also agreeable and willing for the partition of the two properties and is also praying for passing of a preliminary decree for partition. ( 10 ) THE defendant No. l has filed a written statement contending, inter alia, that defendant No. l is also agreeable and willing for the partition of the two properties and is also praying for passing of a preliminary decree for partition. ( 11 ) COUNSEL appearing for defendant No. l submitted that since there is an admission on the part of both the plaintiffs and the defendants that plaintiff No. l and defendant No. l have one third share each in the said two properties and plaintiffs No. 2 and 3 have one-sixth share each in the said two properties, a preliminary decree could be passed by this Court declaring that the parties are entitled to the aforesaid shares in the said two properties and thereafter, appointing a Local Commissioner to suggest the mode and manner of partition, so as to enable the Court to pass a final decree in the suit. ( 12 ) COUNSEL appearing for the plaintiffs, however, submitted that the Court has to give effect to the oral partition arrived at amongst the parties in the year 1969 and decree the suit partitioning the properties in terms of the settlement arrived at between the parties which was also acted upon. He submitted that the three sons including plaintiff No. l and defendant No. I who are co-owners of the properties after the death of their father, mutually partitioned their properties by metes and bounds in a particular manner in terms of which, the parties are also in occupation of their respective portion in terms of the aforesaid mutual family settlement and partition entered into between them and, therefore, the suit is to be decreed giving effect to theaforesaid terms and conditions of the family settlement. Counsel further submitted that the plaintiffs have filed an application under Order 6 Rule 17 Civil Procedure Code seeking to incorporate a prayer in the plaint to the aforesaid extent for passing a decree in terms of the mutual family settlement arrived at between the parties. IN the light of the aforesaid submissions of the learned counsel appearing for the parties, let me consider and dispose of both the applications, one by one. IN the light of the aforesaid submissions of the learned counsel appearing for the parties, let me consider and dispose of both the applications, one by one. ( 13 ) SO far the application filed by the plaintiffs seeking for amendment of the plaint is concerned, the plaintiffs in the plaint have alleged that the parties arrived at an oral partition in respect of the two properties whereby, the plaintiff and Har Krishan Lal Kapur, the predecessor-in-interest of the plaintiffs No. 2 and 3 were given half portion each in K-30, Lajpat Nagar-ll, New Delhi and defendant No. l was given the property, namely, Shop No. 4, Jangpura Extension, New Delhi. In the plaint, however, the plaintiffs have also stated that since defendant No. l did not abide by the aforesaid terms and conditions of family partition, an application for mutation of the said properties in the name of all the three brothers was made to the competent authority of Ministry of Rehabilitation and, therefore, the Ministry of Rehabilitation transferred the said properties in the joint names of the three brothers. IT is, thus, admitted by the plaintiffs in the plaint that the two properties stood transferred in the name of three brothers and that the three brothers became coowners of the two properties. The plaintiffs in paragraph 8 of the plaint categorically stated that plaintiff No. I and defendant No. l have one-third share each in the said two properties and plaintiffs No. 2 and 3 have one-sixth share each in the said two properties and in the light of the aforesaid averments made in the plaint, the relief sought for in the plaint is for partitioning of the said two properties by metes and bounds by carving out share of the plaintiffs. ( 14 ) NO relief has been sought for by the plaintiffs in the plaint in respect of any alleged oral partition. Rather, there is admission on behalf of the plaintiffs in the plaint that the said three brothers became co-owners of the said two properties, after transferring the said two properties in the joint names of the three brothers by the Ministry of Rehabilitation. The plaintiffs, therefore, in the plaint have given up their claims on the basis of the alleged oral partition and claimed partition on the basis of the fact that all the three brothers are the co-owners. The plaintiffs, therefore, in the plaint have given up their claims on the basis of the alleged oral partition and claimed partition on the basis of the fact that all the three brothers are the co-owners. ( 15 ) UNDER the garb of filing an application by the plaintiffs under Order 6 Rule 17 CPC, the plaintiffs seek to change the nature and character of the suit by seeking to give effect to the alleged oral partition in respect of which, no relief was sought for in the plaint and which plea according to the plaintiffs themselves in the plaint got superseded in view of the subsequent action on the part of defendant No. l and the Ministry of Rehabilitation transferring the two properties in the name of the three brothers. By the aforesaid amendment sought for by the plaintiffs, the plaintiffs seek to change the nature and character of the suit and making an endeavour to prompt the application filed by defendant No. l seeking for a preliminary decree in view of admissions of the parlies in their pleadings. The purpose of filing the application, in my considered opinion, is to defeat the application filed by defendants under Order 12 Rule 6 CPC. By. seeking to incorporate the amendmention the plaint, the plaintiffs are trying to introduce a case which was sought to be given up in the original plaint filed by the plaintiffs. ( 16 ) THUS, the application filed by the plaintiffs under Order 6 Rule 17 Civil Procedure Code seeking for amendment of the plaint cannot be allowed and the said application stands dismissed. ( 17 ) SO far the application under Order 12 Rule 6 Civil Procedure Code is concerned, paragraph 8 of the plaint clearly states that plaintiff No. l and defendant No. l have one-third share each in the suit properties and plaintiffs No. 2 and 3 are jointly entitled to their remaining one-third share in the suit properties being the widow and daughter of late Shri Har Krishan Lal Kapur respectively and being the only legal heirs who inherited his one-third share in the suit properties. The suit properties are K-30, Lajpat Nagar-II, New Delhi and Shop No. 4, Jangpura Extension, New Delhi. The suit properties are K-30, Lajpat Nagar-II, New Delhi and Shop No. 4, Jangpura Extension, New Delhi. ( 18 ) IN the written statement filed by the defendants, it is stated that defendant No. I is agreeable and willing for partition of the two properties and, therefore, a preliminary decree for partition may be passed. ( 19 ) THUS, there is clear and unequivocal admissions on the part of the parties to the suit in the pleadings filed by them in the present suit that plaintiff No. 1 and defendant No. 1 have one-third share each in the two suit properties whereas, plaintiffs No. 2 and 3 are jointly entitled to their remaining one-third share in the suit properties being the widow and daughter of late Shri Har Krishan Lal Kapur respectively and being the only legal heirs and inherited his one-third share in the suit properties. ( 20 ) IN view of the aforesaid unequivocal and clear admissions on the part of the parties to the suit, in my considered opinion a preliminary decree as sought for by defendant No. l in the present application filed under Order 12 Rule 6 Civil Procedure Code could be passed, which I hereby do. ( 21 ) ACCORDINGLY, a decree is passed declaring that plaintiff No. l and defendant No. l are entitled to one-third share each in the two properties and plaintiffs No. 2 and 3 are entitled to one-sixth share in the said two properties. Having so declared the shares of the parties in the suit in respect of the suit properties, I appoint Mr. Sanjiv Khanna, Advocate, 8, Lawyers Chamber, High Court, New Delhi - 110 003, Phone: 3782512 (Off.) and 2243754,2417479 (Res.) as the Local Commissioner to suggest the mode and manner of partition to the two suit properties. The Local Commissioner shall hear the parties, consider the layout of the two properties and, thereafter decide as to whether the said properties could be partitioned amongst the parties by metes and bounds and if so, in what mode and manner. In that respect, a report shall be submitted by the Local Commissioner. The fee of the Local Commissioner is fixed at Rs. l0,000. 00 , excluding the expenses to be incurred by him in executing the Commission, which shall be equally shared by the parties. In that respect, a report shall be submitted by the Local Commissioner. The fee of the Local Commissioner is fixed at Rs. l0,000. 00 , excluding the expenses to be incurred by him in executing the Commission, which shall be equally shared by the parties. ( 22 ) IN terms of the aforesaid order, both the applications registered as I. A. Nos. 10553/1998 and 2003/1999 stand disposed of.