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2007 DIGILAW 1054 (DEL)

MANOHAR LAL v. MANJIT KAUR

2007-05-17

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) THE matter has been passed over once and called for the second time. Neither the counsel for defendant no. 1 nor defendant no. 1 is present in Court. ( 2 ) ON 22. 2. 2007 a direction was issued for the defendants to remain present in court for recording of statement under Order 10 Rule 2 CPC and the matter was listed on 3. 4. 2007. On 3. 4. 2007 again learned counsel for defendant no. 1 stated that defendant no. 1 was out of country and would be back only by 15. 5. 2007. It was on these circumstances the matter was adjourned for today for recording statement of defendant no. 1 under Order 10 Rule 2 CPC. As noticed above, the said defendant is not present in Court for examination. ( 3 ) IN order to appreciate the consequences of the failure of defendant no. 1 to appear for recording of statement under Order 10 Rule 2 CPC, it is necessary to reproduce the relevant provision, which is as under: "o. X R. 4 " Consequence of refusal or inability of pleader to answer-- (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the court [may postpone the hearing of the suit to a day not later than seven days from the date of first hearing] and direct that such party shall appear in person on such day. (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. " ( 4 ) A reading of the aforesaid provision shows that the failure of defendant no. 1 to appear in person on the date where a party refuses or is unable to so appear, the court may postpone the hearing of the suit to a day not later than seven days from the date of the first hearing. " ( 4 ) A reading of the aforesaid provision shows that the failure of defendant no. 1 to appear in person on the date where a party refuses or is unable to so appear, the court may postpone the hearing of the suit to a day not later than seven days from the date of the first hearing. In the present case, a longer adjournment was granted on 3. 4. 2007 in view of the request of learned counsel for defendant no. 1. Defendant no. 1 is still not present. Thus, sub-rule (2) of rule (4) would come into play and the Court is entitled to pronounce judgment against defendant no. 1. ( 5 ) DEFENDANTS no. 2 to 7 have already been proceeded ex parte. ( 6 ) AT this stage, learned counsel for defendant no. 1 appears and states that he is receiving no instructions. ( 7 ) THE plaintiff has filed a suit for declaration and partition. The plaintiff's father late Shri Jiwandass was stated to be residing in West Pakistan prior to the Partition of the country. The father of the plaintiff is stated to have passed away on account of the Partition and his elder brother Shri Siri Ram singh was acting as the Karta of the joint family. The subject matter of the suit is Quarter bearing No. 15/4, AB, Tilak Nagar, New Delhi which was allotted by the Rehabilitation Department in the name of Shri Siri Ram Singh, who was the elder brother of the plaintiff. It is claimed that the funds for purchase of the said quarter came from the verified claims of the ancestral properties left behind by the families in West Pakistan. The plaint goes on to state that in view of the size of the family being more than five and as per the then prevalent policy for allotment of such houses depending upon the size of the family, two quarters were allotted and that is why the property No. 15/4, AB tilak Nagar, New Delhi consist of two quarters. Apart from the suit property, shop bearing No. 24, Old Market, Tilak Nagar, New Delhi was also allotted by the rehabilitation Department. ( 8 ) SHRI Siri Ram Singh is stated to have gone to United Kingdom for business and settled there. He subsequently passed away leaving behind his widow, two sons and three daughters. Apart from the suit property, shop bearing No. 24, Old Market, Tilak Nagar, New Delhi was also allotted by the rehabilitation Department. ( 8 ) SHRI Siri Ram Singh is stated to have gone to United Kingdom for business and settled there. He subsequently passed away leaving behind his widow, two sons and three daughters. The plaintiff's another brother also passed away leaving behind the legal representatives. Shri Malik Ram, one more brother of the plaintiff settled down in the United States. ( 9 ) THE grievance arises on account of the fact that after the demise of Shri Siri ram Singh, his widow, Smt. Manjit Kaur, defendant no. 1, is stated to have fabricated a Will alleging to have been executed by late Shri Sri Ram Singh and on the basis of the Will filed a probate petition in the United Kingdom. Not only that, probate petitions were also filed before this Court. It is the case of the plaintiff that the grant of probates would make no difference since the will could only bequeath which was owned by late Shri Siri Ram Singh and not the share of the other parties. This is so since the property is stated to be owned by all the original children of late Shri Jiwandass in equal share being purchased from the compensation claims received on the Partition of the country. The properties are stated to have been held by late Shri Siri Ram Singh on behalf of the joint Hindu family. The plaintiff, thus, claimed 1/6 share in the properties. ( 10 ) IT is in view of the aforesaid that the plaintiff has filed the suit for declaration and partition. ( 11 ) DEFENDANTS no. 2 to 7 never contested the matter and defendant no. 1, as stated above, has failed to appear for recording of his statement under Order 10 Rule 2 cpc. The claim of the plaintiff, thus, remains unrebutted. It is also apparent that though the properties were purchased in the name of late Shri Siri Ram singh, the consideration for the purchase arose out of the claims lodged with the Rehabilitation Department on the Partition of the country and the migration of the family of the plaintiff to Delhi. The claim of the plaintiff, thus, remains unrebutted. It is also apparent that though the properties were purchased in the name of late Shri Siri Ram singh, the consideration for the purchase arose out of the claims lodged with the Rehabilitation Department on the Partition of the country and the migration of the family of the plaintiff to Delhi. ( 12 ) A decree of declaration is, thus, passed declaring the plaintiff to be the co-owner/co-sharer in Property No. 15/4, AB, Tilak Nagar, New Delhi and in Shop bearing No. 24, Old Market, Tilak Nagar to the extent of 1/6th share. A preliminary decree for partition is passed for partition of the said two properties with plaintiff having 1/6th share. The defendant no. 1 will be entitled to 1/6th share, defendants no. 2 to 1/6th share, defendants no. 3 to 5 to 1/6 share, defendant no. 6 to 1/6th share and defendant no. 7 to 1/6th share. ( 13 ) MR. Arjun Pant, Advocate, K-40, Hauz Khas Enclave, New Delhi-16; Tel. No. 41745466 / Mob. No. 9811071260 is appointed as the local commissioner to suggest the mode of partition of the aforesaid two properties. The fee of the local commissioner shall be Rs. 25,000/-, to be initially borne by the plaintiff to form a part of the main cause.