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2007 DIGILAW 1830 (DEL)

MANJU ARORA(DECEASED) v. SUSHIL ARORA

2007-10-22

MUKUNDAKAM SHARMA, SANJIV KHANNA

body2007
Judgment DR. MUKUNDAKAM SHARMA, CJ : (oral) 1. The present appeal has been filed by the plaintiff aggrieved by the order dated 7-8-2007 passed by the learned Single Judge dismissing the application being I.A. No.8262/2005 under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure. 2. On 13th September, 2005 the plaintiff, now represented by her legal heirs, filed a suit for partition and rendition of accounts against her brothers and sisters. She claimed inheritance and joint ownership in respect of the properties left behind by her late father Sh. Shree Ram Arora and her late mother Smt. Premwati Arora. Sh. Shree Ram Arora had expired on 12-9-1993 and Ms. Premwati Arora had expired on 13-2-1999. Late Sh. Shree Ram Arora had left behind several properties including property bearing No.2/2913, Gali No.15, Shri Ram Colony, Bhola Nath Nagar, Shahdara, Delhi and property located in Khasra No.949/35 measuring 9 bighas at Village Chandrawali, Shahdra, Delhi. The appellant claimed that her mother late Smt. Premwati Arora had left behind property No.4/2938, Shri Ram Colony Bhola Nath Nagar, Shahdara, Delhi, besides Gold, Silver and cash. It was claimed that property 4/2938, Shri Ram Colony, Bhola Nath Nagar, Shahdara, Delhi was a self acquired property of late Smt. Premwati Arora who died intestate. 3.The learned Single Judge on examining the records found that the plaintiff-appellant, namely, Smt. Manju Arora had filed affidavit dated 3rd December, 1993 before Sub-Judge, Delhi in Suit No.224/90 and that had been filed by Sh. Shree Ram Arora against Shri Daulat Ram Khanna for possession of property located at Village Chandrawali, Shahdara, Delhi. In the said affidavit Smt. Manju Arora had declared as under:-“That during the life time, late Shri Siri Ram Arora, my father, had declared that after his death Shri Sushil Kumar and Shri Sunil Kumar, brothers of the deponent, only shall have right in the property in suit and other moveable and immovable properties of late Shri Siri Ram Arora and the deponent, in deference to the wishes of late Shri siri Ram Arora and out of love and affections for her brothers, does not claim any right, title or interest in the property in suit and/or any other property moveable and immovable whatsoever and wheresoever.” 4. It may be relevant to state here that the suit for partition and rendition of accounts was filed in the year 2005. It may be relevant to state here that the suit for partition and rendition of accounts was filed in the year 2005. The learned Single Judge on examination of the records came to the conclusion that the plot No.4/2938 Shri Ram Colony, Shahdara, Delhi, measuring 200 sq. yds. was transferred in favour of Smt. Premwati Arora by Sh. Shree Ram Arora and Mr. Damodar Das by a sale deed dated 5th May, 1972. Further Smt. Premwati Arora by her will dated 31st December, 1998 bequeathed all her properties including immovable property in favour of her sons Sh. Sushil Kumar and Sh. Sunil Kumar Arora. 5. Keeping in view the conduct of the parties especially the affidavit of Ms. Manju Arora dated 3rd December, 1993, the learned Single Judge rightly came to the conclusion that the plaintiff-appellant has not been able to make out a prima facie case for grant of injunction. It may be noted here that the suit for partition and rendition of accounts has been filed in the year 2005, nearly 12 years after the aforesaid affidavit was executed and death of Shri Shree Ram Arora. Keeping in view the conduct of the parties during this period of 12 years and even after the death of Smt. Premwati Arora on 13th February, 1999 till 2005, the tentative conclusion is that the appellant has not been able to make out a prima facie case for grant of interim injunction during the pendency of the suit. The appellant has not challenged and disputed the affidavit filed by her in the Court proceedings in the year 1993. The said affidavit is a clear admission and a pointer to the oral family settlement, whereby the appellant accepted that she had no right in the properties left behind by late Shree Ram Arora. Accordingly, the application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure was rightly dismissed. 6. In view of the facts and circumstances stated above, we feel that the findings of the learned Single Judge require no interference. There is no merit in the present appeal and the same is accordingly dismissed.