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2016 DIGILAW 3244 (DEL)

Rajesh Kumar Malhotra v. Shishupal Malhotra

2016-08-23

VIBHU BAKHRU

body2016
ORDER : Mr. Vibhu Bakhru, J. IA No. 5711/2016 (U/O VII Rule 11 CPC) 1. This is an application filed on behalf of the defendant under Order 7, Rule 11 CPC, inter alia, praying that the suit be dismissed. 2. The learned counsel appearing for the defendant/applicant submits that the present suit is premised on the basis that the Will propounded by the defendant is invalid and further on the basis that the properties sought to be partitioned were purchased from the funds generated from the joint ancestral business. The learned counsel for the applicant has drawn the attention of this Court to the following pleadings:- “(3)……..It is submitted that the suit property was purchased by Shri Brij Lal Malhotra from his share/funds obtained from the ancestral business which was carried out under the name and style of M/s. L.C Textile Mills at Shastri Market, Amritsar, Punjab. xxxx xxxx xxxx xxxx (5)……it is submitted that all the funds were invested and spent from the common ancestral fund which the parents of Plaintiff and Defendant obtained from the joint ancestral business at Amritsar Punjab. (6)……….. it is submitted that the parents of Plaintiff and Defendant had spend an amount of Rs. 11,90,000/- (Rupees Eleven Lakhs Ninety Thousand Only) i.e. Rs. 5,90,000/- (Rupees Five Lakh Ninety Thousand Only) in purchasing of plot and Rs. 6,00,000/- (Rupees Six Lakh Only) in construction of plot. It is submitted that all the funds were invested and spent from the common ancestral funds which the parents of Plaintiff and Defendant had obtained from the joint ancestral business carried out at Amritsar, Punjab.” 3. He submits that apart from the aforesaid pleadings, the plaintiff has not made any specific averments or provided any material particulars to sustain a claim of the suit properties being joint HUF properties. He further referred to a decision of this Court in Neelam & Anr. v. Sada Ram & Ors.: CS(OS) 823/2010, decided on 30.01.2013 in support of his contention that there is a difference between coparcenary or HUF Properties and ancestral properties. He further referred to a decision of this court in Sunny (Minor) & Anr. v. Sh. He further referred to a decision of this Court in Neelam & Anr. v. Sada Ram & Ors.: CS(OS) 823/2010, decided on 30.01.2013 in support of his contention that there is a difference between coparcenary or HUF Properties and ancestral properties. He further referred to a decision of this court in Sunny (Minor) & Anr. v. Sh. Raj Singh & Ors.: 225 (2015) DLT 211 and on the strength of the said decision, submitted that in the event, the plaintiff seeks to set up a case of coparcenary or joint HUF properties acquired after 1956 (that is, after the Hindu Succession Act,1956 came into force), it would be necessary for the plaintiff to plead necessary particulars to indicate that the properties purchased were given the character of an HUF property and merely making a statement that properties were purchased from ancestral HUF funds would not be sufficient. 4. The learned counsel for the applicant further submitted that the principal dispute in the present suit revolves around the validity of the Will of Late father of the parties and a testamentary case for probate of the said Will - bearing no PC-99A/2011 titled as Shishu Kumar Malhotra v. State and Ors. – which is pending before the Court of Dr. Shahbuddin, learned ADJ, Rohini. He submits that the issue whether the Will in question is valid or not would be decided in that proceeding. 5. Learned counsel appearing for the plaintiff/non-applicant submits that apart from the issue as to the validity of the Will, the plaintiff has also made other claims; in particular, the plaintiff has claimed that there was an oral partition of the property bearing No. 1269, Mukherjee Nagar and in addition, the plaintiff has also claimed partition of the properties as well as the rendition of accounts. 6. It is apparent from the above that although the applicant's contention that the plaint is bereft of the relevant particulars may have some merit, nonetheless, the suit cannot be dismissed. This is so as the plaintiff is claiming that dehors the claim that the suit properties were acquired from ancestral funds and were HUF properties, the plaintiff would be entitled to partition of the suit properties even if the suit properties are held to be the self acquired properties of the plaintiff's predecessors. This is so as the plaintiff is claiming that dehors the claim that the suit properties were acquired from ancestral funds and were HUF properties, the plaintiff would be entitled to partition of the suit properties even if the suit properties are held to be the self acquired properties of the plaintiff's predecessors. Indisputably, the plaintiff would be entitled to a share in the suit properties, if the Will in question propounded by the defendant/applicant is found to be invalid. In the given circumstances, the present application cannot be allowed and is, accordingly, dismissed. CS(OS) 2514/2012 7. Since, it is not disputed that the issue as to the validity of the Will would have a bearing on the outcome of the present suit, the learned counsel for the plaintiff made an oral prayer that the Testamentary Case bearing No. PC No 99A/2011 titled as Shishu Kumar Malhotra v. State and Ors. be transferred to this Court and be clubbed with the present suit. Learned counsel for the defendant has no objection to the aforesaid course. Accordingly, it is directed that the said Probate Case be transferred and clubbed with the present suit. 8. List this Testamentary Case before the Joint Registrar for further proceedings on 03.11.2016. OA No. 304/2015 9. Learned counsel for the plaintiff/appellant does not press the present Appeal. 10. The Appeal is dismissed as not pressed. IA Nos. 14938/2012 (U/O XXXIX Rule 1 & 2 CPC) 11. The order passed on 21.08.2012 is made absolute. However, the learned counsel for the defendant requests that the access to the terrace of the property bearing No.1269, Mukherjee Nagar be not obstructed as that is required to service the utilities. Learned counsel for the plaintiff accepts the same and states that the access of the defendant shall not be obstructed to service any of the utilities maintained at the terrace. 12. Learned counsel for the defendant points out that by the order dated 21.08.2012, the defendant was restrained from alienating the property in question. He submits that the same protection be also afforded to the defendant and said order of status quo be extended to the plaintiff as well. Accordingly, the order dated 21.08.2012 is modified to the extent that the same would be applicable to both, the plaintiff and the defendant. With the aforesaid modification, the said order is made absolute. 13. The application is disposed of. Application dismissed.