Full Judgment Text
Digitally Signed By:DEVANSHU
JOSHI
Signing Date:24.11.2021 17:34:57
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of decision: 23 November, 2021
+ C.R.P. 9/2021
PRADEEP GOYAL DECEASED THROUGH LRS
& ORS. ..... Petitioner
Through: Mr. B.P. Aggarwal, Advocate (M-
9811244148)
versus
SMT SARLA GOYAL DECEASED THROUGH LRS
& ORS. ..... Respondents
Through: Ms. S.C. Singhal, Advocate (M-
9810061558)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done in physical Court. Hybrid mode is
permitted in cases where permission is being sought from the Court.
2. The present petition has been filed challenging the impugned order
dated 23rd October, 2020 passed by the Ld. ADJ-01, South District, Saket,
New Delhi ( hereinafter “Trial Court” ) in CS No.6875/2016 titled “Shri
Pradeep Goyal & Ors. v. Sarla Goyal & Anr.” By the impugned order, the
application under Order XII Rule 6 CPC filed by the Petitioners has
been dismissed by the Trial Court.
3. The said application had been filed in the suit for partition instituted
by the legal heirs of Late Sh. Dharam Pal Goyal and Late Smt. Sarla Goyal.
The said couple had four children, namely, Sh. Pradeep Goyal, Smt. Neera
Aggarwal, Smt. Rekha Gupta and Sh. Sanjay Goyal. Sh. Pradeep Goyal has
already passed away during the pendency of the litigation, and Sh. Sanjay
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Digitally Signed By:DEVANSHU
JOSHI
Signing Date:24.11.2021 17:34:57
Goyal is the pre-deceased son. The application sought a judgment on
admissions to be passed in respect of the immovable assets of Smt. Sarla
Goyal, in view of fact that the four legal heirs are admitted to be owning a
share of 25% each in the moveable assets of Late Smt. Sarla Goyal. The
application has been dismissed by the Trial Court on the ground that a
piecemeal decree ought not to be passed. Further, the Trial Court noted that
the Plaintiffs have neither amended the plaint nor disclosed the entire
movable and immovable assets in question. Thus, the Plaintiffs ought not to
be permitted to pick and choose a part of the claim. The impugned order
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dated 23 October, 2020 reads as under:
“ An application under order 12 rule 6 CPC
has been filed by the plaintiff seeking decree on the
basis of admissions made by the defendant in the
written statement. In the plaint the stand of the plaintiff
is that the defendant no.2 is not entitled to any share in
the properties of deceased Sarla Goyal and the present
application under order 12 rule 6 CPC has been filed
claiming that the defendant no.2 is entitled to I/4th
share as stated by him in his written statement and
counter claim. The plaintiff is seeking a decree by way
of application under order 12 rule 6 CPC on the
averments which is contrary to his pleadings.
During the arguments, counsel for the plaintiff
was asked to either amend his plaint admitting the
share of defendant no.2 or to make a statement
admitting the share of defendant to be 1/4th in the
properties of Late Sarla Goyal.
The defendant has claimed hims share to be
1/4th in the properties of Late Sarla Goyal. The
plaintiff only wants its shares be divided I/4th and rest
of the pleadings. He does not wish to amend.
Moreover, it is claimed by the defendant that there are
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Digitally Signed By:DEVANSHU
JOSHI
Signing Date:24.11.2021 17:34:57
more movable properties of Late Sarla Goyal which
need to be divided, hence plaintiff cannot pick and
chose a part claim. The interest of plaintiff is already
protected by order of Ld. Predecessor of this court.
The present application of the plaintiff under
order 12 rule 6 CPC is hereby dismissed. The plaintiff
has raised a contrary stand in his application to his
pleadings. Dismissed accordingly.
Be listed for PE on 18.02.2021.”
4. Mr. Aggarwal, ld. Counsel appearing for the Petitioners/Plaintiffs
( hereinafter “Plaintiffs” ) submits that since there is no dispute in respect of
the assets listed in Schedule C, which is the admitted asset list of Smt. Sarla
Goyal and the share of 25% to each branch is also acknowledged and hence
the decree qua the said assets is liable to be passed. He further submits that
if there are any other immovable properties of Smt. Sarla Goyal, the decree
qua 1/4th share can also be passed in respect of the said property.
5. On the other hand, Mr. Singhal, ld. Counsel for the
Respondents/Defendants ( hereinafter “Defendants” ) highlights the order
dated 28th January, 2021 passed by this Court, wherein after taking a similar
stand at the time of admission, directions were issued to the Ld. Counsel for
the Plaintiffs for filing of an affidavit disclosing the details concerning both,
movable and immovable assets of Smt. Sarla Goyal. Mr. Singhal, ld.
Counsel points out that the affidavits which have been filed by the Plaintiffs
are completely misleading and contrary to the written statement filed by Sh.
Pradeep Goyal. He specifically points out to the affidavit of Plaintiff No.1-
Sh. Kalpana Goyal, wife of Sh. Pradeep Goyal, wherein she claims that the
status of the demat account in the name of Smt. Sarla Goyal is not known to
her. However, in the written statement, Sh. Pradeep Goyal had clearly
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Digitally Signed By:DEVANSHU
JOSHI
Signing Date:24.11.2021 17:34:57
admitted that he was the nominee in respect of the demat account of Smt.
Sarla Goyal, as also in respect of the account with Punjab National Bank,
and that the same has been encashed. Mr. Singhal, thus, submits that the
Petitioners have not come to the Court with clean hands and are not
disclosing all the facts.
6. Insofar as the legal position in respect of Order XII Rule 6 CPC is
concerned, there is no doubt that even a part-decree can be passed by the
Court in respect of which the claim of the Plaintiff is admitted. However, the
passing of such a decree is discretionary in nature. The Court can definitely
take into account the conduct of the parties and the manner in which the
litigation is panning out.
7. In the present case, the four legal heirs/ their respective families and
their respective families are before the Court seeking partition qua the assets
of their parents. In respect of the immovable property in Soami Nagar, New
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Delhi, there is an alleged Will dated 23 November, 1993 which is relied
upon by one of the parties. Thus, the decree is sought in respect of only the
movable properties of Smt. Sarla Goyal.
8. Insofar as the stand of Sh. Pradeep Goyal in his written statement is
concerned, in response to paragraphs 23A to 23K of the written statement
filed by the Defendant No.2(i) to (iii), the following is stated in the written
statement:
“23A to 23K. In reply to paras 23A to 23 K
of the written statement the plaintiffs repeats
and reiterates each and every statement
made in paras 23A to 23K of the plaint and
disputes and denies anything contrary
thereto or inconsistent therewith. It is
submitted that the plaintiff No.1 being the
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Digitally Signed By:DEVANSHU
JOSHI
Signing Date:24.11.2021 17:34:57
nominee of Late Smt. Sarla Goyal has got
the amount of Rs.5,17,941/79 transmitted to
his account from the Saving Bank Account
of Late Smt. Sarla Goyal with Punjab
National Bank as per the procedure of the
Bank. It is further submitted that the plaintiff
No.1 was the nominee of demat Account
No.10375684 with Standard Chartered
Securities and after the death of Smt. Sarla
Goyal, entire Stock Holding was transmitted
in the Account of plaintiff No.1 as per the
procedure prescribed. As far as the locker
with Punjab Nation Bank, the same was
surrendered by Late Smt. Sarla Goyal
during her life time on dated 30.08.2007. It
is denied that jewellery of more than
Rs.60,00,000/- was left by Smt. Sarla Goyal.
It is submitted that in case the said jewellery
is lying with defendants No.2 (I) to (III),
they are liable to surrender for dividing the
same.”
9. The order dated 28th January, 2021 passed by this Court is clear to the
effect that the affidavit has to disclose if any of the parties had sold or
transferred any assets of Smt. Sarla Goyal. In the said affidavit, a clear
incorrect statement is being made by Plaintiff No.1/Smt. Kalpana Goyal as
regards the status of the demat account of Smt. Sarla Goyal not being known
to her. Paragraph 4 of the said affidavit filed by Smt. Kalpana Goyal is set
out herein below:
“4. That the status of the demat account
in the name of late Smt. Sarla Goyal is not
known, therefore letters through e-mail
dated 05.03.2021 and 30.06.2021 had been
written to the bank seeking information
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Digitally Signed By:DEVANSHU
JOSHI
Signing Date:24.11.2021 17:34:57
relating to the status of the said account, but
no reply has been received from the bank.”
10. The averments in the replication to the written statement filed on
behalf of Plaintiffs before the Trial Court, and in the affidavit filed on behalf
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of the Plaintiff No.1 in compliance with order dated 28 January, 2021 are
clearly in contradistinction with each other. It is clear that the affidavit filed
by the Plaintiff No.1 is not truly disclosing all the correct facts before the
Court. Sh. Pradeep Goyal admitted to have been the nominee of the demat
account and also admitted to have received the benefits therefrom.
Considering that the suit is at the stage of trial, Smt. Kalpana Goyal ought to
have made a fair disclosure with respect to the demat account and the
proceeds therefrom, as also the account with the Punjab National Bank.
Clearly, this Court is of the opinion that there is a withholding of all the
correct facts, in respect of assets of Smt. Sarla Goyal by Plaintiff no.1 Smt.
Kalpana Goyal. Thus, evidence ought to be adduced to ascertain all the
movable and immovable assets of the deceased persons, which are to be
partitioned. Any decree at this stage in respect of some part of the assets
would be inequitable as the Petitioners’ disclosure regarding amounts
already received by them has not yet been made. Under such circumstances,
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this Court is not inclined to interfere with the impugned order dated 23
October, 2020.
11. Accordingly, the petition, along with all pending applications, is
dismissed.
PRATHIBA M. SINGH
JUDGE
NOVEMBER 23, 2021
Rahul/AD
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